Non-sub: Statutory Interpretation

Question 1

Describe the literal rule

Answer 1

Judge is required to consider what the legislation actually says, not consider what it means.

Lord Esher “If the words of the act are clear, you must follow them, even if they lead to a manifest absurdity”
Judge should give the word in legislation their ordinary Oxford dictionary definition from the time the act is passed

Question 2

Advantages of the literal rule

Answer 2

• Leaves law making to parliament. Parliament sovereignty is respected
• Means solicitors can advise their clients to the most likely outcome of their case because it’s predictable and certain

Question 3

Disadvantages of the literal rule

Answer 3

• Unfair / Unjust decisions leading to bad precedent.
• Ignoring parliaments intention, parliament wouldn’t want absurd results
• Words may have more than one meaning so the act is unclear

Question 4

The golden rule

Answer 4

An extension of the literal rule.
Makes court allowed to avoid interpretation that would lead to absurd results.

Question 5

Narrow application of the golden rule

Answer 5

Where the words are capable of more than one meaning then you can choose between the 2 meaning then you can choose between the 2 meanings.

R V ALLEN - Problems with the wording, a person already married couldn’t marry. Courts took “shall marry” to mean “go through marriage ceremony”

Question 6

Wider application to the golden rule

Answer 6

Where the words have only one meaning but that meaning would lead to an unsatisfactory result

RE SIGSWORTH - stopper son from inheriting estate of his mother that he murdered

Question 7

Advantages of the golden rule

Answer 7

1) Respects the exact working of the parliament except in limited situations with the literal rule.

2) Allows judges to choose most sensible meaning of words

3) Judges are still seem to be applying law upholding the doctrine of the Separation of Powere

Question 8

Disadvantage of the golden rule

Answer 8

• It’s limited in its use, only used in rare occasions
• It’s not always possible to predict when the courts will use it so makes the outcome of cases unpredictable for lawyers to advise clients on whether to pursue a case

Question 9

Mischief rule

Answer 9

Judges fill in the ‘gaps’ in the law.
Attempt to discover the intention of parliament, most flexible rule.

Question 10

Mischief rule makes court consider….

Answer 10

• What was the law before the act was passed
• The judges look at this common law in order to establish what gap or mischief the act was intended to cover
• The court should then interpret the act in such a way that the gap is covered.

First used in HEYDONS case.

SMITH V HUGHES - Street Offences Act, charged with “soliciting in a street or public place”, balcony was interpreted as public place.

Question 11

Advantages of the mischief rule

Answer 11

• Avoids absurdity and injustice of literal rule
• Flexibility
• Allows judges to fill in the gaps

Question 12

Disadvantages of the mischief rule

Answer 12

• Risk of judicial law making which is undemocratic
• Makes law uncertain, impossible to know when a judge may use the rule

Question 13

Purposive approach

Answer 13

Beyond mischief rule, judges decide what they believe parliment meant to achieve, the PURPOSE OF THE ACT.

It is a broad approach that can lead to justice individual case allowing the judges more discretion to avoid absurd results - JONES V TOWER BOOT
Decided the purpose of the act was to eliminate discrimination and this would not be achieved by using the literal rule.

Question 14

Advantages of the purposive approach

Answer 14

• Flexibility
• Allows judges to find the purpose of the legislation
• Changes in society - JONES

Question 15

Disadvantages of the purposive approach

Answer 15

• Risk of judicial law making
• Makes the law uncertain
• Retrospective law making

Question 16

Intrinsic Assistance

Answer 16

Come from within the statute which is the object of interpretation; judges use the full statute to understand the meaning of a particular part of it.
1) Title: Long & Short
Short - just name the act
Long - Give explanation as to what the act is trying to achieve

2) Preamble.
Older statutes usually have a preamble which sets out parliament purpose, modern statutes don’t have them or very brief

Question 17

Extrinsic Assistance

Answer 17

References to sources outside the act itself

1) Dictionaries - used to find literal meaning of word Oxford Dictionary

2) HANSARD - official daily report of parliamentary debates and what was said during introduction of legislation.
PEPPER V HART
“Where the precise meaning of the legislation was uncertain or ambiguous or where the literal meaning would lead to an absurdity”