Explain, Illustrate and Evaluate Judicial Approaches to Statute Interpretation
A statute has been defined simply as “the will of the legislature”1. The term “Interpretation” is more strictly applicable to the process of assigning meaning to individual words. Support for this definition may be found in the words of Lord Reid in Brutus v. Cozens, where he said: “The meaning of an ordinary word of the English language is not a question of law. The proper interpretation of a statute is a question of law”2. The object of all interpretation is to discover the intention of Parliament. Parliament can pass a bill with the best of ideals but either due to poor drafting or a failure to anticipate ambiguities, a dispute may arise over the wording of a section. A classic example is Fisher v. Bell (1961) under the Restriction of Offensive Weapons Act (1959) where it states it was an offence to ‘offer for sale’ an offensive weapon. It was an invitation to treat rather than an ‘offer for sale’. Careless drafting had defeated the purpose of the Act3. The words of the Act itself are the only guide the Judges allow themselves to the meaning and purpose of the legislation4. The statutory interpretations are divided into two parts. These can be categorized as either external or internal aids. An External aid is reference to sources outside of the statute itself. There are number of canons of construction which Judges use to discover the meaning of a statute.
The literal rule requires a statute to be interpreted literally, that is, the words of a statute are to be given their plain, ordinary and natural meaning5. In a classical example, in the Sussex Peerage case, which turned on the Royal Marriage Act 1772, Lord Tindal, CJ, said: “If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense”6. The statement of the rule varies from one Judge to another, so there is a variation in the deference with which the rule is treated. However, the literal approach that is the dominant approach in the English system. The case of R v. Broadcast complaint commission employs the application of the literal approach and the rejection of the ‘purposive ‘ approach of interpretation7. In that case, the court held, a purposive interpretation could be adopted which would preclude the application of a statute, which would apply if the literal approach were adopted8. The literal rule has also been subjected to severe criticism. The literal rule that the limitation of language is such that a word may have a “plain meaning” to one Judge and different plain meaning to another9. In Ellerman Lines Ltd. v. Murray, according to Lord Tomlin the S .1 of the Merchant Shipping Act 1925 was “Free from ambiguity”, whereas Lord Blanesburgh said: “I do not suggest that this Act … is clear” 10.
The golden rule represents one attempt to overcome at least some of the inadequacies of the literal rule. Where the words have more than one meaning the court will choose that which make most sense. Parke B give a clear view in the case of Gery v. Pearson that ‘…the grammatical and ordinary sense of the words is to be adhered to, unless those words 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, so as to avoid the absurdity and inconsistency but no farther’11. This approach is supported in the case of R v. Sigworth (1935) where the court first brings the idea of common law rules into legislative provisions, which were silent on the matter, to prevent the estate of a murderer from benefiting from the property of the party he had murdered12. The weaknesses of “golden rule”, at first sight promising, turns out to be of law caral, because it sets a negative standard and indicates no means of testing or measuring these factors, “Inconvenience” especially is a vague and wide conception13.
The ‘mischief’ rule' is only brought into use where there is a perceived failure of the other two rules to deliver an appropriate result. The application of the mischief rule is that given by the Barons of the Court of Exchequer in Heydon’s case to require that four things be considered, the common law before the Act, the mischief and object not provided for by the common law, the remedy resolved and appointed by parliament to cure it and “the true reason for the remedy”14. Most important is the view of Lord Denning, In Seaford court Estate v. Asher (1949) he has given clear concept that a judge is to find out the intention of parliament –‘he must do this not only from the language of the statute but also from a consideration of the social conditions which gave rise to it and of the mischief (my italics) which it was passed to remedy’15.
The purposive approach seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears on the background against which the legislation was enacted16. The golden and mischief rules are only to be resorted to when there is ambiguity in the wording of the statute but the purposive approach can be resorted to even though there is no ambiguity or absurdity on the face of the statute. The approach is still in a developmental stage in English law. The “purposive” approach well defined by Lord Denning, MR: “The literal method is now completely out-of-date. It has been replaced by the approach, which Lord Diplock described as the ‘purposive’ approach”17. In the case of Magor & Mellons v. Newport Corporation (1951) this approach was criticized. They described it as “a naked usurpation of the legislative function under the thin guise of interpretation”18.
The Ejusdem Generis rule means that the particular words are followed by general words and the general words take on the meaning of the particular words. As Romer, L J, said: “The doctrine of ejusdem generis is only part of a wider principle of construction, namely, that, where reasonably possible, some significance and meaning should be attributed to each and every word and phrase…”19. For example, betting is prohibited in shops, houses, flats, bungalows and other such places.
There are a number of secondary external aids to construction. The important aids are historical setting of the statute, dictionaries and textbooks, previous statutes, Royal commission reports, law commission reports and criminal law revision commission reports. External aids can include the International Act 1978, other parliamentary papers, and, since Pepper v. Hart, Hansard, the official report of parliamentary debates.
Hansard is a parliamentary magazine. The courts had a rule that Hansard could not be consulted but in the land mark decision in Pepper v. Hart the House of Lords overturned this rule20. The influence of Pepper v. Hart is that it permits more external material to be used in determining parliamentary intention when applying the mischief rule21. It comes close to the European purposive approach. Commenting on the case, Peter While, a solicitor and author of tax books, said that practitioners who consider statutory interpretation would have to consult Hansard if only to avoid negligence claims22. The dissenting judgement of the Lord Chancellor, Lord Mackay, considered that a relaxation of the previous procedure would merely serve to increase the expense of litigation.23.
When uses the basic principles of interpretation and the rules of language, the courts also seek assistance from a number of presumptions. As with all presumptions they are rebuttable. These are against the alteration of the common law, criminal offences usually require fault, against retrospective application, against the deprivation of an individual’s liberty, property or rights, against application to the crown, against breaking international law and in favor of words taking their meaning from the context in which they are used. The general presumptions appear as three distinct sub-rules, each of which carries a Latin tag. These are noscitur a sociis, ejusdem generis and expression unius exclusio alterius24.
Internal aids to interpretation. Judges commonly say that statutes “must be read as a whole”. This means that the first resort in interpretation may be found in the wording of the statute itself. There are some important internal aids. Preamble is not the same thing as a long title is to set out the facts or the state of the law in respect of which legislation is proposed.Title sets out the aims of the Act. It usually expresses the legislative intention in very general terms. Section Headings are not voted on by Parliament but there is some authority to suggest that they can be referred to. Interpretive Section where the Legal Aid Act 1988 defines such words as “advice”, “assistance” and “representation”. Schedules are fully part of the statutory provisions and have the same legal force in any case as the individual sections themselves.
I conclude from the above discussion that no principle of interpretation is paramount and that the process of interpretation is not merely a mechanical one but rather involves judicial activity. I want to add my reaction to the philosophy expressed by Lord Denning: the literal approach has given way to one in which the judge is required to construe statutory provisions in the light of the purpose of the statute read as a whole. I support Lord Denning in his famous battle with Viscount Simonds in which he asserted that it was the duty of the Judge to fill gaps in legislation where the intention of parliament was clear, an assertion which Lord Simonds angrily described as a naked usurpation of the legislative function.
1. David Barling-Gasson (2000/1) Module Guide & Hand note
2. Binnion, R.A.F. (1992) Statutory Interpretation. Butterworths.
3. Cracknell, D.G. (1995) English Legal System Textbook. H L P publication.
4. Darbyshire, Penny. (1989) English Legal System in a Nutshell. Sweet & Maxwell.
5. Dale, William, Sir. (1977) Legislative Drafting: A New Approach. Butterworths.
6. Griffith, J. M & Williams, S.J &Gregory, M. R. (1983) Q& A English Law. Financial Training.
7. Langan, J. ST. P. (1969) The Interpretation of Statutes. Sweet & Maxwell.
8. Law cars,(2000) English Legal System, Cavendish
9. Mcleod, I. T. (1984) Principles of Statutory Interpretation. Barry Rose Publishers Ltd.
10. McKenzie, Susan & Kunalen, S. (1996) Blackstone’s Law Q & A. Blackstone press Ltd.
11. Reed, P. Charles. (1999) English and European Legal System. Old Bailey Press.
12. Sudershan, R. Dhavan. Rajeev & Khurshid, Salman. (1985) Judges And The Judicial Power. Sweet & Maxwell.
13. Slapper, Gary & Kelly, David.(1999) The English Legal System . Cavendish Publishing Ltd.
14. Zander, Michael.(1999) the Law-Making Process. Butterworths.
Thames Valley University
English Legal System
2. See, Mcleod, I .T, Principles of Statutory Interpretation, 1st edition, p=1-01.
3. See, Griffith, J. M Williams, S.J & Gregory, M.R. Q & A English Law,1st edition, p-10.
4. See, Binnion, R. A. F. Statutory Interpretation, 1st edition, p-102.
5 See, Darbyshire, Penny. English Legal System in a Nutshell, 1st edition, p-28
6 See, Mcleod, I .T, 1st edition, p=1-08.
7 See, R v. Broadcast complaints commission(2985)2, All ER 522
9 Langan, J. ST. P. The Interpretation of Statutes.12 th edition p-32.
10 Cited in Mcleod, I .T, 1st edition, p=1-11
11 Gery v. Pearson (1857) 6 HL CAS 61.
12 See, Slapper, Gary & Kelly, David. The English Legal System. Fourth edition p-140
13 See, Dale, William, Sir. 1st edition, p-296
14 Zander, Michael. The Law-Making Process.5th edition,p-111
15 Cited in David Barling –Gasson (2000/1) Module, p-20
16 Cracknell, D.G. English Legal System Textbook. P-108
17 Cited in Sudershan, R. Dhavan. Rajeev & Khurshid, Salman. Judges And The Judicial Power. P-102
18 Cited in David Barling –Gasson (2000/1) Module, p-32
19 Brownsea Haven properties LTD v. Poole Corporation (1958) 1 all E R 205 102 SJ 84
20. See, Slapper, Gary & Kelly, David. Fourth edition p-144.
21 Reed, P. Charles. English and European Legal System. P-47
22 McKenzie, Susan & Kunalen, S. Blackstone’s Law Q & A. p-203.
23 See, Slapper, Gary & Kelly, David. Fourth edition p-145.