1.A.3 - Statutory interpretation Flashcards Preview

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Flashcards in 1.A.3 - Statutory interpretation Deck (163):
1

What is statutory interpretation?

The process by which a judge interprets an unclear piece of law.

2

What are the 4 reasons for statutory interpretation in the English legal system?

1. Evolution of language
2.. Mistakes in drafting
3. New developments
4. Ambiguous and broad terms

3

How does the evolution of language produce a need for statutory interpretation in the English legal system?

The meaning of words changes over time. Words from the past may not mean the same thing today.

4

Give an example of the meaning of an English word which has evolved over time.

"Gay", which used to mean happy but now means homosexual.

5

Explain a case to demonstrate the problems caused by the evolution of language in the English legal system.

Cheeseman v DPP [1990], the meaning of the word "passengers" in the Town Police Clauses Act 1847 had evolved to mean something different when the case arose.

6

How do new developments produce a need for statutory interpretation in the English legal system?

Words may no longer be appropriate due to developments in society causing changing circumstances.

7

What does casus omissus mean?

A situation is not provided for by a statute.

8

Explain a case to demonstrate the problems caused by casus omissus situations in the English legal system.

Royal College of Nursing v DHSS [1981], medical advancements permitted nurses to perform abortions, but the Abortion Act 1967 restricted it to "registered medical practitioners".

9

How do ambiguous and broad terms produce a need for statutory interpretation in the English legal system?

Broad terms are used to allow some flexibility in the law, but this creates scope for interpretation. Ambiguity means that some words have more than one meaning.

10

Explain a case to demonstrate the problems caused by broad and ambiguous terms in statutes in the English legal system.

Brock v DPP [1993], the Dangerous Dogs Act 1991 referred to the word "type" which was held not to be the same as breed.

11

How do mistakes in drafting produce a need for statutory interpretation in the English legal system?

Some Acts are rushed, and words which Parliament did not intend to use may be added. The rushed legislative process may not pick up on this.

12

Explain a case to demonstrate the problems caused by mistakes in drafting statutes in the English legal system.

Fisher v Bell [1961], "offer for sale" had a different meaning in contract law than its everyday use, resulting in something being displayed in a shop window which was yet not being offered for sale.

13

The rules of statutory interpretation are known by what other name?

Rules of construction

14

What synonyms exist for the term "rule"?

"Approach" or "canon"

15

True or False? : Which rule to be applied is at the discretion of the judge.

True

16

True or False? : Most judges consistently use the same rule.

False - Judges pick and choose rules in order to produce the best result.

17

How many rules of statutory interpretation are there?

4

18

What are the 4 rules of statutory interpretation?

1. The literal rule
2. The golden rule
3. The mischief rule
4. The purposive approach

19

How is the literal rule applied?

Judges give the literal, plain, ordinary meanings of words, even if this results in an absurdity or repugnant result.

20

Name the judge and the case the quote comes from: "The natural or ordinary meaning of that word or phrase in its context".

Lord Reid in Pinner v Everett [1969]

21

In which case did Lord Reid describe the literal rule as "The natural or ordinary meaning of that word or phrase in its context"?

Pinner v Everett [1969]

22

Who described the literal rule as "the natural or ordinary meaning of that word or phrase in its context" in Pinner v Everett [1969]?

Lord Reid

23

How did Lord Reid describe the literal rule in Pinner v Everett [1969]?

"The natural or ordinary meaning of that word or phrase in its context"

24

When did the literal rule develop?

During the 18th and 19th centuries.

25

Why did the literal rule develop during the 18th and 19th centuries?

Because Parliament was now sovereign as opposed to the Monarch.

26

Explain a case to demonstrate the literal rule.

London and North Eastern Railway Company v Berriman [1946], a railway worker was killed when conducting general maintenance (oiling) on the tracks. Compensation was awarded to those killed when "relaying" or "repairing". Using the literal rule, the court found oiling to be neither of these, thus compensation was not paid out.

27

What are the 5 advantages of the literal rule?

1. Upholds parliamentary sovereignty
2. Prevents judicial law-making (undemocratic, separation of powers)
3. Promotes certainty in the law; less scope for interpretation
4. Quick decisions as meanings are quickly found in the dictionary.
5. Litigation is less likely.

28

What are the 5 disadvantages of the literal rule?

1. Can produce absurd/repugnant decisions.
2. Ambiguity can make applying a dictionary hard.
3. Criticised by the Law Commission
4. Leaves responsibility of correcting statutes on Parliament, which is time-consuming.
5. The rule becomes less and less important nowadays due to the importance of EU law.

29

What is the name of the Law Commission's report in which they criticise the literal rule?

'The Interpretation of Statutes'.

30

In which year did the Law Commission publish 'The Interpretation of Stautes'?

1969

31

What is the golden rule?

The use of the literal rule unless it results in a repugnant decision.

32

How many applications of the golden rule are there, and what are they?

1. The narrow application
2. The wider application

33

Who described the golden rule as "giving the words their ordinary signification, unless when so applied they produce an absurdity of inconvenience so great" in River Wear Commissioners v Adamson [1877]?

Lord Blackburn

34

In which case did Lord Blackburn describe the golden rule as "giving the words their ordinary signification, unless when so applied they produce an absurdity or inconvenience so great"?

River Wear Commissioners v Adamson [1877]

35

How did Lord Reid describe the golden rule in River Wear Commissioners v Adamson [1877]?

"Giving the words their ordinary signification, unless when so applied they produce an absurdity or inconvenience so great"

36

Who first defined the golden rule in the case of Grey v Pearson [1857]?

Lord Wensleydale

37

In which case did Lord Wensleydale first define the golden rule?

Grey v Pearson [1857]

38

What did Lord Wensleydale establish in the case of Grey v Pearson [1857]?

The golden rule

39

Who first proposed the narrow application of the golden rule in Jones v DPP [1962]?

Lord Reid

40

In which case did Lord Reid first propose the narrow application of the golden rule?

Jones v DPP [1962]

41

What did Lord Reid establish in the case of Jones v DPP [1962]?

The narrow application of the golden rule

42

What is the narrow application of the golden rule?

If a word is ambiguous, it is at the discretion of the judge to select which definition to be used.

43

How did Lord Reid describe the narrow application of the golden rule?

"You can choose between those meanings, but beyond this you cannot go".

44

Explain a case to demonstrate the narrow application of the golden rule.

R v Allen [1872], the Act made bigamy an offence, but "marry" was ambiguous. It could mean 'to be legally married' or 'to go through the marriage ceremony'. The defendant argued that the first definition was applicable, and as bigamy was illegal his second marriage was therefore not legal, but the court saw this as a repugnant result and selected the second meaning, which found him guilty of the offence.

45

What is the wider application of the golden rule?

If a word has one meaning, but this would lead to a repugnant result, the court modifies the words in the statute to avoid this.

46

Explain a case to demonstrate the wider application of the golden rule.

Re Sigsworth [1935], the Act caused the inheritance of a deceased person to be passed onto their child if they had no will. The defendant murdered his mother, who had no will. It would have been a repugnant decision for the defendant to inherit this wealth, so the wider application was used to change the statute and no inheritance was paid out.

47

What are the 3 advantages of the golden rule?

1. Avoids repugnant decisions.
2. Upholds parliamentary sovereignty as it still used the words in the statute which Parliament has chosen.
3. More flexible than the literal rule.

48

What are the 3 disadvantages of the golden rule?

1. Gives more power to unelected judges, thus undemocratic.
2. Only able to be used in certain circumstances.
3. No real guidelines on its use.

49

How did Michael Zander describe the golden rule, criticising how it can only be used in certain circumstances?

"Feeble parachute"

50

Who described the golden rule as a "feeble parachute", criticising how it can only be used in limited circumstances?

Michael Zander

51

How did Michael Zander describe the golden rule, criticising how there are no real guidelines on how to use it?

"an unpredictable safety valve"

52

Who described the golden rule as "an unpredictable safety valve", criticising how there are no real guidelines on how to use it?

Michael Zander

53

Which is the oldest rule of statutory interpretation?

The mischief rule

54

What is the mischief rule?

Finding out what mischief Parliament intended to remedy by passing the statute, then interpreting it in a way which achieves this.

55

Which case established the mischief rule?

Heydon's Case [1583]

56

In Heydon's Case [1583], it was held that the court should consider what 4 things when applying the mischief rule?

1. The common law before the statute was passed
2. The mischief the statutes is designed to remedy
3. The remedy proposed by the statute
4. The reason for this remedy

57

Explain a case to demonstrate the use of the mischief rule.

Royal College of Nursing v DHSS [1981], only "registered medical practitioners" could conduct abortions under the Abortion Act 1967, yet technological advancements allowed nurses to do so. This was casus omissus. The court held that the mischief was backstreet abortions, and interpreted the statute in a way that allowed nurses to conduct abortions.

58

What are the 4 advantages of the mischief rule?

1. More likely to produce a "just" result
2. Can deal with casus omissus situations.
3. Could be seen as upholding sovereignty as it aims to treat situations in the way intended by Parliament.
4. Preferred by the Law Commission, who have said it needs to be updated to suit modern times, but should be the only rule that is used.

59

What are the 4 disadvantages of the mischief rule?

1. Risk of judicial law-making/judicial creation.
2. Finding the intentions of Parliament can be difficult.
3. Promotes litigation.
4. Promotes uncertainty/inconsistency/unpredictability in the law; harder for lawyers to advise clients.

60

What is the purposive approach?

Interpreting a statute so that it does what you believe Parliament intended for it to achieve.

61

What is the different between the mischief rule and the purposive approach?

The mischief looks backwards to the gap in the old law, whereas the purposive approach looks forwards at what Parliament's believed intentions were.

62

Where else, besides England and Wales, is the purposive approach used?

The Court of Justice of the European Union

63

Why is the purposive approach used in the Court of Justice of the European Union?

Because a textualist approach would not be appropriate due to the variety of languages used across member states meaning exact translations aren't always possible.

64

Explain a case to demonstrate the use of the purposive approach.

Coltman v Bibby Tankers [1987], was a sunken ship - which was defective in design and caused death when it sunk - to be considered as "equipment"? The court saw the purpose of the Act as being to protect workers in the workplace, so it would be right to interpret the Act in such a way.

65

What are the 4 advantages of the purposive approach?

1. Most likely to deliver a 'just' result
2. Faciliatates for casus omissus situations.
3. Saves parliamentary time as no need to legislate for every situation.
4. Compatible with European Union law.

66

What are the 3 disadvantages of the purposive approach?

1. Gives too much power to unelected judges.
2. Greatest scope for judicial law-making.
3. Finding the intentions of Parliament can be costly and time-consuming.
4. Promotes uncertainty in the law.

67

What balance must a rule of statutory interpretation strive to achieve?

Respecting the supremacy of Parliament whilst also aiming for a just result.

68

What is an aid?

Something which helps you to interpret a statute.

69

What is an intrinsic aid?

Something within the statute which helps you to interpret it.

70

What is another term for an intrinsic aid?

An internal aid

71

What is an extrinsic aid?

Something outside of a statute which helps you to interpret it.

72

What is another term for an extrinsic aid?

An external aid

73

How many intrinsic aids are there?

10

74

What are the 10 intrinsic aids?

1. Preamble
2. Short title
3. Long title
4. Interpretation section
5. Marginal notes and headings
6. Punctuation
7. Schedules
8. Explanatory notes
9. Rules of language
10. Presumptions

75

What is the preamble of an Act, and how is it an intrinsic aid?

An introduction to an Act which outlines what it covers and its purpose.

76

True or False? : You will find preambles in modern statutes.

False - Preambles ceased to be used after the 19th century. They are a feature of older Acts. Nowadays, Acts will not have one, or have a very short one.

77

When did preambles cease to be used?

19th century

78

What is the short title of an Act, and how is it an intrinsic aid?

The name of the Act, and it is probably of very little help to statutory interpretation.

79

What is the long title of an Act, and how is it an intrinsic aid?

The longer name of the Act which sets out what it seeks to achieve.

80

When did long titles in statutes come into use?

19th century

81

Give a case to explain the use of long titles in statutory interpretation.

Royal College of Nursing v DHSS [1981], the long title of the Abortion Act 1967 was used.

82

What is the interpretation section of an Act, and how is it an intrinsic aid?

An actual section (s.) of an Act which defines key words and phrases in the context that they are given.

83

What is an alternative name for interpretation sections?

Definition sections.

84

Give an example of an Act which has several interpretation sections.

The Theft Act 1968

85

What are the marginal notes and headings of an Act, and how is it an intrinsic aid?

Notes added by the person who drafted the Act after it has been passed, meaning they are not debated in Parliament.

86

True or False? : Marginal notes and headings are not given equal weighting of their importance to the words contained within the Act.

True - This is because they are added after the Act is passed, so they are not debated by Parliament.

87

How is punctuation an intrinsic aid?

It adds context to the statute, thus may be taken into account.

88

What is a schedule of an Act, and how is it an intrinsic aid?

A part of the back of an Act which include more detailed clarification.

89

What the explanatory notes of an Act?

Notes which provide guidance on complex parts of the Act. They are written by the draftsman after the Act is passed.

90

True or False? : Explanatory notes are part of the Act.

False - Explanatory notes accompany the Act.

91

Even though they are found outside of the Act, why do some legal theorists - and the Eduqas exam board - consider them to be an intrisic aid?

Because they directly relate to the content within the statute itself, and are specific to each statute.

92

Since which year have explanatory notes accompanied statutes?

1999

93

What is the advantage of using intrinsic aids?

Reliability - they come form the statute itself, and not from a document which doesn't hold the same status as the statute.

94

What is the disadvantage of using intrinsic aids?

Looking at the Act, which contains the problem, to try and find a solution may not always be helpful.

95

Why are presumptions regarded as intrinsic aids?

They are presumptions about the Act itself.

96

What is the principle behind presumptions?

That certain concepts are applicable to all statutes, unless explicity stated otherwise.

97

State 4 examples of presumptions.

1. Statutes do not apply retrospectively
2. Statutes do not change the common law.
3. The Crown is not bound by any statute.
4. Mens rea is required in criminal cases.

98

Describe what is meant by rules of language.

There are 3 rules that can function as intrinsic aids to help make the meanining of a word clearer where a particular sentence structure has been used.

99

What decides which rule of language should be used?

The sentence structure.

100

What does ejusdem generis?

"Of the same kind"

101

To which sentence structure is ejusdem generis applied?

Lists of 2 or more specific words, followed by a general word.

102

What is the ejusdem generis rule of language?

In a list of 2 or more specific words followed by a general word, the general word should be assumed to be of the same kind as its preceding words.

103

Give an example of the ejusdem generis rule.

In the list "Dogs, cats and other animals", "other animals" should be interpreted as being other domesticated animals.

104

Explain a case to demonstrate the use of ejusdem generis.

Powell v Kempton Park Racecourse [1899], held "house, office, room or other place for betting" couldn't include an open-air racecourse as the words in the list all had a roof.

105

What is the benefit of the ejusdem generis rule?

It doesn't require the draftsman to write an exhaustive list.

106

What is the disadvantage of the ejusdem generis rule?

What the judge will consider to be of the same type is unpredictable.

107

What does expressio unius est exclusio alterius mean?

"Expression of one is exclusion of another"

108

To which sentence structure is the expressio unius rule applied?

A list of specific words.

109

How does the expressio unius rule work?

The judge must interpret the Act to only include the items in that list.

110

Explain a case to demonstrate the use of the expressio unius rule.

R v Inhabitants of Sedgley [1831], "lands, houses and coalmines" was interpreted not to include limestone mines.

111

What is the benefit of the expressio unius rule?

There is no scope for judicial creation.

112

What is the disadvantage of the expressio unius rule?

There is no scope for development as society changes.

113

What does noscitur a sociis mean?

"It is known from its associates"

114

How does noscitur a sociis work?

The word is interpreted in the conetxt of the Act as a whole. It involves looking at other words in the Act in order to develop a sense of meaning.

115

Explain a case to demonstrate the use of noscitur a sociis.

Muir v Keay [1975], the Act prohibbited buildings from being open late at night for "entertainment" without a licence. The defendant ran a cafe which was open late at night, without a licence. "Entertainment" was interpreted to not just mean musical and theatrical productions, but also the smoking of cigars and drinking of coffee and liquors which the cafe provided. The defendant was found guilty.

116

What is the benefit of noscitur a sociis?

It doesn't force the draftsman to write an exhaustive list.

117

What is the disadvantage of nosictur a sociis?

There is scope for judicial creation.

118

How many extrinsic aids are there?

7

119

What are the 7 extrinsic aids?

1. Hansard
2. Dictionaries
3. Textbooks
4. Official publications
5. Treaties
6. Previous Acts and previous case law
7. Interpretation Act 1978

120

What is Hansard?

The transcripts of parliamentary debates.

121

What was held in Davis v Johnson [1979]?

It was wrong for Lord Denning to have used Hansard as an extrinsic aid.

122

What was held in Pepper v Hart [1993]?

The decision of Davis v Johnson [1979] was overruled by the House of Lords, allowing for the use of Hansard as an extrinsic aid.

123

How did Lord Denning describe not being able to use Hansard as an extrinsic aid?

It was like "[groping] about in the dark for the meaning of an Act without switching on the light".

124

In which 3 situations may Hansard be used?

1. The wording of the statute is ambiguous, obscure, or leads to an absurdity.
2. The sought material consists of 1 or more statements by a minister or promoter of the Bill.
3. The statements sought are clear and can be relied upon.

125

True or False? : Hansard is binding in the courts.

False - Hansard is not binding in the courts.

126

What is the disadvantage of the use of Hansard?

It increases the cost of litigation by 25%. Some believe that the cost does not match the value of its contribution.

127

In which cases is a wider use of Hansard permitted?

When dealing with an Act that introduced a European directive or international convention into English law.

128

Which case established a wider use of Hansard in cases involving Acts which incorporated European directives or international conventions into UK law?

Three Rivers District Council v Bank of England (No.2) [1996]

129

What was held in the case of Three Rivers District Council v Bank of England (No.2) [1996]?

There may be a wider use of Hansard in cases involving an Act which incorporated a European directive or international convention into UK law.

130

Why is a wider use of Hansard permitted when the case concerns an Act which incorporated a EU directive or international convention into UK law?

It is important to ensure that a statute purposively and consistently matches any of these EU directives or international conventions.

131

How can dictionaries be used as an extrinsic aid?

They can be used to find out the meaning of a word.

132

In order to use a dictionary as an extrinsic aid, what is the requirement?

The dictionary must have been published at the same time as the Act.

133

Explain a case to demonstrate the use of dictionaries as an extrinsic aid.

Cheeseman v DPP [1990], to find the meaning of the word "passengers".

134

What are textbooks?

Legal textbooks can be used as extrinsic aids to give advice.

135

What official publications may be used as extrinsic aids?

White Papers and reports from law reform agencies (i.e. the Law Commission)

136

How can White Papers serve as extrinsic aids?

They provide information on the background to the Act.

137

How can reports from law reform agencies be used as extrinsic aids?

Such agencies research areas in need of reform heavily, then produce draft Bills and reports with suggestions of what to put in the Act.

138

What was the original viewpoint of the courts towards the use of reports from law reform agencies as extrinsic aids?

They should not be used.

139

In which case was it decided that reports from law reform agencies could be used to find the mischief the Act intended to remedy?

Black Clawson [1975]

140

What was held in the Black Clawson case [1975]?

That reports from law reform agencies may be used in order to understand the mischief the Act intended to remedy.

141

Between 2014 and 2015, how many times was the work of the Law Commission cited in UK cases?

4040

142

How can international treaties be used as extrinsic aids?

Treaties, and the travaux préparatoires which accompany them, can be used to help interpret Acts which brought such treaties into force, as they must be consistently applied between the countries which observe them.

143

What are travaux préparatoires?

Preparatory materials and notes which are published with international treaties.

144

How can previous Acts be used as extrinsic aids?

They can be referred to where similar words have been used.

145

What is the Interpretation Act 1978?

An Act which contains the meanings of words which are commonly used in statutes.

146

Give an example of a section of the Interpretation Act 1978.

s.6 - All words that are singular shall include the plural, and all words that are masculine shall include the feminine, and vice versa.

147

What effect has our membership of the EU had on statutory interpretation?

The purposive approach has become increasingly popular.

148

What effect does the Human Rights Act 1998 have on statutory interpretation?

All legislation should be interpreted as far as possible in compliance with the ECHR.

149

Which section of the Human Rights Act 1998 calls for all legislation to be interpreted as far as possible in compliance with the ECHR?

s.3

150

What does s.3 of the Human Rights Act 1998 state?

That all legislation, both primary and secondary, should be interpreted as far as possible in compliance with the ECHR.

151

To which cases does s.3 of the Human Rights Act 1998 apply?

All cases involving human rights.

152

True or False? : s.3 of the Human Rights Act 1998 applies to cases which do not involve human rights.

False

153

Explain a case to demonstrate the interpretation of legislation in compliance with the Human Rights Act 1998.

Mendoza v Ghaidan [2002], the court interpreted the law in compliance with the Human Rights Act 1998 to ensure that same sex partners had the same property rights as heterosexual couples.

154

What does s.4 of the Human Rights Act 1998 state?

A court must issue a declaration of incompatibility if they are unable to interpret legislation in accordance with the Human Rights Act 1998.

155

Which section of the Human Rights Act 1998 allows for the issue of declarations of incompatibility?

s.4

156

What is a declaration of incompatibility?

A decree made under s.4 of the Human Rights Act 1998 that a piece of legislation cannot be interpreted in compliance with the Act.

157

True or False? : After a declaration of incompatibility is issued, the law ceases to apply.

False - the law remains the same until Parliament amends it.

158

What does s.10(2) of the Human Rights Act 1998 do?

Creates a fast-track procedure under which amendments can be made to an incompatible piece of legislation quickly by ministers

159

Which section of the Human Rights Act 1998 creates a fast-track procedure?

s.10(2)

160

What does the fast-track procedure created by the Human Rights Act 1998 do?

Allows for non-compliant legislation to be quickly amended by a minister.

161

What does s.2 of the Human Rights Act 1998 state?

Judges must take into account the previous decisions of the European Court of Human Rights.

162

Which section of the Human Rights Act 1998 states judges must take into account decisions of the European Court of Human Rights?

s.2

163

Which 3 areas of law and society can be applied to statutory interpretation?

1. Parliamentary sovereignty
2. Separation of powers
3. Rule of law