Editorial Committee of the Cambridge Law Journal

Statutory Interpretation and Natural Justice

Author(s): Jim Farmer
Source: The Cambridge Law Journal, Vol. 30, No. 1, 1972(A) (Apr., 1972), pp. 12-15
Published by: Cambridge University Press on behalf of Editorial Committee of the
Cambridge Law Journal
Stable URL: http://www.jstor.org/stable/4505511
Accessed: 04-08-2016 06:25 UTC

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
http://about.jstor.org/terms

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted
digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about
JSTOR, please contact support@jstor.org.

Cambridge University Press, Editorial Committee of the Cambridge Law Journal are
collaborating with JSTOR to digitize, preserve and extend access to The Cambridge Law Journal

This content downloaded from 210.212.249.227 on Thu, 04 Aug 2016 06:25:16 UTC
All use subject to http://about.jstor.org/terms
 12 The Cambridge Juaw Journal [1972A]

STATUTORY INTERPRETATION AND NATURAL JUSTICE

When the House of Lords decision in Ridge v. Baldwin [19

40 was given, it was widely hailed as a return to a simple pr
natural justicethat wherever a man's rights were affect
decision taken under statutory powers, the courts would pr
existence of a duty to observe the rules of natural justice b
decision was taken (see, for example, Wade, Administrative
ed. (1967), pp. 184-185). In the context of statutory powers
justice had become by the nineteenth century no more tha
of statutory interpretation, though a powerful and impor
nonetheless. Thus, the courts in the nineteenth century we
very ready to "supply the omission of the legislature" {Co
Wandsworth Board of Works (1863) 14 C.B.(n.s.) 180, 194) by
on to statutory powers a duty to observe natural justice. T
principle so stated, which was said to have been lost sight o
thirty years or so before Ridge v. Baldwin, was based on th
of the power itself: if the exercise of that power affected a
rights or property, then the statutory presumption in favour of
justice arose. In some ways, Ridge v. Baldwin was not q
simple. Lord Reid clearly thought that natural justice had
application where "questions of public interest" and pol
more important than the rights of the individual citizen ([1
40, 72). But this exception only underlined the fact that, in det
ing whether or not natural justice should be observed, the c
basically concerned with the nature, and consequence, of th
In these terms, natural justice could be regarded as a part
judicial philosophy that supports a whole host of statutory
sumptions " or canons of constructionthe presumption th
rights were not to be interfered with by statute; that prop
not to be compulsorily acquired without the payment of co
tion; that taxing and penal statutes were to be construed strictl
The recent House of Lords decision in Malloch v. Aberdeen
Corporation [1971] 1 W.L.R. 1578 exemplifies a rather differ
approach. A Scottish teacher had been dismissed (without a heari
on the grounds that he was not registered as required by the Teacher
(Education, Training and Registration) (Scotland) Regulations 19
The House of Lords, by a bare majority, held that the educat
authority was in breach of the rules of natural justice and that t
dismissal was therefore a nullity. Not surprisingly, Ridge v. Baldw
concerned as it was with the dismissal of a chief constable, figur
prominently in nearly all the judgments, though Vidyodaya Univ
sity Council v. Silva [1965] 1 W.L.R. 77, in which the Privy Cou
had upheld the dismissal of a University professor without a hear

This content downloaded from 210.212.249.227 on Thu, 04 Aug 2016 06:25:16 UTC
All use subject to http://about.jstor.org/terms
 CLJ. Case and Comment 13

on the grounds that the profess

common law contract, is m
Wilberforce only.
The remarkable feature of th
the Law Lords approach the
purely one of statutory interpre
from " rights of subjects or c
true that Lord Wilberforce doe
(p. 1598) but the basic approac
Wilberforce, adopt is what mig
what did Parliament intend, hav
statute?
In answering this question, the
for their part rely on an excl
procedural steps and safeguard
lation, then all other procedur
of construction, necessarily
teacher could apply to the Secr
reason for his dismissal and th
the education authority to re
said Lord Guest, "giving the t
negatives any such rights be
statutory requirement that a teac
notice of the motion for his d
Lord Morris: " If Parliament h
detailed legal requirements an ad
has a legal right to be present
education authority, Parliame
1588).
The majority Lords of Appeal, on the other hand, take a different
view of the statutory procedures provided, and especially of the
requirement that a teacher in peril must be given three weeks' notice
of the authority's intention to consider his dismissal. They argue
that these provisions necessarily imply (as a matter of construction)
that a hearing must be given. Thus Lord Wilberforce says:
I ask what purpose the imposition of these requirements could
serve, if the teacher had no right in any circumstances to state his
case? Why give him three weeks' notice of the motion, to be
put to elected members, of which a two-thirds majority is required,
if he can do nothing during the three weeks except wait for the
announcement of his fate? ... I find the right to be heard in an
appropriate situation clearly given by implication " (p. 1598).
(See also Lord Simon at p. 1599 and Lord Reid at p. 1582.)
Connoisseurs of Commonwealth administrative law may be

This content downloaded from 210.212.249.227 on Thu, 04 Aug 2016 06:25:16 UTC
All use subject to http://about.jstor.org/terms
14 The Cambridge Law Journal [1972A]

reminded of a similar view of natural justice take

Zealand courts in the 1950s. A series of Court of App
in that country (outlined by de Smith, Judicial Review of
tive Action (1968), 2nd ed., pp. 157-158) saw similar d
between the judges as to the result of the particular case,
all the judges were agreed that whether a public autho
a duty to act judicially was a question of statutory inte
legislative intention without regard to the fact that veste
at stake. The resulting uncertainty that these decisions
mean, as some New Zealand commentators have sugge
basic approach of the New Zealand judges was inferior
earlier English solution of mounting a presumption i
natural justice wherever vested rights were affected; the
of existing rights can after all in some circumstances amo
more than the fighting of a rearguard action by the reacti
in society seeking only to preserve its own vested
uncertainty stemmed from the basic confusion caused by
(and conflicting) general approaches to statutory const
judges employed what has been described above as the
technique or simply said that if no hearing was provided
lation then none could have been intended. (For a
example in New Zealand, also involving a dismissed
Whangarei High Schools Board v. Furnell [1971] N
(C.A.).) Other judges attached considerable importan
statutory requirements such as " notice " which, they tho
sarily implied the wider notion of hearing.
One might characterise these differing approaches
interpretation, as seen in New Zealand and now in the
as the " literal" and the " purposive " approach respec
used in another, though similar, context by Lord Diplo
Ballrooms Co. Ltd. v. Zenith Investments (Torquay
A.C. 850, 879). But whatever labels are given to the
remain theories of construction and interpretation, rel
the meaning of language, and as such are unaffected by
siderations such as rights of subjects. What now r
doneand this is not a problem relating merely to n
cases (see, for example, the differing approaches to t
statutory indicia, or an absence thereof, taken by the
in the Kammins Ballrooms case (above), in N.A.S. Airp
Ltd. v. Hotel and Catering I.T.B. [1970] 1 W.L.R. 1
Maurice & Co. Ltd. v. Minister of Labour {1969] 2 A.C
the courts to work out a consistent unified theory of stat
pretation (based, one hopes, on a purposive approac

This content downloaded from 210.212.249.227 on Thu, 04 Aug 2016 06:25:16 UTC
All use subject to http://about.jstor.org/terms
 CLJ. Case and Comment 15

happens we are likely to continu

tation of statutes and to see t
finish that the Malloch case repr
Jim Farmer.

02 AND OBSCENITY

" The legal definitions of obscenity," said an Australian

recent case (Herbert v. Guthrie [1970] Qd.R. 16, 26), " ar
level of abstraction and it is possible to descend by man
Everyone has his choice." In English law the choice w
Hicklin (1868) L.R. 3 Q.B. 360 and, even with the statutory
tions of 1959, the emphasis remains upon the tendency "
and corrupt." The definition set out in section 1 (1) of t
Publications Act 1959 has been the subject of a fair m
judicial interpretation, but in its application it is surely
most uncertain and unpredictable of legal tests. Some of
culties are brought out in Anderson. Neville, Dennis, Oz P
Ink Ltd. [1971] 3 W.L.R. 939.
The defendants in that case were tried at the Old Baile
counts, all of which related to one issue of a magazine cal
28 School Kids Issue. They were acquitted on the first co
spiracy to corrupt public morals) and convicted on the ot
one of publishing an obscene article contrary to section
Obscene Publications Act, two of having obscene articles f
tion for gain contrary to section 2 (as amended by the Obscen
cations Act 1964), and one of sending obscene article
contrary to section 11 of the Post Office Act 1953. The m
question consisted of some forty-eight pages, the content
varied from the " perfectly serious " and " wholly innocuo
" less attractive," " crude " and " shocking " features outl
judgment of Lord Widgery C.J. in the Court of Appeal. In
against conviction and sentence brought by all the defend
claimed that the summing-up by Judge Argyleat the en
which lasted twenty-seven working dayscontained fourteen
tions of law and a very large number of misdirections of
Court of Appeal recognised that it " was an extremely dif
for the judge to sum up " and found that, on the whole
" comparatively little weight in the criticisms of factual misd
But the convictions on the three counts under the Obscene Publica
tions Act were quashed because of two " serious and substantial"
misdirections of law relating to the definition of obscenity.
The first of the serious misdirections arose, in the view of the

This content downloaded from 210.212.249.227 on Thu, 04 Aug 2016 06:25:16 UTC
All use subject to http://about.jstor.org/terms