statutory interpretation Flashcards
(27 cards)
What is meant by statutory interpretation?
Judges may be asked to interpret the meaning of laws
What are the 4 rules of statutory interpretation?
literal rule
golden rule
mischief rule
purposive
What is the literal rule?
the intention of parliament is considered as contained in the words passed. The literal meaning of those words must be taken. Words must be given their ordinary, plain, ad natural meaning
What are the 5 features/characteristics of the literal rule?
19th century, Victorian approach to interpretations
Most aspects of life were strict and rigid
The rule reflected the Victorian approach to life - inflexible
The starting point for interpreting any legislation
Lord Esher: ‘ if the words of an act are clear follow them even thought they can lead to a manifest absurdity’
What is the case which show the literal law?
fisher v bell
What are 4 advantages of the literal rule?
-respects parliamentary sovereignty
- Judges do their job of applying law
- Gives certainty to the law
- Upholds separation of powers
What are 4 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 so which does the judge choose?
- When the law is drafted its not possible to cater for each and every legal situation
What is the golden rule?
It a modification of the literal rule, which takes the problems caused by the literal and aims to achieve a fair outcome for the parties where applying the literal rule would cause unfairness
How do you use the golden rule?
- Start by looking at the literal meaning
- Will there be an absurd/repugnant decision?
- If that’s the case then a secondary meaning ‘may’ be taken
What are the two approaches in the golden rule?
Narrow approach
Broad approach
Under the narrow approach to the golden rule what will the judge ask?
- Will taking the ordinary and natural meaning of the word(s) lead to an absurdity
- Is the word(s) in question ambiguous?
- Is the word(s) capable of more than one meaning?
If the answer is yes, then the judge may use another meaning which does not result in an absurdity
What case demonstrates` the narrow approach of the golden rule?
R v Allen
What is the broad approach to the golden rule?
A wider application of the golden tule and is used where:
- The word(s) only have one clear meaning and the word(s) aren’t ambiguous
- By giving the plain meaning would prove unacceptable
In this situation the court will use the broad approach to modify the words of the statute in order to avoid this problem
What case demonstrates the broach approach of the golden rule?
R v Sigworth
What are 4 advantages of the golden rule?
- Provides an ‘escape route’ from absurd decisions
- Prevents the absurdity and injustice caused by the application of the literal rule
- To an extent the rules still respect parliamentary sovereignty as judges are only correcting errors not deciding parliaments intentions
- Go beyond the literal rule by looking at parliaments intention to passing the Act
What are 4 disadvantages of the golden rule?
- This rule gives too much power to judges and effectively decides what the law is
- Too much discretion which is undemocratic
- Using the rule can lead to inconsistency as there’s not guidance given to what’s classed as absurd
- Really still very limited and therefore same problems as he literal rule
What is the mischief rule?
A rule whereby judges will take into account the problem in the law the statute was intended to fill. The judge will be required to work out parliaments intention in passing the Act. The judge must 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 in the old law
What 4 factors to the judges follow for the mischief rule and which case laid this out?
Heydon’s case:
- What was the common law before the making of the Act?
- What was the mischief in the previous law?
- Identify the way in which parliament proposed to remedy the defect
- Give effect to it
What was the rules of the mischief rule once re-stated and which case sets this out?
Jones v Wrotham Park:
- It’s possible to determine precisely the mischief that the Act was intended to remedy
- It’s approach that parliament has failed to deal with the mischief
- It’s possible to state the additional words that would have been inserted had the omission been drawn to parliaments attention
What cases demonstrates the mischief rule?
Smith v Hughes
Royal College of Nursing v DHSS
What are 4 advantages of the mischief rule?
- It helps avoid the absurd injustice of a 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 michief behind the act
- Allows judges to give parliaments will despite a degree of discretion
- Respects the exact words of parliament, except in limited situations. The narrows approach allows judge
What are 4 disadvantages of the mischief rule?
- The rule is extremely old and set st a time when there were very few statues and they weren’t complicated therefore easier to work out parliaments intentions
- It must be possible to discover the mischief which can be difficult
- Rule allows for judicial law making the subjective decision making
- Difficult to predict when this will be used as it has a limited scope for use
What is the purposive approach?
Heavily influenced by our previous membership of the European Union. The court will look at the spirit of the act rather than the strict letter of law. The judges decide what they believe parliament meant to achieve by passing the Act
How it the purposive approach different to the mischief rule?
Using the purposive approach the judges don’t need to look for any gaps in the old law. Some Acts are passed for some social good and/or purpose not just because there was a defect in the previous law
