Statutory Interpretation

1. Statutory Interpretation Richard O’Neill University of Hertfordshire

2. Legislation and common law Legislation and common law • Statute can only be changed or overruled by another later statute - not by common law • Doctrine known as Parliamentary Sovereignty – legal and political • Parliament is the supreme law-making authority in the land

3. Parliamentary Sovereignty Is it absolute?

4. Parliamentary Sovereignty Is it absolute? • European Union - ECJ • Individual freedoms – Human Rights Act • Governmental accountability – Judicial review • Democracy

5. Parliamentary Sovereignty Is it absolute? • Parliament’s power and supremacy depends upon the enforcement of it’s statutes • Sovereignty depends on the acquiescence of the courts to the power of Parliament

6. Parliamentary Sovereignty Judges and statute law • Judges must normally apply statutes -- even if contrary to common law -Supremacy of Parliament • Judges role is to interpret and apply statute – sometimes they have a great deal of discretion in how they do this • Acts drafted in such a way as to minimise interpretation

7. Interpreting statutes Why do statutes need interpreting?

8. Interpreting statutes • Problems in interpreting Acts • language not precise • ambiguities may arise • meanings change over time • drafting imperfect/often hurried • legislation applied in situations not envisaged by legislators • courts unable to request explanations from Parliament • judges and parties involved may interpret statues in different ways Judges and statute law

9. Interpreting statutes • Statute banning men with facial hair from parks • ‘s1 (1) .. men with beards or moustaches are prohibited from parks..’ The Facial Hair and Parks Act 2006 Hypothetical statute After Elliot and Quinn English Legal System 1996

10. Interpreting statutes • Statute banning men with facial hair from parks • ‘s2 (1) .. men with beards or moustaches are prohibited from parks.. The Facial Hair and Parks Act 2006 • does this mean that a man who has a beard and moustache would be allowed in? • what is meant by park?

11. Imprecision of language statute banning vehicles from entering parks did Parliament intend to exclude a vehicle for a disabled person? what is meant by vehicle? does this include child’s bicycle; skateboards; rollerskates? Twining v Myers (1982) Meaning of words changes over time Offences Against Persons Act 1861 contemporary meaning of words such as: ‘maliciously’ ‘grievous’ Interpreting statutes

12. New developments Abortion Act 1967 envisaged that doctors would carry out operation query whether method undertaken by nurses and using drugs was illegal Royal College of Nursing v DHSS (1981) Drafting errors Hurried legislation Dangerous Dogs Act 1991 Ambiguities Language differences (EU) Interpreting statutes

13. Statutory Interpretation Specific rules of interpretation judges assume certain things • Presumptions -judges make certain assumptions about the intentions of Parliament, and require strong evidence to the contrary, such as: • does not intend to impose criminal liability • does not intend to take away fundamental rights • does not intend to exclude the courts from deciding disputes

14. Statutory Interpretation Specific rules of interpretation judges apply certain rules of language • rules of language • ejusdem generis • expressio unius est exclusio alterius • noscitur a socciis

15. Statutory Interpretation • rules of language • ejusdem generis – “of the same kind” • where general words follow a list they are interpreted in the context of the list • Powell v Kempton ParkRacecourse (1899) – ‘house, office, room or other place for betting’ – “other place” interpreted as other indoor place Specific rules of interpretation

16. Statutory Interpretation • rules of language • expressio unius est exclusio alterius– the expression of one excludes others • express mention of one item in a class of things should by implication exclude other items in the same class • If there are no general words at the end of a list, only things in the list are covered by the legislation • Tempest v Kilner (1846) statute concerned contracts in writing for ‘goods, wares and merchandise – ‘stocks and shares’ not mentioned in statute and so not covered Specific rules of interpretation

17. Statutory Interpretation • rules of language • noscitur a socciis – known by the company it keeps • words take their meaning from those around them • ambiguous words or phrases can be clarified by referring to the context in which they are used • Muir v Keay (1875) – houses kept open for ‘public refreshment, resort and entertainment’ had to be licensed – court held ‘entertainment’ did not mean musical entertainment – so a café required a licence Specific rules of interpretation

18. Statutory Interpretation • The Interpretation Act 1978 • defines many common terms • provides that its definitions are to be used in construing any Act which contains the words defined (unless defined differently in a subsequent Act) • provides rebuttable presumption that terms in masculine gender also include the feminine and that singular includes plural Statutory aids to interpretation

19. Statutory Interpretation Rules of statutory interpretation not strictly rules - judges can decide which to adopt literal rule  golden rule  mischief rule • Three general rules used by judges in interpreting Acts of Parliament: • Literal rule • Golden rule • Mischief rule

20. Statutory Interpretation • Literal rule • promotes certainty • but • dictionary-meaning can be misleading • interpret the statute literally according to ordinary plain meaning • give words their literal meaning, regardless of whether the result is sensible or not • first approach taken

21. Statutory Interpretation Literal rule “ ..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 because they consider that the consequences of doing so would be inexpedient, or even unjust or immoral.” Lord Diplock in Dupont Steels Ltd v Sirs (1980) • Whitley v Chappell (1864) – ‘illegal to impersonate any person entitled to vote’ – dead person not entitled to vote – defendant acquitted • LNER v Berriman (1946) – Fatal Accidents Act 1864 referred to ‘relaying’ or ‘repairing’ the track – man killed ‘oiling’ track was undertaking maintenance – no compensation when killed

22. Statutory Interpretation • Golden rule • avoids obvious foolishness • but • only applied when literal rule leads to absurdity • where an absurdity arises from the literal interpretation, then modify this • give a reasonable meaning the the words being construed

23. Statutory Interpretation • Narrow approach – when word has multiple meanings, judge selects meaning that best fits situation – • R v Allen (1872) – word ‘marry’ read as ‘to go through a ceremony of marriage’ • Wider approach – when meaning would result in a rediculous or repugnant outcome – • Re Sigsworth (1935) – son killed mother for inheritance – Act would have allowed this but court interpreted Act to prevent this Golden rule “…the ordinary sense of the words”

24. Statutory Interpretation • Purposive approach • define the problem the Act was meant to remedy and choose the interpretation which best deals with the problem • judge required to consider: • what was the law before the statute was passed • what ‘ mischief’ was sought to be remedied’ • what remedy was being provided • Heydon’s Case (1584) • Smith v Hughes (1960) – interpretation of the Street Offences Act 1959 • Mischief rule • encourages courts to have regard to context • but • judges need to know the ‘will’ of Parliament

25. Statutory Interpretation • Intrinsic aids • By reading the whole statute • long and short titles • preamble • section Headings • interpretations given within the Act • schedules • punctuation • but not • marginal notes (not officially part of the Statute – not discussed in Parliament) • Mischief rule purposive approach • understanding the context • Deciding what they believe Parliament meant to achieve

26. Statutory Interpretation • Extrinsic aids • By reading earlier statutes • By reading other cases • By consulting other sources • International conventions/treaties • General historical background • Government publications • Law Commission reports • Parliamentary debates • Dictionaries – most common aid when following literal approach - OED • Textbooks • Custom • Quasi-legislation • Mischief rule • understanding the context

27. Statutory Interpretation • Parliamentary debates • Hansard – verbatim record • Pickstone v Freemans (1988) – HL needed to find out reason for amendment to the Equal Pay Act 1970 • Pepper v Hart (1993) • Court may refer to Hansard: • where ambiguity in statute and where it throws light on the mischief aimed at • where statements made by Minister or promoter of relevant Bill • statement is clear in its meaning • Mischief rule • understanding the context

28. Statutory Interpretation Human Rights Act 1998 - section 3 • Increasing importance • Overrides traditional approaches • judges obliged to read all primary and secondary legislation in a way that is compatible with the European Convention on Human Rights (ECHR)

29. Statutory Interpretation • Approach adopted by European Court of Justice in interpreting European law • has influence on UK judges • Treaty of Rome – Member States required to ‘take all appropriate measures … to ensure fulfilment of the obligations’ • Marleasing case (1992) ECJ ruled that this included interpreting national law in everyway possible in light of the text and aim of the European law European approach - purposive approach