Statutory Interpretation


Concept of Parliamentary sovereignty

It dictates that Parliament is supposedly the supreme law making institution in the UK.

For this reason the courts can’t refuse to implement law created by Parliament (unless conflicting with EC law e.g. Factortame 1991.

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Courts role

To apply legislation to the facts if the case that is brought before them.

Lord Diplock stated in Duport Steel v Sirs 1980 ‘it can’t be too strongly emphasized that the British Constitution, though largely unwritten is firmly based on separation of powers; Parliament makes the law, the judiciary interprets it’.

(In other words, judges aren’t supposed to make law, parliament are and to do otherwise would allow unelected judges law making powers, contrary to the constitution).

This doesn’t mean the courts have no influence upon legislation as Acts of Parliament are drawn up by expert draftsman, courts often find implementing a statute far from straightforward.  

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How are statutes formed?

  • All statutes start as Bills. Bills propose the idea for the legislation and need to pass through various stages in the House of Commons/House of Lords before receiving the Royal Assent and becoming an Act of Parliament.

  • Three types of Bill are: Public Bills, Private Members’ Bills and Private Bills.

  • Bulls are usually preceded by a Green Paper which is a consultation document outlining idea for new lade, followed by White Paper which gives more detail on the outcome of consultation and details the specific reform proposal.

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Stages Bill goes through:

  1. First Reading- Title of Bill read to House of Commons.

  2. Second Reading- Proposals debated, amendments made, members vote.

  3. Committee Stage- Committee of House of Commons examines Bill (may amend).

  4. Report Stage- Committee reports back, debates and any amendments made are voted upon.

  5. Third Reading- Amended Vill re-presented to Commons who vote on whether to accept/reject.

  6. House of Lords- Three Readings/ If any changes made, Bill returns to Commons who agree. Disagree or propose an alternative.

  7. Royal Assent- Queen gives her consent to legislation which then becomes law.

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Why do statutes require interpretation?

  1. Language used in statutes is ambiguous- even simple sentences bear two or more meanings. Some legislation is old so meanings may change over time e.g. ‘offensive weapon’ meaning may change over time.

  2. Statute may have to cover situations not foreseen when legislation was produced- legislator can’t provide for every future eventualities, so gaps filled by judges.

  3. Wording of statute is inadequate because of bad drafting by legislator.

4. Conflicting parties in a case will exploit ambiguous words to their advantage. Judge will have to decide which interpretation is in keeping with the spirit of the Act.

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Approaches to S.I.

  • Any of above situations, judge must interpret Act to discover Parliament's intention and meaning.

  • Once judges interpret legislation, it’s followed by lower courts but may be overturned by high courts (like judicial precedent).

  • Most of our law becomes statute based on interpretation of statutes has become central role of judges.

  • But, judges have differed in their approach to it. In early post war period judges were cautious in interpretation of statutes. Adopting very literal approach to interpreting words in a statute.

  • However since 1960s judges try to influence law as opposed to merely applying strict meaning of statute.

  • Lord Denning's views were that the purpose of statutory interpretation is to find the true intention of Parliament behind the statute; Parliament will provide basic legal framework in statute and judge must fill in gaps. omissions/ make clear ambiguous words.

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When are rules applied?

When are the following rules applied?

When a statute is found to involve an ambiguity.

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Interpreting statute

Literal rule

Golden rule

Mischief rule

Positive approach 

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Literal rule

  1. The literal rule.

  • Judge will give words contained in statute their ordinary and plain meaning even if this causes absurd results. Many feel this should be first rule applied by judges in interpretation of unclear statute.

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Literal rule

Whiteley v Chappel (1968)

Offence to ‘impersonate anyone entitled to vote’ at an election. Defendant had pretended to be a dead person and then their vote. Was found not guilty of offence as judge interpreted the word ‘entitled’ literally. As a dead person is no longer ‘entitled’ to vote, the defendant had done nothing wrong.

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Literal rule

  • Involves giving words in statute their obvious, ordinary, natural meaning even if the outcome is harsh.-

London and North Eastern Railway Co v Berriman 1946

Railway worked killed whilst oiling points along railway track. Widow tried to claim compensation from railway company on grounds that there had not been a lookout man provided by the railway company as required under the Fatal Accidents Act.

Act stated that look out men should be provided for men working on railway line ‘for the purposes of relaying/repairing it’.

Court literally interpreted words ‘repairing’ and ;relaying’ and held oiling points was ‘maintaining’ line. Mrs. Berryman's claims failed.

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Literal rule

  • Rule can be criticized because strict interpretation may be completely out of step with what Parliament intended.-

Fisher v Bell 1961

Shopkeeper displayed collection of flick knives in his shop window with price tags attached. Was charged under Restriction of Offensive Weapons Act 1959 of offering for sale an offensive weapon.

By literally interpreting contract law the court decided that a priced article in a shop window was an ‘invitation to treat’ (invitation to make an offer) not an offer of sale. Therefore the defendant wasn’t guilty of ‘offering for sale an offensive weapon under the Act.

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Literal rule

  • However, if words in statutes are clear then reasonable to use Literal Rule because otherwise would be interfering with what Parliament has done e.g. Lord Simonds in a sly dig at Lord Denning stated that to depart from Literal Rule would be ‘...a naked usurpation of legislative function under the guise of interpretation’ (Magor and St Mellons v Newport Corporation 1850).

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Literal rule

Advantage of Literal Rule

Disadvantage of Literal Rule

Respects Parliamentary sovereignty.

Can cause absurd results.

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Golden rule

  • Minimises the harsh effects of the Literal Rule judges.

  • Essence of rule is that Literal Rule applied first, if this results in absurd decision then meaning of words in statute are modified by judge so as to give effect to what Parliament originally intended.

  • If words in a statute have more than one meaning, the least absurd is applied- common sense.

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Golden rule

Re Sigsworth 1935

Court decided that a mad who has murdered his mum wasn’t entitled to inherit her estate. Although the Administration of Estates Act 1925 allowed this as he was her only child, court felt that it would have been repugnant for a murderer to benefit from his crime.

(Allowed to inherit if it's a domestic abuse case)

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Golden rule

R v Allen

Interpretation of words ‘shall marry another person’ in law of bigamy. Defendant alleged he couldn’t be guilty of bigamy if it was illegal to marry another person whilst already married.

Court adopted a liberal golden approach by simply stating it was an offence ‘to go through with a ceremony of marriage’ whilst already married.

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Golden rule

  • Although use of rule can lead to a sensible interpretation of statutes. There is a problem in decide what an ‘absurd decision’ is- different judges have different opinions.

  • Golden rule applied haphazardly.

Adler v George 1964

S.3 if Official Secrets Act 1920 states that it’s an offence to obstruct a member of the armed forces ‘in the vicinity of’ a ‘prohibited place’. Defendant has obstructed an officer in an army base (prohibited place) and argued that the natural meaning of ‘in the vicinity of’ means in the surrounding area od ‘near to’ and not directly within. Had judge applied literal rule, he could have escaped prosecution but judge used golden rule to reasonably assume statute to include both within/around prohibited place.

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Golden rule

Advantages of Golden Rule

Disadvantages of Golden Rule

Gives judges discretion and puts right absurdities caused by literal rule.

Judges given power to interpret what is constitutionally; the role of the legislature.

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Mischief rule

  1. The mischief rule.

  • Sometimes called Rule in Heydon’s Case 1584 because it was case that this rule was first used.

  • With this rule court tries to discover what mischief the statute was designed to correct and then interprets Act so that mischief is corrected.

  • Four steps have to be considered applying Mischief Rule:

  1. What was the common law before the Act of Parliament?

  2. What was the ‘mischief’ that resulted from common law?

  3. What remedy had Parliament proposed to cure mischief?

  4. What was the reason for remedy?

  • Flexible rule.

  • Judges look for defect which Act was trying to remedy and then interpret words in Act according to remedy.

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Mischief rule

Smith v Hughes 1959

Street Offences Act 1959 states ‘It is an offence to solicit in a street/public place for purpose of prostitution’. A prostitute used to sit in her own house soliciting men through window, when arrested she maintained that she was not in a ‘street’/’public place’ contrary to the Street Offences Act 1959. She wasn’t in a street but ‘mischief’ of the Act was trying to remedy was to prevent people being solicited as they walked the streets so by using the Mischief Rule the prostitute was still soliciting even though it was a private premises.

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Mischief rule

Rogers v Didd 1968

Under Brighton Corporation Act 1966 all coffee vars had to close their doors at 1.00am. Although coffee bar in question closed doors at 1.00am it was still serving snacks through open window at 1.40am. The mischief of Act was trying to prevent the congregation of people in a public place after a certain time therefore coffee bar was still classed as being open.

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Mischief rule

More flexible approach to interpretation is favoured by more liberal type of judge who sees it as avoiding the absurdities and injustices that result from using Literal Rule.

Elliott v Grey (1960)

Offence under Road Traffic 1930 to ‘use’ an uninsured car on road. In this case a broken car was parked on road but wasn’t able to be ‘used’ as a result of its wheels being off the ground and its battery removed. Judge decided that Road Traffic Act 1930 was passed to remedy type of hazzard and even though car could not be ‘used’ on road, it was indeed a hazard to other road users.

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Mischief rule

  • Nevertheless the Mischief Rule has been criticized on grounds that Heydon's Case belongs to a time when structures of statutes were different.

  • At time, all statutes had lengthy preambles that told judge what the mischief the act was intended remedy.

  • Nowadays statutes rarely have preambles so discerning mischief is more difficult.
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Mischief rule

Advantages of Mischief Rule

Disadvantages of Mischief Rule

Most flexible of rules and allows judges flexibility when dealing with statutes.

Approach developed when parliamentary supremacy was not fully established and common law was primary source of law- felt mischief rule gives too much power to unelected judiciary to interpret the ‘will of Parliamentary’.

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Purposive approach

  • In 1969 Law Commission examined the interpretation of statutes in which they criticized the tendency of judges in English courts to apply only the Literal Rule.

  • Commission recommended that judges adopt what they called the Purposive Approach to interpretation.

  • Approach rather like cross between Golden and Mischief Rule; courts try to find the purpose of legislation and given effect to it, regardless of wording of the Act.

  • Broader than Mischief Rule because enables courts to look at whole context of Act, not just harm it was aimed to remedy.

  • Increased in popularity since joining European Union, due in part to the different way the European Laws are drafted.

  • Purpose of Act must be examined and were difficult sections occur then statute rather than letter must be emphasized.

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Purposive approach

Coltman v Bibby Tankers 1987

Employers Liability (Defective Equipment) Act 1969 stated that where an employee suffered death/serious injury in consequence of a defect in ‘equipment’ provided by his/her employer, then employer would be guilty in negligence. Employee lost life owing to defect in a ship's hull.

Was a ship’s hull ‘equipment’ under the Act?

House of Lords said yes, purpose of Act was to make employers liable for injuries caused by anything provided by employer for purpose of his business therefore ship's hull was ‘equpment’.

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Purposive approach

Advantages of purposive approach

Disadvantage of purposive approach

Flexible and seeks purpose/reason why Act was passed.

Described by Lord Simonds as ‘a naked usurpation of the judicial function, under the thin disguise of interpretation’.

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How was EU membership affected statutory interpret

  • Growth in purposive approach in S.I.Interpreting EU law then they tend to use Purposive approach.  

  • Reflects increasing importance of European Community law. Following UK’s membership of EC, traditional doctrine of Sovereignty of Parliament has been eroded.

  • EC matters are concerned UK courts be obliged to recognise supremacy of EC legislation even when it conflicts with domestic legislation.

  • Established in Factortame Case 1991 and R v Secretary Of State for Employment ex parte Equal Opportunities Commission 1994.

  • Drafting style different, tends to be drafted widely in contrast to precise nature of English legislation.Therefore when European legislation is interpreted it must be to implement purpose of legislation.  This was recognised by Denning in Bulmer v Bollinger 1974 when stated in interpreting EU legislation the English courts must take same approach as ECJ, looking at purpose, intent and spirit of treaty, not simply the text.

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Hansard and the controversy over its use

When applying Mischief/Purposive rule judges must try and understand the thinking behind legislation.

Why was this difficult in 1993?

Judges unable to use Handard as an aid of interpretation.

What is Hansard?

Verbatim record of what is said in Parliamentary debates regarding statutes, and would therefore be invaluable in trying to gauge what the purpose behind any Act was.

The rule that judges shouldn’t refer Hansard was self-imposed by the judges themselves to avoid getting into any kind of dispute with Parliament about meaning of an Act.

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Why was rule abolished

Pepper v Hart 1993 when the House of Lords decided that judges could use Hansard in S.I. provided-

Pepper v Hart 1993

Concerned an interpretation of taxation laws. Question was, ‘was a perk that allowed sons of teachers in a private boys school a taxable perk? The law said any employer benefit to employees should be taxed if employer contributed to it.

Judges read Hansard report on Bill that borough in this law. Minister said if employer didn’t make a contribution/not suffer cost by providing perk then it shouldn’t be taxed.

As cost to employer was minimal it was decided perk shouldn’t be taxed.

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  1. The Act of Parliament is ambiguous and to interpret literally would lead to an absurdity.

  2. The material relied upon in Hansard consist of statements made by the minister who promoted the Bill.

  3. These statements are clear and unambiguous.

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The development of use of Hansard will inevitably involve judge having more creative role in lawmaking.  

Government minister will now be aware that what they say in Parliament about the meaning of words in a Bill may be cited in court as an aid to interpretation,

Therefore ministers may be reluctant to answer question on the meaning of words in draft bills, as they know that any misplaced word can have serious ramifications when judges interpret the statute.

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Aids to interpretation

Aids to interpretation- internal

In addition to Rules of Interpretation, number of AIDS they can use to help them, internal aids include:

  1. Rules of language.

  2. Statutory presumptions.

  3. Information within Act of Parliament itself.

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Rules of language

  1. Rules of language.

Three rules:

i) The Ejusdem Generis Rule.

  • If in statute there’s general word which follows list of particular words, general word will apply to things of persons of same class as particular words.

  • E.g. If Act states ‘dogs,cats and other animals’ other animals=same class animals like domestic pets not wild/farm animals.

Powell v kempton Racecourse 1899

Case where it had to be decided where ‘house, office, room or other place’ included racecourse.

It didn’t because they were all indoors so an outside racecourse wouldn’t fall within ‘other place’.

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Rules of language

Expressio Unius Exclusio Alterus.

  • Specific things mentioned in statute and aren’t followed by general words and these specific things are affected by the statute.

  • E.g. inclusion of ‘coal mines’ in this list ‘..lands,houses, tithes and coal mines’ expressly excludes other types of mines like tin mines-

Tempest v Kilner 1846

Court had to consider whether Statute of Frauds 1677 applied to stocks and shared. Act covered ‘goods, wares and merchandise’ and there wasn’t no general word then court decided that the statute only covered these 3 things. As stocks and shares weren’t expressly mentioned then this statute did not cover them.

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Rules of language

Noscitur a Sociis.

  • Ambiguous words may be understood by reading them in context with rest of statute.

Inland Revenue Commissioners v Frere 1965

Here a section in statute set it rules for ‘interest. Annuities or other annual interest’. The first use of word ‘interest’ could have meant any interest paid (daily, monthly or annually). But because of later words ‘other annual interest’ in the section, then the court decided that it only meant annual interest.

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Statutory presumptions

Certain presumptions that are implied into every statute unless statute expressly states contrary e.g.

i) Legislation doesn’t act retrospectively, (legislation operates from day it comes into force, it isn’t backdated).

ii) Statutes don’t affect Crown.

iii) Criminal liability requires mens rea if statute wishes to create strict liability offence in which intention doesn’t have to provide,wording of statute must make this clear.

iv) Person shouldn’t benefit from his/her wrongdoing.

Secretary of State for Communities and Local Government and another (Respondents) v Welwyn Hatfield Borough Council (Appellant) (2011)

On appeal from Court of Appeal (Civil Division) (2010). Deception involved in obtaining planning permission to erect hay barn, constructed into dwelling house without planning consent was held unlawful under planning laws.

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Intrinsic aids (internal to Act).

These are aids to interpretation that are found in statute itself:

i) The interpretation Section- statutes often have an Interpretation section that explains certain terms in Act. e.g. Legal Aid Act 1988 has Interpretation Section that defines meaning of such words as ‘advice’, ‘assistances’ and ‘representation’.

ii) Long title- sets out aims of Act. May be as short as two lines or as long as a page, depending on complexity of Act.

iii) The Preamble- few acts have Preambles, which is a section that sets out purpose of Act. The Legal Aid 1988 is a rare modern example of statute with Preamble.

iv) Explanatory Notes- these accompany complex Bills to help reader understand and assist in how debates in Commons and Lords developed.

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External aids to interpretation

Extrinsic aids (outside the act)

Apart from looking at statute there are other aids to statutory interpretation outside statute. However these are generally used for Mischief and Purposive Rules:-

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External aids to interpretation

The interpretation Act 1978- statute that lays down certains rules for interpretations of statutes so by virtue of this Act unless contrary appears in a statute.

-Words in masculine gender apply equally to feminine gender and vice versa e.g. Sex Discrimination Act 1975 is written entirely in feminine but applies equally to men.

-Words in singular include plural and vice versa.

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External aids to interpretation

Oxford English Dictionary- Dictionary can be used to clear an ambiguity if statute provides no guide.

iii) Handard.

iv) Law Commission Reports and Royal Commission Reports- e.g. DPP v Bull 1994 in which Court of Appeal used Wolfenden Committee Report on Homosexual Offences and Prostitution to confirm view that mal couldn’t be ‘common prostitute’ within Street Offences Act 1959, sc 1.

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External aids to interpretation

v) Human Rights Act 1998 (HRA)- (which requires legislation to conform with principles of Act). Important development as every other Act made by Parliament is meant to comply with it unless parliament specifically decides not to. Any act made before HRA must also comply (e.g. law on bail and automatic ban), it's inconceivable that parliament would deliberately create Act out of line with HRA.

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How has HRA affected the way judges interpret stat

What impact has human rights had on S.I?

What options exist for judges if they come across legislation which doesn’t respect human rights deciding cases?

S4-Allows judges to declare Act INCOMPATIBLE with Human Rights Act.If this were done, parliament would be required to amend legislation-on grounds Act made by parliament was ‘bad’ law (at least in eyes of judges).

S3-Judges may decide to use rules of interpretation to interpret act in question in a  way which complies with provisions of HRA.New development and appears on fact of it to impose parliamentary sovereignty.

  • Courts can:

-ignore/take out words in statute that lead to incompatibility (‘eraser’ rule).

-read down words to narrow/restrict the breadth of legislation.

-read in words to achieve compatibility.

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human rights impact

Mendoza v Ghaidan (2002)

Appellant shared flat with male partner since 1972 and there was overwhelming evidence they were in a ‘very close, loving and monogamous’ relationship. When partner died, he sought to have his partners council flat which they had both lived in for many years, transferred into his name. However lower courts refused claim on bais couple weren’t living together ‘as husband and wife’ for purposes of Rent Act 1977 Act.

Appeal on point of law of general public importance reached House of Lords which ruled:

  • Under Article 8 and 14 the Rent Act 1977 should be interpreted so phrase ‘as husband and wife’ should include living ‘as if they were husband and wife’.

Mendoza was entitled to tenancy- Rent Act should be interpreted broadly, and in line with convention rights. A gay couple should be treated same way as heterosexual couple for purposes of succession.

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Controversial because:

  • Parliament’s role to make law and not judges.

  • Situation been fundamentally changed by UK government's decision to adopt the European Convention on Human Rights into domestic law (The HRA 1998).

  • UK judges given more freedom and increased use of Purposive Rules and wider use of Hansard seem to indicate judges are being given more power.

However, must be emphasized that these changes are having profound constitutional effects, for strict separation of roles of legislative (Parliament) and judiciary are being blurred, question is whether such unelected boys (judges) should have this influence over legislative process.

5th rule of S.I?

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Controversial because:

  • Parliament’s role to make law and not judges.

  • Situation been fundamentally changed by UK government's decision to adopt the European Convention on Human Rights into domestic law (The HRA 1998).

  • UK judges given more freedom and increased use of Purposive Rules and wider use of Hansard seem to indicate judges are being given more power.

However, must be emphasized that these changes are having profound constitutional effects, for strict separation of roles of legislative (Parliament) and judiciary are being blurred, question is whether such unelected boys (judges) should have this influence over legislative process.

5th rule of S.I?

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carry on

Apply Section 3 HRA 1998

Apply Section 4 HRA 1998

Outcome of case

Outcome of case

Doesnt affect sovereignty of parliament

Affects sovereignty of parliament

Sets a precedent

Parliament must change the law

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