clr statutory interpretation
TRANSCRIPT
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CLR Statutory Interpretation
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F.A.R. Bennion (Statute Law, 1990), has
identified a number of factors that may causedoubt:
1. The draftsman may refrain from using
certain words that he or she regards as
necessarily implied. The problem here is that
the users may not realise that this is the case.
2. The draftsman may use a broad term (a
word or phrase of wide meaning) and leave itto the user to judge what situations fall within
it.
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Bennion contd
3.Ambiguous words may be used.
4. There may be unforeseeable developments.
5. There are many ways in which the wording
may be inadequate. There may be a printingerror, a drafting error or another error.
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Solutions
General methods of statutory interpretation
have been
developed by the judges. The Interpretation Act 1978 only provides
certain standard definitions of common
provisions, eg, he includes she, and
thereby enables statutes to be drafted more
briefly than otherwise would be the case.
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Solutions
Modern statutes commonly include
definition sections in which the meaning of
words and phrases found in the statute are
explained, eg ss2-6 of the Theft Act 1968
explain the elements of the offence in s1.
Explanatory Notes have been published for
new Acts since 1999.
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6
The Rules of Interpretation
The Literal Rule- i.e. take only the plain, literal meaning of the words
used because those are the words the draftsman chose to employ.
The Golden Rule- i.e. to try to ascertain what the draftsmen intended by
these words by looking at the general purpose of the section and the
social, economic or political context; and The Mischief Rule- which directs you to look at the history of the Act or
other document to see what is wrong with the law (i.e. what is the
mischief? that the draftsman sought to remedy.
The Purposive Rule teleological approach as favoured by the judges of
the civil jurisdictions.
In reality, these rules are nothing more than techniques of reading a
document, and may be used singularly or in any combination.
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By the literal rule, words in a statute must be
given their plain, ordinary or literal meaning.
The objective of the court is to discover the
intention of Parliament as expressed in the
words used. This approach will be used even if
it produces absurdity or hardship, in which
case the remedy is for Parliament to pass anamending statute.
The Literal Rule
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One of the leading statements of the literal rulewas made by Tindal CJ in the Sussex Peerage Case
(1844) 11 Cl&Fin 85:
the only rule for the construction ofActs ofParliament is, that they should be construedaccording to the intent of the Parliament whichpassed the Act. If the words of the statute are inthemselves precise and unambiguous, then nomore can be necessary than to expound thosewords in their natural and ordinary sense. The
words themselves alone do, in such case, bestdeclare the intention of the lawgiver.
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Lord Esher in R v Judge of the City of London
Court [1892] 1 QB 273 said:
If the words of an Act are clear then you
must follow them even though they lead to a
manifest absurdity. The court has nothing to
do with the question whether the legislature
has committed an absurdity.
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Whiteley v Chappell (1868) LR 4 QB 147.
The defendant pretended to be someone who
had recently died in order to use that persons
vote. It was an offence to personate any
person entitled to vote.As dead people
cannot vote, the defendant was held not to
have committed an offence.
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London & North Eastern Railway v
Berriman [1946] AC 278.
The claimants husband was killed while oiling
points along a railway line.
Compensation wasonly payable if he had been relaying or
repairing the line. The HL held oiling points
was maintaining the line and not relaying or
repairing.
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Cutter v Eagle Star Insurance [1998] 4 All ER 417.
The claimant was sitting in his friends car in a car
park and was injured when a can of lighter fuel
exploded. The driver was insured, as required by
the Road Traffic Act 1988, for injury caused while
on a road.
The HL held that the car park wasnot a road because a road provides for cars to
move along it to a destination. Therefore, the
insurance company was not liable to pay out on
the drivers policy because the claimant had notbeen injured due to the use of the car on a
road.
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Pros of Literal Interpretation
encourages draftsmen to be precise.
respects the words used by Parliament.
prevents judges rewriting statute law, whichonly Parliament can do.
Alternative approaches would make it difficult
to predict how doubtful provisions might berewritten by judges.
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Judges have tended excessively to emphasise
the literal meaning of statutory provisions
without giving due weight to their meaning inwider contexts.
assumes that parliamentary draftsmen are
perfect.
ignores the limitations of language.
can lead to absurd or harsh decisions and
Parliament has to pass an amending statute.
Cons of Literal Interpretation
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R v Allen (1872) LR 1 CCR 367
The defendant was married and marriedagain. It was an offence for a married personto marry again unless they were widowed or
divorced. When caught the defendant arguedthat he did not commit this offence as the lawregarded his second marriage as invalid. Thecourt held that the word marry could also
mean a person who goes through aceremony of marriage and so the defendantwas guilty.
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Re Sigsworth [1935] Ch 89.
The defendant had murdered his mother. She
did not have a will and he stood to inherit her
estate as next of kin, by being her issue. The
court applied the golden rule and held that
issue would not be entitled to inherit where
they had killed the deceased.
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Adler v George [1964] 2 QB 7.
It was an offence to obstruct HM Forces in
the vicinity of a prohibited place. The
defendants had obstructed HM Forces in a
prohibited place (an army base) and argued
that they were not liable. The court found
them guilty as in the vicinity of meant near
or in the place.
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Pros of the Golden Rule
allows judges to avoid absurd or harsh resultswhich would be produced by a literal reading.
allows judges to avoid repugnant situations, as
in Re Sigsworth.
Cons of the Golden Rule There is no clear way to test the existence of
absurdity, inconsistency or inconvenience, orto measure their quality or extent.
Judges can rewrite statute law, which only
Parliament is allowed to do.
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The Mischief Rule
The mischief rule is contained in Heydon's
Case (1584) 3 Co Rep 7, and allows the court
to look at the state of the former law in order
to discover the mischief in it which the
present statute was designed to remedy. The
court stated that for the true interpretation of
all statutes four things are to be considered:
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1st. What was the common law before the
making of the Act.
2nd. What was the mischief and defect for
which the common law did not provide.
3rd. What remedy Parliament resolved and
appointed to cure the disease.
4th. The true reason of the remedy; and then
the function of the judge is to make such
construction as shall suppress the mischiefand advance the remedy.
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Smith v Hughes (1960) 2 All ER 859.
Six women had been charged with solicitingin a street or public place for the purpose of
prostitution. However, one woman had been
on a balcony and others behind the windows
of ground floor rooms. The court held they
were guilty because the mischief aimed at was
people being molested or solicited by
prostitutes.
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Royal College of Nursing v DHSS [1981] 1 All ER
545. The Abortion Act 1967 allows abortions by a
registered medical practitioner. Doctorscarried out the first part of the procedure and
the second was performed by nurses butwithout a doctor being present. The HL held(by 3-2) that this procedure was lawfulbecause the mischief Parliament was trying toremedy was back street abortions performedby unqualified people.
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Corkery v Carpenter [1951]1 KB 102
.A person could be arrested if found drunk in
charge of a carriage on the highway. The
defendant had been arrested for being drunk
in charge of a bicycle on the highway.
The court held that a bicycle was a carriage for
the purposes of the Act because the mischief
aimed at was drunken persons on the highwayin charge of some form of transport, and so
the defendant was properly arrested.
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DPP v Bull [1994]4All ER 411.
A man had been charged with loitering or
soliciting in a street or public place for the
purpose of prostitution.
The court held that the term prostitute was
limited to female prostitutes. The mischief
the Street Offences Act 1959 was intended to
remedy was a mischief created by women.
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Pros of the Mischief Rule
allows judges to put into effect the remedy Parliament
chose to cure a problem in the common law.
was developed at a time when statutes were a minor
source of law; drafting was not as precise as today and
before Parliamentary supremacy was established.
Cons of the Mischief Rule
Judges can rewrite statute law, which only
parliament is allowed to do.
must be possible to discover the mischief in
order for this rule to be used.
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Purposive Approach
The purposive approach is one that will
promote the general legislative purpose
underlying the provisions (per Lord Denning
MR in Notham v London Borough of Barnet
[1978] 1 WLR 220). There will be a comparison
of readings of the provision in question based
on the literal or grammatical meaning ofwords with readings based on a purposive
approach.
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Jones v Tower Boot Co Ltd [1997]2 All ER 406.
The complainant suffered racial abuse atwork, which he claimed amounted to racialdiscrimination for which the employers wereliable under s32 of the Race Relations Act
1976. The CA applied the purposive approachand held that the acts of discrimination werecommitted in the course of employment.Any other interpretation ran counter to the
whole legislative scheme and underlyingpolicy of s32.
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Pros
gives effect to the true intentions ofParliament.
Cons
It can only be used if a judge can find
Parliaments intention in the statute or
Parliamentary material.
Judges can rewrite statute law, which onlyParliament is allowed to do.
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Integrated (or Unified Contextual
Approach
Sir Rupert Cross, Statutory Interpretation (3rd ed,1995), suggested that there was a unified approach tointerpretation:
(i) The judge begins by using the grammatical and
ordinary or technical meaning of the context of thestatute;
(ii) If this produces an absurd result then the judge mayapply any secondary meaning possible;
(iii) The judge may imply words into the statute or alter orignore words to prevent a provision from beingunintelligible, unworkable or absurd; and
(iv) In applying these rules the judge may resort tovarious aids and presumptions.
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Mandla v Dowell Lee
Controversial instance of statutory
interpretation
Courts (HL and CA
) divided on application ofstatute and the Race Relations Act
Interpretation of ethnic in respect of Sikhs
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Impact ofEU Membership
UKs accession to EU altered the standing of
parliamentary sovereignty
A
ll UK legislation must be interpreted to avoidconflict with EU law ECA1972, s.2
ECJ adopts a teleological (purposive) approach
which appears to have increasingly influenced
UK law
Is the use of this approach on the increase in
UK?
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Impact of the Human Rights Act 1998
S.3(1) requires legislation to be read in a way thatis compatible with Convention rights so far as itis possible to do so; judges will have this in mindwhen adopting a purposive approach
S.4 where it is not possible to give aninterpretation that is compatible with theConvention the higher courts may issue adeclaration of incompatibility
The declaration will not affect the validity of thestatute, its continuing operation or enforcement
s.3(2)(b)
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HRA
Principles of Human rights are not foreign to
English law right to fair trial, freedom of
speech, etc
Judges are not empowered to strike down
legislation that is incompatible this would
usurp fundamental constitutional principles,
i.e., separation of powers and parliamentarysovereignty