Statutory Interpretation

STATUTORY INTERPRETATTION
Editors Comments
This chapter is highly important .The examination emphasis in this area can
revolve around the following issues:
a) Whether the element of judicial discretion exhibited by the judges in
interpreting statutes has a dominant effect in the process of
interpretation.
b) The function of the rules in statutory interpretation in terms of whether
in practice it is more flexible in relation to the principle established
by Pepper v Hart.
c) The implications of the European Union and Human Right Act
1988 upon the rules of interpretation and its effects

Interpretation is an inevitable aspect of communication .

Interpretation is not something that happens only in cases of doubt or difficulty; it happens
whenever anyone tries to understand language used by another person.

Lord Hailsham: probably 9 out of 10 cases heard by the Court of Appeal and the House of
Lords turn upon or involve the meaning of words contained in statute or secondary legislation.

Not surprising in legal affairs, there are plenty of ways in which things may go wrong:

1.
1. Legal documents (statutes, contracts, etc) tend to be complex.
1.
2. A legal document speaks not only to the present but is usually intended to cope with the
future. A draftsmans capacity to anticipate the future is limited. He may overlook any
possibility which may occur. Moreover, there are some things that he cannot foresee
simply because later developments are not within the knowledge of anyone at the time.
1.

3. Singular tendency of legal documents may give rise to difficulty as they commonly
attempted solutions to problems affecting different and conflicting interests.
The problem of drafting language so as to avoid ambiguity and uncertainty is great enough where the
relevant parties have broadly the same point of view.
The English language is richly endowed with words that bear multiple meanings and there is no limit to
the number of ambiguities that can be found in the ordinary legal document.
Ambiguity not the fault of the draftsman nor is it a reflection of shortcomings of the language. It is simply
the result of the obvious fact that where people look at a text from different points of view, they are apt to
find meanings in the language used.
From University of London Subject Guide (2004), pg 155:

The details of English Law are derived from the interpretation of statues (domestic &
international) have increased in importance as a source of English Law.

The largest transnational influence upon the English Legal system ha resulted from the UK joining
the European Community. Under the provisions of the European Community Act 1972,
any UK enactment has effect subject to existing enforceable community rights. Another source
of transnational law is the incorporation of international treaties and conventions.

In 2000, the Human Rights Act 1998 came into force, adding yet more complexity to the approach
taken to the interpretation of statues.

The Three basic so-called Rules of Statutory Interpretation

Its often said that there are 3 basic rules of statutory interpretation the literal rule, golden rule, mischief
rule. However, it is better to describe these more as approaches than as rules as there are no force of
law. (.i.e. judges are not duty bound to use them)
i.

Literal Rule

It is the task of the court to give the words to be construed their literal meaning regardless of
whether the result is sensible or not.

Lord Diplock in Duport Steel v Sirs (1980): The courts may sometimes be willing to apply this
rule despite the manifest absurdity that may result from the outcome of its application.

This rule of interpretation will normally be apply strictly by judges who are pacifists or who are
from the orthodox school of thought who are of the opinion that their constitutional role would be
merely to declare laws (declaratory theory).

This medium restricts a judge in determining the intention of the Parliament from the black letters
of the law which are to be found within the four corners of the statute.

ii.

There seems to be little dispute that for most of the past 100 years or more, the literal rule has
been the dominant one the golden and the mischief rules were merely other main principles of
interpretation.
The Golden Rule

In Grey v Pealson (1857), Lord Wensleygale: The literal Rule should be used first, but if it
results in absurdity, the grammatical and ordinary sense of the words may be modified, so as to
avoid absurdity and inconsistency, but no further.

Example : R v Allen Defendant is charged with bigamy ,an offence prohibited in Offences
Against Persons Act 1861 which reads whoever is married, marries another commits bigamy.
The court held that the word marries need not mean a contract of marriage as it was impossible
for a person who is already married to enter into another valid contract of marriage. Hence, the
court interpreted it as going through marriage ceremony

iii.

The Mischief Rule

The classic statement of the mischief rule is that given by the Barons of the Court of Exchequer
in Heydons Case (1854): for the sure and true interpretation of all statutes in general, four
things are to be discerned and considered:

1. What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law did not provide?
3. What remedy the Parliament hath resolved and appointed to cure the disease of the
Commonwealth?
4. The true reason of the remedy; and then the office of all the judge is always to make such
construction or shall suppress subtle inventions and evasions for continuance of the mischief and
pro private commodo, and to add force and life to the cure and remedy, according to the true
intent of the makers of the Act, pro bono publico.

This system of relying on extrinsic source (common law) in determining the true intention of the
parliament is now universally accepted as part pf the purposive approach, adopted widely in the
continent. With the advancing approach towards liberalisation, judges now appear to be less
bound by the black letters of the law towards determining the intention of the Parliament, and now
perceive their task as being person who must give effect to the legislative purpose of the Act.

Example Lord
Diplocks approach
to
the Abortion
Act
1967 in
the
decision
of Royal College of Nursing v DHSS (1981). He considered the state of law relating to abortion
before the Act and looked at the whole context of abortion problem from its social and economic
aspect as well as its legal history. This system of relying on extrinsic source (common law) in
determining the true intention of the parliament is now universally accepted as part of the
purposive approach, adopted widely in the continent. With the advancing approach towards
liberalisation, judges now appear to be less bound by the black letters of the law towards
determining the intention of the Parliament, and now perceive their task as being person who
must give effect to the legislative purpose of the Act.

The 3 Basic "Rules" Considered

The dominant rule was the mischief rule

In 1969, Maxwell on Interpretation of Statutes stated that the literal rule was the primary one
the golden rule and mischief rule is merely other main principles of interpretation

Lord Halsbury in the Hilder v Dexter (1902): The draftsman of a statute was the worst person
in the world to interpret a statute because he was unconsciously influenced by what he meant
rather than what he had said. He had himself drafted the statute in that case and refused to give
judgement on the ground that he might not fully appreciated the literal, objective meaning of the
words he had used.

Lord Brougham in Groynne v Burnell (1840) said: If we depart from the plain and obvious
meaning on account of such views, we in truth do not construe the Act but alter itis really
making the law...not interpreting it.

A demonstration of the literal approach in the sequence of events in Magor and St. Mellons v
Newport Corporation (1952) Lord Denning:We do not sit here to pull the language of
Parliament and ministers to pieces and make nonsense of it. We are 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 to destructive analysis
Lord Simmonds rejected Lord Dennings approach:

The duty of the court is to interpret the words that the legislature had used. Those words may be
ambiguous, but even if they are the power and duty of the Court to travel outside the voyage of discovery
are strictly limited. Filling in the gaps cannot be supported. It seem to be a naked usurpation of the
legislative function under the thin disguise of interpretation, and it is less justifiable when it is guesswork
with what material the legislature would, if it had discovered the gap, have filled it in. If the gap is
disclosed, the remedy lies in an amending Act.

Are the Rules, Principles, Presumptions and Other Guides to

interpretation binding on the Courts?

The main principles of statutory interpretation are often called rules, but this is plainly a misnomer
(incorrect/ unsuitable).

They are not rules in any ordinary sense of the word since they point to different solutions to the
same problem.

There is no indication that these so-called rules is to apply in any given situation (no force of law,
judges are not bound to use it). Each of them may be applied but need not be.

The Human Rights Act (HRA) 1998 A New Role of Statutory

Interpretation
S3 (1) of the HRA 1998:
So far as it is possible, primary legislation and subordinate legislation must be read and given effect in a
way which is compatible with the convention rights.
S4 of the HRA 1998:
If the court cannot construe the statute in such a way, they can issue a declaration of incompatibility.
NB: What is meant by the word possible in S3 (1)? Does this mean that a strained interpretation that is
consistent with the ECHR must be preferred to a more natural interpretation which is inconsistent with the
convention?

This issue confronted the House of Lords in R v A (No. 2) (2002)

S41 of the Youth Justice and the Criminal Evidence Act 1999 severely restrict crossexamination of a rape victim about her previous sexual conduct which would otherwise be
relevant to a defence based on consent.

The House of Lords (HOL) held unanimously that S41 had to be read subject to S3 of the
HRA and that the test to be applied whether admitting such evidence was so relevant to the issue
of consent that it would endanger the fairness of the trial in breach of Art.6 of the ECHR (the
right to a fair trial).

In giving S41 this interpretation, the HOL was going against the manifest intention of the
Parliament, rather than issue a declaration of incompatibility, the Law Lords implied additional
words into the statutory provision.

2 approaches emerged. The leading speech was given by Lord Steyn:

the interpretative obligation under S3 is a strong one. It applies even if there is no ambiguity in the
language in the sense of the language being capable of 2 different meanings. Judges must be prepared
to override the clear Parliaments intention in the particular statute in order to give precedence to the
requirement of the ECHR.

Lord Hope was not prepared to go quite so far:

Compatibility with convention rights is the sole guiding principle. That is the paramount object which the
rule seeks to achieve. But the rule is only a rule of interpretation. It does not entitle the judges to act as
legislators

The latest authoritative pronouncement on the meaning of S3 was Ghaidan v Godin-Mendoza

(2004). c/f *

HOL held: the survivor of a same-sex partnership had the same status as the spouse of a protected
tenant entitled to succeed on the tenants death as a statutory tenant.

Lord Steyn: S3 was supposed to be the principal remedial measure and that S4 was supposed to be a
last resort!
The speeches of the 4 members of the majority suggest that the approach towards R v A was favoured.

Fitzpatrick v Sterling Housing Association Ltd (1999) :

The word that was interpreted here - surviving spouse in the Rent Act 1977.
HOL extended the rights of the same-sex partners to inherit the lesser assured tenancy by including them
within the deceased persons family. It decided to allow them to inherit statutory tenancies, on the grounds
that they could not be considered to be wife or husband of the deceased as the Act required.

In Mendoza, the courts held that the Rent Act, as it had been construed by the HOL in
Fitzpatrick, was incompatible with Art.4 of the ECHR on the grounds of courts discriminatory
treatment of surviving same-sex partners.

Points to ponder
Has the introduction of the HRA promoted the use of purposive approaches?