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Approaches to Statutory Interpretation In small groups give definitions for the following words:
Vehicle
Public place
Consume<br>
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Approaches – The Literal Rule Literal rule – gives all the words in a statute their ordinary and natural meaning. Under this rule the literal meaning must be followed, even if the result is absurd:
Lord Esher stated in R v City of London Court Judge (1892):
‘If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The court has nothing to do with the question of whether the legislature has committed an absurdity’.<br>
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Approaches – The Literal Rule Examples of the literal rule in use are:
Whitely v Chapell(1868)
London & North Eastern Railway Co v Berriman (1946)
Fisher v Bell (1961)
Lees v Secretary of State (1985).<br>
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Approaches – The Literal Rule Advantages of the literal rule
Respects parliamentary sovereignty
Gives the courts a restricted role.
Disadvantages of the literal rule
Zander in The Law-Making Process describes the literal approach as:
‘mechanical, divorced from the realties of the use of language and from the aspirations of the human beings concerned…in that sense it is irresponsible’.
Can lead to injustice and absurdity.<br>
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Approaches – The Literal Rule R (on the application of Haw) v Secretary of State for the Home Department (2006):
The Court of Appeal refused to apply a literal approach to a new piece of legislation as they felt it would not reflect the intention of Parliament.<br>
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Approaches- The Golden Rule If the literal rule gives an absurd result which parliament could not have intended, then AND ONLY THEN the judge can substitute reasonable meaning in the light of the statute as a whole. ‘The grammatical and ordinary sense of the word is to be adhered to, unless that would lead to some absurdity…in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further.’ Lord Wensleydale, Grey v Pearson (1857)<br>
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Approaches- The Golden Rule Examples of the golden rule in use:
R v Allen (1872).
Madox v Storer (1963).
Adler v George (1964).
Sweet v Parsley (1970).
Inco Europe Ltd v First Choice Distribution (2000).<br>
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Approaches- The Golden Rule Advantages of the golden rule:
Can prevent absurdity and injustice caused by the literal rule.
Disadvantages of the golden rule:
The rule provides no clear meaning of what is an absurd result.<br>
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Approaches - The Mischief Rule Laid down in Heydon’s Case (1584), provides that judges should consider 3 factors:
What the law was before the statute was passed;
What problem, or ‘mischief’, the statute was trying to remedy;
What remedy Parliament was trying to provide.<br>
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Approaches - The Mischief Rule Examples of the mischief rule in use:
Smith v Hughes (1960).
Elliott v Grey (1960).
Royal College of Nursing (1981).<br>
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Approaches - The Mischief Rule Advantages of the mischief rule:
Avoids injustice.
Promotes flexibility.
Disadvantages of the mischief rule:
Outdated, approach may be less appropriate now that the legislative process is different to Heydon’s case (1584).<br>
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The Purposive Approach ‘We do not sit here to pull the language of Parliament to pieces and make nonsense of it…we sit here to find out the intention of Parliament and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis’ Lord Denning in Magor and St Melons Rural District Council v Newport Corporation(1952):<br>
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Aids to Interpretation Intrinsic Aids:
The statute itself
Explanatory notes – since 1999
Rules of language :
Ejusdem generis – words of the same kind
Expressio unius est exclusion alterius – express mention of one thing implies the exclusion of another
Noscitur a sociis – a word draws its meaning from those around it<br>
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Aids to Interpretation Presumptions:
Statutes do not change the common law.
Legislation does not operate retrospectively.
Laws which create crimes should be interpreted in favour of the defendant.<br>
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Aids to Interpretation Extrinsic Aids:
Dictionaries and textbooks
Reports e.g. Law Commission. In Black Clawson International v Papierwerke Waldhof-Aschaffenburg(1975) the House of Lords stated that official reports may be considered as evidence of the pre-existing state of the law and the mischief the legislation was intended to deal with.
Historical setting
Treaties
Other statutes/ cases
Previous practice.<br>
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Aids to Interpretation Extrinsic Aids:
Human Rights Act 1998 – The Act incorporates into UK law the European Convention on Human Rights. Section 3 requires that :
‘So far as it is possible to do so legislation must be read and given effect in a way which is compatible with the Convention rights.’<br>
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Aids to Interpretation Extrinsic Aids:
Human Rights Act 1998 –Section 2 requires the courts take into account any relevant judgments from the European Court of Human Rights, but they are not bound by them.
If impossible to find an interpretation which is compatible with the Convention the court can issue a declaration if incompatibility under section 4.<br>
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Aids to Interpretation Extrinsic Aids:
Hansard –Davis v Johnson(1978)
Pepper v Hart(1993),note the dissenting judgment of Lord Mackay
Three Rivers District Council v Bank of England (No. 2) (1996)
R v Secretary of State for the Environment, Transport, and the Regions, ex parte Spath
Holme Ltd ( 2001)
Wilson v Secretary of State for Trade and Industry ( 2003). ‘to ignore Hansard would be to grope in the dark for the meaning of an Act without switching on the light ’.<br>
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European Legislation Under Article 267 Treaty on the Functioning of the European Union, the Court of Justice of the European Union is the supreme court for the interpretation of EU law.
Lord Denning in Bulmer v Bollinger (1974) said that when interpreting EU law the English courts should take the same approach as the European Court. ‘No longer must they examine the words in meticulous detail…they must look
to the purpose or intent. To quote the words of the European Court in Da Costa they must divine the spirit of the Treaty and gain inspiration from it. If they find a gap they must fill it…..So must we do the same.’
Lord Denning<br>
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Effect of EU Membership on Statutory Interpretation Growth of a more purposive approach & effect of S2(4) European Communities Act 1972 – all parliamentary legislation must be construed and applied in accordance with Union law:
R v Secretary of State for transport, ex parte Factortame (1990).<br>
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Statutory Interpretation and Case Law Once the courts have interpreted a statute, that interpretation becomes part of case law in the same way as any other judicial decision, and is therefore subject to the rules of precedent.<br>
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Activities Welcome to the House of Lords:
In small groups apply the rules of Statutory interpretation to given cases.<br>
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Useful Websites Hansard is available at:
www.publications.parliament.uk/pa/pahansard.htm<br>
