statutory interpretation (P1)

Question 1

what is statutory interpretation?

Answer 1

how judges interpret the language used in acts of parliament

Question 2

why is statutory interpretation necessary?

Answer 2

-an act can contain ambiguous words (fisher v bell, goods on display in shops aren’t ‘offers’)
-words used are too broad (r v home secretary, ‘terrorism’ could have a very broad or very narrow meaning)
-progress of technology means words may need to be considered in light of new advances (royal college of nursing v DHSS, ‘doctors’ included nurses)
-there was an error in drafting (r v burstow, ‘inflict’ means cause [S20 OAPA1861])

Question 3

what are the 4 rules of statutory interpretation?

Answer 3

-literal rule
-golden rule
-mischief rule
-purposive approach

Question 4

what is the literal rule?

Answer 4

-gives the literal and grammatically correct meaning
-lord reid - ‘we seek not what parliament meant, but the true meaning of the words they used’
-whiteley v chappell (d tried to use the vote of a dead man, illegal to ‘impersonate any person entitled to vote, a dead person isn’t entitled)

Question 5

what is the golden rule?

Answer 5

-results are given the literal meaning UNLESS it would result in absurdity
-lord wensleydale - ‘the ordinary sense of the words is to be adhered to, unless it would lead to absurdity, when the ordinary sense may be modified to avoid the absurdity but no further’
-courts could choose between the meaning of a word (narrow approach)
-where the word has only one meaning, it can be modified to avoid absurdity (wide approach)
-alder v george (offence to obstruct a member of the armed forces ‘in the vicinity’ of a prohibited palace, d was actually IN the palace)

Question 6

what is the mischief rule?

Answer 6

-rule of statutory interpretation is used to prevent the mischief an act is aimed at
-lord diplock - use mischief rule if ‘it is possible to determine from the act the precise mischief the act was to remedy, and it is possible to say with certainty what additional words would have been inserted’
-smith v hughes (prostitutes soliciting from private windows, illegal to solicit in a public place)

Question 7

what is the purposive approach?

Answer 7

-judges look to see what the purpose of the law was when interpreting statute
-recommended by law commission and EU
-extension of the mischief approach, doesn’t look for the gap but looks for what was meant
-r v registrar-general, ex parte smith (statutory right to claim birth certificate at 18, but it was believed D was trying to find birth mother to kill her, so denied access)

Question 8

what are the 2 types of aids to statutory interpretation?

Answer 8

-internal/intrinsic
-external/extrinsic

Question 9

what are internal/intrinsic aids?

Answer 9

-‘inside the act’
-introductory text/long title that may give clues that will help mischief rule/purposive approach
-explanatory notes included in margins to show what a section is about
-a glossary of key terms in some acts

Question 10

what are external/extrinsic aids?

Answer 10

-‘outside the acts’
-historical context of the act
-dictionaries and textbooks
-previous commercial practice
-treaties with international law
-hansard (Record of what is said in parliament)(pepper v hart, did teacher have to pay tax on perks received through deduction of wages, hansard in the finance act)
-the interpretation act 1978 (Eg ‘he’ will always include ‘she’)

Question 11

what is the impact of EU law on statutory interpretation?

Answer 11

-EU law favours purposive approach
-UK judges have to use the purposive approach for EU law, made it more likely to also use it for UK law

Question 12

what are the advantages of the literal rule?

Answer 12

-respects parliamentary sovereignty
-provides certainty
-focuses on the mind of parliament
-respects the separation of powers doctrine

Question 13

what are the disadvantages of the literal rule?

Answer 13

-can lead to unjust results
-assumed every act is perfectly drafted
-michael zander - ‘irresponsible’
-can undermine parliaments intentions
-not all acts have explanatory notes

Question 14

what are the advantages of the golden rule?

Answer 14

-provides a way of avoiding the worst problems created by the literal rule while still respecting parliamentary sovereignty

Question 15

what are the disadvantages of the golden rule?

Answer 15

-could lead to further inconsistency
-no definition of an absurd result
-michael zander - a ‘feeble parachute’

Question 16

what are the advantages of the mischief rule?

Answer 16

-responds positively to loopholes
-most likely to produce a just result
-reinforces importance of explanatory notes

Question 17

what are the disadvantages of the mischief rule?

Answer 17

-judges are going beyond their authority by filling gaps
-may lead to uncertainty (don’t know if judges will use the rule, makes it hard to advise clients)
-not all acts have explanatory notes

Question 17

what are the advantages of the purposive approach?

Answer 17

-most likely to lead to justice
-allows judges to respond to new technology
-gives judges discretion on when and how to avoid the absurdity of the literal rule

Question 18

what are the disadvantages of the purposive approach?

Answer 18

-how do judges know parliaments intentions?
-allows unelected judges to make ‘laws’
-causes the same uncertainty as the mischief rule