Statutory interpretation methods

Historically there have been many injustices that came about from the usage of the Plain Rule. It is suggested that when the first rule cannot be applied then the Act of Parliament should be read in such a way to avoid an absurd interpretation. Therefore, then and only then the reader can depart from the ordinary meaning and modify the words so far as it is necessary. This is known as Lord Wensleydale's golden rule.  One can claim that it helps the Judges apply what Parliament intended to a real-life situation. Quoting Professor Zander, "The golden rule is little more than a safety-valve to permit the courts to escape from some of the more unpalatable effects of the literal rule. It cannot be regarded as a sound basis for Judicial decision-making." Lord Blackburn said: „...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. ”

However,  it has to be borne in mind that the courts are not willing to admit that an Act of Parliament is absurd, therefore this rule is not used very often. In addition, the literal rule and the golden rule have some defects that have to be covered. At one point, the application of  the literal rule was straightforward and simple but in some cases it does not result in a reasonable judgment, while applying the golden rule does not resolve all the aspects of  the problems which have accrued in the cases. Therefore in  Heydon’s case the court devised a solution with through a third, more flexible rule. It was stated that to discover the ‘mischief’ of a statute, the court should consider the following four things:  what the law was before a statute was passed, what defect is the statute trying to rectify, what is the nature of the remedy, and finally, that statutes should be interpreted in a way that avoids the mischief. By the Law Commission in 1969 this rule had been described as the most satisfactory of the all the rules and called a "rather more satisfactory approach". The Mischief rule avoids absurdity and injustice as well as resolving any statutory problem, which Parliament could not predict or intend to correct. It gives the judges more power in interpreting an Act of Parliament. It is worth noting, however, that this rule has some disadvantages as well. First of all, it limits the court to using previous common law rules in order to interpret the actual Act of Parliament. Secondly, it can give too much power to an unelected judiciary. But the explanation is that since the 16th century the law has changed and without new statutes it would not be up-to-date. Parliament does not have time to constantly amend Acts, therefore judges must imply some resolutions. Lord Wilberforce and Lord Edmund Davies argued that by the mischief rule judges were not interpreting legislation but re-writing it. However, real-life application shows that it can not be avoided and it can not be expected that legislation will be able to predict all aspects of everyday life. In 1993,  it was held in the case of Pepper v. Hurt that to avoid the mischief in interpretation of  the case, judges are able to look into Hansard's report of parliamentary debates during the passage of the legislation, to see what the Minister had said.

In case law the lower courts must interpret the statute by the rule of precedent. That means that they have to follow the decisions of previous, similar cases. A higher court may decide that the interpretation was incorrect and have the power to overrule it. It is suggested that the statutory interpretation rules should be applied in order. The fist is the Literal rule; if it brings the judges to absurdity, then the golden rule will be applied. If both of them should failure in interpreting the Act then the third rule will be used. Usually this is applied in lower courts; the literal rule is applied. If their judgment is deemed inappropriate then the Court of Appeal will try to use the golden rule. If there is still a disagreement, then the judges can use the third rule or even look for the solution in Hansard. * In Maunsell v Olins case Lord Reid summed up all the rules by saying:

"They are not rules in the ordinary sense of having some binding force. They are our servants not our masters. They are aids to construction, presumptions or pointers. Not infrequently one 'rule' points in one direction, another in a different direction. In each case we must look at all relevant circumstances and decide as a matter of judgment what weight to attach to any particular 'rule'."

Rules of statutory interpretation are used every day in the courts. In the case of Fisher v Bell, the judges were considering how to interpret the Act of Parliament in the context of the words ‘offer’ and ‘invitation to treat’. The facts of the case were that the defendant, a shopkeeper, displayed in his shop window a knife with a price ticket. He was charged with offering the sale of a flick knife, violating the terms 1(1)a of the Restriction of Offensive Weapons Act, 1959. According to contract law, there is a distinction between offering to sell and invitation to treat, therefore displaying flick-knives was not an offense, as the act does not mention anything about invitation to treat. The majority of the judges decided that there was a lack of definition for the words 'offer for sale’ therefore, they adopted the ordinary meaning of words and used the literal rule. At first, Lord Parker's views were: "if a knife were displayed in a window like that with a price attached to it, it was nonsense to say that that was not offering it for sale" . Attached to the knife was a price tag, which would normally suggest that it is available for purchase. However, Lord Parker later admitted that by the meaning of contract law the defendant did not offer knifes for sale, because on the displayed knife there was a ticket on which were printed the words: ‘Ejector knife-4s’. In this case the judges admitted that at first it sounded absurd that something displayed in a shop window was not for sale, but they agreed that it is not the court`s place to correct an omission by Parliament or those who drafted the Act. On the other hand, the prosecution suggested that the approval of the literal rule is not correct: ‘The Act of 1959 may not be aimed at possession, but it is aimed at preventing people from getting possession of flick knives … The meaning of the words "offer for sale" in this particular statute must be drawn from the four corners of the statute itself, and if, interpreting the statute as a whole, and bearing in mind its object, the words are seen to be given a wider meaning than they would bear in the law of contract, that is the meaning that should be given to them.’ If the judges applied a different rule, such as the golden rule, then the defendant would be likely to be found to be guilty. The judges disagreed with that view, claiming it was better both with respect to Parliamentary sovereignty and for the case, that they used the Plain rule. The court overruled this decision in the same year. Therefore, it can be assumed that the statute's interpretation in this case was not correct. However, the same decision from Fisher v Bell was later applied in the case of Partridge v Crittenden.  Later Parliament passed legislation such as the Trades Description Act 1968, which stated that ‘invitation to treat’ should be treated in the same way as ‘offer for sale’, clarifying the issue.  

        Rules of statutory interpretation are important in the English courts. They help us understand the way in which lawyers and judges interpret Acts of Parliament. These rules must be adhered to, or else each judge could simply make any decision depending on his mood or disposition, something that might be considered very unethical. It can take time and experience to understand why a certain rule was used and not another one. Perhaps it is best to leave legislation to Parliament and interpretation to judges. The principle can be quoted as follows: ”So far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is a compatible with Convention rights.”

Words :1994

Bibliography:

       1.    Elizabeth Cassell,  The Law Student’s Handbook , (Old Bailey Press, 2003), Chapter 7

2. F. Cownie, A. Bradney & M. Burton, English Legal System in Context, 4th ed. (Oxford; University Press, 2007)
3. Catherie Elliot and Francese Quinn, English Legal System, 8th ed.(Longman; 2007)
4. D J Gifford, John Salter, How to understand an Act of Parliament, (London: Cavendish,1996)
5. C. Manchester, D. Salter, P. Moodie & Lynch, Exploring the Law: The Dynamics of  precedent and statutory interpretation,(2000),
6. A.T.H. Smith, Glanville Williams: Learning the law, 13th ed. (Sweet & Maxwell, 2006)  Chapter 7,
7. Michael Zander, The law making process, (London : Butterworths, 1999).

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