The English Legal System - Basic Principles (Chapter 6)

Question 1

What is the ordinary function of the courts?

Answer 1

To interpret statutory provisions, i.e. to give meaning to these provisions and apply them.

Question 2

What are the three canons (or rules) of statutory interpretation?

Answer 2

The literal rule
The golden rule
The “mischief” rule

Question 3

What is the literal rule?

Answer 3

As the name says, courts are to interpret the wording of acts literally, even if that might lead to a “manifest absurdity”

Question 4

in common law, what is an invitation to treat?

Answer 4

It is much clearer in the US, where it is called invitation to bargain.
It is an expression of willingness to negotiate.

Question 5

What case is cited when discussing the literal rule?

Answer 5

Fisher v Bell [1961] 1 QB 394

Question 6

Explain Fisher v Bell [1961] 1 QB 394

Answer 6

It is a case of a shopkeeper who was charged with selling a forbidden weapon under the Restriction of Offensive Weapons Act 1959.
The shopkeeper had put the knives on display with a price tag.
According to contract law, displaying an item with a price tag is an invitation to treat, not an offer for sale. The statue did not define the term “sale” beyond its ordinary contractual meaning, the court felt compelled to apply the ordinary law of contract.

Question 7

What is the important statement for the golden rule?

Answer 7

The grammatical and ordinary sense of the words may be interpreted, so as to avoid the absurdity and inconsistency.

Question 8

What case is cited when discussing the literal rule?

Answer 8

Re Sigsworth [1935] Ch 89

Question 9

Explain Re Sigsworth [1935] Ch 89

Answer 9

The court ruled that a son who had murdered his mother could not inherit her estate under the Administration of Estates Act 1925, even though, on a literal interpretation of the word issue, the son, as the only surviving relative, was clearly entitled

Question 10

What is the important statement for the mischief rule?

Answer 10

The rule does not only concentrate on the words of the statue, but on the purpose for which Parliament enacted the statue.

Question 11

What case is cited when discussing the mischief rule?

Answer 11

Heydon’s Case (1584) 3 Co Rep 7

Question 12

Explain Heydon’s Case (1584) 3 Co Rep 7

Answer 12

The court specified that four matters have to be considered in considering what mischief the statute was intended to remedy:

1) What the common law was before the statute was passed
2) What the mischief and defect was which was not remedied by the common law
3) What remedy is given by the present statute
4) The true reason for the remedy

Question 13

In which case was the mischief rule famously applied?

Answer 13

Smiths v Hughes [1960] 1 WLR 830, 2 All ER 859

Question 14

Explain Smiths v Hughes [1960] 1 WLR 830, 2 All ER 859

Answer 14

The defendants claimed that a balcony was not on the street, and so their solicitation for sexual favors could not constitute a breach of the Street Offences Act 1959.
The court, applying the mischief rule, held that the Street Offences Act’s purpose was to prevent harassment, and that this was still occurring as a result of the defendants’ acts.

Question 15

Besides the 3 rules, there is the purposive approach. How does it differ from the mischief rule?

Answer 15

Under the mischief rule, judges consider what the law was before the particular legislation was introduced, with the aim of ascertaining what gap or mischief the legislation was supposed to address. Then the judge will interpret the word or clause in the legislation in such a manner that the gap is filled.

The purposive approach involves judges trying to decide what they believe Parliament intended to achieve by the legislation ON TOP OF simply identifying and remedying the gaps within the previous law.

Question 16

The purposive approach also is linked to a famous case. Which?

Answer 16

Pepper v Hart [1993] 1 All ER 42 (HL)

Question 17

Explain Pepper v Hart [1993] 1 All ER 42 (HL)

Answer 17

Lord Griffiths stated that courts have departed from adopting the literal meaning of the language and instead have adopted a purposive approach which seems to give effect to the true purpose legislation. Courts are also prepared to look at much extraneous material that bears on the background against which the legislation was enacted (think about the Botschaften in Switzerland).

Question 18

Which impact did the adoption of EU law have on interpretation of common law?

Answer 18

The purposive approach was used, even if this involved distorting the ordinary meaning from the words used.

Question 19

In what way does civil law differ from common law?

Answer 19

Civil law tradition prefers simplicity of drafting and a high degree of abstraction (which makes it full of gaps and lacunae)
The common law approached adopted in the UK is detailed and exhaustive

Question 20

Famous case where purposive approached was followed

Answer 20

Lister v Forth Dry Dock and Engineering Co Ltd [1989] 1 All ER 1134

Question 21

Explain Lister v Forth Dry Dock and Engineering Co Ltd [1989] 1 All ER 1134

Answer 21

It was a case in which an undertaking (a part of a business) was transferred from one organization to another. The seller laid off the workers just before the transfer.
The House of Lords (now Supreme Court of UK) in interpreting the protective clauses of the Transfer of Undertakings (Protection of Employment) Regulations 2006 followed the purposive approach. The legislation stated that only those “employees employed at the time of the transfers” would benefit from the legal protection. The court extended the protection by interpreting that this also includes employees who would (still) have been employed at the time of the transfers if they had not been unfairly dismissed.

Question 22

What is considered garden leave in the UK?

Answer 22

Garden leave (also known as gardening leave) is the practice whereby an employee leaving a job – having resigned or otherwise had their employment terminated – is instructed to stay away from work during the notice period, while still remaining on the payroll.

Question 23

There is legislation called Transfer of Undertakings (Protection of Employment) Regulations 2006. What does undertakings mean?
Which important case does this regulation refer to?

Answer 23

It means business. The regulations exist to protect employers during a transfer from one organization to another.
Lister v Forth Dry Dock and Engineering Co Ltd [1989] 1 All ER 1134.

Question 24

Besides literal rule, golden rule, and mischief rule, as well as purposive apprach, there are two interpretation rules with Latin names. What are those?

Answer 24

Expressio Unius Est Exclusio Alterius
Noscitur A Sociis

Question 25

Expressio Unius Est Exclusio Alterius Meaning

Answer 25

The express mention of one thing excludes all other things.
Where legislation uses explicit words within a clause or phrase but does not mention general words, the courts only employ their interpretive tools to the particular examples mentioned in the legislation. Example: The poor rate levied on owners of ‘lands, houses, and coal mines’ could not be levied on owners of limestone mines as they were explicitly excluded by the specific mention of coal mines.

Question 26

Noscitur A Sociis

Answer 26

Also known as the noscitur rule.
According to this rule, a word is known by its accompanying words or by “the company it keeps”
Example: a court held that ‘floors’ in a statute requiring ‘floors, steps, stairs, passages and gangways’ did not include floors used for storage as the other words in the list are all related to passageways.

Question 27

The book states that often, a reasonable result cannot be achieved by a “purely semantic process”. What does that mean for the interpretation of laws?

Answer 27

Semantic means by trying to construe the actual words, without regard to the context in which the words appear. Context needs to be considered as well.

Question 28

What is considered “context” when interpreting laws?

Answer 28

Other enacting provisions of the same statute
Preamble
Existing state of law
The mischief the statute was intended to remedy

Question 29

What does ‘mischief’ mean?

Answer 29

Missstand

Question 30

What does ‘discern’ mean?

Answer 30

erkennen, wahrnehmen, feststellen

Question 31

Which act defines certain terms frequently found in legislation?

Answer 31

Interpretation Act 1978

Question 32

What are intrinsic aids which can provide insights to interpret the words of a provision at issue?

Answer 32

Preambles
Headings
Punctuation
Definition sections
Marginal notes

Question 33

Looking at different parts of the statue can also shed light on the individual passages of an Act. What are four parts of an Act that courts can look at to understand provisions from the context?

Answer 33

Long title
Short title
Schedules
Preambles

Question 34

What are schedules? What types of schedules are there?

Answer 34

Schedules are components of bills, Acts and some instruments. They appear at the end of legislation. Schedules are either amending or non-amending.

Question 35

What are amending and non amending schedules?

Answer 35

Amending schedules amend other acts with their introduction.
Non amending schedules contain application, saving or transitional provisions.

Question 36

What is a saving provision?

Answer 36

A provisions that states if a provision or part of the act (or contract) is to be found invalid, the remaining part of the act (or contract) remains valid.

Question 37

What is the difference between a bill and an act?

Answer 37

A Bill is not an Act of Parliament. A Bill becomes an Act if it is approved by the House of Commons and the House of Lords, and is formally agreed to by the reigning monarch (known as the Royal Assent). An Act of Parliament is a law, enforced in all areas of the UK where it is applicable.

Question 38

What are marginal notes?

Answer 38

Summary of the particular sections in acts. In legislation from 2001 onward they were replaced by section headings.

Question 39

What is a constituent assembly?

Answer 39

A body assembled for the purpose of drafting or revising a constitution.

Question 40

What are extrinsic aids that courts can use to interpret laws?

Answer 40

Parliamentary debates, i.e. Hansard
Dictionaries
Other statues in pari materia (dealing with the same subject)
Interpretation acts
The prior state of the law or
Other legislative history materials

Question 41

What is Hansard?

Answer 41

An eponym for official parliamentary reports named after T.C. Hansard. Now used to refer to the official report of all parliamentary debates, including record of votes and written ministerial statements, throughout the Commonwealth.

Question 42

What is referred to as the exclusionary rule?

Answer 42

It has appeared in two instances: contracts and interpretation of acts.
In contracts, courts cannot consider evidence of pre-contractual negotiations between the parties when interpreting a contract.
Similarly, in interpretation of acts, it refers to the exclusion of extrinsic aids.

The House of Lords has reaffirmed the exclusionary rule in 2009 in a contract case.
However, Pepper v Hart [1992] UKHL 3 (also House of Lords) it was held that the court could even refer to extrinsic aids such as debates in Parliament or Hansard as an aid to statutory construction, if they clearly disclosed the mischief targeted by the legislation.

Question 43

Pepper v Hart [1992] UKHL 3 is a landmark decision for which two points

Answer 43

Adoption of the purposive approach
Exclusionary rule

Question 44

In Pepper v Hart [1992] UKHL 3, what are the conditions that parliamentary material or Hansard may be admissible as an extrinsic aid for statutory interpretation? What privilege is it subject to?

Answer 44

1) the legislation is ambiguous or obscure or leads to an absurdity
2) the material relied on consists of one or more statements by a minister or another promoter of the Bill, together, if necessary, with such other parliamentary material as it is necessary to understand such statements and their effect
3) the statements relied on are clear

Question 45

What does in pari materia mean?

Answer 45

Dealing with the same subject

Question 46

What is the esjudem generis rule?

Answer 46

Esjudem generis means “of the same kind”
When a series of particular words is used, followed by general words (e.g., house, office, room .. and the other place), the general word must be construed with reference to the particular words.

Question 47

Example where the Esjudem generis rule was applied

Answer 47

Powell v Kempton Park Racecourse Co Ltd [1899] AC 143
The House of Lords (now Supreme Court) had to decide whether a racecourse was comprised in “house, office, room … and other place” for the purpose of the offence, if betting within the Betting Act 1853. The ourdoor area at a racecourse was not held to be esjudem generis with those places as the list referred to indoor places.
If the other place had been followed by “wheresoever” or “whatsoever”, the rule could not apply.

Question 48

What are presumptions?

Answer 48

They presume that a given approach is to be taken when interpreting laws.

Question 49

Six common presumptions

Answer 49

Penal statutes are to be construed strictly in favour of the accused
Criminal offences usually require guilty intentions (mens rea)
Statues are not intended to derogate from common laws rights, i.e. statue does not alter the existing law or repeal other statutes
A statue is not intended to have retrospective effect to alter a date earlier than its becoming law
Presumption against deprivation of property or interference with private rights. Accordingly, when an Act deprives a person of his property, there is a common law presumption that a compensation must be paid. Unless otherwise stated, there is a strong presumption that an Act of Parliament does not intend to interfere with rights of private ownership over land.
Presumption that an Act of Parliament does not bind the Crown, except by express words or necessary implication