Statutory Interpretation Flashcards
(20 cards)
Statutory Interpretation
Statutory Interpretation is the process of judges deciding the meaning of words/phrases in an Act of Parliament, when applying the law to the facts of a case in court. Judges have created various rules to help them do this:
Literal Rule
Golden Rule
mischief Rule
purposive approach
Literal Rule
The literal rule is when judges give the words of an Act their ordinary literal meaning.
To find this meaning, they use an Oxford English dictionary for the year that the Act was passed. This is to find out what Parliament meant by those words at that time.
It was the most popular of the rules among UK judges during the 19th and for most of the 20th centuries. Since then, the purposive approach has become more popular.
Judges will follow the literal meaning of the words even if it leads to an absurd result. This is because of Parliamentary Sovereignty – no body (eg a court) should challenge/change/interfere with the law that was passed by Parliament. Lord Esher quote from R v Judge of the City of London “this court has nothing to do with whether the legislature has committed an absurdity.
This rule was criticised by the Law Commission when it reported on the rules of Statutory Interpretation.
Literal Rule Case- Whitely v Chappell
Whitely v Chappel (1868) LR 4 QB 147
A statute made it an offence ‘to impersonate any person entitled to vote.’ The defendant used the vote of a dead man. The statute relating to voting rights required a person to be living in order to be entitled to vote.
Held:
The literal rule was applied and the defendant was thus acquitted.
Literal Rule case (BRB V berriman
London and North Eastern Railway v Berriman [1946] AC 278
A railway worker was killed whilst oiling the track. No look out man had been provided. A statute provided compensation payable on death for those ‘relaying or repairing’ the track. Under the literal rule oiling did not come into either of these categories. This result although very harsh could not to be said to be absurd so the golden rule could not be applied. There was no ambiguity in the words therefore the mischief rule could not be applied. Unfortunately the widow was entitled to nothing.
Golden Rule
The Golden rule is a softened/modified version of the literal rule
The Golden rule is the least used of the 4 rules.
The judge still starts by looking at the literal meaning in an Oxford English Dictionary from the time of the Act.
However if the main literal meaning would lead to an absurd/unjust result, the judge can use the narrow or the wide version of the Golden rule to decide an alternative meaning.
Narrow version: if a word/phrase has 2 or more possible meanings, the judge chooses the meaning that would avoid an absurd result.
Adler v George – ‘in the vicinity of’ … give the 2 meanings, the one the judge chose and the outcome
Wide version: if a word/phrase has only 1 possible meaning but that would lead to an absurd/unjust result, the judge can change the meaning (interpret the words differently)
Re: Sigsworth – “issue” – the only meaning? How this was interpreted differently? Outcome?
Mischief Rule
The oldest of the rules – created in Heydon’s Case 17th Century
Based on finding what Parliament meant when it passed the Act, not just what it literally said
The judge in Heydon’s case said that judges should ask themselves 4 questions, to find out what Parliament meant:
- What was the law before the Act was passed?
- What was the mischief (problem) with the previous law?
- What remedy did Parliament create (in the new Act) for this problem?
- What was the reason for this remedy?
Judges using the Mischief rule are likely to use extrinsic as well as intrinsic aids to help them find Parliament’s meaning: Hansard, Law Commission Reports etc. They also find a preamble useful (intrinsic aid) in older acts as this explains the gap in the law and why the Act was needed.
The Law Commission preferred this rule in their report on the rules of Statutory Interpretation.
mischief rule(Smith V Hughes
The defendants were prostitutes who had been charged under the Street Offences Act 1959 which made it an offence to solicit in a public place. The prostitutes were soliciting from private premises in windows or on balconies so could be seen by the public.
Held:
The court applied the mischief rule holding that the activities of the defendants were within the mischief the Act was aimed at even though under a literal interpretation they would be in a private place.
mischief rule (Royal College of Nursing V DHSS)
The Royal College of Nursing brought an action challenging the legality of the involvement of nurses in carrying out abortions. The Offences Against the Person Act 1861 makes it an offence for any person to carry out an abortion. The Abortion Act 1967 provided that it would be an absolute defence for a medically registered practitioner (ie a doctor) to carry out abortions provided certain conditions were satisfied. Advances in medical science meant surgical abortions were largely replaced with hormonal abortions and it was common for these to be administered by nurses.
Held:
It was legal for nurses to carry out such abortions. The Act was aimed at doing away with back street abortions where no medical care was available. The actions of the nurses were therefore outside the mischief of the Act of 1861 and within the contemplate defence in the 1967 Act.
Purposive Approach
· It’s one of the rules/approaches that judges use to help them decide the meaning of words/phrases in an Act of Parliament.
· It means that judges give the words a meaning that fits Parliament’s purpose (what it was trying to achieve when it passed the Act)
· It is the most modern approach and has now taken over from the literal rule as the most popular approach among UK judges
· It is influenced by EU and Human Rights Law because European judges use this method of interpretation.
· It was favoured by Lord Denning who said “We sit here to find out the intention of Parliament and to carry it out” . He thought judges should “fill gaps” in the Act if necessary.
· Judges using the Purposive approach tend to make more use of Extrinsic aids – to find out Parliament’s intention eg Hansard and Law Reform reports.
purposive approach -In R v Registrar-General ex parte Smith (1990)
In R v Registrar-General ex parte Smith (1990), the case involved a convicted murderer who sought a certified copy of his birth certificate. The Registrar-General refused the request on public policy grounds, as the court believed it would be against the public interest to provide the information, given the potential harm to the birth mother. The court ruled that while the applicant had a statutory right to the certificate, public policy could override that right.
purposive approach - quinaville
the court had to decide if cloned embryos had to be protected from the use in research the act said that embryos must be protected . An embryo was defined as a live human embryo where fertilisation is complete
Advantages of Golden Rule -helps to avoid problems
one advantage is that golden is that it avoids the worst problems of the literal rule .it allows the judge to choose the alternate meaning or change the menaing to achieve the fairest result e.g in Alder v George ,the judge changed the meaning to be in the vicinity of so that the defendant could be guility of being in a prohibted place this can’t be done with the literal rule as the literal words have to be applied however this could lead to judicial law making where a judge could intrepret a word differently to how parliament intended which is undemocratic
Advantages of the golden rule -parliament sovereignity
Another advantage is that it still upholds parliamentary sovereignty. This is as it still follows the words of parliament and that by changing the meaning to lead to a fairer result it helps to achieve what parliament had intended when it passed the act, therefore it still respects the powers of parliament. However, a literal judge would argue that the best way to uphold the wishes of parliament is to use the literal rule and apply the actual words, so it doesn’t support parliamentary sovereignty as much as the literal rule does
Advantages of the golden rule -gives discretion to judges
Another advantage is that it gives judges more discretion to choose the most appropriate meaning without the risk of too much judicial law making. In Re:
Sigsworth, using this rule allowed the judge to change the meaning of the word
‘issue’ so that a son didn’t get his mother’s inheritance after murdering her. Using the wider version here gave the judge the discretion to reach the best possible outcome However, the golden rule is limited in its use, only being allowed where a word has two meanings or a possible alternate outcome so is not used that often.
Advantages of golden rule -certainity
A final advantage is that it still promotes certainty to an extent. It still follows the words of an act, only changing the meaning. Lawyers should be able to predict w meaning a judge may us and how it will affect the outcome, so they should be al advise their client properly. However, there may be a lack of certainty in the wide version if the judges go too far beyond the normal meaning.
Advantages of mischief rule -deals with the gap in the law
One advantage of the mischief rule is that it deals with the mischief (problem/gap in the law) that Parliament was trying to deal with. For example in Eastbourne v Stirling, it was clear that the Act was trying to protect the public from unlicensed taxis and this purpose was achieved by the court extending the meaning of ‘street’ to taxis parked on private land but attracting customers from the street’. However, it may not always be easy for judges to decide what mischief Parliament was trying to deal with. It used to be easier to use this rule in the past - older Acts used to have long preambles which set out the reasons for the new law. Modern Acts do not do this.
Advantageof the mischief rule-creates just results
Another advantage is that it produces just (fair) results and avoids unfair/absurd outcomes.
For example if it had been used in LNER v Berriman, instead of the literal rule, Mrs Berriman would have got her compensation because the ‘mischief’ the Act was trying to prevent was the lack of a lookout for ANYONE working on the line, no matter what their task. However, although this may produce fairness in an individual case, it can make the outcome of a case uncertain - unlike the literal rule. A lack of certainty makes it difficult for lawyers to advise their clients as to whether it is worth bringing a case or appealing
disadvantageof mischief rule-
The main disadvantage of the mischief rule is that it risks judicial law making. A judge may just be imposing his/her view of what mischief Parliament was trying to deal with. This may not have been Parliament’s intention at all. This may then be a challenge to Parliamentary sovereignty and the separation of powers. For example in RCN v DHSS, the judges, not Parliament decided which medical staff had the right to carry out abortions. However, judges using the mischief rule would argue that they ARE respecting Parliamentary sovereignty by giving the words the meaning which Parliament intended rather than what the words meant literally.
disadvantages of mischief rule -limited to compared to purposive approach
Another disadvantage is that it is more limited than the purposive approach. This is because it is limited to looking back at the old law and asking the 4 questions from Heydon’s case to find the ‘mischief’ and Parliament’s intended method of dealing with it. However, at least this means that a judge cannot go too far in imposing his/her opinion as to what Parliament’s purpose was (unlike the purposive approach)
