CLR Statutory Interpretation

F.A.R. Bennion (Statute Law, 1990), has identified a number of factors that may cause doubt: 1. The draftsman may refrain from using certain words that he or she regards as necessarily implied. The problem here is that the users may not realise that this is the case. 2. The draftsman may use a broad term ( a word or phrase of wide meaning ) and leave it to the user to judge what situations fall within it.

Bennion cont d
3. Ambiguous words may be used. 4. There may be unforeseeable developments. 5. There are many ways in which the wording may be inadequate. There may be a printing error, a drafting error or another error.

Solutions
General methods of statutory interpretation have been developed by the judges. The Interpretation Act 1978 only provides certain standard definitions of common provisions, eg, he includes she , and thereby enables statutes to be drafted more briefly than otherwise would be the case.

Solutions
Modern statutes commonly include definition sections in which the meaning of words and phrases found in the statute are explained, eg ss2-6 of the Theft Act 1968 explain the elements of the offence in s1. Explanatory Notes have been published for new Acts since 1999.

The Rules of Interpretation

The Literal Rule- i.e. take only the plain, literal meaning of the words used because those are the words the draftsman chose to employ. The Golden Rule- i.e. to try to ascertain what the draftsmen intended by these words by looking at the general purpose of the section and the social, economic or political context; and The Mischief Rule- which directs you to look at the history of the Act or other document to see what is wrong with the law (i.e. what is the mischief? that the draftsman sought to remedy. The Purposive Rule teleological approach as favoured by the judges of the civil jurisdictions. In reality, these rules are nothing more than techniques of reading a document, and may be used singularly or in any combination.

The Literal Rule

By the literal rule, words in a statute must be given their plain, ordinary or literal meaning. The objective of the court is to discover the intention of Parliament as expressed in the words used. This approach will be used even if it produces absurdity or hardship, in which case the remedy is for Parliament to pass an amending statute.

 One of the leading statements of the literal rule was made by Tindal CJ in the Sussex Peerage Case (1844) 11 Cl&Fin 85: the only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver.

Lord Esher in R v Judge of the City of London Court [1892] 1 QB 273 said: If the words of an Act are clear then you must follow them even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity.

 Whiteley v Chappell (1868) LR 4 QB 147. The defendant pretended to be someone who had recently died in order to use that person s vote. It was an offence to personate any person entitled to vote . As dead people cannot vote, the defendant was held not to have committed an offence.

London & North Eastern Railway v Berriman [1946] AC 278.

The claimant s husband was killed while oiling points along a railway line. Compensation was only payable if he had been relaying or repairing the line. The HL held oiling points was maintaining the line and not relaying or repairing .

Cutter v Eagle Star Insurance [1998] 4 All ER 417. The claimant was sitting in his friend s car in a car park and was injured when a can of lighter fuel exploded. The driver was insured, as required by the Road Traffic Act 1988, for injury caused while on a road . The HL held that the car park was not a road because a road provides for cars to move along it to a destination. Therefore, the insurance company was not liable to pay out on the driver s policy because the claimant had not been injured due to the use of the car on a road .

Pros of Literal Interpretation

encourages draftsmen to be precise. respects the words used by Parliament. prevents judges rewriting statute law, which only Parliament can do. Alternative approaches would make it difficult to predict how doubtful provisions might be rewritten by judges.

Cons of Literal Interpretation

Judges have tended excessively to emphasise the literal meaning of statutory provisions without giving due weight to their meaning in wider contexts. assumes that parliamentary draftsmen are perfect. ignores the limitations of language. can lead to absurd or harsh decisions and Parliament has to pass an amending statute.

The Golden Rule

The golden rule provides that if the words used are ambiguous the court should adopt an interpretation which avoids an absurd result. In Grey v Pearson (1857) 6 HL Cas 61, Lord Wensleydale said: the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.

R v Allen (1872) LR 1 CCR 367 The defendant was married and married again. It was an offence for a married person to marry again unless they were widowed or divorced. When caught the defendant argued that he did not commit this offence as the law regarded his second marriage as invalid. The court held that the word marry could also mean a person who goes through a ceremony of marriage and so the defendant was guilty.

Re Sigsworth [1935] Ch 89.

The defendant had murdered his mother. She did not have a will and he stood to inherit her estate as next of kin, by being her issue . The court applied the golden rule and held that issue would not be entitled to inherit where they had killed the deceased.

Adler v George [1964] 2 QB 7.

It was an offence to obstruct HM Forces in the vicinity of a prohibited place. The defendants had obstructed HM Forces in a prohibited place (an army base) and argued that they were not liable. The court found them guilty as in the vicinity of meant near or in the place.

Pros of the Golden Rule

allows judges to avoid absurd or harsh results which would be produced by a literal reading. allows judges to avoid repugnant situations, as in Re Sigsworth.

Cons of the Golden Rule

There is no clear way to test the existence of absurdity, inconsistency or inconvenience, or to measure their quality or extent. Judges can rewrite statute law, which only Parliament is allowed to do.

The Mischief Rule

The mischief rule is contained in Heydon's Case (1584) 3 Co Rep 7, and allows the court to look at the state of the former law in order to discover the mischief in it which the present statute was designed to remedy. The court stated that for the true interpretation of all statutes four things are to be considered:

 1st. What was the common law before the making of the Act. 2nd. What was the mischief and defect for which the common law did not provide. 3rd. What remedy Parliament resolved and appointed to cure the disease. 4th. The true reason of the remedy; and then the function of the judge is to make such construction as shall suppress the mischief and advance the remedy.

Smith v Hughes (1960) 2 All ER 859. Six women had been charged with soliciting in a street or public place for the purpose of prostitution . However, one woman had been on a balcony and others behind the windows of ground floor rooms. The court held they were guilty because the mischief aimed at was people being molested or solicited by prostitutes.

Royal College of Nursing v DHSS [1981] 1 All ER 545. The Abortion Act 1967 allows abortions by a registered medical practitioner . Doctors carried out the first part of the procedure and the second was performed by nurses but without a doctor being present. The HL held (by 3-2) that this procedure was lawful because the mischief Parliament was trying to remedy was back street abortions performed by unqualified people.

Corkery v Carpenter [1951] 1 KB 102

. A person could be arrested if found drunk in charge of a carriage on the highway. The defendant had been arrested for being drunk in charge of a bicycle on the highway. The court held that a bicycle was a carriage for the purposes of the Act because the mischief aimed at was drunken persons on the highway in charge of some form of transport, and so the defendant was properly arrested.

DPP v Bull [1994] 4 All ER 411.

A man had been charged with loitering or soliciting in a street or public place for the purpose of prostitution. The court held that the term prostitute was limited to female prostitutes. The mischief the Street Offences Act 1959 was intended to remedy was a mischief created by women.

Pros of the Mischief Rule

allows judges to put into effect the remedy Parliament chose to cure a problem in the common law. was developed at a time when statutes were a minor source of law; drafting was not as precise as today and before Parliamentary supremacy was established.

Cons of the Mischief Rule

Judges can rewrite statute law, which only parliament is allowed to do. must be possible to discover the mischief in order for this rule to be used.

Purposive Approach
The purposive approach is one that will promote the general legislative purpose underlying the provisions (per Lord Denning MR in Notham v London Borough of Barnet [1978] 1 WLR 220). There will be a comparison of readings of the provision in question based on the literal or grammatical meaning of words with readings based on a purposive approach.

Jones v Tower Boot Co Ltd [1997] 2 All ER 406. The complainant suffered racial abuse at work, which he claimed amounted to racial discrimination for which the employers were liable under s32 of the Race Relations Act 1976. The CA applied the purposive approach and held that the acts of discrimination were committed in the course of employment . Any other interpretation ran counter to the whole legislative scheme and underlying policy of s32.

 Pros gives effect to the true intentions of Parliament. Cons It can only be used if a judge can find Parliament s intention in the statute or Parliamentary material. Judges can rewrite statute law, which only Parliament is allowed to do.

Integrated (or Unified Contextual Approach

Sir Rupert Cross, Statutory Interpretation (3rd ed, 1995), suggested that there was a unified approach to interpretation: (i) The judge begins by using the grammatical and ordinary or technical meaning of the context of the statute; (ii) If this produces an absurd result then the judge may apply any secondary meaning possible; (iii) The judge may imply words into the statute or alter or ignore words to prevent a provision from being unintelligible, unworkable or absurd; and (iv) In applying these rules the judge may resort to various aids and presumptions.

Mandla v Dowell Lee

Controversial instance of statutory interpretation Courts (HL and CA) divided on application of statute and the Race Relations Act
Interpretation of ethnic in respect of Sikhs

Impact of EU Membership
UK s accession to EU altered the standing of parliamentary sovereignty All UK legislation must be interpreted to avoid conflict with EU law ECA 1972, s.2 ECJ adopts a teleological (purposive) approach which appears to have increasingly influenced UK law Is the use of this approach on the increase in UK?

Impact of the Human Rights Act 1998

S.3(1) requires legislation to be read in a way that is compatible with Convention rights so far as it is possible to do so; judges will have this in mind when adopting a purposive approach S.4 where it is not possible to give an interpretation that is compatible with the Convention the higher courts may issue a declaration of incompatibility The declaration will not affect the validity of the statute, its continuing operation or enforcement s.3(2)(b)

HRA
Principles of Human rights are not foreign to English law right to fair trial, freedom of speech, etc Judges are not empowered to strike down legislation that is incompatible this would usurp fundamental constitutional principles, i.e., separation of powers and parliamentary sovereignty