statutory interpretation Flashcards
what is statutory interpretation
a set of rules and approaches that have been developed by judges to help them interpret acts of parliament
what are the for rules/approaches
literal rule
golden rule
mischief rule
purposive approach
define the literal rule
The literal meaning of those words must be taken. Words must be given their ordinary, plain and natural meaning
london and NE railway v berriman
advantages of the literal rule
Respects Parliamentary Sovereignty
Judges do their job of applying law
Gives certainty to the law
Upholds separation of powers
disadvantages of the literal rule
Assumes every Act will be perfectly drafted.
Following the exact words may lead to unfair/absurd decisions.
Words may have more than one meaning
When the law is drafted it is not possible to cater for each and every legal situation.
define the golden rule
‘a modification of the literal rule’
what are the 2 approaches of the golden rule
narrow approach - the judge can use another meaning of the word to prevent an absurd outcome - R v Allen
broad approach - where the judge can modify the word that only has one meaning to prevent an absurd outcome - R v sigsworth
advantages of the golden rule
Provides an ‘escape route’ from absurd/unjust decisions.
To an extent the rules still respects Parliamentary sovereignty as judges are only correcting errors not deciding what Parliament intended
Go beyond the literal rule by looking at Parliament’s intention in passing the Act
disadvantages of the golden rule
This rule gives too much power to judges and effectively decide what the law is
Too much discretion which is undemocratic
Using the rule can lead to inconsistency – what is absurd/unjust – there is no guidance given
Really still very literal and therefore same problems as the literal rule
what is the mischief rule
A rule whereby a judge will taken into account the problem in the law the statute was intended to fill to work out Parliament’s intention in passing the Act. The judge must then then interpret the statute in such a way as to put a stop to that problem.
It can only be used if the Act in question was enacted to fill a gap/problem in the old law.
what is the three part test for the mischief rule
Jones v Wrotham Park
It is possible to determine precisely the mischief that the Act was intended to remedy?
It is apparent that Parliament has failed to deal with the mischief?
It is possible to state the additional words that would have been inserted had the omission been drawn to Parliament’s attention
advantages of the mischief rule
It helps avoid the absurd injustice literal rule decision
It allows for ‘quick repairs’ to bad laws by allowing immediate reform and improvements to the law as the case is interpreted to avoid the mischief behind the act.
Allows judges to give Parliament’s will despite a degree of discretion
Respects the exact words of Parliament, except in limited situations. This approach allows judge to make sensible decisions.
disadvantages of the mischief rule
The rule is extremely old and set at a time when there were very few statutes and they were not complicated therefore easier to work out Parliament’s intentions.
It must be possible to discover the mischief which can be difficult.
Rule allows for judicial law-making and subjective decision making.
Difficult to predict when this will be used as has limited scope for use
what is the purposive approach
The court will look at the ‘spirit’ of the Act rather than the strict letter of the law. The judges decide what they believe Parliament meant to achieve by passing the Act (the purpose of the Act)
different to the mischief rule as the judge(s) doesn’t need to look for any gaps in the old law.
Jones v Tower Boot Company
advantages of the purposive approach
Gives effect to Parliament’s true intentions
The rule makes extensive use of extrinsic and intrinsic aids to ensure an accurate and informed view of Parliament’s intention is established
It avoids all the absurd, unjust and harsh outcomes of the literal approach and avoids the destructive analysis of language
Judges can fill in any gaps in the law left by Parliament or dealing with new situations/technology.
disadvantages of the purposive approach
this approach allows the greatest judicial freedom and some would argue that it goes directly against the doctrine of Separation of Powers and Supremacy of Parliament
Like the Mischief rule, the purposive approach can only be used if Parliament’s intentions can be identified
It may be time consuming to find Parliament’s intentions. Hansard and government statements to be studied.
intrinsic aids
long and short titles
an interpretation section
margin notes
preamble (the introductory part of a statute)
extrinsic aids
dictionary
law reform reports
hansard ( report of the debate)
the interpretation act 1978
