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Transcript of Statutory Interpretation
Interpretation It is not an easy task for courts to interpret Acts of Parliament. When problems of construction arise judges have to use their traditional skills to resolve them.
There is no Act of Parliament which guides judges in the interpretation of other Acts of Parliament, although the interpretation act 1978 provides some assistance.
As more laws become statute based, interpretation of these statutes is a key role of a Judge.
Generally, a system of precedent also applies to Statutory Interpretation. Where a higher court has already interpreted a meaning of a statute then the lower courts are bound by this interpretation. What is Statutory Interpretation?
1. Literal Rule provides that simple words should be given their obvious every day meaning by courts, even if the result is not very sensible. This idea was expressed By Lord Esher in R V Judge of the City of London Court (1982) when he said:
"If the words of an Act are clear then you must follow them even though they may lead to a manifest Absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity".
An example of where the a word was giving its everyday meaning i.e. literal meaning was in the case of Curter V Eagle Star Car Insurance (1998) where the literal rule was used to find that a car park is not a 'road' for the purposes of the Road Traffic Act 1988.
The rule was developed in the early 19 Century and was the main rule used for the first part of the 20 century. It is still used as the starting point for interpreting any legislation.
The literal rule relies on a dictionary, normally of the time to help the judge reach the literal meaning of a word.
The rule respects Parliamentary supremacy as the rule follows the words that parliament has used. Parliament is our law making body and it is right that judges should apply the law exactly how it is written. Using the Literal rule to interpret Acts of Parliament means that unelected judges do not make law. Literal Rule The courts now however have an obligation, however to ensure that their interpretation of a statute is compatible with convention rights. The court may then not follow a decision of the higher court if it would mean to do so would be in breach of a convention right (See Fitzpatrick and Mendoza)
R v Judge of the City of London Court (1982)
The court had to decide whether the city of London Court had jurisdiction to hear the case under the county Court Admiralty Jurisdiction Acts. if so this would give the court the power to award £500 pound in damages. If not, then the maximum damages would be £50.
Key Law: The words of the Act were given their literal meaning.
Key Judgement: Lopez LJ
' I have always understood that, if the words of an Act are unambiguous and clear, you must obey those words, however absurd they may appear; and, to my mind, the reason for this is obvious. If any rule were followed, the result would probably be that the court would be legislating instead of the properly constituted authority of the country, namely, the legislature. Cases utilizing the Literal Rule Fisher v Bell (1960) KEY FACTS
The defendant was a shop keeper who had displayed a flick knife marked with price in his shop window; although he had not sold any. He was charged with SECTION 1 (1) of the REGISTRATION OF OFFENSIVE WEAPONS ACT 1959. This section made any person who sells or hires or offers to sell or hire a flick knife guilty of an offense.
The court had to decide whether the defendant was guilty of offering the knife for sale. There is a technical legal meaning in Contract law of 'offer'. This has the effect that displaying an article in a shop window is not an 'offer to sell' but an 'invitation to treat'.
The court of Appeal held that under the literal meaning of 'offer' the shop keeper had not made an offer to sell and so was not guilty of the offense.
KEY LAW: An Literal interpretation was used of the word 'offer'
In this case the outcome was clearly not what Parliament had intended as they amended the law by the Registration of Offensive weapons act 1961 to cover the display of knives in shop windows. Whitley V Chappell (1868) KEY FACTS:
The defendant was charged under a section which made it an offense to impersonate 'any person entitled to vote' D had pretended to be a person whose name was on the voters' on the list but who had died. The court held that the defendant was not guilty since a dead person is not, in the literal meaning of the words 'entitled to vote'
A literal interpretation was used even though it meant that the defendant was acquitted. London and North Eastern Railway and Co v Berriman (1964) KEY FACTS:
Mr Berriman was a railway worker who was hit and killed by a train whilst doing maintenance work, oiling points on a railway line. a regulation made under the fatal accidents act stated that a look out should be provided for men working on or near the railway line 'for the purposes of relaying or repairing it'. Mr Berriman was not 'relaying or repairing' the railway line he was maintaining it.
His widow claimed compensation for his death because the railway company had not provided a look out man whilst while Mr Berriman had to work on the line. it was held that the relevant regulation did not cover maintenance work, so Mrs Berriman's claim failed.
KEY LAW: A literal interpretation was used, even though the regulations were intended to improve safety for those working on the railway lines. MAGOR AND ST Mellons RDS V Newport Corporation (1950) KEY FACTS:
The Newport Extension Act 1943 extended the country borough of Newport to include the areas of Magor and St Mellons. The Act provided that these two Rural District Councils should receive reasonable compensation.
Immediately after the Act took effect the two Rural District Councils were amalgamated to form a new District Council. the court had to decide whether this new Council had a right to compensation. it was held that it had no right.
KEY LAW: A literal interpretation of the law was used.
KEY COMMENT: The case is important for the conflict between Lord Denning in his dissenting judgement in the court of Appeal and the Judgement of the House of Lords as shown in the judgements of Lord Denning and Lord Scarman
KEY JUDGEMENT: LORD DENNING:
'We sit here to find 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'
KEY JUDEGEMENT: LORD SCARMAN:
'If Parliament says one thing but means another, it is not, under the historic principles of common law, for the courts to correct it. The general principle must surely be acceptable in our society. we are not governed by parliaments intentions but by parliaments enactments. The literal rule assumes that every act will be perfectly drafted. In fact it is not always possible to word an Act so that it covers every situation that Parliament meant it to. this was seen in the case of Whitley V Chappell (1868) where the defendant was not guilty for voting under another person's name.
Words may have more than one meaning, so that Act is unclear. Often dictionaries are defined with several different meanings. following the words exactly can lead to unfair decisions. This was seen in the case of London and North Eastern Railway.Co v Berriman (1946).
With decisions such as Whitley V Chappell and the Berriman case it is not surprising that Professor Micheal Zander has denounced the literal rule as being mechanical and divorced from teh relaties of the use of language. DISADVANTAGES OF THE LITERAL RULE The rule follows the exact wording that Parliament has used. Parliament is our law making body and it is right that judges should apply the law exactly how it is written. Using the Literal rule to interpret Acts of Parliament means that unelected judges do not make law.
Using the literal rule makes the law more certain, as it should be interpreted exactly how it is written. this makes it easier for people to know what the law is and how judges will apply it. ADVANTAGES OF THE LITERAL RULE Golden Rule The Golden Rule provides that word should be given their literal meaning as far as possible unless this would lead to an absurdity or an affront to public policy. It is used to prevent undue harshness that would result from the application of the literal rule.
For example in R V Sigsworth (1935) the Literal rule was used to prevent the defendant from inheriting his mother's property as her 'issue' after he murdered her.
The Administration of Estates Act 1925 holds that an estate should be passed onto the 'issue' of a person who died without making a will; but the Golden Rule was used in preference to the literal rule to prevent the absurd situation of in which a child who murdered a parent should inherit.
There are two views as to how far the Golden Rule should be used. The first approach is very Narrow and is shown in Lord Reid's comment in Jones V DPP (1962)
"It is a cardinal principle applicable to all kinds of statutes that you may not for any reason attach to a statutory provision a meaning which the words of that provision cannot reasonably bear. If they are capable of more than one meaning, then you choose between the meanings, but beyond this you cannot go".
So under the narrow application of the Golden rule the court may be choose between the possible meanings of a word or a phrase. If there is only one meaning then that should be taken.
The second and wider application of the Golden rule is where there is one clear meaning, but that application of that meaning would result in a repugnant situation, one which the court feels should not be allowed. In such a case, the court will invoke the Golden Rule and modify the words of the statutes to avoid this problem. GOLDEN RULE CASES GOLDEN RULE CASES Grey V Pearson (1857)
The facts of this case are not important in the context of Statutory Interpretation. The significant point of the case is the definition of the Golden Rule in Lord Wensleydale's Judegment.
'The grammatical and ordinary sense of the words is to be adhered to, unless that woudl lead to some absurdity or some repugnane or inconsistancy with the rest of the instrument, in which case the grammatical and ordinary sense of the word may be modified to avoid that absurdity and inconsistancy, but no further. R v ALLAN (1827) Narrow Appraoch KEY FACTS:
The defendnat was charged under section 57 of the Offences Against the Person Act 1861 which made it offfence to 'marry' whilst one's original spouse was stiill alive and there had been no divorce.
The question for the court was the exact meaning of the word 'marry'. Did it mean to become legally married in which case the defendant would be not guilty as as she could not legally marry whilst the first marriag existed or did it mean to 'go through a marriage cermony'?
The Golden Rule narrow approach was used to avoid the absurdity of the section being ineffective. if the literal meaning of 'legally married' had been used then no one coudl ever have been guilty of bigamy. ADLER v GEORGE (1964)
Wide Appraoch KEY FACTS:
The defendnat was prosecuted under the Offical Secrets Act 1920 for an offence of obstructing HM forces 'in the vicinity' of aprohibited place. The defendant had obstructed HM forces but was inside the prohibited place. The Divisional court read the act as being 'in or in the vicinity of' and held that the defendant was guilty.
The Golden Rule was used to modify the words of the Official Secrets Act 1920, in order to avoid the repugnant situation and absurdity of being able to convict someone in the 'vicinity of' a prohibited place but not being able to convict someone who carried out the obstruction in the place. RE v SIGSWORTH (1935)
Wide Appraoch KEY FACTS:
A son murdered his mother. The mother had not made a will, so normally her estate would be inheritited by her next of kin according to the rules set out in the Administration of Justice Act 1925.
This meant that the murderer son would have inherited as her issue. There was no ambiguity in the words of the act but the court held that the literal meaning of the word should not apply. The son could not inherit.
The Golden rule was used to prevent the absurd and repugnant situation of the murdering son of inheriting his mother's estate as her 'issue'.
The court was in effect writing into the Act that th e'issue' would not be entitiled to inherit where they had killed the deceased. The result of this case would also be achieved using the purposive approach. ADVANTAGES OF GOLDEN RULE It respects the exact words of Parliament except in limited situations. Where there is a problem using the literal rule, the golden rule provides an 'escape route'
It allows the judge to choose the most sensible meaning where there is more than one meaning of a word in the Act. It can also provide sensible decisions in cases where the literal rule would lead to a repugnant situation. It would have been clearly unjust to allow the son in RE SIGSWORTH to benefit from his crime. This case shows that it can avoid the worst problems of the literal rule. DISAVANTGES OF GOLDEN RULE It is very limited in its use, so it is only used on rare occassions.
Another problem is that it is not always possibel to predict when the courts will use it. Zander has described it as a 'feeseable parachute'. It another words it cannot do very much. MISCHIEF RULE The Mischief rule or the rule in Heydon's case provides that the courts should look at the law as it existed prior to the eneactment of the staute in question to identify the mischeif (in the sense of the wrong or the harm) that it sought to remedy.
For example, in Corkey v Carpenter (1951), it was held that a bicycle was a 'carriage' for the purposes of section 12 of the Licensing Act 1872 which provided for the arrest of a person who was drunk in charge of a carriage on the highway.
Although a bicycle does not naturally fall within the natural meaning of carriage, the act was itroduced to protect against drunk people using transport on the highway.
The Mischief rule gives a judge more discretion than the other rules. The definition comes from the rules of Heydon's case (1584) where it was held that there were four points the court should consider.
These in the original language of that old case where;
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 was the remedy Parlaiment hath resolved and appointed to cure the disease of the commonwealth?
4: The true reason of the remedy; and then the office of all judges is always to make such construction as shall supress the mischief and advance the remedy.
Under this rule therefore the court should look to see what the law was before the act was passed in order to discover what the 'gap' or mischief the act was intended to cover. The court shall then interpret the act in such a way that the gap is covered. This is clearly quite a different approach to the literal rule. SMITH v HUGHES (1960) Smith V Hughes (1960)
Six women had been convicted under section 1 (1) of the street offences act 1959 which stated that 'it shall be an offence for a common prostitute to loiter or solicit in a public place or street for the purposes of prostitution'.
In each case they argued on appeal that they were not in a steet or public place' as required by the act to make them guilty.
One women had been on a balcony and teh others had been at the windows of ground floor rooms, with the window either half open or closed. In each case the women were attracting the attention of men by callong to them or tapping on the window. The court decided they were guilty.
The court should look at the mischief the Act was trying to prevent.
Key Judgement: Lord Parker CJ:
'For my part i appraoch the matter by considering what is the mischief aimed at by this act. Everybody knows this act was desgined to clean up the streets, to enable people to walk along the streets without being molested or solicited by a common prostitute .
Viewed in this way it can matter little whether the prostitute is solicting while in the street or standing in the doorwat or on a balcony, or at a window, or whether the window is shut or open. A taxi driver was charged with 'plying for hire in any street' without a license to do so. His vehicle was parked in a taxi rank on the station forecourt. He was found guilty as although he was on private land he was likley to get customers from the street.
The court referred to (Smith and Hughes 1960) and said that it was the same point. A driver would be plying for hire when his vehicle was postioned so that the offer of services was aimed at people in the street. Key case link to Smith and Hughes
(Eastbourne Borough Council v Sterling (2000) ROYAL COLLEGE OF NURSING V DHSS (1981) KEY FACTS:
Under section 1 (1) of the Abortion Act 1967 , Abortion is legal when a pregenancy is terminated by a registered medical practioner in specific circumstances. When the Act was passe din 1967 the procedure to carry out an abortion was by surgery so that only a doctor 'a registered medical practioner' coudl do it.
In 1973, a new medcial technqiue allowed preganacy to be terminated by inducing premature labour with drugs. The first part of the procedure was carried out by a doctor, but the seocn part could be performed by nurses without a doctor being present.
The Deperatment of Health and Social Security issued a circular giving advice that it was legal for nurses to carry out the second part of the procedure. the royal College of nursing sought a declaration that the circular was wrong in law. It was held to be lawful.
KEY LAW: The application of the mischief rule was prefered to the literal rule.
Key Judgement by Lord Diplock:
'The Abortion Act 1967 which it falls to this house to construe is described in its long title as 'An act to amend and clarify the law relating to termination of preganancy by registered medcial practioners'.
Whatever may be the tehncial imperfections of its draftmanship, however, its purpose in my view becomes clear if one starts by considering what was the state of law relating to abortion bedofe the passing of the act, and what was the mischief that required amendment, and in what respect was the existing law unclear'.
The decision that the procedure was lawful under the Abortion Act 1967 was made by a majority of two to three. The dissenting judges were very opposed to the decision. The three judge sin the majority based their decision on the mischief rule, pointing out taht the mischief that Parliamnet was trying to remedy was the number of illgeal abortions.
They also said that the policy of the Act was to broaden the grounds for abortion and ensure that they were carried out with proper skill in hospital. The other two judges took the Literal view and said that the words of the act were clear and that terminatiosn coudl only be carried out be 'registered medical practioners'
Lord Edmund Davies stated that to read the words 'terminated by a registered medical practioner as' terminated by the treatment for the termination of preganacy in accordance with recognised medical practice' was redrafting the Act with a vegence.
It is clear that these three rules can lead to different decisions on the meanings of words and phrases. ADVANTAGES OF MISCHIEF RULE The mischief rule promotes the purpose of the law as it allows judges to look back at the gap in the law to see what the act was designed to cover.
The emphasis is on making sure that the gap is filled. this is more likley to produce a just result.
The law comission prefers the mischief rule and so long ago as 1969 they recommended that it shoudl be the only rule used in Statutory Interpretation DISADVANTAGES OF MISCHIEF RULE There is a risk of judicial law making, Judges are trying to fill the gaps in the law with their own views on how the law should remedy the gap.
The case of Royal College of Nursing v DHSS shows that judges do not always agree on the use of the mischief rule.
Use of the mischief rule may lead to uncertainity in the law. It is impossible to know when the judges will use this rule and what result it may lead to.
This makes it difficult for lawyers to advise their clients on the law.
The mischief rule is not as wide as the Purposive Appraoch as it is limited to looking back at the gap in the law. It cannot be used for a more general considertaion of the purpose of the law. Bull was a male prostitute charged with an offence against section 1 (1) of the street offences act 1958. the case was dismissed by the magistrates court on the grounds that the words common prostitute only applied to female prostitutes.
The prosecution appealed by way of case stated. The divisional court considered the Wolfenden Report, Cmnd 247, 1957, which had led to the passing of the Act.
Thr report clearly identified the mischief as one being created by women. The court held the words were only meant to apply to women and not male prostitutes.
KEY LAW: A report may be considered in order to discover what mischief the act was intended to remedy. DPP V BULL 1994 MODERN APPROACHES: PURPOSIVE APPROACH The purosive appraoch is based on the mischief rule as it seeks an interpretation of the law that furthers the purpose for which the law was introduced.
The House of Lords endorsed this appraoch in Pepper V Hart 1993 when it held that court should look at Hansard, (which was impossible before the ruling in this case) to resolve ambiguity by discovering what it was that parliamnet intended the words to mean.
This goes beyond the mischief rule in that the court is not only looking to see what the gap was in the old law, they are also deciding what they believe parliament intended. The champion of this appraoch in Englsh law was Lord Denning. His attitud etowards Stautory interpretation was shwon when he in the case of Magor and St Mellons V Newport Corporation said:
"We sit here to find the intention of Parlaiment and carry it out, and we do this better by filling in this gaps in the law and making sense of the enactment than by opening it up to destructive analysis".
However, his attitude was criticised by Judges in the House of Lords whne they heard the appeal in the case. Lord Simonds called Lord Denning's approach;
"A naked usurpation of the legislative function under the thin disguise of interpretation" and pointed out that "if a gap is disclosed the remedy lies in the ameding act"
Lord Scarman said:
"If Parlaiment were to say one thing and mean another, it is not the historic principle of the common law to correct it. The general principle must surley be accepted by our society. We are not governed by Parlaimnets intentions but by Parliaments enacments.
The speech shows the problem with the purposive appraoch. Should judges refuse to follow the clear words of Parliament? How do they know what Parliaments intentions were? Opponents of the purposive approach say it is impossible to discover the Parliaments intentions; only the words of the statute can shhow what Parliament wanted. The purposive appraoch was use d in Registrar General ex parte Smith (1990) where the court had to consider section 51 of the Adoption Act 1976 which stated;
(1) Subject t subsection (4) and (6) the Registrar General shall on an application made in the prescribed manner by an adopted person a record of whose birth is kept by the Registrar General and who has attained the age of 18 years supply to to that person...such information as is neccessary to enable that person to obtain a copy of the record of his birth..
Subsection (4) said that before supplying that information the Registrar General had to inform the the applicant about counselling services availible.
Subsection (6) stated that of the adoption was before 1975 The registrar General could not give the information unless the applicant had an interview with a counseller.
The cas einvolved the application by Charles Smithf or information to enable hom to obtain his birth certificate. Mr Smith had made his application in the correct amnner and wa sprepared to see a counseller.
On a literal view of the act the Registrar General had to supply him with the information as the act uses the words 'shall...supply'
The problem was that Mr Smith had been convicte dof two murders and was detained at in Broadmoor as he suffered from recurring bouts of psychotic illnesses. A psychiatrist thought tha it wa spossible that he might eb hostile towards his natural mother.
Thsi posed a difficult for the court; shoud they apply the clear meanings of the words in this situation. the judge sin the court of Appela decided that teh case called for a purposive approach, saying that, despite teh clear language of the act, Parlaiment coudl not have intended to promote seriosu harm,
So, in view if the risk to the applicanst natural mother if he discoevered her idetity they rule dthat the Registrar General did not have to supply any information. PURPOSIVE APPROACH CASES R V (QUINTVALLE) v SECRATARY OF STATE 2003 KEY FACTS
The issue was whether organisms created by Cell Nuclear Replacement came within the definition of of 'embryo' in the Embriology and Fertlisation Act 1990. Section 1 (1) states that 'embryo' means a living human embryo where fertilisation is complete'.
CNR was not possible in 1990 and the problem is that fertilisation is not used in CNR. it was held that CNR did come within the definition of embryo'.
KEY LAW: The courts should give effect to parliaments purpose.
Key Judgement: Lord Bingham
"The court's task within permissible bounds of interpretation is to give effect to parliaments purpose. Parliament could not have intended to distinguish between 'embryo's produced with or without fertilisation (CNR) as it was unaware of the latter possibility" KEY FACTS:
The complainent suffered from verbal and physical abuse from his fellow employers because of his ratial background. He claimed his emplyers were liable for this under Section 32 of the Race Relations Act 1976 which provides that:
"Anything done by a person in the course of his employment shall be treated for the purposes of his act as being done by his employer as well as by him, whether or not it was done with the employers knowledge or approval".
The employers argued that they were not liable as racial abuse was not within the course of employment. This was supported by the principles of Vicarious Liability in the Law of Tort. The court pointed out that the purpose of the Act was to eradicate racial disrcimination and held that there employers were liable. JONES v Tower BOOT (1997) Key comment and link to the case of Fisher and Bell The decision in the case of Jones V Tower Boot (1994) can be contrasted with that in Fisher V bell where a special legal meaning of the words in the law of Contract was taken, even though this was clearly not what Parliament intended in Criminal law.
Here, the special legal meaning of the word was rejected in favour of the purpose of Parliament. The purposive appriach leeds to justice in individual cases. it is a broad appraoch which allows the law to cover more situations than applying words literally; this means it can fill gaps in the law.
Purposive approach is particulary useful where there is new technology which was unknown by the law when the law was enacted. This is demonstrated by in R (Quintvalle v Secratery of the State 2003). If the literal rule had been applied in that case, it would have been necessary for Parliament to make a new law to deal with this situation. ADVANATGES OF PURPOSIVE APPROACH Using the purposive appraoch make the law less certain. It also allows unelected judges to make law unlike the literal rule as the judges adopting this appraoch are deciding what they think the law should be rather than using the words Parliament enacted.
It is difficult to discover the intention of Parliament. There are reports of debates in parliament in Hansard but these give every detail of debate including MPs who did not agree with the law that was under discussion. The final version of what Parliament agreed to is the actual words in the Act itself.
The purposive approach also leads to uncertainity in the law. It is impossible to know when the judges will use this approach or what result it might lead to. This makes it difficult for lawyers to advise their clients on the law.
The endorsement of the purposive appraoch in (Pepper V Hart) when it held that courts could look at Hansard raises questions about the separation of powers in the United Kingdom; it has been consistently maintained that it is Parliament, not the executive, which passes legislation. If one accepts that statements by the executive can allow them to specify the meaning of particular laws without formally including them in statutes where they can be approved by Parliament, it violates this separation of powers, allowing the executive to laws.
With these issues, academic Aileen Kavanagh argues that there are likely to be consequences. Firstly, if judges replace the text of a statute with the meaning given to it by a single minister in Parliament, there is a risk that they will attribute a meaning to it which was not supported by the MPs; interpretations, based on the views of ministers, are more likely to reflect the executive's intention than that of Parliament.
Kavanagh also suggests that it could impact on the actions of ministers; rather than attempting to specify law through the difficult route of placing it in legislation, they can simply make a statement within Parliament about the legislation's intent.
Lord Mackay's worry that this would increase the cost of litigation was also considered; under Pepper, every lawyer must go through every word said in both Houses of Parliament and in the various committees to ensure that they are giving the best advice to their client. Academics have also expressed worry about the reliability of Hansard as a source; "the debate on the Bill is a battle of wits often carried out under extreme pressure and excitement where much more than the passage of this Bill may be at stake. The Ministers supporting it cannot be expected to act as if they were under oath in a court of law" DISADVANTGES OF PURPOSIVE APPROACH These are matters within the statute itself that may help to make its meaning more clearer. The court can consider the long title, the short title and the preamble (if any). Older statutues usually have a preamble which sets out Parliaments purpose in enacting that statute.
Modern statutues either do not have a preamble or contain a very brief one; for example the Theft Act 1968 states that it is an Act to modernise the law of theft. The long title may also briefly explain parliaments intentions.
The other useful internal aids are any headings before a group of sections, and any schedules attached to the act. There are also often marginal notes explaining the different sections, but these are not generally regarded as giving parliaments intention as they will have been inserted after parliamentry debates and are only helpful commennts put in by the printer. FINDING PARLIAMENTS INTENTION
Intrinsic Aids DPP V BULL (1994) INTERPRETING E.U. LAW The Treaty of Rome (The EC) treaty confers exclusive jurisdiction on the European Court of Justice to intepret EC law.
When a question of European Law is raised in English Courts, therefore, the court must make a preliminary reference (under ART 234 OF THE TREATY) to the ECJ, unless there is a judicial remedy availible within UK law (in which case the court may still make a reference if it wishes).
Once the answer is recieved, the English Court must then apply it to the case, Lord Bingham in R v International Stock Exchange ex p Else (1993) laid down principles relating to when a national court (other than a final appeal court) should make a reference to the ECJ.
The facts have been found, and the Issue of European Law is critical to the national courts final decision.
Then the national court should refer unless that court can, with complete confidence, resolve the issue itself, (for example where exactly the same question has been referred before). EXTRINSIC AIDS These are matters which are outside the Act. It has always been accepted that some external sources can help explain the meaning of an Act.
These undisputed sources are:
1) Previous Acts of Parliament on the same topic
2) The historical setting
3)Earlier case law
4)Dictionaries of the time.
As far as other Extrincsic Aids are concerned, attitudes have changed. Originally the courts had very strict rules that other extrinsic aids should not be considered; however, for the following three aids the courts' attitude has changed.
1) Hansard: The official report of what was said in Parliament when the Act was debated.
2) Reports of law reform bodies, such as the Law Comission, which led to the the passing of the Act.
3)International Conventions, regulations or directives which have been implemented by English Legeislation. HANSARD The use of Hansard: Until 1992 there was a firm rule that the courts courts could not look at what was said in the debates in Parliament. Some years earlier Lord Denning had tried to attack this ban on Hansard in Davis v Johson (1979) which involved the interpretation of the Domestic Violence and Matrimonial Proceedings Act 1976. He admitted that he had indeed read Hansard before making his decision, saying:
"Some may say... that judges should not pay attention what is said in Parliament. They should grope about in the dark for the meaning of an Act without switching on the light. I do not accede to this view".
In the same case the House of Lords dissaproved of this and Lord Scarmen explained their reasons by saying:
"Such material is an unreliable guide to the meaning of what is enacted. It promotes confusion, not clarity. The cut and thrust of debate and the pressures of executive responsibility... are not always conductive to a clear unbiased explantion of the meaning of stautory language"
However in Pepper V Hart (1993) The House of Lords relaxted the rule and accepted that Hansard could be used in a imited way. This case was unusual in that seven judges heard the appeal rather than the normal panel of five. These seven judges included the Lord Chancellor, who was the only judge to disagree with the use of Hansard. The majority ruled that Hansard could be consulted.
Lord Browne- Wilkinson said in his judgement that:
"The exclusionary rule should be relaxed so as to permit reference to parliamentry materials where:
(A) legislation is ambigious or obsecure or leads to an absurdity;
(B) The material relied on consists of one or more statements by a minister or other promoter of the Bill together if necessary with such other parliamentry material as is necessary to undersatdn such statements and their effect
(C) The statements relied on are clear. Further than this I would not at present go. HANSARD CONTINUED So Hansard may be considered but only where the words of an Act are ambigious or obsecure or lead to an absurdity. Even then Hansard should only be used if there was a clear statement by the Minsiter introducing the legislation, which would resolve ambiguity or absurdity.
The Lord Chancellor opposed the use of Hansard on practical grounds, pointing out the time and cost it would take to reseach Hansard in every case.
The only time that a wider use of Hansard is permitted is where the court is considering an Act that introduced an international convention or European Directive into English Law.
This was pointed out by the Queens Bench Divisional court in Three Rivers District Council and Others V Bank of England (No2) (1996). In such a situation it is important to interpret the statute purposively and consistantly with any European materials and the court can look at ministerial statements, even if the statute does not appear to be ambigious or obsecure.
Since 1992 Hansard has been referred to in a number of cases, even sometimes where there did not appear to be any ambiguity or absurdity. The Lord Chancellor's predictions on cost have been confirmed by solicitors, with one estimating that it had added 25 per cent to the Bill.
On other occasions it is clear that Hansard has not been helpful or that the court would have reached the same conclusion in any event. Cases illustrating the use of Extrinsic Aids Black- Clawson International LTD V Papierwerke Waldhof- Aschaffenburg: KEY FACTS: There was a dispute over the enforcement of a foreign judgement which involved the interpretation of S (8) 1 of the Foreign Judgements (Reciprocal Enforcement) Act 1993. The court had to decide whether it could look at a report which had lead to the passing of the Act. It held that it coudl do so in order to discover the mischief the act had been passed to remedy. KEY CASE LINK: DPP V BULL (1994) Bull was a male prostitute charged with an offence against S1 (1) of the Street Offences Act 1959. The case was dismissed by the magistrates on the ground that the words 'common prostitute' only applied to female prostitutes'. The prosecution appealed by a way of case stated.
The divisional court considered the Wolfenden Report Cmnd 247, 1957, which had led to the passing of the Act. That report clearly identified the mischief as oen being created by women. The court held that the words were only meant to apply to women. They did not cover male prostitutes. KEY LAW: A report may be considered in order to discover the mischief the act was intended to remedy. Two young boys had set fire to some newspapers in a shop yard. After they left the fire spread to the shop itself and other shops. They were charged with Arson under the Criminal Damage Act 1971. The court had to decide the meaning of 'reckless' in the Act.
Prior to the passing of the Act there had been a report by the Law Commission. However, In Metropolitan Police Comissioner V Caldwell (1981), the House of Lords refused to look at the report but instead gave an objective meaning to recklessness (i.e. that the defendant would be guilty if an ordinary adult would have realised the risk).
The court consulted the report and overruled Caldwell holding that the report showed that subjective recklessness (i.e. that the defendant knew there was a risk but decided to take it) was required. R V R AND G (2003) KEY LAW: Reports leading to the passing of legislation can be considered by the courts. R v G AND R 2003 KEY JUDGEMENT: Lord Bingham Section 1 as enacted as followed, subject to an immaterial addition, the draft proposed by the Law Commission.
It cannot be supposed that by "reckless" Parliament meant anything different from the Law Commission. The Law Commission's meaning was made plain in its report (Law Com N0 9, 1970) and in working paper n023 which preceded it.
These materials (not, it would seem placed before the House of Lords in R v Caldwell) reveal a very plain intention to replace the old expression "malciously" by the more familiar expression "reckless" but to give the latter expression the meaning which R v Cunningham (1957) had given to the former... (this is subjective recklessness)
No relevant change in the mens rea necessary for proof of the offence was intended, and in holding otherwise the majority misconstructed section 1 of the Act
(HOLS overruled Caldwell holding that the law lords had adopted an interpreatation section 1(1) of the Criminal Damaage act 1971 which was 'beyond the range of feasibel meanings) International Coventions LAW REFORM REPORTS As with Hansard, the courts used to hold that reports by law reform agencies should not be considered by the courts. However, this rule was relaxed in the cases of, R v G and R (2003), DPP v Bull (1994) and in the Black Clawson case (1975).
It was accepted that the Law Commissions report could be looked at to define "reckless" in (R v G and R),
The Wolfrenden report Cmnd 247, 1957 which lead to the passing of the Street Offences Act could be looked at, which clearly outlined the mischief as one being created by women, therefore did not apply to male prostitutes, (DPP v Bull)
And in Black Clawson (1975) when it was accepted that a report which lead to the passing of the act could be looked at to discover the mischief or gap in the law the legislation base don teh report was designed to deal with. In Fothergrill V Monarach Airlines Ltd (1980) the Hols held that the original convention should be considered along with any preapatory materials or explanatory notes published with an International Convention as it was possible that, in translating and adapting the Convention to our legislative process, the true meaning of the original might have been lost.
the Hols in that same case also held that An English court could consider any prepatory materials or explanatory notes published within an international convention.
The reasoning behind was that other countries allowed the use of such material known as Travaux Preparatories, and, it should therefore be allowed in this country in order to get uniformity in the interpretation of international rules. THE EFFECT OF EU LAW The purposive approach is the one preffered by most European countries when interpreting their own legislation.
It is also an approach which has been adopted by the European Court of Justice in interpreting E.U. law. Since the U.K. has become a member of the European Union in 1973 the influence of the European preference for the puposive approach has effected the English Courts in two ways.
1) Firstly, they have had to accept that, at least for law which has been passed as a result of having to conform to a European law, the purposive appraoch is the correct one to use.
2) Secondly, the fact that judges are having to use the Purposive appraoch for E.U. law is making them more accustomed to it and, therefore more likley to apply it to English Law. Interpreting E.U. law Where the law to be interpreted is based on EU law, the English courts must interpret it in the light of the wording and purpose of the EU law. This is because the Treaty of Rome, which sets out the duties of European states, says that all members are required to:
"Take all appropriate measures.. to ensure fulfilment of the obligations"
The ECJ in the Marleasing case (1992) ruled that this included interpreting national law in the light and the aim of the European law.
An example of the English courts interpreting law by looking at the pupose of the relevant EU law is Diocese of Hallam Trustee v Connaughton (1996).
The growing influence of European Law is shown that British Courts are now prepared to apply European Treaty law directly rather than wait for the ECj to make a direct ruling on the point. The Effect of the Human Rights Act 1998 Section 3 of the Human Rights Act says that, so far as it is possible to do so, legislation must be read and given effect in a way in which is compatible with the rights in the European convention on Human Rights. This applies to any case where one of the rights is concerned, but it does not apply where there is no involvement of Human Rights.
An example of the effect of the Human Rights act on Interpretation is Mendoza v Ghaidan (2002). In this case the Court of Appeal ignored a House of Lords judgement about the Rent Act 1977 which had been made prior to the implementation of the Human Rights Act.
The Rent Act applied where a person who had the tenancy of a house of flat died. If the tenanant had been living in the property with their spouse, then teh spouse had the right to take over the tenancy. The Rent Act also allowed unmarried partners to suceed to the tenancy as it stated that 'a person who was living with the original tenant as his or her wife or husabnd shall be treated as the spouse of the original tenanat' Effect of Human Rights Act continued In Mendoza V Ghaidan the question was whether same sex partners had the right to take over the tenancy. A House of Lords' decision, made before the Human Rights Act cam einto effect, had ruled that same sex partners did not have the same right under the Rent Act to take over the tenancy.
The Court of Appeal held that the Rent Act had to be interpreted to conform to the European Convention on human rights which forbids discrimination on the ground of gender. In order to make the Act compatible with human rights, the Court of Appeal read the words 'living with the original tenanat as his or her wife or husband' to mean 'as if they were his or her wife or husband'
This allowed same sex partners to have the sam erights as unmarried oppisitte sex couples. The court of Appeal pointed out the importance of conforming to the conevntion rights when they said:
In order to remedy this breach of the convention the Court must, if it can, read the Schedule do that itys provisions are rendered compatible with the convention rights of the survivors of same sex partnerships.
In 2004 the Hols confirmed the Court of Appeals decision in this case. Rules of Language Even the Literal Rule does not take words in complete isolation. It is common sense that the other words in the Act must be looked at to see if they affect the word or phrase that is in dispute.
In looking at the other words in the Act the courts have developed a number of minor rules which can help to make the meaning of words and phrases clear where a particular sentence construction has been used.
These rules which also have Latin names are:
1) The ejusden Generis rule
2 Expressio unius est exclusio alterius
3) Noscitur a sociis The Ejusdem Generis rule Ejusdem generis means 'of the same class'. it is used to create a presumtion that when a word with a general meaning follows words with more specific meanings, the general word only covers thinsg which are in the same class as the specific words.
For example, if a pet sitting service offered cared of 'animals', this could include cows and tigers but if it offered care of 'dogs, cats and other animals', it would be assumed that cows and tigers were exluded because the reference to cats and dogs is taken to mean that the relevant class is domestic pets, not farmyard cows or jungle tiger animals. Expressio Unis Est Exclsuio Alterius Expressio Unis means 'the expression of one thing is the exclsuion of another' . If a list of words is used, it is assumed that teh things that are not listed are excluded.
For exmaple, In R V Inhabitants of Sedgley 1831 a tax imposed on various buildings including coal mines could not be imposed on limestone mines as these were excluded by the specif mention of coal mines. Noscitur a sociis Noscitur Sociis means that a word can be interpreted by reference to other words with which it is assosiated. It is assumed that words on a list have something in common with each other so the meaning of any particular word can be inferred from the meaning of other words on the list.
For example, if it is an offence to remove, conceal or dispose of property that coudl be used to discharge debts when an individual is declared bankrupt, can it be said that a person who fails to mention that he owns 1,000 pairs of shoes has concealed them?
This was the issue before the Canadian counts in R v Goulis where it was held that as'remove' and 'dispose' were words that involved positive acts, the meaning to be given to 'conceal' should be narrow so that it covered active steps to hide assets rather than the more passive failure to mention them. Fothergill v Monarch Airlines Ltd (1980) KEY FACTS: The case involved interpretation of the Carriage by Air Act 1961 and the Warsaw Convention 1929 which was contained in a schedule to the Act. The court held that it could look at travaux prepatoires (explanatory notes published within the convention) in order to understand its true effect. KEY LAW: The original convention should be considered along with any prepatory materials or explantory notes published with an International Convention as it was possible that, in translating and adapting the convention to our legelsative process, the true meaning of the original might have been lost. KEY FACTS: PEPPER (inspector of taxes) v Hart (1993) Teachers were charged recued fees for their children at an indepedent school. This concession was a taxable benefit. The question was exactly how the calculation of the amount to be taxed should be done.
Under the Finance Act 1976 this had to be done on the 'cash equivilant of the benefit. Section 63 of the Finance Act 1976 defined 'cash equivilant' as 'an amount equal to the cost of the benefit' and further defined the 'cost of the benefit as' The amount of any cost occured in or in connection with its provision'
This was amabigious as it could mean either:
(A) The marginal (or additional) cost to the employer of providing it to the employee (this on the facts was nil) (the decision); or
(B) The average cost of providing it to both the employee and the public (this would involve the teachers having to pay a considerable amount of tax. ) KEY LAW: Hansard could be consulted on the intention of parliament when passing an Act of Parliament. Key Judgement: Lord Browne Wilkinson: 'The exclsuionary rule should be relaxed as to permit reference to parliametry materials where (A) legislation is ambigious, obsecure or leads to an absurdity
(B) The material relied one consists of one or more statements by a minister or other promter of the Bill together ifnecessary which such other parliamentry material necessary to understand such statements and their effect.
(C) The statements relied on are clear. Further than this I would not at present go. KEY FACTS: WILSON v FIRST COUNTRY TRUST Ltd (No2) UKLH 40 The speaker of the House of commons and the Clerk of the Parliament were joined in the case to make representataions against the use of Hansard for the purpose of deciding compatability of an Act with the European Convention on Human Rights. The court held that Hansard could be consulted, though in the actual case Hansard did not provide any assistance with interpretation. KEY LAW: Consulting Hansard did not amount to a 'questioning' of what is said in Parliament and so was not contrary to Section 1 of Art 9 of the Bill of RIGHTS 1688. KEY JUDGEMENT: The courts would be failing in the due discharge of the new role assigned to them by Parliament if they were to exclude from consideration relevant background information whose only source was a ministerial statement in Parliament or an explanatory note prepared from his deperatment while the Bill was proceeding through Parliament.
By having such material the court would not be questioning proceedings in Parliament or intruding improperly into the legislative process or ascribing to Parliament the views expressed by a minister. The court would merely be placing itself in a better position to undersatdn the legislation. KEY COMMENT: It is noticeable that the judgement extends beyond Hansard as it clearly states, Obiter, that the court also has a duty to consider explanatory notes. KEY FACTS: LAROCHE v SPIRIT OF ADVENTURE (2009) C suffered injuries due to the sudden landing of a hot air baloon in which he had taken a flight. He started his action for damages against the defendants nearly three years later. It was held that the balloon was an 'aircraft', there had been a 'carriage' of C and that C was a 'passenger'.
These findings meant that Sch 1 of the Carriage by Air Act (Application of provisions) Order 1967 applied and the claim had to be brought within two years of the incident. C was out of time starting his case and it was dismissed for this reason. KEY LAW: In interpreting the 1967 Order, the Court considered the following external Aids:
1) The Warshaw Conevntion which applies to international flights: even though this was not an international flight, it was held that the 1967 Order should be interpreted in a similar way
2) The Pocket Oxford Dictionary which defined 'aircraft' as 'aeroplane(s), airship(s) and balloon(s)
3) Another statutory instrument, the Air Navigation Order 2000 POWELL v KEMPTON PARK RACE 1899 KEY FACTS: Cases illustrating esjusdem generis rule The Defendnat was charged with keeping a 'house, office, room or other place for betting'. He had been operating betting by what is known as Tatterstall's ring, which is outdoors.
The House of Lords decided that the general words 'other place' had to refer to indoor places since all the other words in the list were indoor places and so the defendant was not guilty. KEY LAW: Where there are specfic words followed by a general term, the general term is limited to the same kind of items as the specific words. ALLEN V EMMERSON (1944) KEY LAW: The courst had to interpret the phrase 'threates and otehr places of amusement and had to decide whether it applied to a funfair. The court decided that a funfair did come under the general term 'other places of amusement' even though it was not as the same kind as theartes. KEY LAW: There must be at least two specific categories for the ejusdem generis rule to operate. Case illustrating Expression Unius exclusio alterius
TEMPEST v KILNER (1846) KEY FACTS: The courts had to consider whether the Statute of Frauds 1677, which required a contract for the sale of 'goods, wares and merchendise' of more than £10 to be evidenced in writing, applied to contract for the sale of stocks and shares. The list 'goods, wares and merchendise' was not followed by any general words so the court held that the only contract for those three types of things were affected by the statute; because stocks and shares were not mentioned. Therefore they were not caught by the statute. KEY LAW: Where there is a list of words which is not followed by general words, then the legislation applies only to the items in the list. Case illustrating Noscitur a sociis
Inland Revenue Commissioners v Frere (1965) KEY LAW: The section of the relevant Income Tax Act set out rules for 'interest, annuities or other annunal interest'. The first use of the word 'interest' on its own coudl have meant any interest paid, whether daily, monthly or annually.
Because of the words 'other annaul interest' in the section, the court decided that 'interest' only meant annual interest. KEY LAW: Words must be looked at in context and interpreted accordingly. This may involve looking at other words in the same section or at other sections in the Act. KEY FACTS: Key Link To Inland Revenue Case
BROMLEY LONDON BOROUGH COUCNIL v GREATER LONDON COUNCIL (1982) Other sections of the Income Tax Act were considered by the House of Lords in the Bromley case (1982). The issue in this case was whether the Greater London Council (GCL) could operate a cheap fear scheme on their transport systems, where the amounst being charged meant that the transport system would be run at a loss.
The decision in the case revolved around the meaning of the word 'economic'. The House of Lords looked at the whole Act and, in particular, at another section which imposed a duty to make up an deficit as far as possible.
As a result they decided that 'economic' meant being run on business lines and ruled that the cheap fares policy was not legal since it involved deliberateley running the transport system at a loss and this was not running it on business lines. KEY LAW: Words must be looked at in context and interpreted accordingly. This may mean looking at other words in the same section or other sections of the Act. The courts will also make cerrtain presumptions or assumptiosn about the law, but these are only a strating point. If a statute clearly states the oppositte, then the presumption will not apply and it is said that the presumption is rebutted.
The most important presumptions are:
1) A presumption against a change in the Common law.
In other words it is assumed that the common law will apply unless Parliament has made it plain in the Act that the common law has been altered. An example of this occured in Leach v R (1912), where the question was whether a wife could be made to give evidence aagisnt her husband under the Criminal Evidence Act 1898.
Since the Act did not expressly say that this should not happen, it was held that the common law that a wife could not be compelled to give evidence still applied. If there had been explcit words saying that a wife was compellable then the common law would not apply. This is now the position under Section 80 of the Police and Criminal Evidence Act 1984, which expressly states that in a crime of violence one spouse can be made to give evidence against the other spouse. PRESUMPTIONS 2) A presumption that Mens Rea is required in Criminal cases. The basic common law rule is that no one can be guilty of a Crimianl offence unless it is not shown/proven that they had the required intention to commit it. In the case of Sweet V Parsley (1970) the defendant was charged with being 'concerned with the managment of premises' which were used for the purpsoes of smoking cannabis. The facts were that the defendant was the owner of the premises which she had leased out and the tenants had smoked cannabis without her knolwedge.
She was clearly conerned with the 'mangement of the premises' and cannabis had been smoked there, but because she did not have no knolwedge of the events she had Mens Rea. The key issue was whether Mens Rea was required. The Act did not say there was any need for knolwedge of the events. The House of Lords held that she was not guilty and the presumption that Mens rea was required was rebutted.
3) A presumption that the crown is not bound by any statute unless the statute expressly says so.
4) A presumption that legislation does not apply retrospectively. This means that no Act of Parliament will apply to past happenings; each Act will normally apply from the date it comes into effect.