Statutory Interpretation

1. Statutory Interpretation

2. It is against the law to whale hunt in Oklahoma. (Think about it...) • In Breton, Alabama, there is a law on the town's books against riding down the street in a motorboat • In Michigan it's illegal to place a skunk inside your bosses desk • In Kentucky, it is illegal to carry ice cream in your back pocket

3. Introduction • People • tend to agree that case law can present problems because facts are never the same • tend to assume that statutes are precise and accurate and that anyone can “look up” the law in a statute! • Statutes • are written in a style different from many other documents • are not designed to entertain, but to declare law • often use words that are difficult to interpret

4. Introduction • Statutory interpretation is an exercise in translation • The court has to deal with phrases such as “equipment includes any plant and machinery, vehicle, aircraft, and clothing” • Does the word ‘include’: • mean that the subsequent items fall within the definition of equipment (while everything else is excluded) or • that the list is not closed? • See: Coltman v Bibby Tankers Ltd [1988] AC 276 • See: other difficult words (satisfactory, cause, welfare, safe system of work, defect, pollution)

5. Statutory Interpretation Legal Methods and systems Precedent and statutory interpretation

6. Precedent and statutory interpretation • Although decisions on the construction of statutes, being mattes of law, may constitute binding precedents, it does not necessarily follow that they must do so in every case • The essential task in statutory interpretation is to find the meaning of the words for the purposes of the Act in which those words appear • Quillotex Co Ltd v Minister of Housing and Local Government [1965 2 All ER 913 – Salmon LJ: “No real help can be gained as to the meaning of a word in statute A by reference to its meaning in statutes B, C or D. All one can derive from the cases are the relevant principles of construction to be applied” • Decisions on the interpretation of one statute are no more than persuasive authorities in relation to other statutes

7. Precedent and statutory interpretation • It appears that a case which decides the meaning of a specific form of statutory words cannot bind a subsequent court unless it is considering the same form of words in the same statute • There is an exception: in pari materia • A decision in relation to one statute may be binding in relation to another provided that both statutes deal with the same subject matter • See: Crosley v Arkwright [1788] 100 ER 325 Powell v Cleland [1947] 2 All ER 672

8. Precedent and statutory interpretation • R v Wheatley [1979] 1 WLR 144 • Did “explosive substance” in the Explosive Substances Act 1883 (s. 4) include a pyrotechnic devise • The 1883 gave no definition • The Explosive Substances Act 1875 dealt with the same subject matter and encompassed pyrotechnic devises in the term explosives

9. Statutory Interpretation The rules of interpretation • Literal rule • Golden (purposive) rule • Mischief rule

10. The ‘rules’ of interpretation • Literal rule • take only the plain, literal meaning of the words used since those are the draftsperson chose to use • Golden (purposive) rule • try to find out what the draftsperson intended by the words by looking at the general purpose of the section and the social, economic or political context • Mischief rule • look at the history of the Act and the legal wrong that the draftsperson sought to remedy (what was the mischief?)

11. The ‘rules’ of interpretation • The rules are in common use – but they are dangerous • The word ‘rule’ - gives the impression that if you follow a specific pattern you will not go wrong • They incorrectly have the aura of scientific authenticity • Interpreting statutes is more of an art than a science • Throughout legal history, lawyers have had problems applying these rules • R. Cross (1995): “Each and every pupil told me there were three rules – the literal rule, the golden rule and the mischief rule and that the courts invoke which ever of them is believed to do justice in the particular case. I had, and still have, my doubts”

12. How do we use these ‘rules’? • The ‘rules’ • are not adhered to in a fixed or unchanging logical form • are not more than techniques of reading a document • may be used singularly or in any combination

13. How do we use these ‘rules’? • So, • “the plain meaning of these words show that my client conformed with the requirements of the section” (literal) • “and if you look at the purpose behind this section you find that it was designed to remedy the very problem for which my client seeks redress” (purposive) • “if you look at why this Act came about, the history shows that the Act was necessary to overcome the problems with previous cases in this area” (mischief)

14. How do we use these ‘rules’? • Oliver Ashworth (Holding) Ltd v Ballard (Kent) Ltd [1999] 2 All ER 791 – Laws • “[I]t is now misleading – and perhaps it always was – to seek to draw a rigid distinction between literal and purposive approaches….frequently there is no opposition between the two, and then no difficulty arises. Where there is a potential clash, the conventional English approach has been to give at least very great and often decisive weight to the literal meaning of the enacting words. This is a tradition which I think is weakening

15. How do we use these ‘rules’? • Lord Carswell in Majrowski v. Guy's, St. Thomas' NHS Trust No. [2006] UKHL 34 “Three of the classic methods of interpretation of a statutory provision are construction of the language of the enactment, consideration of the mischief at which the provision was aimed and weighing of the consequences of the conflicting interpretations of the provision in question. All are designed to assist the object of the tribunal interpreting the provision, to determine the meaning which Parliament intended in enacting it. The wording of the enactment, not merely individual provisions, but the whole enactment, is the first resort of the interpreter, and in many, if not most, cases it will resolve the question.”

16. Statutory Interpretation The rules in action How do these rules work in practice?

17. The ‘rules’ in action: literal • Founded on the assumption that the words Plt chose show its intention in passing the Act • You look at what is said, not at what it might mean • Look at linguistics rather than considerations of the purpose of the Act or the wider context • Duport Steel v Sirs [1980] 1 WLR 142 (Lord Diplock): to do otherwise might mean that the court is not interpreting the Act but rather is making law • “Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning

18. The ‘rules’ in action: literal • Sussex Peerage Case [1884] 8 ER 1034 – Lord Tindal CJ: “If the words in the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do, in such a case, best declare the intention to the lawgiver”

19. The ‘rules’ in action: literal • Judges apply what is there • But if the words were that clear, the case may not have been brought in the first place! • Look for the primary, or most obvious, meaning • Not any general, or secondary meaning • Look at the way the word or sentence fits in to the rest of the section • The rule does not demand that the word be viewed in isolation from the rest of the section/sentence • The rule does not call upon a judge to consider the consequences of the interpretation

20. The ‘rules’ in action: literal • Whiteley v Chappell [1868-69] LR 4 QB 147 • Statutory offence to impersonate “any person entitled to vote” at an election • The defendant, who had impersonated someone who had been entitled to vote but who had died before the date of the election, was convicted • The defendant’s appeal was successful on the basis that dead men are not entitled to vote – therefore he was not guilty • Simple literalism can produce results which are plainly unsustainable

21. The ‘rules’ in action: literal • R v Harris [1836] 7 C & P 446 • Statute made it an offence to ‘stab, cut or wound’ another person • Harris bit off her “friend’s” nose in a fight – and then the policeman’s finger • Q: Was she guilty under the statute? • A: No – the words in the statute pointed towards the use of a weapon • Teeth are not weapons

22. The ‘rules’ in action: literal • Fisher v Bell [1961] 1 QB 394 • Restriction of Offensive Weapons Act of 1959 made it an offence “to sell or hire or offer for sale or hire certain offensive weapons such as flick knives • Bell placed a flick-knife in his Bristol shop window with a price tag on it • Q: Was he guilty of an offence? • A: No – placing an item on display is not the same thing as ‘offering it for sale’ (see contract law) • This case prompted the enactment of the Restriction of Offensive Weapons Act 1961, which extended the offence under the 1959 Act to include anyone who “exposes or has in his possession for the purpose of sale or hire” an offensive weapon

23. The ‘rules’ in action: literal • The case of Diane Blood • Denied the right to conceive by artificial insemination using her late husband’s sperm (harvested while he was in a coma) • The Human Fertilisation and Embryology Act 1990 required the consent of the donor before artificial insemination could be undertaken • Not possible in the circumstances • While the Ct was sympathetic to Mrs Blood, it was forced to rule that the literal language employed by statute was obvious and it was bound to follow the wording of the Act

24. The ‘rules’ in action: golden • An adaptation of the literal rule • A rule we use all of the time in our day-to-day business • Pedestrian crossing • No dog fouling • Stop children • Happy hour • Get the door • The context aids the interpretation • Corrects absurdities • What is Plt trying to do? What is the purpose of the Act? • Carter v Bradbeer [1975] All ER 158 – Lord Diplock: “If one looks back to the decisions of this house … over the last thirty years one cannot fail to be stuck by the evidence of a trend away from the purely literal towards the purposive construction of statutory instruments”

25. The ‘rules’ in action: golden • Classic exposition of the Rule is found in River Wear Commissioners v Adamson [1867-77] 2 App Cas 743 – Lord Blackburn: “I believe that it is not disputed that what Lord Wensleydale used to call the golden rule is right, viz. that we are to take the whole statute together and construe it all together, giving the words their ordinary signification unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification and to justify the court in putting on them some other signification which, though less proper, is one which the court thinks the words will bear”

26. The ‘rules’ in action: golden • Stock v Frank Jones (Tipton) Ltd [1978] ICR 347 – Lord Simon advocated departure from the literal rule only when • There is a clear and gross anomaly • Plt could not have envisaged the anomaly and would not have accepted its presence • The anomaly can be obviated without detriment to the legislative intent • The language of the statute allows for such modification

27. The ‘rules’ in action: golden • The rule does not exist independently of the literal rule • Comes into play as a back-up when the literal rule doesn’t work • The purposive approach will be used when there is confusion within the Act • A straightforward interpretation is impossible

28. The ‘rules’ in action: golden • Ruther v Harris [1876] 1 ExD 97 • The Salmon Fishery Act 1861 prohibited net fishing for salmon at certain times • Contravention of the Act could result in forfeiture of “all fish taken … and any net used … in taking the same” • The question which arose was whether the nets could be forfeited even though the poachers had been caught before they had taken any fish • Grove J, holding that the nets could e forfeited: “It is no doubt a rule of interpretation that the grammatical construction of a sentence must be followed, but this is not to be adopted when it leads to difficulty. I think it is plain that the language of the section is not strictly accurate and grammatical; and it is my opinion that it was intended that the net should be forfeited”

29. The ‘rules’ in action: golden • R v Allen [1872] LR 1 CCR 367 • A, who was already married, married another woman (H) • Statute said: “whosoever being married shall marry any other person during the lifetime of his spouse” shall commit bigamy • H was closely related to A so this (apparently) bigamous marriage was void • A argued that he had not married H (because this was impossible in law) and that he had not committed bigamy • A argued that the second marriage had to be a legal marriage before bigamy could be committed • But, this would produce an anomaly – since no bigamous marriage is lawful by definition • Judges took a purposive approach, reading the words in “shall marry” as meaning “going through the ceremony”

30. The ‘rules’ in action: golden • Re Sigsworth [1935] Ch 89 • Mrs S was found dead – murdered by her son (who was also found dead) • Mrs S’s left everything to her son in her will • Public policy rules determined that the son (his estate!) could not inherit in these circumstances • So, Mrs S died intestate • Administration of Estates Act 1925 (s. 46): the person entitled on intestacy was the son (his estate!) • The Act said nothing about murderers inheriting • Held: the statute could not have been intended to allow murderers to inherit – despite its silence on the point

31. The ‘rules’ in action: golden • The purposive rule may prevail even over the conventional willingness of the court to give the benefit of the doubt to defendants in criminal cases • R v Pigg [1983] 1 All ER 56 • Concerned the validity of a conviction for rape • Under s. 17(2) Juries Act 1974: a majority verdict shall not be accepted unless ‘the foreman of the jury has stated in open the court the number of jurors who respectively agreed to and dissented from the verdict’ • Foreman indicated that 10 jurors had agreed to convict • Clerk of the court: “ten agreed to two of you” • Foreman made no reply – and was in contravention of the plain words of the Act…..

32. The ‘rules’ in action: golden • Lord Brandon: “If the foreman of the jury states no more than that the number agreeing to the verdict is ten, it is nevertheless and necessary and inevitable inference, obvious to any ordinary person, that the number dissenting from the verdict is two. True it is that the foreman of the jury has not said so in terms as the 1974 Act, interpreted literally, requires…in my opinion, however, it is the substance of the requirement… which has to be complied with, and the precise forms of words by which such compliance is achieved, so long as the effect is clear, is not material”.

33. The ‘rules’ in action: golden • Is purposivism objectionable? • Does it transfer to the courts a degree of power which ought properly reside in Parliament? • A modern understanding of the relationship between the courts and Parliament reveals a functional partnership – inconsistent with the notion that Parliament is supreme • “it is clearly legitimate to adopt a purposive approach and hold that a statutory provision does apply to a given situation when it was clearly intended to do so, even though it may not apply on its strict literal interpretation” (May LJ: R v Broadcasting Complaints Commission ex Parte Owen[1985] 2 All ER 522) • It was said that it may not be legitimate to do the opposite – i.e. take a purposive approach to preclude the application of a statute in a situation where a purely literal construction would apply

34. The ‘rules’ in action: golden • So, purposivism is a technique for extending the application of statutory principles rather than restricting them • A tool for promoting the efficacy of the rules which Parliament has enacted • Not a tool for frustrating the rules!

35. The ‘rules’ in action: mischief • Similar to the golden rule, though much older, is the mischief rule (the rule in Heydon’s Case [1584 3 Co Rep 7a, 7b) • Emphasises the need to interpret an Act in a way that gives effect to its objectives • The mischief approach is located in the context of an identifiable common law status quo which existed prior to the Act (Holland and Webb, 2003) • The courts must consider four things: • What was the common law before the Act? • What was the defect or mischief for which the common law did not provide? • What remedy did Plt intend to provide? • What was the true reason for the remedy?

36. The ‘rules’ in action: mischief • Maunsell v Olins [1975] 1 All ER 16 – Lord Simon: • The first task of a court of construction is to put itself in the shoes of the draftsman – to consider what knowledge he had and, importantly, what statutory objective he had – if only as a guide to the linguistic register. Here is the first consideration of the ‘mischief’.

37. The ‘rules’ in action: mischief • Smith v Hughes [1960] 1 WLR 830 • It was an offence under s. 1 of the Street Offences Act 1959 for a prostitute “to solicit in a street… for the purposes of prostitution” • Prostitutes were behind the windows or on the balconies of buildings overlooking the street – soliciting men who were in the street • Lord Parker CJ: • “Everyone knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes…For my part, I am content to base my decision on that ground and that ground alone” • cf. Fisher v Bell – which seems to frustrate, rather than promote, the suppression of the mischief at which the Act was clearly aimed • Do Fisher v Bell and Smith v Hughes reflect judges’ attitudes to prostitutes and shopkeepers?

38. The ‘rules’ in action: golden/mischief • The distinction between the golden rule and mischief rule is a fine one • It is suggested that both rules have become subsumed within a general purposive approach • Royal College of Nursing v DHSS [1981] AC800 – Lord Diplock’s approach to the Abortion Act 1967 “one starts by considering what was the state of the law relating to abortion before the passing of the Act, what was the mischief that required amendment, and in what respect was the existing law unclear”………the policy of the Act….is clear. There are two aspect to it: the first is to broaden the grounds upon which abortions may be lawfully obtained; the second is to ensure that the abortion is carried out will all proper skill and in hygienic conditions”

39. The concept of legislative intent

40. Legislative intent • Courts and commentators often use the phrase “the intention of Plt” • Lord Simon Ealing London Borough Council v Race Relations Board [ 1972] 1 All ER 105: • “It is the duty of a court so to interpret an Act of Parliament so as to give effect to its intention” • Some people are sceptical about the term • Lord Reid in Black Clawson International Ltd v Papierwerke-Aschaffenburg AG [1975] 1 All ER 810: • “We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking not what Parliament meant but the true meaning of what they said”.

41. Legislative intent • Lord Watson in Saloman v Saloman & Co Ltd [1897] AC 22: “the intention of the legislature…is a very slippery phrase” • Different types of intention • Direct intention • Indirect intention (motive) • Particular intention: the meaning o the words enacted in the statute • General intention: the purpose underlying the enactment of those words • Multi-member legislature: there are likely to be multiple intentions • It is tempting to abandon the idea of intention, and think in terms of what words are understood to mean, rather than what they are intended to mean • Speakers meaning theory

42. Modern interpretation in practice • Simply literalism is defective • Bennion: “nowadays, a legislative drafter …never intends the literal rule to be adopted” (Understanding Common Law Legislation: Drafting and Interpretation, 2001) • The modern approach is sometimes called contextualism,purposivism or enlightened literalism • Pragmatism? • HRA 1998!!!!!!!

43. Modern interpretation in practice • The prevailing method of statutory interpretation in the UK at present is said to be purposive interpretation • See e.g. R (Quintavalle) v Secretary of State for Health [2003] UKHL 13; [2003] 2 AC 687 at [8] (Lord Bingham, Lord Steyn). • There are two characteristics of a highly purposive method. • First, the judge is willing to determine the purpose of a statute at a level more abstract than what is apparent from the ordinary meaning of the statutory text. • Secondly, where the ordinary meaning of the statute and its purpose support different interpretations, the judge frequently sacrifices the ordinary meaning in favour of a ‘purposive-and-strained’ interpretation, as Francis Bennion has termed it.

44. Statutory Interpretation Secondary aids to construction Other aids for interpreting statutes

45. Secondary aids • The use that can be made to parts of the statute itself • The use of external (extrinsic) materials • Many of the rules and rules of grammar!

46. Secondary aids: title of the Act • Title of the Act • R v Galvin [1987] QB 862: • Re the Official Secrets Act 1911 • Lord Lane: “One can have regard to the title of a statute to help resolve an ambiguity in the body of it, but it is not, we consider, open to a court to use the title to restrict what is otherwise the plain meaning of the words of the statute simply because they seem to be unduly wide” • The Long Title on the Act • Cornwall County Council v Baker [2003] EWHC 374 (Admin) • Toulson J: The long title to the 2000 Act suggests, as its language states, that it was to enable provision to be made for the care, disposal or slaughter of animals to which section 1 of the 1911 Act relates, and not to make provisions for the welfare of animals unrelated to such proceedings.

47. Secondary aids: inclusive words & lists • Statutes often use the word “include”: • Does this mean that the subsequent terms were included while everything else is excluded or • that subsequent terms were examples only (viz. other terms can be included)? • Coltman v Bibby Tankers [1988] AC 276 – the HL may try to solve the problem by looking at other sections in the Act which list items

48. Expression unius est exclusio alterius • What happens where a simple list of words appears? • Can other words be added to the list? • expression unius est exclusio alterius: the expression of one thing is the exclusion of others • If legislation uses a list then it is logical that all other items were specifically excluded

49. Eiusdem generis • What is the situation where the law employs a generic, yet non-exhaustive list? • Cows, sheep, pigs and other animals • Is a dog included/excluded? • Is fish included? • A legal method of dealing with this type of problem is to say that where general words follow a list of specific words then the general words must be interpreted according to the genus(type) of the preceding specific words • Try to discover the genus which the named categories have in common • As a lawyer, your job is to convince the court that the genusof the preceding words is what you say it is!

50. Eiusdem generis • R v Jordan [1976] 3 WLR 887 • Did pornographic material fall outside the definition of obscene material under the Obscene Publications Act 1959? • Was it in the interests of science, literature, art or learning, or of other objects of general concern? • The argument was that the obscene material had psychotherapeutic value, and therefore fell within the definition • HL: it was obscene material for the purposes of the Act