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Statutory Interpretation. Advantages and disadvantages of the rules of interpretation. Parliamentary supremacy is respected Judges given a restricted role Law making left to those who are elected for law making
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Statutory Interpretation Advantages and disadvantages of the rules of interpretation
Parliamentary supremacy is respected Judges given a restricted role Law making left to those who are elected for law making Application of literal rule can highlight to parliament problems with an act – Fisher v Bell – invitation to treat now treated in the same way as offers for sale Advantages of the literal rule
Absurd results Unjust results – LNER v Berriman (1946) Does not always give effect to the intention of parliament – they would not want absurd results Where a dictionary definition gives two meanings, the literal rule will not work Requires the assumption that draftsmen will always do their job perfectly Disadvantages of the literal rule
Prevents absurd and unjust results – Re Sigsworth More likely than the literal rule to have produced a result intended by parliamant Advantages of the golden rule
No clear definition of what amounts to an absurd result – therefore unpredictable Makes it difficult for lawyers to advise clients whether or not to pursue a case Too much power given to judges Michael Zander calls it a ‘feeble parachute’ Disadvantages of the golden rule
Avoids absurd and unjust outcomes – McMonagle Promotes flexibility How parliament intended it – smith v hughes Law Commission calls it a ‘rather more satisfactory approach’ – preferred approach Advantages of the mischief rule
Too much power to an unelected judiciary Is it the job of a judge to update legislation? – Abortion Act 1967 Can be hard to discover the original mischief – search old law Difficult to identify precise intention of parliament Out of date – 16th century Disadvantages of the mischief rule
Consistent with EU approach Gives effect to parliament’s intentions Denning states that it is “preferable to destructive analysis” Avoids absurd and unjust results Flexible Parliament's intention Advantages of the purposive approach
Too much power to unelected jury Judicial decisions based on policy – Fitzpatrick v Sterling Housing Association Disadvantages of the purposive approach
No requirement for draftsmen to write an exhaustive list of everything included Adadpt to changes in society Advantages of the ejusdem generis rule
Not always predictable what judges will consider to be of the same category as the specific words – Kensington and Chelsea LBC ex p Kihara (1996) Allows for judicial law making Disadvantages of the ejusdem generis rule
No need for draftsmen to foresee every particular circumstance Adapt to unforeseen circumstances Advantages of the noscitursociis rule
Offends the separation of powers – judicial law making Unpredictable outcomes due to scope for judicial discretion Disadvantages of the noscitursociis rule
A finite list is provided More predictable Lawyers can advise due to this Respects separation of powers Advantages of the exclusioalterius rule
Rigidity No scope for future changes Possible unfair and unjust outcomes Disadvantages of the exclusioalterius rule
Long title can remind judges of what they are trying to achieve – mischief/purposive approach – Black-Cawson (1975) Preamble, objectives or puposes sections help when applying mischief/purposive approach Schedules help understand the provisions of an act – easy to reference Definition section helps with interpreting words Advantages of the intrinsic aids
Doubt as to whether punctuation should be taken into account – wasn’t used prior to 1850 Disadvantages of the intrinsic aids
Dictionaries help when using literal approach Referring to acts can help with interpreting mischief Commission reports help when applying mischief/purposive approach Hansard is a very useful tool – Davis v Johnson Explanatory notes use more accessible language Advantages of the extrinsic aids
Dictionaries do not help when looking at parliament’s intention Interpretation Act is limited in scope and not very technical or specialised Commission reports can be erroneous – Anderton v Ryan Disadvantages of the extrinsic aids
