Tuesday, October 24, 2006

Statutory Intepretation - ELS

Question 1:

Consider critically the rule of interpretation which guides judges in their interpretation of statutes and the presumptions they apply in the process.


The roles of judiciary are merely to apply the law that had been enacted by parliament. This view is too simplistic to the extent that it denies or at least ignores the extent of which the judiciary has a measure of discretion and creative power in the manner in which he interprets the legislation that comes before him.

Legislation can be seen as a form of communication. It represents and passes on to the judiciary and society at large what parliament has determined should be the law governing a particular statute.

What is then the problem?

Uncertainty is inherent in any mode of communication. Conflicting aims of legislation gives rise to a particular problem of interpretation. These conflicting aims are the need to be clear whilst at the same time is general.

Clarity and precision tend to be achieved only in inverse proportion to generality, but legislation must endeavor to be general practicability.

There therefore in all legislation a number of uncertainty that can only be illuminated and made certain by judicial interpretation. Interpretation is therefore a creative process and inevitably renders the judiciary in the process of creating law.

How do judges actually interpret statutes?

In determining the actual meaning of legislation, they make use of the 3 rules of interpretation and a variety of secondary aides. The 3 rules are: Literal Rule, Golden Rule & Mischief Rule.

It must be emphasized that they are actually not rules but rather, general approaches. It cannot be treated as rules because judges have the discretion to choose which approach to use depending on how they want to interpret a particular statute that comes before them.

1. Literal Rule

Judges are required to consider what the legislation actually says rather than considering what it might mean. Judges have to give the words in the legislation its literal meaning, that is, in its plain, ordinary, everyday meaning, even if the effect is to produce what might be considered unjust, absurd or undesirable outcome.

Fisher v Bell

Court stood by their literal interpretation of the Act in question and refuses to extent the usual legal interpretation of the word ‘offer’.

2. Golden Rule

This rule may be used when application of Literal Rule will result in what appears to the court to be ‘absurd’.

Alder v George – Golden Rule

D was charged under OSA 1920 with obstruction in the vicinity of a prohibited area whereas the obstruction was actually inside the vicinity. The court was prepared not to restrict itself to the literal wording of the Act & found her guilty as charged.

3. Mischief Rule

Rules was established in Heydon’s case (1584)

It gives the court the justification for going beyond the actual wording of a statute in order to consider the problem that the particular statute was aim at remedying. The limitation of this rule is that, it must use previous Common Law to determine the mischief of the Statute in question was designed to remedy.

Corkery v Carpenter (1951) – Mischief Rule

D was charged for being drunk while in charge of a bicycle on the highway. Court held that bicycle was a ‘carriage’ for the purpose of s.12 of the Licensing Act 1872. The purpose of the Act was to prevent people who are in a state of intoxicated to use any form of transport on public roads.

It was suggested that the 3 rules ranked in a hierarchical order. But in essence, they are not. Literal Rule will be used unless it leads to absurdity which may lead to the use of the Golden Rule. But what determines whether any particular result is an absurdity other than the views of judges deciding the cases? These rules are contradictory at least to a certain extent, in a way no outsiders can determine which rule will be applied by the judges in a particular case. As such, they are merely devices which judges use to justify their decision.

Judges in interpreting statutes are also required by the HRA 1998 to construe statutes as far as possible to give effect to the rights as provided by the ECHR.
Since Parliament is sovereign, it can of course alter the common law by express enactment, but otherwise, a statute is presumed not to make any fundamental change to common law.

A statute does not impose criminal liability without proof of mens rea (Sweet v Parsley [1970]). Here the owner of the management premise which was used for smoking cannabis was acquitted as the House of Lords held that she would not know her property was being used for that illegal purpose and as such, she cannot be guilty for such offence.

But presumptions can be rebutted by express rewording of statute (example: Strict liability cases) or by implication (judges interpretation).

Statute is presumed not to operate retrospectively. But it is open to Parliament to enact such legislation as was done in War Damage Act 1965 – in order to prevent Burmese Oil Company from collecting damages which the court had decided were owed to it from the state.

Question 2:

Consider the implications of Pepper v Hart [1993] within the context of materials available to courts in the construction of legislation.


Answer:


The courts in interpreting the statutes apply 3 rules (Literal, Golden & Mischief Rules) and a variety of presumptions and secondary aids (intrinsic and extrinsic) to construct the meaning of the statutes.

Internal aids to construction of statute

Assistance is said to be intrinsic when it is derived from the statute which is immediately under consideration Example:

1. Title of the Act – it’s long title & short title

But these titles tend not to be used by courts in determining the purpose of legislation and any general intention derived from the title as it must give way when words are clear in the actual body of the Act. There are circumstances where courts will refer to the long title of the Act in making their decision as to what its effect and operation (Royal College of Nursing v DHSS)

2. Preambles

Preambles are Statement preceding the actual provisions of the Act which sets out its purpose, sometimes in full detail.

3. Schedules

Schedules to the Act appear as addition at the end of the main body of legislation. They form part of the Act and may be used to shed light on any obscurity in the main text.

4. Punctuations

Punctuations have an effect on the meaning of words and can be taken into consideration in determining the meaning of legislation.


External aids to construction of statute

This is the area where uncertainty exists. The case of Pepper v Hart (allowed to consult the Hansard) had the main impact for it had been seen as overturning the previous fundamentally restrictive approach of the court to what they can legitimately look at in order to determine the meaning and purpose of statute.

Other extrinsic aids are:

(i) Dictionaries – to determine non-legal words
(ii) Authoritative textbooks – on points of law

Historically, English courts have adopted a distinctive approach to what they are entitled to take into consideration although some judges such as Lord Denning have been ‘notorious’ for trying to avoid those restrictive rules.

The restrictive approach has been gradually relegated to the extent that judges can now use extrinsic sources to at least determine the mischief at which a particular legislation was aimed and in pursuit of this end, they are entitled to look at the Law Commission Reports and Royal Commission Reports.

But there have been a debate as to the access to the debates of Parliament as reported in the Hansard.

In Pepper v Hart, the House of Lords decides to overturn the prevailing rule that judges were not at liberty to consult the reports of Parliamentary debates recorded in the Hansard in order to assist them in their construction of legislation. In a majority decision, it was held that where precise meaning of legislation was uncertain or unambiguous or whose literal rule meaning of an Act would lead to a manifest absurdity, the court could refer to Hansard as to aid them in constructing the meaning of legislation. In the words of Lord Browne Wilkinson:

“There is good reason for making a modification to the existing rule – because such report might produce a clear indication of what Parliament had actually intended in using particular words.”

In permitting this extension, the House of Lords did not grant absolute freedom to future courts. Reference to Hansard should be made only to reveal the legislative intention of the statute rather than to find the precise meaning of statutory language.

Extension applies to the determination of the mischief at which the particular legislation is aimed rather than the determination of the precise explanation of the remedy provided. Only statements made by host minister or other sponsor responsible for the provision and passage of the legislation will be considered as authoritative in determining the mischief at which a particular statute was aimed.

Until 1980, there has been a Parliamentary rule that prevents counsel in any court case from citing debates in the House of Commons without prior permission of the House.

In Pepper v Hart, it was considered that whether the use of Hansard in court would challenge the freedom of Parliamentary debates and constitute a breach of the Bill of Rights, the House of Lords pointed out that relaxation of the old rule would lead to the court giving effect to the wishes of Parliament and thus could not in any way be seen as an infringement of Parliamentary privilege.

Operation of Pepper v Hart was extended in Three Rivers DC v Bank of England (No.2) [1996] to cover situations where legislation under question was not itself ambiguous, but might be ineffective in its intention to give effect to some particular European Court Directions.

In Melluish v BMI (No.3) [1995], the court refused to extend the rule to situation where ministers had made statements as to the meaning of statutes at some time other than at the passing of that particular piece of legislation.

Question 3:

“The traditional approach to statutory interpretation has lost its hold in recent years. Judges are now free in their approach to interpretation than previously.”
Comment.



The roles of judiciary are merely to apply the law that had been enacted by parliament. This view is too simplistic to the extent that it denies or at least ignores the extent of which the judiciary has a measure of discretion and creative power in the manner in which he interprets the legislation that comes before him.

In order for an Act of Parliament to have its proper effect, it must be understood and clear. Legislation therefore involves an inescapable measure of uncertainties that can only be made certain through judicial interpretation.

What is then the problem?

Uncertainty is inherent in any mode of communication. Conflicting aims of legislation gives rise to a particular problem of interpretation. These conflicting aims are the need to be clear whilst at the same time is general.

Clarity and precision tend to be achieved only in inverse proportion to generality, but legislation must endeavor to be general practicability.

There therefore in all legislation a number of uncertainties that can only be illuminated and made certain by judicial interpretation. Interpretation is therefore a creative process and inevitably renders the judiciary in the process of creating law.

How do judges actually interpret statutes?

In determining the actual meaning of legislation, they make use of the 3 rules of interpretation and a variety of secondary aides. The 3 rules are: Literal Rule, Golden Rule & Mischief Rule.

It must be emphasized that they are actually not rules but rather, general approaches. It cannot be treated as rules because judges have the discretion to choose which approach to use depending on how they want to interpret a particular statute that comes before them.

The traditional approach to statutory interpretation had always been what Denning called the “strict traditionist” view. What it means is that judges are required to consider what the legislation actually says rather than considering what it might mean. Judges have to give the words in the legislation its literal meaning, that is, in its plain, ordinary, everyday meaning, even if the effect is to produce what might be considered unjust, absurd or undesirable outcome. For example, in Fisher v Bell, the Court stood by their literal interpretation of the Act in question and refuses to extent the usual legal interpretation of the word ‘offer’.

The Golden Rule may be used when application of Literal Rule will result in what appears to the court to be ‘absurd’. It basically ‘fills in the gap’ and provides judicial repair of the statute. In Adler v George, D was charged under OSA 1920 with obstruction in the vicinity of a prohibited area whereas the obstruction was actually inside the vicinity. The court held the words “in the vicinity” should read “in or in the vicinity of” as otherwise the implication would create absurdity or and extraordinary result.

The Mischief Rule was established in Heydon’s case (1584). It gives the court the justification for going beyond the actual wording of a statute in order to consider the problem that the particular statute was aim at remedying. The limitation of this rule is that, it must use previous Common Law before the Act was passed to determine the mischief of the Statute in question was designed to remedy. In Corkery v Carpenter (1951), D was charged for being drunk while in charge of a bicycle on the highway. Court held that bicycle was a ‘carriage’ for the purpose of s.12 of the Licensing Act 1872. The purpose of the Act was to prevent people who are in a state of intoxicated to use any form of transport on public roads.

It was suggested that the 3 rules ranked in a hierarchical order. But in essence, they are not. Literal Rule will be used unless it leads to absurdity which may lead to the use of the Golden Rule. But what determines whether any particular result is an absurdity other than the views of judges deciding the cases? These rules are contradictory at least to a certain extent, in a way no outsiders can determine which rule will be applied by the judges in a particular case. As such, they are merely devices which judges use to justify their decision.

Modern approaches to interpretation also include Purposive Approach and Contextual Approaches. In purposive approach, the court finds the purpose of the Act and interprets the words to fulfill that purpose. This can be seen in the case of Pepper and Hart where the court can refer to parliamentarian debates (the Hansard) in order to aid them in interpretation of a statute. In the contextual approach, the words are interpreted in accordance with the context within which they are found in the Act.

Judges in interpreting statutes are also required under s. 3(1) of the HRA 1998 to construe statutes as far as possible to give effect to the rights as provided by the ECHR. In R v A (No.2), the court held taking into account of the interest of the defence, the victim and the society, and applying the Court’s interpretative obligation under s. 3 HRA 1998, the evidence and questioning of the alleged prior consensual sexual relations between the accused and the complainant is admissible under s. 41(3)(c) of the Youth Justice & Criminal Evidence Act 1999 (YJAEA 1999).

In Ghaidan v Mendoza (2004) HL, Lord Steyn states that, “In enacting the HRA 1998, Parliament legislated to ‘bring rights home’ from the ECHR to be determined in the Courts of UK. Therefore, rights could only be effectively ‘brought home’ if s. 3(1) HRA 1998 was the prime remedial measure and s. 4 a measure of last resort.

The question of whether the traditional approach to statutory interpretation has lost its hold in the recent years, it does seem that it did not. In Goodes v East Sussex City Council (2000), the HL held the statutory duty of highway authorities under s. 4(1) Highway Act 1980, to maintain the highway, did not include the removal of ice and snow though such removal might be expected by modern road-users; maintenance was thus interpreted as confined to keeping the fabric of the road in good repair. This interpretation is thus in conformance with the traditional literal rule. In Brimingham City Council v Oakley (2001), the HL held the concept of the words “premises in such a state as to be prejudicial to health” under s. 79(1)(a) Environmental Protection Act 1990, do not include the facilities such as the provision of washbasins in the lavatory. According to Lord Hoffman, “one should not use a word to express a broader concept than that intended by Parliament, such a step would tantamount to an illegitimate extension of the ordinary statutory meaning.” Again, in Gorringe v Calderdale (2004) HL, Lord Hoffman took a similar approach and held that the highway authority’s duty to maintain the highway (under s. 4(1)) did not include providing ‘road-signs’.

However, we can’t avoid the facts that judges are now freer in their approach to interpret the statute. The case of R v A (No.2) is clear support of this point where Lord Steyn had adopted the ‘implied provision test’ or the ‘expansion test’ which is a wider reading of s. 41 of JYAEA 1999. in that case, Lord Steyn enunciated that a declaration of incompatibility under s. 4 HRA 1998 is a measure of last resort. Therefore, R v A illustrated the judicial shift of parliamentary power to the judiciary.

In conclusion, the court now invokes whichever of the rules which produce a result that satisfies its sense of justice as proffered by Prof John Willis. As can be observed in Lord Reid’s judgment in Maunsell v Olins (1975), the rules of interpretation are not ‘rules in the ordinary sense of having some binding force. They are our servants not our masters … we must look at the particular circumstances and decide as a matter of judgment what weight to attach to any particular rule. In a wider sense, there are plenty of room for judiciary creativity and a freer approach to statutory interpretation than was previously.

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