The literal law cannot be used in the European law because they are supposed to use the purposive approach, which results in the membership of the EU and the styles of interpretation flavoured in the Europe.
Taking in to consideration the criticism of the literal rule by the Law Commission and even after reading the advantages and disadvantages stated above, I personally think that the literal rule isn’t as helpful as using the golden rule or the mischief rule or any of the approaches because it doesn’t help justify the decision the judge has made, after using the literal rule. It can also result in outcomes that don’t match Parliamentary intentions.
website to print off questions
THE APPROACHES
The Literal Rule
The literal rule means the interpretation of Acts purely according to their literal meaning; it has fallen out of favour since the 19th Century. It is, unsurprisingly, the first approach that will be taken. It means following the literal, ordinary or natural meaning of words.
Advantages, and disadvantages of, and justifications for
The literal rule
It encourages precision of drafting - but does it - who would deliberately be careless?
It is said to give certainty - but is this really true? - there is no certainty as to literalism, so therefore there is no certainty.
Judicial interpretation grants law making powers to judges - a derogation from parliamentary supremacy.
It can create absurd results.
It is not useful when deliberately broad terms are used .
Perfect drafting is impossible.
It is used because judges are afraid of losing their perceived independence by making necessarily political purposive constructions on Acts.
In addition, the question of what is absurd or immoral and therefore allowing the plain words of a statute to be ignored is by necessity a subjective one, and so the interpretation will vary with the judge's background, upbringing, education, and beliefs; which will inevitably differ greatly from the mean at least some of the time. The result clearly is that use of any construction other than the literal binds the entire population by one man's moral judgement. Although this may not be controversial where there is no dispute as to the 'correct' result (although correctness is surely neither absolute nor objective) in some areas of law, non-literal constructions are one man statutes on matters that should properly be the subject of public debate. Thus although the results of judicial legislation may be 'right' (whatever rightness is), it is only by accident that this is so.
Because of the need for certainty in the criminal law there is a stronger presumption here that the literal meaning of words should be used.
It is used because many statutes are the result of a political decision that has not been thought through and to win political 'points' - it is often to anticipate whether, e.g., Parliament intended the criminal law to be unfair and unjust.
On the other hand, the court that tries to enforce Parliament's will is more likely to succeed than the court that does not; but it may severely compromise justice and certainty in doing so - the person following the statute should not have to speculate as to what the law is (this is only relevant in the criminal law).
It is used because if judges rewrote law according to moral judgements, people would sue to see if they could get a favourable judgment - there would hence be a vast increase in litigation.
It will always be used unless an absurdity would result (and sometimes even then)
The problem with the literal rule is that although it sounds simple, there is not always a prescribed meaning for words - the ordinary meaning may not be so ordinary at all - problems finding the natural meaning of words frequently occur, e.g., in R. v. Maginnis 1987, did temporarily holding drugs on someone else's behalf (i.e. taking the drugs from them to return them at a later date) amount to an "intent to supply"- Held, "Yes" (4-1, but both sides claimed that their meaning of supply was the ordinary one, even though the minority definition came from a dictionary).
In Whitley v. Chappell [1868] 4 LRQB 147, it was illegal to impersonate any person entitled to vote. A dead person who was not entitled to vote, so therefore was acquitted.
R. v. Harris 1836, Harris bit someone's nose off; it was unlawful to "stab, cut or wound" (this is also an example of expressio unius est exclusio alterius, and indeed the two approaches are complimentary). This implied that some instrument must be used - this may be criticised as symptomatic of the irrelevance and absurdity of the law, but it is not fully indefensible, since for the law to develop as a science, it is essential for it to follow logical rules.
"We no longer construe Acts according to their literal meaning. We construe them according to their object and intent." - Lord Denning
The court's aim is to find the intention of Parliament as expressed in the words it used - Viscount Dilhorne in Stock v. Frank Jones (Tipton) Ltd. 1978.
Clear words must be applied - even if the result is absurd per Lord Edmund-Davies in Stock (above), i.e. the judges' only role is in determining what unclear words mean.
The literal rule is liable to lead to hardship - but in certain circumstances the courts have decided that it should always be followed: in Leadale v. Lewis 1982, the House of Lords said that tax statutes with clear meanings should have that meaning favoured; even if the result is 'wrong', causes hardship or leaves loopholes that might be exploited.
"If the precise words used are plain and unambiguous, in our judgment we are bound to construe them in their ordinary sense, even though it does lead to an absurdity or manifest injustice"- Jervis CJ in Abley v. Dale 1851.
"We can only take the intention of Parliament from the words which they have used in the Act" - Lord Reid in I. R. C. v. Hinchy 1960 (note Pepper v. Hart 1992)
"When the language of a statute is plain it is not open to the court to remedy a defect of drafting" Viscount Dilhorne - Stock v. Frank Jones (Tipton) Ltd.
"If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity. [However] If the words of an Act admit two interpretations, and if one interpretation leads to an absurdity, and the other does not, the Court will conclude the legislature did not intend the absurdity and adopt the other interpretation" R. v. City of London Court Judge [1892] 1 QB 273 Lord Esher
"It is a cardinal principle in all statutes that you may not attach to a statutory provision a meaning that the words of that provision cannot reasonably bear. If they are capable of more than one meaning, then you can choose between those meanings, but beyond that you must not go." Lord Reid, Jones v. DPP 1962
"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." per Lord Diplock in Dupont Steels Ltd. v. Sirs 1980. He also said that even if the omission from the plain and unambiguous statute was inadvertent - and that if Parliament had foreseen the casus omissus, it would have certainly adopted a course of action other than the literal interpretation of the statute - then the plain (and contrary to Parliament's intention) interpretation should be followed. "If this be the case it is for Parliament, not for the judiciary, to decide whether any changes should be made to the law as stated in the Act." Hence the mischief rule can only be used when there is some ambiguity.
However, note the clear and unambiguous provisions of the Factories Act, which required the fencing of machines when "in motion". It was held that in Richard Thomas and Baldwins Co. Ltd v. Cummings 1955 that this meant "mechanical propulsion" and excluded being moved by hand. This is a clear breach of Lord Diplock's statement above.
Golden Rule
It was defined in Grey v. Pearson (1857) 6 HL Cas 1, "the ordinary sense of the words is to be adhered to, unless it would lead to absurdity, when the ordinary sense may be modified to avoid the absurdity but no further."
Luke v. I.R.C. 1963 - Lord Reid "It is only where the words are absolutely incapable of a construction that will accord with the apparent intention of the provision and will avoid a wholly unreasonable result that the words of the enactment must prevail."
R. v. Allen 1872. It was held that bigamy meant go through ceremony even though the Act provided it was illegal to be married twice, even though the second marriage was void, so they had not literally broken the law.
Re Sigsworth 1935, S murdered his mother and tried to claim his inheritance. There is a rule that no-one should profit from their wrong, this overruled a clear statutory right of a son to inherit on intestacy. Hence statutes may be modified on grounds of public policy, as one was in this case (the principle was an existing common law principle that would have applied had she had died having made a will). Although this a clear breach of the rule that clear and unambiguous words cannot be ignored, it surely accorded with Parliament's wishes.
In Whiston v. Whiston 1995, public policy reasons prevented someone who had had a bigamous marriage (and was hence void), claiming money that they were clearly statutorily entitled to.
If the words used are plain, unless the consequences are so absurd that Parliament must have made a drafting mistake" then the meaning must be used.
Keene v. Muncaster 1980. In order to park in a certain way, permission was required from a policeman in uniform; the defendant was a policeman in uniform. It was held that permission had to be requested (i.e. from someone else).
Adler v. George; it was an offence to obstruct the Forces "in the vicinity of", this was modified to avoid the absurdity of it not including "in", hence the Act as changed to "in or in the vicinity of"
The Mischief rule
According to the Law Commission this was the most satisfactory of the 3 rules (and the Golden Rule was condemned)
Gardiner v. Sevenoaks UDC 1950; a cave was premises (although it would not always be - depending on the mischief), since the mischief was the risk of fire which existed in a cave
Smith v. Hughes 1960, a prostitute solicited from inside a building to the street. A private building was held to be a "street or public place" for the purposes of the Act to avoid the mischief of harlotry.
Sussex Peerage Case 1844, only use mischief rule when the statute is ambiguous. "Acts should be construed according to the intent of Parliament. If the words are clear no more can be done than to use their natural meaning. The words alone do declare the intention of the lawgiver."
Corkery v. Carpenter 1951, a bicycle was held to be a "carriage" for drunk in charge of carriage laws, to stop the mischief of drunks on the highway
Magor and St. Mellons R. D. C. v. Newport Corporation 1950 - Denning "We sit here to find out the intention of Parliament and carry it out by filling in the gaps rather than by destructive analysis" - on appeal Lord Simonds this was "a naked usurpation of the legislative function under the thin guise of interpretation" - if there is any omission then it should be remedied by an Act of Parliament.
Heydon's Case 1584 - the criteria for the Mischief Rule:
What was common law before the Act?
What was the mischief for which the existing law did not provide?
What remedy has Parliament decided upon?
Judge should make such constructions on the Act to suppress the mischief and subtle inventions and evasions for continuance of the mischief, according to the true intent of the makers of the Act.
The Purposive Approach
The purposive approach is similar to the mischief rule, but emphasising the intention of the legislature instead of the defect in the previous law. Its effect is usually achieved by the literal rule, since Parliament unsurprisingly tends to enact its intention. It was difficult before Pepper v. Hart, and still is, to an extent to determine Parliament's intent, but see the long title, etc.
If judges use a purposive approach, they are engaging in an essentially legislative function, which is a breach of the doctrine of the separation of powers.
"To apply the words literally is to defeat the obvious intent of the legislature. To achieve the intent and produce a reasonable result we must do some violence to the words" Lord Reid
"The days have passed when the courts adopted a literal approach. The courts use a purposive approach, which seeks to give effect to the purpose of legislation." Lord Griffiths - Pepper v. Hart
"And" has been substituted for "or" in Federal Steam Navigation Co. Ltd. v. DTI 1974 and R. v. Oakes
In Re Lockwood, the words of an Act that would have had the effect of favouring distant relatives on intestacy were ignored.
"In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time." - Lord Wilberforce in Royal College of Nursing of the United Kingdom v. Department of Health and Social Security 1981, in ruling that a method of abortion which was clearly not permitted under the Abortion Act 1967 was legal because the method was not in existence when Parliament had passed the Act and the method was in accordance with the policy of the Act (as distinct from the policy of Parliament) However, "there is one course which the courts cannot take; they cannot fill gaps; they cannot by asking the question 'What would Parliament have done in the current case if the facts had been before it?' attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself."
5. The Contextual Approach by Sir Rupert Cross
The judge should give effect to the ordinary (or technical where appropriate) meaning of words in context of statute. Determine extent of words by the context of the Act.
If wording would give an absurd result then apply any secondary meaning.
Judge may read in the implied (ellipsis). Limited power to add/alter/remove words to avoid unintelligible/absurd/unworkable/unreasonable clauses or those that are irreconcilable with the rest of statue. Lord Stockton "If words have been inadvertently used, it is legitimate for the court to substitute what is apt to avoid the intention of the legislature being defeated."
In applying rules judge may use interpretative aids and presumptions.
INTERPRETATIVE RULES AND PRESUMPTIONS
All unrepealed statutes remain law
Prince of Hanover v. Attorney General, all issue of the person were British citizens, the law was unrepealed, so it was still law that applied to a person with whose country we were at war.
Ejusdem Generis = 'things that are the same'. This is used when a statute includes list of items and an 'and similar items' clause. It should be noted that it may be ignored to achieve the intent of Parliament.
There must be more than one similar item for ejusdem generis to be applied (Allen v. Emmerson 1944).
The listed items must all be of the same type for ejusdem generis to apply (R. v. Payne 1866).
An example of the rules application was in Evan v. Cross, where the defendant was charged with not heeding a law that referred to a list of road signs and similar things. It was held that white lines as road markings rather than road signs were not ejusdem generis with the signs.
Lane v. London Electricity Board "shock, burn or other injury" excluded a fall as it was not ejusdem generis, with these ailments.
In Flack v. Baldry, electricity was held to be a "noxious liquid, gas or other thing". The rule of ejusdem generis was clearly ignored here, but this only so that the Mischief Rule would prevail.
In R. v. Cleworth, it was held for the purposes of the Sunday Observance Act 1677 that a farmer was not "a tradesman, artificer, workman, labourer or other person", and in Sandeman v. Beach it was held that a coach proprietor was not one either.
In Powell v. Kempton Park Racecourse it was held that a clause referring to a "house, office, room or other place" excluded a ring at a racecourse.
In DPP v. Jordan [1977] AC 699 it was held that the publication of 'obscene' material, which was legal if it was done "in the interests of science, literature, art or learning, or of other objects of general concern", that the defence that the material provided sexual deviants with an outlet for their frustrations was not ejusdem generis with science, literature, art or learning.
In Wood v. Commissioner of Police of the Metropolis 1986 it was held that an accidentally broken glass was not ejusdem generis with "any gun, pistol, hanger, cutlass, bludgeon or other offensive weapon"
Expressio Unius Est Exclusio Alterius = 'The expression of one thing implies the exclusion of others'
In R. v. Inhabitant of Sedgley it was held that "lands and coalmines" implicitly excluded other types of mines from the scope of 'lands'.
In Tempet v. Kilner 1846 it was held that "goods, wares and merchandise" did not include stocks and shares.
Noscitur A Sociis - the context rule
Muir v. Keay - entertainment need not be revelry, but by the context of the Act could be just the consumption of food and drink
There is a presumption against altering the common law (even though many statutes have that express intention) or statute law unless express provision is made, or the new law is irreconcilable with the statute or common law.
Judges may not decide that a law is illegal or unconstitutional:
Chenny v. Conn: the production of nuclear weapons under an Act allegedly contravened a treaty prohibiting their manufacturer. This did not matter, since judges have no power to determine the legality of an Act.
There is a presumption against the imposition of a penalty without fault
There is a presumption that mens rea (guilty mind) is required for criminal offences
Acts only apply to the UK unless contrary intention is expressed.
There is a presumption against binding the Crown, e.g., where the rules on health & safety did not apply to NHS kitchens.
There is a presumption against excluding the court from determining the case.
There is a presumption against violating international law
There is a presumption that standard common law defences are available for new crimes, e.g., duress, self-defence, etc.
There is a presumption that statutes do not apply to offences committed abroad.
There is a presumption of compensation being paid where a statute deprives a person of property.
There is a presumption of not granting officials arbitrary discretion.
There is a presumption that Acts do not interfere with rights to private property.
There is a presumption against retrospective legislation.
Penal laws should be construed in favour of the person whose liberty is threatened.
In construing a consolidating Act, where "the actual words are clear and unambiguous it is not permissible to have recourse to the corresponding provisions in the earlier statute and to treat any difference in their wording as capable of casting doubt upon what is clear and unambiguous language in the consolidation Act" - Lord Diplock in R. v. Curran 1976 - even though such Acts are intended to restate old Acts!
EXTRINSIC AIDS
Royal/Law Commission reports and White Papers
These have been admissible since the case of Davis v. Johnson [1978] AC 264, which said that "the report may be used to identify the mischief the legislation is intended to remedy but not to construe the enacting words") and other travaux préparatoires providing (Fothergill v. Monarch Airlines Ltd. [1980] 3 WLR 209) that it is material in the public domain clearly intended to be the first stage in the legislative process and, if the document is a treaty, that a literal construction is in conflict with the purpose of the treaty, or if the legislation is ambiguous.
However, documents released under the 30 year rule may not be used (JH Rayner v. DTI 1987, affirmed by Pepper v. Hart), since it is unreasonable to allow secret documents to be used in court.
Hansard
Hansard has been officially used (judges used it before this case unofficially) since the case of Pepper v. Hart, in which the question was whether the taxable benefit of providing the children of teachers with free education should be taxed at the nominal extra cost to the school, or at the normal cost of the school's fees. It was decided using Hansard that it should be taxed at the lower cost.
In this case it was said that if Hansard "clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words", then it is an admissible aid to construction.
However, it was said that "I cannot foresee any statement other than the statement of the minister or other promoter of the Bill is likely to meet the criteria".
In addition it was said that "if a minister clearly states the effect of a provision and there is no subsequent relevant amendment to the Bill or withdrawal of the statement it is reasonable to assume that Parliament passed the Bill on the basis the provision would have the stated effect".
Pepper v. Hart means that the will of Parliament will more frequently be followed, thus reinforcing parliamentary supremacy.
However, it the inevitable result is increased costs as more research is conducted into Hansard and other sources.
Hansard is, of course, not binding on the courts - there is no reason why they should not ignore the intent of Parliament unless it is expressed in a statute. Hansard has the same legal status as any other interpretative aid.
The question arises whether Pepper v. Hart affects stare decisis, that is to say whether a court can overrule an otherwise binding case on the basis of Hansard showing that the previous construction was wrong. If this question were to be answered in the affirmative, magistrates courts could overrule the House of Lords.
Common sense might suggest that incorrect interpretations should be overruled, but there is the issue of separation of powers - according to the traditional doctrine of the separation of powers the judiciary must be free to reject the Hansard material, since it is nothing more than an interpretative aid, which were it to be binding, would make Parliament both legislator and interpretor: legislation has traditionally been seen as an abstract document not tailored to particular situtations, but rather being a list of abstract principles interpreted and applied in individual cases by the judiciary. Taken this way, to give Hansard such as status would apparently contravene .
On the other hand it seems rather futile for Parliament to make laws if the courts are not going to enforce them according to its intention.
Other aids
Dictionary definitions - this implies a literalist construction of statutes, since a purposive approach would seek to enforce what Parliament intended, rather than enforce the meaning of what it said.
Legal textbooks
Treaties (e.g. EU treaties), where the law was intended to enact the treaty
EU directives
