Statutory Interpretation Flashcards
What is statutory interpretation? Who’s task is it mainly?
Statutory interpretation is the process of determining what Parliament intended when it enacted a piece of legislation. It is primarily a task for judges. They are the ultimate interpreters of the will of Parliament.
Why do lawyers need to be familiar with the principles of statutory interpretation?
So that they can advise clients on how the courts are likely to interpret relevant words in a statute. Traditionally, there were seen to be certain “rules” of statutory interpretation. It is very unlikely nowadays that you will find direct reference to such rules in case law, but it is still necessary to be aware of them as part of the academic stage of your legal studies.
What are the different rules of interpretation?
- The literal rule
- The golden rule
- The mischief rule
- The purposive approach
- The contemporary approach
PC LGM
What is the literal rule?
The simplest of these traditional ‘rules’ is the literal one. This rule or approach is the one principally adopted by judges but not often referred to as such.
It means that the words used in a statute are to be given their ordinary, plain and natural meaning, assisted, if necessary, by such extrinsic aids as a dictionary. The courts will not need to consider further what Parliament might have meant.
The literal rule will require an in-depth consideration of the words and phrases of the statute and how they may fit in with neighbouring sections and the Act as a whole.
The linguistic presumptions (see the end of these slides) will therefore be an important aid for this method of interpretation.
What is the golden rule?
An overly literal application of words can, in some situations, lead to unintended consequences, and so an alternative rule was devised historically to avoid such problems. This was known as the golden rule.
The classic expression of the golden rule is found in River Wear Commissioners v Adamson (1877) 2 App Cas 743:
The golden rule is … that we are to take the whole of the statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification, and to justify the court in putting on them some other signification, which, though less proper, is one which the court thinks the words will bear.’ (Lord Blackburn)
A good example of the application of the golden rule is found in…
Adler v George [1964] 2 QBD 7.
What happened in Adler v George?
The defendant was charged with an offence under section 3 of the Official Secrets Act 1920 of obstructing a member of the armed forces ‘in the vicinity of any prohibited place’.
The defendant was in an RAF station which was a prohibited place for the purposes of the Official Secrets Act.
It was argued on his behalf that ‘in the vicinity of’ meant near to, whereas the obstruction had occurred within the prohibited place and thus fell outside the Act.
Parker LJ stated that it would be ‘absurd’ if it were an offence for an obstruction to take place just outside the RAF station but not where the obstruction took place in the RAF station.
He therefore held that ‘in the vicinity of’ should be read as ‘in or in the vicinity of’.
What is the mischief rule?
The oldest of the ‘rules’, which pre-dates the modern increase in legislation, is the mischief rule. This examines the original purpose of the particular provision under consideration. In Heydon’s Case (1584) 3 Co Rep 79, it was stated that courts must consider four questions when applying the mischief rule:
What was the common law before the making of the Act?
What was the mischief and defect for which the common law did not provide?
What remedy for the mischief had Parliament intended to provide?
What was the true reason for Parliament adopting that remedy?
At the time the mischief rule came into being, the purpose of the statute was always stated in the preamble, so it was easy to identify the mischief from the Act itself. However, today the mischief rule is defunct, and this method of statutory interpretation has now been completely subsumed into the purposive approach.
What is the purposive approach?
This is the most recent ‘rule’ and most accurately reflects how modern judges approach their interpretive task.
In R v Secretary of State for Health ex parte Quintavalle [2003] UKHL 13, Lord Steyn observed (at paragraph 21) that:
‘The pendulum has swung towards purposive methods of construction…’
An approach used by judges to interpret what statutes or laws mean. To look beyond the words of the legislation at the purpose behind it.
It is derivative of the mischief rule (Heydon’s).
You will see later in the course (and notably in Public Law II) that the courts have been given additional powers of interpretation under the Human Rights Act 1998, which allow them, where appropriate, to interpret legislation in a (purposive) way to seek compatibility with the European Convention on Human Rights.
What is the contemporary approach?
Greenberg in Craies on Legislation (11th edition, 2016) at 18.1.2 summarises the ‘instinctive’ approach of modern judges as a combination of the literal and purposive interpretations:
“Judges construing legislation always have and always will instinctively look both at the strict and superficial meaning of the words used and at the underlying purpose of the legislation, normally as a single, and largely subliminal, mental process. It is only in the rare cases where there is a tension between the two that the court needs to turn its mind actively to which should prevail … it is now possible to say that the purposive interpretation will generally prevail where it provides a clear answer, but that otherwise the strict meaning will have to prevail, even if the court is uncomfortable with the result. This unified, ‘contextual’ approach involves not so much a choice between alternative “rules” as a progressive analysis in which the judge first considers the ordinary meaning of the words in the general context of the statute … and then moves on to consider other possibilities where the ordinary meaning leads to an absurd result.”
What are 3 linguistic presumptions?
In addition to these general ‘rules’ or approaches to statutory interpretation, the courts will also apply certain linguistic presumptions or maxims to assist them in interpreting the meaning, and therefore the proper application, of individual provisions in legislation.
The three most often quoted of these maxims are:
- Expressio unius est exclusio alterius (“the expression of one thing is to the exclusion of another’)
- Ejusdem generis (‘of the same kind’)
- Noscitur a sociis (a word is known by its associates)
What is Expressio Unius est Exclusio Alterius?
This phrase means that the express mention of one thing excludes its extension to others. This presumption may be used where there is a list of items with no general words that follow. The presumption is that, because this is a closed list, Parliament intended only to include those items that are stated.
In Tempest v Kilner (1846) 3 CB 249, the Statute of Frauds 1677 required that sale of ‘goods, wares and merchandise’ over £10 in value must be evidenced in writing. The question for the court was whether stocks and shares came within this definition. As only those three types of transaction were mentioned, the court held that only those three transactions were covered; shares were not.
What does Ejusdem generis mean?
Ejusdem generis means ‘of the same kind’ or ‘genus’. It is employed when a statute includes a generic but non-exhaustive list of items, and the interpretive task is to work out whether a particular item would fall within the list.
The presumption is that, where general words follow a list of specific words, the general words are interpreted so as to restrict them to the same kind of objects as the specific words. So, it is necessary to look at the specific words and see what characteristics they have in common. The general words must then include only words with these characteristics.
In Powell v Kempton Park Racecourse [1899] AC 143, a person was betting in Tattersall’s Ring, and the Betting Act 1853, in which the relevant provision contained the phrase; ‘house, office, room or other place’, arose for consideration.
The House of Lords held that the specific words, ‘house, office, room’ were all indoor spaces; and so, the general words ‘other place’ would be taken to refer only to indoor areas. As Tattersall’s Ring was an open area at Kempton Park Racecourse, the defendant did not commit an offence under the Act.
What does Noscitur a Sociis mean?
This maxim states that a word is known by the company it keeps. This means that words of a statute are understood in the context of the statute itself. This could be any part of the statute, not merely the provision (section) under consideration.
This technique is closely associated with ejusdem generis but has wider potential application, as ejusdem generis only applies when general words – usually introduced by the words ‘or other…’ – come at the end of a list.
In Inland Revenue Commissioners v Frere [1965] AC 402, the House of Lords considered the phrase ‘interest, annuities and other annual payments’, contained in s. 169 of the Income Tax Act 1952.
The word ‘other’ at the end of the phrase implied that the first two words (interest and annuities) were also annual. Therefore, the word ‘interest’ was held to mean ‘annual interest’. Noscitur a sociis was used here because it allowed the court to interpret the nature of one of the categories of things included in the legislation.
It is the role of the judiciary to…
… interpret what Parliament intended by the words in legislation.
