Statutory interpretation

Question 1

What is essential in an act?

Answer 1

• Correct wording

Question 2

What does the interpretation act 1978 do?

Answer 2

• It gives judges some guidance

Question 3

What occurs in many cases?

Answer 3

• Disputes over words

Question 4

What are the reasons as to why an Act may be unclear?

Answer 4

• A broad term
• Ambiguity
• A drafting error
• New developments
• Changes in the use of language

Question 5

What are the 3 rules of statutory interpretation?

Answer 5

• The literal rule
• The golden rule
• The mischief rule

Question 6

What is the literal rule?

Answer 6

• When judges take the ordinary/grammatical meaning of the word and apply it- even if result is absurd

Question 7

What is the golden rule?

Answer 7

• An extension of the literal rule
• Judges use literal rule but if it results in an absurdity then they can alter the meaning of the words to give a satisfactory result

Question 8

What is the mischief rule?

Answer 8

• When the judges are able to ignore the meaning of the words to ensure they research the desired outcome

Question 9

What does the literal rule respect?

Answer 9

• Parliamentary sovereignty

Question 10

Name two case in which the literal rule was applied

Answer 10

• Whiteley v Chappell (1868)- def was “impersonating a person entitled to vote”, however person was dead and therefore not entitled to vote, literal rule applied
• London and North Eastern Railway Co v Berriman (1946)- railway worker killed whilst oiling the tracks, widow tried to claim compensation but act stated worker must have been “relaying or repairing”, literal rule applied

Question 11

What are the two views of the golden rule?

Answer 11

• The narrow and wide application

Question 12

When is the narrow application used?

Answer 12

• If words of an Act have two meanings the judge can choose which one to use

Question 13

What are two cases in which the narrow view was applied?

Answer 13

• Jones v DPP 1962
• Adler v George (1964)- “in the vicinity”, defs were “inside” prohibited place, golden rule applied to avoid absurdity (The Official Secrets Act 1920)

Question 14

When is the wide application used?

Answer 14

• When words have only one meaning but this meaning would result in absurdity

Question 15

Name a case in which the wide application was applied

Answer 15

• Re Sigworth (1935)- involved interpretation of The Administrations of justice Act 1925, a son murdered his mother to claim her inheritance, if granted money the result would have been repugnant

Question 16

What does the mischief rule do?

Answer 16

• Gives the judges flexibility and discretion

- Able to ignore the wording of the statute in order to reach the desired outcome

Question 17

What are the 4 points the courts should consider in regards to the mischief rule?

Answer 17

• What was the common law before act was written?
• What was the mischief for which the common law did not provide
• What was the remedy parliament proposed
• The true reason for the remedy

Question 18

Name 2 cases in which the mischief rule was applied

Answer 18

• Smith v Hughes 1960- defs charged with “soliciting in a street or a public place for the purpose of prostitution” contrary to The Street offences Act 1959 s1, however, they were soliciting from upstairs windows, “mischief” parliament was intending to stop so they were charged.
• RCN v DHSS 1981- The Abortion Act 1967 stated only drs were authorised to carry out abortions, however by 1981 it was clear that nurses were in fact carrying out simple procedures. Purpose of act was to prevent backstreet abortions.

Question 19

What does the purposive approach do?

Answer 19

• Goes beyond the mischief rule, Judges decide what Parliament meant to achieve

Question 20

Name 2 cases in which the purposive approach was applied

Answer 20

• Rv Registrar-General, ex parte Smith 1990, court had to consider S51 of Adoption Act 1976, serial killer wanted to meet natural mother but this was too risky
• R (Quintavalle) v Secretary of State 2003, court had to consider definition of embryo in the Human Embryology and Fertilisation Act 1990

Question 21

What are the advantages of the literal rule?

Answer 21

• Respects sovereignty
• Since parliament is democratically elected they can be held to account by electorate
• Judges are unaccountable since they are not elected
• Prevents judges from becoming too powerful
• Makes law more certain

Question 22

What are the disadvantages of the literal rule?

Answer 22

• Assumes every act is perfectly drafted
• Words may have more than one meaning
• Can result in absurdity
  Zander stated “the literal rule is mechanical and divorced from the realities of the use of language

Question 23

What are the advantages of the golden rule?

Answer 23

• Respects sovereignty except in limited circumstances
• Provides an escape route when the literal rule results in an absurdity
• When there are two meanings judges can choose the most sensible one
• Prevents repugnant outcomes
• Used rarely to prevent judges having too much power

Question 24

What are the disadvantages of the golden rule?

Answer 24

• Limited in its use
• Not always predictable when courts will apply it as judges may have different views in regards to what is absurd
• Zander describes it as a “feeble parachute”- escape route that doesn’t do too much

Question 25

What are the advantages of the mischief rule?

Answer 25

• Promotes the purpose of the law by looking at the gap
• More likely to produce a just result
• Law commission prefers this rule

Question 26

What are the disadvantages of the mischief rule?

Answer 26

• Can result in judicial law making
• Judges do not always agree with how statute should be interpreted (RCN v DHSS)
• Judges fill gaps in law with own views
• May lead to uncertainty
• Not as wide as purposive approach, only looks at gaps not considerations

Question 27

What are the advantages of the purposive approach?

Answer 27

• Leads to justice
• Broad approach, judges can fill gaps
• Useful when there is new technology which was unknown when act was written
• Gives judges more discretion and avoids absurdity

Question 28

What are the disadvantages of the purposive approach?

Answer 28

• Can result in judicial law making
• Judges fill gaps with own views
• Can be difficult for judges to discover intention of parliament
• May lead to uncertainty

Question 29

What are the 3 rules of language?

Answer 29

• The ejusdem generis rule (list of words limited to general words)
• Expressio Unius Exclusio Alterius (mention of one thing excludes other)
• Noscitur a sociis (a word is known by the company it keeps)

Question 30

When do courts use aids?

Answer 30

• When trying to discover the intention of parliament

Question 31

What are intrinsic aids?

Answer 31

• Matters within the statute

Question 32

What are some examples of intrinsic aids?

Answer 32

• Long title, short title, preamble, headings and marginal notes

Question 33

What are extrinsic aids?

Answer 33

• Matters outside the statute

Question 34

What are some examples of extrinsic aids?

Answer 34

• Other acts on the same topic, newspapers, dictionaries from the time, case law, law commission reports and hansard

Question 35

What is hansard?

Answer 35

• The official report of what was said in parliament when the act was debated

Question 36

What did the HL do in the case of Pepper v Hart 1993?

Answer 36

• Relaxed the rule and accepted that Hansard can be used in limited ways

Question 37

What is the effect of EU law on statutory interpretation?

Answer 37

• Purposive approach preferred by most European countries
• Judges more likely to apply approach to UK law
• English courts must interpret law based on EU law

Question 38

What does section 3 of the Human Rights Act 1998 state and what is an example of a case in relation?

Answer 38

• That legislation must be read and given effect in a way that is compatible with the ECHR
• Mendoza v Ghaidan 2002