Statutory Interpretation and Case law and primary legislation Flashcards
What is statutory interpretation?
Process of determining what parliament intended when it enacted a piece of legislation. Primarily a task for judges.
There are certain presumptions that are implied into statute.
Court presumes in criminal offences that they require proof of men’s rea unless the statute expressly states otherwise.
There is also a presumption that statutes will not apply retrospectively.
Court of appeal may refer to external aids such as academic writing when statute is unclear.
Assist them in interpreting relevant legislation.
ACADEMIC writings are RECOGNISED as external aids to interpretation.
What is the literal rule?
The literal rule
- Give their ordinary, plain and natural meaning
What is the golden rule?
- To avoid unnatural and absurd outcomes. Take whole statute together and construe giving ordinary signification unless when so applied they produce and inconsistency or absurdity so great that the court is convinced could not have been intention to give ordinary signification.
- Adler v George – vicinity of was argued to mean near to, but he was inside it, and court through it would be absurd to read it as such
What is the mischief rule?
USED TO BE RELEVANT
Heydon’s case
- What was the common law before making the act
- What was the mischief and defect for which common law did not provide
- What remedy for mischief has parliament intended to provide for
- What was the true reason for parliament adopting that remedy.
NO LONGER RELEVANT BECAUSE NOW USE PURPOSIVE APPROACH.
What is the purposive approach?
The purposive approach
- Accelerated by European ideas. Like for human rights interpret it seeking compatibility with ECHR.
- Look at the purpose of the act.
The contemporary approach –
- A combination of strict literal meaning and purposive
What are the linguistic presumptions?
Expression unius est exclusiso alterius
- The express mention of one thing excludes its extension to others. So, a closed list.
Ejusdem egenris
- Generic but non exhaustive list
Nosicture a socilis
- A word known by company it keeps.
CAN ONLY APPLIED WHERE THE MEANING OF A WORD IN STATUTE IS UNCLEAR OR AMBIGUOUS.
Senedd Cymru - devolved matters?
Wales is not a separate legal jurisdiction from England.
Reserved matters model - so UK acts of parliament will only apply if they deal with reserved matters.
The Westminster Parliament will not normally legislate with regard to devolved matters in
Scotland, Wales or Northern Ireland without the consent of the devolved administration (the
Sewel Convention)
s 107(5) makes it clear that power of the Senedd to make Acts: ‘does not affect the
power of the United Kingdom to make laws for Wales’
What is case law?
Common law refers to body of case law decided by judges. Governed by rules of precedent. So high court’s decisions are binding on lower courts. But they merely declare what the law has always been.
Judges
- Consider the evidence
- Consider the applicable law
- Apply the law to facts decide what remedy
Stare decisis – (binding precedent) means stand by what has been decided.
Once a point of law has been decided it establishes a precedent. Higher courts usually deal points of general law of general public importance.
Statements of law will include the ratio decidendi – which is the reason for the decision and obiter dicta – where a judge comments on an area of law.
What is primary legislation?
Acts of parliament – out before parliament as bills, debated and passed by both houses of parliament. – receive royal assent before becoming law.
Process of an act of parliament?
Primary legislation starts life as a ‘Bill’, which is draft piece of legislation.
Public Bills, intended to become Public Acts, can further be divided into Government Bills and
Private Members’ Bills.
A Government Bill represents the policy of the government of the day and is drafted by the
official parliamentary draftsman, based on what the government department promoting the Bill
wants to bring into law. It will be based on ministerial proposals issued in the form of a Green
Paper (for discussion) and White Paper (official government policy).
Private members bill - promotes by a member of parliament through a ballot system
Complete process of an act of parliament?
- First reading – read out
- Second reading – main principles are debated by MPS
- Committee stage – scrutinised by legislative committee
- Report stage – proposed amendment debated and vote on committee’s report
- Third reading – final debate and vote on bill. Goes to another house.
- Royal assent
Structure of an act of parliament?
begin with the short title, date and long title of the Act (the preamble’)
What is secondary legislation?
Known as subordinate legislation – created by ministers under powers given to them by act of parliament. Fill in details in primary legislation.
- Has equal statutory force as primary legislation.
- But court can examine whether delegated legislation is made within powers of parent act and quash if not.
- Parliament can either approve or reject a statutory instrument but cannot amend it.
Reversing, overruling and overturning?
REVERSING IS WHEN IT GOES TO APPEAL AND HIGHER COURT DIDAGREES WITH LOWER COURT. DOES NOT NEGATE THE PRECEDENT, JUST APPLIED THE LAW IN A DIFFERENT WAY.
OVERULED AND OVERTURNED IS THE SAME - is senior court later decided original force sent in last case is wrong and sets a new one instead.
Departing from precedent?
Court of appeal
If the Ca came to previously conflicting decisions
If the CA own previous decision has been overruled expressly it impliedly by supreme court
If previous decisions as made per incurian - where previous court was not aware I’d a relevant authority
