Statutory Interpretation

Mehzeb Rahman Chowdhury

The basis of English law is unwritten. It was developed by the judges over the centuries and historically, customs are believed to have been very important in forming the basis of English law. This eventually evolved into what is known as common law today. However, Parliamentary law is sovereign over the all other forms of law in England and Wales. By this we mean that an Act of Parliament can completely supersede any custom, judicial precedent, delegated legislation or previous Act of Parliament. The only exception to this is European Community legislation, which effectively overrides the powers of the domestic legislative bodies.

The courts of England can question the validity of delegated legislation using the judicial review procedure, although it must be noted that courts cannot challenge an Act of Parliament. Both statutes and delegated legislation have to be interpreted by the courts, as even the simplest statement may be capable of bearing different meanings. However, even with the assistance of provisions such as the Interpretation Act 1978, the courts still had to develop approaches to interpretation. These include the three main cannons of construction, which tend to be referred to as the three main rules of interpretation.

Sir Rupert Cross held that there are was an unified approach to interpretation and that the various rules should not be considered in isolation. Under this, the judge should start by considering the grammatical and ordinary meaning of the words; if this would produce a result which is contrary to the purpose of the Act, the judge may then apply any secondary meaning which the words are capable of bearing or he may read in words which he considers to be necessarily implied by the words which are already in the statute, and he has a limited power to add to, alter or ignore words in order to prevent a provision from being unintelligible, absurd or totally unreasonable, unworkable or totally irreconcilable with the rest of the statute.

Moving away from Rupert’s statement, the three rules were developed through case law and take such different lines that it has been said that ‘the literal rule’, ‘the golden rule’ and ‘the mischief rule’ are devices by which courts may interpret statutes as they see fit.

The literal rule is the approach under which the court gives words their plain, ordinary, or literal meaning, regardless of whether the result is sensible or not. On some occasions, the rule has been applied so strictly that the object of statute may have been defeated as in Whitely v Chappel (1868) where it was an offence to impersonate “any person entitled to vote” at an election. The defendant was acquitted because he had impersonated a dead person, and the court held that a dead person was not entitled to vote. In Cutter v Eagle Star Insurance Ltd. (1998) the court defined the word “road” saying that a multi-storied car park was not a, or any part of a road. An adverse consequence of the literal rule was seen in

IRC v Hinchy where the House of Lords failed to rectify an error in a Court of Appeal decision as they had blindly interpreted the Act of Parliament without any consideration. The Parliament had to immediately amend the Act before any further miscarriage of justice occurred, and that clearly illustrated the limitation and consequence of using the literal approach.

Problems faced due to the application of the literal approach are:

Some words had double meanings and the courts found it hard to choose the correct one
Sometimes the wording of the statute was vague
Often it was seen that statues were erroneous, and it’s interpretation led to ambiguous results
It was frequently observed that judgments made under the literal approach produced results, which the Parliament had never intended.

If the literal rule is known to manifest absurdity, then the golden rule should be applied, in order to reach a more reasonable and fair solution. This ...

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Problems faced due to the application of the literal approach are:

Some words had double meanings and the courts found it hard to choose the correct one
Sometimes the wording of the statute was vague
Often it was seen that statues were erroneous, and it’s interpretation led to ambiguous results
It was frequently observed that judgments made under the literal approach produced results, which the Parliament had never intended.

If the literal rule is known to manifest absurdity, then the golden rule should be applied, in order to reach a more reasonable and fair solution. This has two applications. In it’s narrow sense it states that if the words of the statute are ambiguous, then the court should adopt the interpretation, which avoids an absurd result. In R v Allen (1872), the Offenses Against Persons Act 1981 made it an offense to “marry” whilst one’s original spouse was still alive. Since the legal meaning of “marry” was impossible, the more general meaning of going through a ceremony of marriage was given to the word. In Re Sigsworth (1935), the golden rule was applied to avoid repugnant situations, where the defendant stood to gain from his own crime. Similarly, in Ex parte Smith, the court held that statute provisions may not be used for the commission of future crimes.

The third rule of interpretation came about due to the difficulty of ascertaining which words actually manifest absurdity. The mischief rule dates back to the Heydon’s case (1584) where the court held that there were four things to be considered when interpreting the statute under this rule:

What was the common law before the passing of the Act of Parliament?
What was the mischief not covered in that common law?
What was the remedy that Parliament had proposed?
What was the true reason behind Parliament’s suggested remedy?

In the Heydon’s case, it was decided that judges may be allowed to go beyond the words of the Act/legislation to locate the specific mischief pertaining to that statute. In modern times, the rule has been used in a number of cases, which include: Smith v Hughes (1960) where prostitutes inside a building tapping on a window to attract clients were convicted of soliciting in a public place. Under both literal rule, and the golden rule, this decision may not have been reached, as the word “public place” in a general sense does not effectively cover the inside of a building. In Royal College of Nursing v DHSS (1981) a three to two majority in the House of Lords held that an abortion technique whereby nurses perform much of the task was not illegal even though the Abortion Act 1967 provided that a pregnancy could only be “terminated by a registered medical practitioner”, i.e. by a doctor. In Corkery v Carpenter (1951) the court was required to interpret the word "carriage" in s.12 of Licensing Act 1872, and to determine whether a drunken bicyclist could be prosecuted under that section. The court ruled that the Act was attempting to prevent danger to pedestrians from drunk people in some sort of transportation and that would include bicycles.

Even though the mischief rule does make leeway for some cases, it is still a narrow rule, as it only allows judges to look at common law to find mischief, which under many circumstances does not quite exist (eg. what may be the mischief in a law pertaining to inheritance?).

Along with these rules, the judges are helped by certain presumptions which they are entitled to make unless the Act being interpreted specifically states otherwise, and some external and internal aids to interpretation.

The main presumptions in cases are:

that there has been no change to the common law
that the crown is not bound
the mens rea is required for criminal cases
that Parliament did not intend to oust the jurisdictions of courts
that a statute does not have retrospective effect

Internal aids refers to matters contained within the statute which may help in explaining the words in question. These include long titles, short titles, the preamble of the Act, other relevant sections, especially an interpretation section, headings, punctuations, and schedules.

External aids are matters outside the Act, i.e. all the written documents which may be helpful to the judges in interpreting the statute. These include dictionaries, the historical setting of the law, previous statutes, past cases, documents such as international treaties which led to the passing of the Act, textbooks on the relevant issue, Law Reform Reports, and Hansard. In the Black Clawson case the judges in the House of Lords disallowed the use of Hansard for domestic legislation, but allowed it for EC laws. The usage of reports by such bodes as the Law Commission, to discover the mischief that Parliament was trying to correct, were also allowed, but not to find the Parliament’s intension.

Before 1972, the UK courts refused to follow purposive approach to interpret statutes. Following the UK’s entry into the EU, the UK court’s had no choice but to interpret the newly binding EC law with respect to the purposive approach, where the purpose of the Act itself is considered, and not the literal word-by-word meaning. Under s.2(4) European Communities Act 1972 the Courts are obliged to give a purposive interpretation to European Community (EC) law, and this has been extended to UK law that was passed to implement EC law. This is because the Europeans have always interpreted law in a purposive manner, as their system tends to use Civil Codes, which are frameworks for law. EC law tends to be drafted in a much more abstract way than UK legislation and a literal interpretation would be rather useless. The mischief rule is similar to the purposive approach, so it is not an entirely alien concept for UK judges.

This approach was formally acknowledged in Pepper v Hart (1992) which also indicated that Hansard, the record of debates in Parliament, can be consulted when a case is in court. However, Hansard could only be used under three conditions:

where the legislation is ambiguous or obscure, or leads to absurdity;
the material must contain words by the promoter of the bill, i.e. the relevant minister; and
the statements must be clear and precise, which will resolve ambiguity

However, there are certain limitations which Hansard itself has. These include:

Consultation of Hansard takes a long time, and this increases the expenses involved during cases
It has often been described as a “time-wasting device”
May sometimes mislead the judges, as Hansard contains a lot of information, which have nothing to do with the case at hand.

The most important key to interpretation of Community law is the approach of the European Court of Justice (ECJ). The ECJ is more concerned with examining purpose and context than wording. The Treaties are drafted in general terms leaving it to the E.C. institutions, through secondary legislation, to fill in the details. The ECJ takes a dynamic approach in favor of the aims of the Community and the supremacy of the E.C. law over national law, for example, giving direct effect to directives. The ECJ employs a “rule of effectiveness” which means that preference should be given to the construction which gives a rule its fullest effect and it takes a contextual approach, referring to the general scheme of the Treaty, or other Treaty provisions.

The Human Rights Act 1998 received Royal Assent on November 9, 1998, and came into force on October 2, 2000. Its aim was to "give further effect" in UK law to the rights contained in the European Convention on Human Rights. The Act makes available in UK courts a remedy for breach of a Convention right, without the need to go to the European Court of Human Rights in Strasbourg. It also totally abolished the death penalty in UK law (although this was not required by the Convention in force for the UK at that time).

In particular, the Act makes it unlawful for any public body to act in a way which is incompatible with the Convention, unless the wording of an Act of Parliament means they have no other choice. It also requires UK judges to take account of decisions of the Strasbourg court, and to interpret legislation, as far as possible, in a way which is compatible with the Convention. However, if it is not possible to interpret an Act of Parliament so as to make it compatible with the Convention, the judges are not allowed to override it. All they can do is to issue a declaration of incompatibility. This declaration does not affect the validity of the Act of Parliament: in that way, the Human Rights Act seeks to maintain the principle of Parliamentary sovereignty.

Section 3 of the Human Right’s Act 1998 states that all primary and delegated legislation shall be interpreted and applied as far as possible, in a way which is compatible with Convention rights (i.e. those articles which have been incorporated into UK law). Section 4 states that if a primary or delegated legislation is found to be incompatible with the Convention rights, then, the courts may make a declaration of incompatibility. This has often been deemed to have given judges the maximum power possible.

Following the discussions on s.4, the question does arise; does s.4 undermine the supremacy of the Parliament?

The answer is a resounding ‘no’. Under the provisions of s.4 judges may only deem an Act of Parliament to be incompatible, and certainly does not go that far as to allow judges to declare an Act of Parliament invalid. The declaration of incompatibility does not in any way, make the law invalid, bind the parties, or halt the continuation of the operations of the Act. Before s.4 declaration is made, The Crown will be entitled to join the proceedings. It is up to the Minister of the Crown to decide whether or not to remove the incompatibility by passing a remedial order, amending the legislation concerned. Section 10 of the Human Right’s Act states that the Minister may do so if there are compelling reasons. Some of the persuasions faced by the Minister during decisions like this are; (1) the possibility of political opposition; and (2) the probability of protests from the influential human rights groups. Some of the provisions within the Act itself requires evidence of compatibility, unless there is a justified reason for incompatibility. Section 19(1) requires the Minister, at some point of time, preferably during the second reading of the bill, to declare in writing about the compatibility of the Act, with the European Conventions of Human Rights.

The widely discussed "War on Terrorism" has recently led to new human rights concerns. The most recent criticism has concerned the Prevention of Terrorism Act 2005, a response to a perceived increased threat of foreign terrorism. This act allows the house arrest of terrorist suspects where there is insufficient evidence to bring them to trial, involving the derogation of human rights laws. This aspect of the Prevention of Terrorism Act was introduced because the detention without trial of ten foreigners at HM Prison Belmarsh under Part IV of the Anti-terrorism, Crime and Security Act 2001, was held to be unlawful under human rights legislation, and the ECHR (article 14). Other recent judicial events also indicate that the judiciary is now more robust to defend and safeguard human rights by utilizing s.3 HRA as a radical tool. The House of Lords held in A and Others v Secretary of State for the Home Department that Part 4 of the Anti-terrorism, Crime and Security Act 2001, under whose powers a number of non-UK nationals were detained in Belmarsh Prison, was incompatible with the Human Rights Act. The case resulted in a unanimous decision of the House of Lords where it was held that evidence obtained by the government through torture is inadmissible in court. The decision overturned a Court of Appeal decision from 2002 where they held that such evidence could be used so long as it was obtained by those who were not agents of the British state. This precipitated the enactment of the Prevention of Terrorism Act 2005 to replace Part 4 of the 2001 Act.

However, built-in measures within the Human Rights Act itself have left the door open for judges, and the law makers to disregard certain aspects of human rights, if time warrants such actions. Section 14 of HRA states that under emergency circumstances (such as war or civil unrest) one or more rights under the HRA can be suspended. Therefore, if the Crown can effectively show that there is an emergency situation persisting, then, human rights may be under serious jeopardy.

Statutory Interpretation

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