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“Statutory interpretation”. Introduction to statutory interpretation. As we now know, the English language is not always ‘clear’ Thesaurus:
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Introduction to statutory interpretation • As we now know, the English language is not always ‘clear’ • Thesaurus: • (a) Invention: contraption, device, discovery, gadget, fabrication, development, fantasy, fiction, illusion, creativity, ingenuity, innovation, inventiveness, originality. • (b) Fabrication: falsehood, fib, lie, forgery, untruth, prevarication, story, construction, manufacture, production • What if a section of a statute reads? “An employee must surrender to his employer any invention made in the course of his employment”
Introduction to statutory interpretation • The court has to deal with phrases like “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, rule of law, dishonest)
Introduction to statutory interpretation • 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! • but..... • Statutes • are written in a style different from many other documents • are not designed to entertain, but to declare law • often use words and expression that are difficult to interpret • often have to be interpreted in light of new or novel circumstance.......
Introduction to statutory interpretation • Example: • The Wills Act 1837, s. 9: the signature to a will must appear “at the foot or end” of the will • The physical positioning? • The last thing written? • In 1952 the Act was amended: the signature should come: “At or after, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the Testator intended to give effect to the will” • Administration of Justice Act 1982: “No will shall be valid unless….it appears that the testator intended by his signature to give effect to the will”
Introduction to statutory interpretation • What is statutory interpretation? • The interpretation and application of statutes • An exercise in translation • Why is statutory interpretation necessary? • Uncertainty and ambiguity • Broad terms • Bad drafting • Unforeseeable developments • Changes in the use of language
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
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
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
The ‘rules’ • Literal rule: • you take only the plain, literal meaning of the words used since those are the draftsperson chose to use • Golden rule: • you 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: • you look at the history of the Act and the legal wrong that the draftsperson sought to remedy (what was the mischief?)
The ‘rules’ • 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 – a template for getting the right answer • They, incorrectly, have the aura of scientific authenticity • Interpreting statutes = more of an art than a science • Throughout legal history, lawyers have had problems applying these rules • As, by the way, have students of law
The ‘rules’ • “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” Sir Rupert Cross, Statutory Interpretation, 1976 • “Many law teachers and commentators still write as if these three supposed ‘rules’ of statutory interpretation really do exist. Some even think they sum up the whole story. In fact they are illusory, and it is high time this was realised” Francis Bennion (Former UK Parliamentary Counsel) 85 Commonwealth Legal Education Association Newsletter, October, pages 30-33. (http://www.francisbennion.com/pdfs/fb/2000/2000-049-global-method-of-si.pdf )
The ‘rules’ • These (so-called) ‘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 • even though some suggest there is almost a hierarchy!
The ‘rules’ • You, as a lawyer, may argue: • “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” (golden) • “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) Purposive?
The ‘rules’ • What ever the rule or presumption, it must be remembered that the judge’s task is the same • This task is explained in the following terms (R v. Secretary of State for the Environment, Transport, and the Regions (ex parte Spath Holme Ltd) [2001] 2 WLR 15) (Lord Nicholls) • “Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used......... As Lord Reid said in Black Clawson International Ltd v Papierwerke-Aschaffenburg AG [1975] AC 591, HL, at 613: “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’”
The rules (exams questions) • Oliver Ashworth (Holding) Ltd v Ballard (Kent) Ltd [1999] 2 All ER 791 – Laws LJ • “[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
The rules (exams questions) • 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.”
The literal rule • Founded on the assumption that the words Parliament chose show its intention in passing the Act • You look at what is said, not at what it mightmean • Look for the primary (or most obvious) meaning • The rule does not demand that the word be viewed in isolation from the rest of the section/sentence • 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”
The literal rule • Under the rule, the literal meaning must be followed even if the result is silly • R v. City of London Court Judge [18922] 1 QB 273 (Lord Esher) • “If the words of an Act are clear, you must follow them, even though they may lead to manifest absurdity. The court has nothing to do with the question of whether the legislation has committed an absurdity” • Note the importance of words being precise • Sussex Peerage Case [1884] 8 ER 1034 – Lord Tindal “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”
The literal rule • London and North Eastern Railway Co. v. Berriman [1946] AC 278 • A railway worker was knocked down and killed by a train, • His widow attempted to claim damages • The relevant statute, the Railway Employment (Prevention of Accidents) Act, 1900, provided that this was available to employees killed while engaging in “relaying and repairing” tracks • The dead man had been doing routine maintenance and oiling, which the court said did not come within the meaning of “relaying and repairing“ • (Note: it has nothing to do with what you think might be fiar))
The literal rule • Whitely v Chapell [1868-69] LR 4 QB 147 • A statute aimed at preventing electoral malpractice made it an 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 could not be guilty of the offence • Simple literalism can produce results which are plainly unsustainable (and which may damage law’s legitimacy)
The literal rule • Cutter v. Eagle Star Insurance Co. Ltd [1998] 4 All ER 417 • HL was concerned with the meaning of the word ‘road’ in the Road traffic Act 1988 • The claimant was sitting in the front passenger seat of his friend’s car, which parked in a multi-storey car park • Inflammable gas leaked inside the car from a can of lighter fuel, so when the driver returned to the car and lit a cigarette the gas was ignited and the claimant was injured • Claimant sued the driver for negligence and won the case, but the driver had no money with which to pay damages • As required by law, the driver was insured under a motor vehicle policy against liability for death or bodily injury to any person arising out of the use of his car on a ‘road’ • The Road traffic Act 1988 defined the word ‘road’ as “any highway and any other road to which the public has access”
The literal rule • Cutter v. Eagle Star Insurance Co. Ltd [1998] 4 All ER 417 • HL (reversing the decision) rejected a purposive approach in favour of giving the word ‘road’ its ordinary, literal meaning. • The car park was not a road within the definition because a road provides for cars to move along it to a destination. • A car park simply enables cars to stand and wait; and the fact that a car can be driven across a car park does not make it a ‘road’ because that is merely incidental to the main function of parking • (Similarly, the fact that a car is parked on a road does not make the road a ‘car park’) • Accordingly, the claimant had not been injured due to the use of the car on a ‘road’, and the insurance was not liable to pay out on the driver’s policy.
The literal rule • Cutter v. Eagle Star Insurance Co. Ltd [1998] 4 All ER 417 (Lord Clyde) • “It may be perfectly proper to adopt a strained construction to enable the object and purpose of legislation to be fulfilled. But it cannot be taken to applying unnatural meanings to familiar words or to stretch the language so that its former shape is transformed into something which is not only significantly different but has a name of its own. This must be particularly so where the language has no evident ambiguity or uncertainty about it."
The literal rule • 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
The literal rule • 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
The literal rule • Sometimes, the search for the ordinary, natural meaning of words can cause disagreement and surprising results at the highest level • R v. Maginnis [1987] 1 All ER 907 (HL) • The case was concerned with the interpretation of the Misuse of Drugs Act 1971, s 5(3) of which says “it is an offence for a person to have a controlled drug in his possession, whether lawfully or not, with intent to supply it to another.... • The police found a packet of cannabis resin in the def’s car – he said the package was not his but had been left in his car by a friend for collection later. • The def was convicted of the offence, and he appealed on the ground that his intention to return the drug to its owner did not amount to an intention to ‘supply’ the drug within the meaning of the Act • HL (by a majority of 4 to 1 – Lord Goff dissenting) held that the def was guilty of the offence, because a person in unlawful possession of a controlled drug left with him by another person for safekeeping had the necessary “intent to supply it to another” (even though the supply was not being made from the provider’s own resources) if his intention was to return it to the other person and for that other person’s purposes. • The majority of their lordships purported to apply the ordinary meaning of ‘supply’ • Lord Goff, though, dissented: he referred to the definition in the Shorter Oxford English Dictionary • In his view (which seems preferable to that of the majority) the word ‘supply’ was not apt to describe a transaction in which A handed back to B goods which B had previously left with A. • Thus, the cloakroom attendant, left luggage officer, warehouseman, and shoe repairer do not, in ordinary parlance, ‘supply’ their customers. • For another case where the application of the literal rule produced a disagreement among their lordships, see R v Brown [1996] a All ER 545.
The golden rule • An adaptation of the literal rule • A rule we use all of the time in our day-to-day business • Get the door • Wipe that smile off your face • put your heart into it • draw a line under it • Lend me your ear • 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”
The golden rule • 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”
The golden rule • 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
The golden rule • 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
The golden rule • 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”
The golden rule • R v Allen [1872] LR 1 CCR 367 • A, who was already married, married another woman (H) • s. 57 of the Offences Against the Person Act 1861: “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 “shall go through a marriage ceremony”
The golden rule • Alder v. George [1964] (unreported) • The def had been charged, under the Official Secrets Act 1920, with obstruction in the ‘vicinity of’ a prohibited area • In fact, she had actually carried out the obstruction inside the area • The court preferred not to restrict itself to the literal wording of the Act and found the def guilty as charged
The golden rule • The more context-based 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…..
The golden rule • 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”.
The golden rule • 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
The mischief rule • A manifestation of a more purposive approach • 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?
The mischief rule • 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’.
The mischief rule • 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?
The mischief rule R v Rogers [2007] UKHL 8 [2007] 2 AC 62 • Rogers (def) encountered three young Spanish women when he was riding his motorised mobility scooter along the pavement. • Rogers got into a dispute with the young women, during which he called them ‘bloody foreigners’ and told them to ‘go back to your own country’. • He then pursued them to a kebab shop in an aggressive manner. • He was charged with an offence of using racially aggravated abusive or insulting words or behaviour with intent to cause fear or provoke violence, contrary to s. 31(1) of the Crime and Disorder Act 1998 • At the end of the prosecution case the defence submitted that there was no case to answer on the ground that the words used by the defendant were not in law capable of demonstrating hostility based on membership of a racial group because foreigners did not constitute a racial group as defined in s. 28(4) of the Act. • The judge rejected that submission and the jury convicted the defendant.
The mischief rule R v Rogers [2007] UKHL 8 [2007] S All ER 433 • The Court of Appeal dismissed the defendant’s appeal and held that ‘foreigners’ did constitute a racial group within the meaning of s. 28(4). • s.28(4) of the Crime and Disorder Act: In this section, ‘racial group’ means a group of persons defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins • Held: dismissing the appeal, that the criterion, nationality or colour, by which a “racial group” was defined was the same whether the group was defined exclusively by reference to what its members were not or inclusively by reference to what they were; • BARONESS HALE OF RICHMOND: “This flexible, non-technical approach makes sense, not only as a matter of language, but also in policy terms. The mischiefs attacked by the aggravated versions of these offences are racism and xenophobia.” • The decision of the House of Lords in R v Rogers may suggest that statutory interpretation is a much more flexible art than textbooks often suggest.
The mischief rule • 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
