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48 Cards in this Set
- Front
- Back
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Factors that may cause uncertainty when courts apply Parliament's legislation
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- word is left out because draftsmen thought it was automatically implied
- broad term used, leaving it to user to decide what includes - ambiguous word because the provision is politically controversial - wording inadequate because of a printing or drafting error - events of the case was not foreseen when the legislation was produced |
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What is the job of the courts
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To discover how parliament intended law to apply and put it into practice. Because parliament is the supreme source of law the judiciary's constitutional role to practice what parliament intended when made a particular law.
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statutory interpretation and case law
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Once courts interpreted statute or a section of one, it becomes part of case law and is subject to same rule of precedent. Higher court may decide interpretation wrong but lower courts must interpret in the same way.
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Interpretation Act 1978
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Guidance given to courts by parliament with standard definitions of common provisions
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Bills passed since 1999
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subject to special explanatory notes to explain the effects of particular provision
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Four basic approaches courts take to interpret statutes
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- literal rule
-golden rule - mischief rule - purposive approach |
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Literal rule
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Words in statute are given their ordinary natural meaning.
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Lord Esher said
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" If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity."
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Fisher v Bell 1961
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Several violent incidents where flick knife parliament decided knives should be banned. Restriction of Offensive Weapons Act 1959 made it an offence to sell or offer for sale flick knife. Defendant had flick knives in window was charged. Courts held offers for sale should be given ordinary meaning. In contract law not an offer for sale but an invitation to treat. Defendant not guilty although obviously sort of behaviour the act was trying to prevent.
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Advantage of literal rule
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respects parliamentary sovereignty giving courts restricted role
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Disadvantage of literal rule
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- when does lead to unjust conclusion court cannot claim to be enacting will of parliament In London and North Eastern Railway Co v Berriman literal interpretation caused injustice.
-useless where answer to problem is not found in the words of the statutes. Hart said some terms have a core of very clear meaning may still be uncllear how far the word stretches - broad term used answer not there in the words so courts have to use another method - interpretation assumes perfection in draftsman |
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R v Secretary of State for the Home Department 2006
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Court of Appeal refused to apply a literal interpretation because said that it wouldnt reflect the intention of Parliament.
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Golden rule
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Judge can substitute reasonable meaning in the light of the statute as a whole.
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Lord Wensleydale Grey v Pearson 1857
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" The grammatical and ordinary sense of the words 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 so as to avoid that absurdity and inconsistency but no further
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Adler v George 1964
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Defendant charged under s. 3 Official Secrets Act 1920 obstructing member of armed forces "in the vicinity of any prohibited place." Natural meaning "in the vicinity of " means near whereas obstruction occurred in prohibited place itself. Court held in the vicinity of could only be interpreted to mean near to but in this context it was reasonable to interpret to mean within.
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R v Allen 1872
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Sec 57 Offences Against the Person Act 1861 Whosoever being married shall marry any other person during the life of the former husband or wife. . shall be guilty of bigamy." Impossible already married "marry" somone else go through ceremony but not acually married. Courts held "shall marry" means "go through a marriage ceremony"
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Advantages of the golden rule
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golden rule prevent the absurdity and injustice caused by the literal rule help courts put into practice what Parliament really means.
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Disadvantages golden rule
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rule provides no clear meaning of an "absurd result." Judged by reference to whether a particular interpretation was irreconcilable
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Heydon's case
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16th century provides judges should consider 3 factors:
- law before the statute was passed - problem or mischief statute was trying to remedy - what remedy parliament was trying to provide. LEGAL PRINCIPLE: Judges can interpret statute so that it effectively tackles the problem that Parliament wanted to deal with : the mischief rule |
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Smith v Hughes 1960
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Street Offences Act 1959 made it a criminal offence prostitute to solicit potential customers in a street or public place. Prostitutes were not in street but in a house on first floor tapping on window to attract attention of the men waking by. Aim of act enable people to walk along the street without being solicited, soliciting aimed at people in street. Act should be interpreted to include this activity.
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Elliot v Grey 1960
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Road Traffic Act 1930 offence for uninsured car to be used on the road. Car was on the road but jacked with its battery removed. Court held nevertheless hazard which statute designed to prevent covered by the phrase "used on the road."
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Advantages of the mischief rule
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Avoid absurdity promotes flexibility. Described by Law Commission 1969 said "rather more satisfactory approach" than the other two established rules.
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Disadvantages of the mischief rule
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Heydon's case product of time when statutes were minor source of law compared to common law. Statutes included lengthy preamble spelt our mischief Act was intended to deal. Judges well qualified to decide previous law and what problem a statute was intended to remedy since usually drafted statutes on behalf of the king.
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Purposive approach
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Aims to produce decisions put into practice "the spirit of the law."
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Pepper v Hart 1993 House of Lords said
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courts seek to give effect to the true purpose of legislation prepared to look at much extraneous material that bears on the background again which the legislation was enacted.
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R v Secretary State for Health 2003
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House of Lords required to interpret the Human Fertilisation and Embyology Act 1990. Sec 1 defines an embryo as " a live human embryo where fertilisation is complete" and regulated by Human Fertilisation and Embryology Authority. After act passed cloning technique embyros not created by fertilising an egg by replacing the nucleus of an egg with a cell from another person. Labour government medical research involving coned embryos did fall within act therefore could be regulated by HFEA. Pro life Alliance opposed and said acting outside statutory powers. HofLords gave act purposive interpretation to give effect intention of Parliament.
LEGAL PRINCIPLE: Legislation can be interpreted using a purposive approach. |
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Human Rights Act 1998
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Incorporates into UK law ECHR international treaty designed to protect basic human rights.
- s 31 Human Rights Act requires "so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. " - Sec 2 in deciding question which arises in connection with a right protected by convention courts should take into account any relevant judgments made by the ECHR. Can make declaration of incompatibility under s 4 to draw attention to conflict so government can change law. - relevant bill must carry statement from minister saying its provisions are compatible with convention or that government want to go ahead with legislation anyway (government saying want to override convention rights) |
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Ghaidan v Godin-Mendoza 2004
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House of Lords encouraged courts use s 3 to interpret statutes in accordance with EC. Lord Steyne noted ten declarations of incompatibility made under s 4. 5 have been overturned by appeal s 3 relied on 10 times thus s 4 relied on too often and should be last resort
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Interpreting European legislation
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Sec 2(4) European Communities Act 1972 provides all parliamentary legislation must be applied and understood in accordance with European law.
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R v Secretary of State for Transport 1990
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Made it clear that English courts must apply European law which is directly effective even if it conflicts with English law including statute law.
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Internal Aids to interpretation
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-literal rule and golden rue both direct judge to internal aids
- statute itself. Judge may draw comparisons to sections elsewhere in the statute. Clues also provided by long title - explanatory notes. Acts passed since 1999 provided with explanatory notes published same time as the act |
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ejusdem generis
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general words that follow specific words include only things of the same kind
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expressio unius est exclusio alterius
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express mention of one thing implies exclusion of another
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noscitur a sociis
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a word draws meaning from words around it.
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presumptions
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courts assume certain points implied in all legislation:
- statutes do not change the commonlaw - legislature does not intend to remove matters from jurisdiction of the courts - existing rights not to be interfered with - laws which create crimes should be interpreted in favour of the citizen where there is ambiguity - legislation does not operate retrospectively - statutes do not affect the Monarch |
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External aids
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mischief rule. a Judge might use:
- historical setting when interpreting and look at other statutes that deal with the same subjects - dictionaries/ texbooks to find the meaning if the words or gather information about views of legal academics on this point of law - reports help to uncover mischief that legislation was intended to deal with - treaties can be considered when following presumption that parliament does not legislate that is incompatible with UK international obligations - Hansard. THe official dailly report of parliamentary debate therefore a record of what was said during introduction of legislation. |
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Pepper v Hart 1993
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Overturned rule against consulting Hansard. Case between teachers at a private school. Concerned tax in which employees pay tax on perks amount tax based on cost to employer providing benefit Amount paid by teachers covered extra cost to school so would have been the same whether teachers children there or not. Perk cost the school little so teachers maintained that they should not have to pay tax. During passing of Finance Act 1976 laid down tax rules the kind of situation that arose in Pepper v Hart was specifically mentioned. He stated that where the cost to an employer of the perk was minimal employees should not have to pay tax on full cost of it. House of Lords decided could look at Hansard.
LEGAL PRINCIPLE: When interpreting a statute the court can consult Hansard to see what a Minister said about a piece of legislation in order to decide what Parliament had intended. |
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Three Rivers District Council v Bank of England No 2 1996
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concerned correct interpretation of legislation to fit obligations from EC directive. legislation not ambiguous if interpreted info in Hansard, legislation imposed certain duties that were not obvious. Defendant argued Hansard only consulted where legislation ambiguous. Court disagreed. Hansard can be consulted not just to explain ambiguous phrase but to throw light on general purpose of legislation.
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Wilson v Secretary of State for Trade and Industry 2003
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House of Lords gave restrictive interpretation of Pepper v Hart. Held only statements in Hansard made by a minister or promoter of legislation could be looked at. In this case House of Lords emphasized the importance of courts not straying into Parliament's constitutional role. Said Hansard could only be used to interpret meaning of words in legislation. It could not be used to discover the reasons for legislation.
In Wilson the courts used Hansard to look at the Parliamentary debate concerning particular act. Not meaning of words but discover reason. House of Lords held Court of Appeal were wrong doing this because it goes against parliamentary sovereignty. |
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How useful is the Hansard
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- Denning said that to ignore hansard is to "grope in the dark for the meaning of an Act without switching on the light"
- media reports |
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Arguments against Hansard
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- Lack of clarity House of Lords stated evidence provided by parliamentary debates might not be reliable. What was said is not a clear unbiased explanation of the meaning of the statutory language.
- Time and expense. If debates were used a danger of lawyers arguing a case devote too much to ministerial statements at expense of considering the language in the act itself. - parliamentary intention. Debates reveal views only a few members and their words may need interpreting too. |
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How do judges really interpret statutes?
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Frequently there are more than one interpretations and judge chooses one. For example
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Dworkin: fitting in with legal principles
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Claims that the job of the judge when looking at a case is to develop a theory about how particular measure fits in law as a whole.
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Cross: a contextual approach
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Contextual approach conduct a progressive analysis llooking at ordinary meaning first and then other possibilities if ordinary meaning = absurd. Courts can read words necessarily implied but have limited power to add, alter or ignore words that make provision unreasonable and inconsistent with rest of the act.
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Willis: the just result
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Willis was cynical about the three rules. He says that statute is capable of different interpretations each in line with each of the rules. Willis suggests that the court view of all three rules is as equally valid. Whichever rule they choose is what they themselves believe to be just.
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Griffith: political choices
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Case law ambiguity, the judiciary choose interpretation that best suits their view of policy. E.g. Bromley London Borough Council v Greater London Council 1983. Labour controlled government enacted a policy to lower cost of transport in london by subsiding from council to develop policies and to encourage, organise and carry out measure that will promote provisions of integrated, efficient and economic transport facilities and services in Greater London". Keyword was "economic". GLC said it meant "cost effective" giving good value for money. Bromley Council said it meant "breaking even" and covering expenses out of fare charges. Law lords decided interests of transport users preferred over ratepayers interfering with role of elected authorities. Role of elected bodies is to make such decisions and if the public doesn't like it they handle it during next election. This suggests how it is a political choice.
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Reform of statutory interpretation
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Law Commission 1967 proposed:
- more liberal use made of internal/ external aids - if ambiguous construction that promoted general legislative purpose should be adopted. |
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Renton Committee
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produced report in 1975 proposals:
- acts with statement of purpose like in preambles - unclude less detail - more use of examples of how the act is intended to work - long unparagraphed sentences should be avoided - statutes arranged to suite convenience of ultimate users. - more consolidation of legislation |
