Statutory Interpretation – AidsLearning Objectives

Describe the different aids to statutory interpretation and explain how they are used.

Date: Saturday 6 May 2023

Specification LinkAids to interpretation: rules of language; internal and external aids

You be the Judge …

Each students gets one card containing a case in which the

courts used statutory interpretation to make a decision.

Examine the facts of the case and the outcome and then decide which rule was applied by the

courts and why.

Royal College of Nursing of the UK v DHSS (1981) 1 All ER 545

Use of nurses to carry out abortions who used drugs and procedures not thought of when the Act was passed in 1967. The Act required abortions to be carried out by a ‘registered medical practitioner’.

Principle – The Act was intended to provide for safe abortions and nurses could do this.  Lord Wilberforce and Lord Edmund Davies claimed that judges were not interpreting legislation but re-writing it.

Example

Key Terms• Presumptions

• Intrinsic Aids

• Extrinsic Aids

• The ejusdem generis rule

• Expressio unius est exclusio alterius

• Noscitur a sociis

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What aids are available to judges?

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Presumptions Intrinsic

Extrinsic

Aid One: Presumptions

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Common law is not changed unless the act expressly say

so

Meaning: Things we assume to be true

Queen is not bound

Criminal Offences require mens rea

R v ShivpuriCriminal Attempts Act 1981 s.1(3)

The law should not act retrospectively

Human Rights Act 1998

B v DPP 2000Sweet v Parsley 1970

Human Rights Act 1998War Crimes Act 1991

Aid Two: Intrinsic Aids

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Definition sections

Meaning: Things that are internal to the Act itself

Headings

Long (& short) titles

Schedules

1) Look at your Human Organ Transplant Act again – can you find examples of each of the intrinsic

aids in the statute?

Other sections of the Act

Draftsmen/side notes

Lets try it for ourselves…

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Look at your Human Organ Transplant Act 1989 again.

Using the Act answer the following questions.

2) Look at the following scenarios:

a. Have they broken the law?

b. What other sections of the Act did you find useful in working out the answers?

c. Link the different sorts of law together – can you find the delegated legislation element of the Act?

Mark is given a new liver by Nat, he hands over the keys to his house

in return.

Dan texts all his friends asking

them if they want to make some

money by donating an eye.

Ian’s grandfather donates his

kidney to Ian, who pays for his

medical expenses for the donation.

Intrinsic Aids – Long and Short Title

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May be used as guidance

Abortion Act 1967

Fully entitled ‘An Act to amend and clarify the law relating to termination of pregnancy by registered

medical practitioners.

Royal College of Nursing of the United Kingdom v DHSS (1981)

3) Read your copy of the Act.4) Does the short and long title help you answer the following question:

a. Is it OK for nurses to carry out abortions?

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Royal College of Nursing of the UK v DHSS (1981) 1 All ER 545Use of nurses to carry out abortions who used drugs and procedures not thought of when the Act was passed in 1967. The Act required abortions to be carried out by a ‘registered medical practitioner’.

Principle – The Act was intended to provide for safe abortions and nurses could do this. Lord Wilberforce and Lord Edmund Davies claimed that judges were not interpreting legislation but re-writing it.

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Intrinsic Aids – Other sectionsOlder statutes may have a preamble serving as a purpose statement

Newer acts may have objectives or purposes section - E.g. Climate Change and Sustainable Energy Act 2006

Look at this purpose section of the Climate Change Act:4) How might this extra section help judges make decisions?5) What does the purposes section tell you about the intention of the drafters?6) What are the main objectives of the Act?

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Intrinsic Aids – Schedules

Look at your copy of the Hunting Act 2004

7) What are the exemptions to hunting contained in the Schedule?8) I ask my neighbour to bring his Jack Russell around to dig out some rats I have found in my garden – does the schedule exempt my neighbour from prosecution?9) Make a list of five other exemptions

Schedules appear as additions to main body of Act

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Intrinsic Aids – Schedules

Look at your copy of the Law Reform (Year and a Day Rule)

Act 1996:

10) How does the Act define a fatal offence?11) Which section is this contained in? 12) How do you think this might specifically help a judge in interpreting the Act?

Most new Acts contain a special interpretation definition section

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Intrinsic Aids – PunctuationPunctuation is now seen to have an effect

`in Hanlon v Law Society (1981) Lord Lowry commented;

“To ignore punctuation disregards the reality that literate people, such as parliamentary draftsmen, do punctuate what they write.”

In your groups come up with two sentences which use the same words

but which have two different possible meanings because of the

way you have punctuated it.

Aid Two: Extrinsic Aids

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Dictionaries

Meaning: Things that are external to the Act itself

Previous Acts

The Interpretation Act 1978

Reports of the Law Commission

International Treaties

Hansard

Explanatory Notes

Textbooks

Vaughan v Vaughan (1973)

1. Before you read the facts of the case what do you think the word molest means?

2. Now check your meaning against a dictionary definition.

3. Are they the same, close or different?4. If I pester my wife to take me back after a marital

split does that merit molestation?

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Vaughan v Vaughan (1973) 1 WLR 1159

In this case the court had to interpret the word ‘molest’. D had been subject to injunctions in respect of previous violence towards his ex-wife who was afraid of him. D argued that pestering his ex-wife to resume their relationship by going to her home early in the morning and late at night and also calling on her at work, did not amount to molesting her.

Principle – The judges consulted the dictionary, which defined molest as ‘to cause trouble, vex, annoy or , to put to inconvenience’ and held that the defendant's behaviour did amount to molestation.

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Extrinsic Aids – Previous ActsExplosives Substances Act 1883

amending the Explosives Act 1875

5) How can the judge use the 1883 short title to justify applying the previous 1875

Act when he defined the term explosive in Wheatley?

Wheatley (1979)

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R v Wheatley [1979] 1 All ER 954

A man D was found in possession of a metal pipe filled with sodium chlorate and sugar, and was charged with possessing an explosive substance contrary to s.4 of the Explosive Substances Act 1883. He argued that its effects would be pyrotechnic rather than explosive, but the court referred to the Explosives Act 1875, in which "explosive" was defined as including "pyrotechnic".

Principle – Since the long title of the 1883 Act referred expressly to the 1875 Act, the definition from the earlier statute could be imported into the later.

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Extrinsic Aids – The Interpretation Act 1978

7. How does section 6 assist the Judge when making a decision?8. How many other idiosyncrasies of the English language need clearing up to make things easier to interpret?9. Can you find 3 more in your groups?10. Can you think of any occasion when this may still not make things clear?

Extrinsic aids also includes Reports of the Law Commission (e.g. when they highlight what is wrong with old Act) and International Treaties (such as the EU Law)

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Extrinsic Aids – Hansard

Hansard (the Official Report) is the edited verbatim report of proceedings of both the House of Commons and the House of Lords.

Davis v Johnson (1979)To Pepper v Hart (1993)

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Extrinsic Aids – Hansard

11) Research Task – Take a look at the decisions in the two cases above.

What was Lord Denning’s position about the use of Hansard in Davis?

What did the House of Lords say?

When did the rules change?

What do the rules say now?

Davis v Johnson (1979) To Pepper v Hart (1993)

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Davis v Johnson [1978] 2 WLR 553 House of LordsThis case concerned the interpretation of the Domestic Violence and Matrimonial Proceedings Act 1976. At the Court of Appeal Lord Denning referred to Hansard stating, that not to do so would be like 'groping in the dark without switching on the light'. On appeal to the House of Lords the Lords reprimanded Denning for referring to Hansard and restated the rule that Hansard must not be referred to.

Lord Kilbrandon - "It has always been a well established and salutary rule that Hansard can never be referred to by counsel in court and therefore can never be relied on by the court in construing a statute or for any other purpose.”

Viscount Dilhorne: - "While, of course, anyone can look at Hansard, I venture to think that it would be improper for a judge to do so before arriving at his decision and before this case I have never known that done. It cannot be right that a judicial decision should be affected by matter which a judge has seen but to which counsel could not refer and on which counsel had no opportunity to comment.”

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Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42 The House of Lords had to decide whether a teacher at a private school had to pay tax on the perk he received in the form of reduced school fees. The teacher sought to rely upon a statement in Hansard made at the time the Finance Act was passed in which the minister gave his exact circumstance as being where tax would not be payable. Previously the courts were not allowed to refer to Hansard.

The House of Lords departed from Davis v Johnson and took a purposive approach to interpretation holding that Hansard may be referred to and that the teacher was not required to pay tax on the perk he received. The rules were however: 1. The wording in the Act must be ambiguous or obscure, or a literal interpretation would

lead to an absurdity.2. Judges may look only at the statement as made by a minister or other promoter of the bill.3. The statements must be clear in order for them to be relied upon.