English Legal System - Statutory Interpretation (Part 2)

The Golden Rule

The golden rule may be seen as an extension or adaptation of the literal rule

If the literal rule gives an absurd result which Parliament has not determined, the judge may substitute a reasonable meaning taking into consideration the statue as whole

This was defined by Lord Wensleydale in Grey v Pearson (1857) 6 HL Cas 61:

“The grammatical and ordinary sense of the word is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified as to avoid that absurdity and inconsistency, but no further.”

The point that the context should aid the interpretation is to be found in the following River Wear Commissioners v Adamson (1876-77) App CA 743 at 764-5 per Lord Blackburn:

“…I believe that it is not disputed that what Lord Wensleydale used to call the golden rule is right, viz, that we are to take whole statute together and construe it all together, giving the words their ordinary signification unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification and to justify the court in putting on them some other signification which, though less proper, is one which the court thinks the words will bear.”

Cases demonstrating the Operation of the Golden Rule:

R v Allen (1872) LR 1 CCR 367

In the case of R v Allen, Mr Allen who was already married, married a woman called Harried Crouch who actually was his close relative. The statute under interpretation said: “…whosoever being married shall marry any other person during the lifetime of his spouse” shall commit bigamy. As Harriet was a close relative of Mr Allen, the marriage was void and therefore Mr Allen claimed that as the marriage was void, he could have committed bigamy, as the second marriage should be legal before it would be possible to commit bigamy. This would have resulted in an absurdity and

Re Sigsworth [1935] Ch 89
Maddox v Storer [1963] 1 Q.B. 451
Adler V George [1964] 2 Q.B. 7
Inco Europe Ltd v First Choice Distribution [2000] 1 W.L.R. 586

The advantage of the golden rule is that it may prevent absurdity and injustice caused by the literal rule

The disadvantage may be that there is no clear meaning provided for the ‘absurd result’

The Mischief Rule

The mischief rule may be used when the golden rule does not achieve a satisfactory result

It was laid down in the Heydon’s Case (1584) Co Rep 7a in the 16th century

It states that the judges should consider four (4) factors

What the law was before the passing of the statute
What problem or ‘mischief’ was tried to be remedied by the passing of the statute
What kind of remedy the Parliament wanted to achieve
What was the true reason for the remedy

After considering these the judge should interpret the statute in such a way as to remedy the problem the Parliament wanted to address

Smith v Hughes [1960] 1 W.L.R. 830

In this case the Streets Offences Act 1958 made it a criminal offence for a prostitute to solicit in a street or a public place potential customers, and as the prostitute in question was sitting on the first floor of a house, tapping on the window to attract the attention of the men passing by, the court took the view that the aim of the Act was to enable people to walk along the streets without being solicited, and since the act by the prostitute was aimed at the people in the streets regardless that she was not actually on the street, the Act should be interpreted in such a way that it would be included.

Elliot v Grey [1960] 1 Q.B. 367

The Road Traffic Act 1930 stated that it was an offence for an uninsured car to be used on the road. The car in question was on the road but had its battery removed, but nevertheless the court took the view that the statute was designed to include such a vehicle as well.

Royal College of Nursing v DHSS [1981] AC 800

This case concerned the interpretation of the Abortion Act 1967 which stated that a termination of pregnancy is only legal if performed by an registered medical practitioner, and it was argued whether nurses come under this term of ‘registered medical practitioners’. The court took the view that the mischief that the Statute wanted to remedy was the uncertain state of the previous law which resulted in the so-called ‘back street abortions’, and therefore nurses were to be included under the term.

The advantage of the mischief rule is that it helps absurdity and injustice as well as it promotes flexibility

Its disadvantage is that at the time it was laid down in the Heydon’s Case statutes were a minor source of law

Purposive Approach

This approach considers the context of the statute, and its purpose. Lord Griffith stated ‘the courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation’. (Pepper v Hart see below).

However the purposive approach is not without problems as Twining and Miers point out “one should not be mislead into thinking that to adopt a purposive approach necessarily means that there is a single purpose to be found, or that different judges will agree on what the purpose(s) of a disputed provision might be, or how formulated”

Aids to Interpretation

There are different materials to help the judges in the statutory interpretation, regardless which approach they take – Internal aids and External aids

Internal aids

The Statute itself - long and short title, interpretation/definition section, subheadings, etc. The judge may compare provisions elsewhere in the statute

Explanatory notes – In Acts passed since the beginning 1999 there are explanatory notes as standard which are published at the same time as the Act

Rules of language -

Ejusdem generic – general words which follow specific ones are taken to include only things of the same kind (‘dogs, cats and other animals’ would probably include other domestic animals but not wild ones)

Ecpressio unius est exclusion alterius – express mention of one thing implies the exclusion of another

Noscitur a sociis – a word draws meaning from the other words around it (e.g. ‘dog basket, toy bones and food’ would probably mean in the case of ‘food’ a dog food )

Presumptions - the courts assume that certain points are implied in all legislation:

Statutes do not change the common law
The legislature does not intend to remove matters from the jurisdiction of the courts
Existing rights are not to be interfered with
Legislation does not operate retrospectively
Laws which create crimes should be interpreted in favour of the citizens in the case of ambiguity
Statutes do not affect the Monarch

Parliament may go against there presumptions

English Legal System - Statutory Interpretation (Part 1)

The Parliament makes legislation but the Courts are left to interpret and apply it.

The Doctrine of Parliamentary Sovereignty means that Judges must obey the will of the Parliament.

There may be difficulty in interpreting the exact meaning of words in particular context that the Parliament has drafted because:

- a word is left out in the assumption that it would be automatically implied.
- a broad term is used interpretation of which is for the user to determine.
- an ambiguous wording used purposely.
- printing, drafting or other errors resulting in inadequate wording.
- no consideration given to unforeseeable events of a case coming before the courts at time of drafting the legislation.

The job of the courts is to discover what the intention of the Parliament was in relation of the application of the law.

The Parliament has given the courts some source of guidance as to the interpretation of statutes - The Interpretation Act 1978.

Most modern Acts have an interpretation sections at the end defining some of the words used within them.

Since 1999 all Bills passed must have public explanatory notes which give detail to the background to the legislation as well as what is the effect it is intended to have.

In order to aid courts to resolve the ambiguity of meaning of words the rules of statutory interpretation have developed – Literal Rule, Golden Rule and Mischief Rule.

The Literal Rule

The literal rule is the starting point to a judge in interpreting statutes.

The literal rule means that all the words in a statute must be given their ordinary and natural meaning.

Under this rule the literal meaning of the word must be followed regardless that it may cause an absurd result which the Parliament did not mean, as it is for the courts just to apply to law.

Whitely v Chapell (1868) LR 4 QB 147

Case where under a statute preventing electoral malpractice it was an offence to impersonate ‘any person entitled to vote’, and so the accused was acquitted due to the fact that he impersonated a dead person not entitled to vote.

R v Harris (1836) 7 C & P 446

This case concerned a statute making it a offence to ‘stab, cut or wound’ another person and as Harris bit off her friend’s nose during a fight and police man’s finger, she was not found guilty as teeth were not included in category of weapon to which the statute indicated to apply.

Further cases illustrating the use of literal rule:

London and North Eastern Railway Co v Berriman [1946] AC 278

Case regarding a railway worker being hit and killed by a train while doing routine maintenance work and oiling, and his widow being refused damages as the wording of the statute was that only employees who have been killed while engaging in ‘relaying or repairing’ tracks are entitled to damages. Routine maintenance work and oiling did not fit into this.

Fisher v Bell [1961] 1 QB 394

The Restriction of Offensive Weapons Act 1959 was introduced to limit the rising number of violent incidences and it contained a wording that it is an offence to ‘sell or offer for sale’ any flick-knife. The defendant had been charged with offering to sale these items as he had displayed them in his shop window and as ‘offer for sale’ should be given its ordinary meaning in law, displaying a knife in a shop window is not an offer to sell, but invitation to treat and the defendant therefore not guilty of a crime under the Act.

Lord Diplock has expressed the following in favour of the literal rule of statutory interpretation:

Duport Steels Ltd v Sirs [1980] 1 W.L.R. 142

“At a time when more and more cases involve the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly argued that the British constitution, though largely unwritten, is firmly based upon the separation of powers; Parliament makes the laws, the judiciary interpret them. When Parliament legislates to remedy what the majority of its members at the time perceive to be a defect or a lacuna in the existing law (whether it be the written law enacted by existing statutes or the unwritten common law as it has been expounded by the judges in decided cases), the role of the judiciary is confined to ascertaining from the words that the Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable. Under our constitution it is Parliament’s opinion on these matters that is paramount.”

Lord Diplock has further went on to say that the principle applies even though there is reason to think that the Parliament had foreseen the situation before the court it would have modified the words used.

The literal rule has often been criticised as blindly applied it is against using intelligence in understanding language.

Applying the rule may also be difficult.

English Legal System - Acts of Parliament (Part 2)

Delegated Legislation

There are over 2,000 sets of rules and regulations made by Ministers or the Crown in Council, or other central rule-making authorities every year

Delegated legislation is under the authority of powers delegated by Parliament

There are three (3) main forms of delegated legislation; Statutory Instruments, Bye-laws and Orders in Council

Statutory instruments are made by government departments

Bye-laws are made by local authorities, public and national bodies and they have to be approved by the Government

Orders in Council are drafted by the relevant Government department in the times of emergency and are approved by the Privy Council and then signed by the Queen

 

The reasons for delegated legislation

Delegated legislation is considered a valuable source of law. The reasons for delegated legislation are:

Insufficient parliamentary time – there is not enough time for the Parliament to debate every detailed rule

Speed – rules may be made more quickly than by Parliament as it does not sit all the time and as its procedure is slow and cumbersome, delegated legislation often made in relation to emergencies and urgent matters

Technicality of the subject matter – MP’s do not usually have the technical knowledge required in drafting modern, detailed legislation containing technical provisions. Delegated legislation may use experts from the appropriate fields.

Need for local knowledge – Only way to make effective bye-laws is to have knowledge of the locality. Good example of such is the assemblies of Wales, Scotland and Northern Ireland which have powers to make delegated legislation

Flexibility – In contrast to statutes, delegated legislation may be put into action quickly as well as be revoked if proved problematic

Future needs – Parliament is not capable to foresee possible problems arising from statutes and therefore delegated legislation is needed to remedy such issues

Limits on Delegated Legislation

Control of delegated legislation is subject to range of controls in order to safeguard against possible abuse of the powers given to the non elected representatives:

Consultation – experts are often consulted in drafting delegated Legislation and the relevant statute may state that consultation is obligatory as well as identifying the authorities that should be consulted

Publication – all delegated legislation is published and available for scrutiny

Supervision by Parliament – the Parliament may supervise delegated legislation in a number of ways such as revocation, affirmative resolution procedure, negative resolution procedure, committee supervision, questions from MPs and by the House of Lords

Control by the Courts – Judicial Review. Delegated legislation may be challenged for a judicial review on the grounds of – Procedural ultra vires, Substantive ultra vires and unreasonableness

Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushroom Ltd [1972] 1 All ER 280

An order was declared invalid because the requirement to consult with the interested parties had not been properly complied with. (procedural ultra vires)

Customs and Excise Commissioners v Cure and Deely Ltd [1962] 1 QB 340

The powers to make delegated legislation by the Commissioners under the Finance Act 1940 were challenged and the High Court invalidated the regulation on the grounds that the Commissioners had given themselves powers beyond what the Parliament had intended. (substantive ultra vires)

Criticism of Delegated Legislation

There are number of issues which may be considered as weaknesses of delegated legislation such as lack of democratic involvement, overuse, sub-delegation and lack of control

Lack of democratic involvement - criticism raised due to the fact that delegated legislation is usually made by civil servants and not by elected politicians

Sub-Delegation - legislation made often by people other than the ones given the original power to do so

Lack of control - effective supervision is difficult regardless of the controls available as individuals often are unaware of the existence of delegated legislation

English Legal System - Acts of Parliament

Acts of Parliament are also known as statutes, statutory law and legislation.

The Parliament is sovereign and therefore it has power to make law that precedes law originating from any other source (except European Union law)

All statutes begin as a proposal for a piece of legislation – a Bill.

There are three types of Bill;

Public Bills – prepared by the Cabinet, effecting the general law of the country, usually preceded by Green Paper

Private Members’ Bills – prepared by individual back bench Members of Parliament (MPs), who must enter a ballot to win the right to put forward a bill and further get from the Government enough parliamentary time for the Bill to go through. Such Bills function more often as raising attention in relation to particular issues, and only rarely become Acts.

Private Bills – proposed by local authorities, public corporations or public companies

Majority of bills originate from governmental departments, with only a minority of bills deriving from a government manifesto commitments

Also large number originate from the recommendations of independent advisory committees or commissions, some of them being ad hock

The most important standing body is the Law Commission.

The drafting of Acts of Parliament is done in number of different consecutive stages:

First reading – acts as a notification of the proposal as the title of the Bill is read to the House of Commons

Second reading - takes the form of a full debate at which the Bill may be amended as well as voting taking place as to whether the legislation should in fact proceed

Committee stage - referral of the Bill to the House of Commons in order for it to be examined in detail at which stage it may also undergo further amendments.

Report stage – after consideration by the House of Commons they report back to the House and further debate and voting is to be taken on the proposed amendments

Third reading – the House of Lords will put the proposed Bill through similar process of three (3) readings after which if there are to be any amendments, it will be returned to the Commons for further consideration which is followed by a agreement, details of disagreement or alternative change proposals

Royal Assent - a bill is presented for a Royal Assent after agreement by the Lords and the Commons. It is for the Queen to give her consent for it to become law at a later, specified date

The Parliament Acts 1911 and 1949

The process of creating legislation involves the proposed bill passing through both Houses. The result could be that the House of Lords could continually reject bills from the House of Commons.

The Parliament Acts lay down special procedures whereby the Act can be presented for Royal Assent without the approval of the House of Lords.

The Parliament Act 1911, s.1 concerns the delay of money bills, and s.2 concerns how long the Upper House can delay all bills other than money bills. Originally set at two years this limit was reduced by the Parliament Act 1949.

The validity of the 1949 Act has been questioned, as it used the Parliament Act 1911 to get it passed. This question was raised in the House of Lords in R (Jackson and others) v Attorney-General [2005] 3 WLR 733, in relation to the passing of the Hunting Act 2004, and was found to be lawful.