This displays how it is impossible for one word to have only one meaning, reflecting how the literal rule is not all that useful and effective for statutory interpretation. Similarly this reflects how a statute can go out of date, although the judiciary do not have the power to amend the statute, this must be done by Parliament. Therefore this shows how when judges interpret they are making new law, as they are often using a different interpretation of the statute’s words for different cases, depending on the context, even though the statute may be out of date. This is an example of the judiciary legislating and abusing their powers, however in this case it is not caused by the passing of the Human Rights Act 1998, instead social change and language change.
The second rule of interpretation, is the golden rule, which is applied when the use of the literal rule would create an absurd result. The narrow meaning of the golden rule is when it is used when there are two contradictory meanings, and here the golden rule seeks to find and use the meaning, which would avoid creating an absurd result. However the wider meaning is used when there is only one possible meaning and in a circumstance where the literal rule would create an absurdity. (Slapper and Kelly: 20017). Therefore the golden rule is still quite restrictive on judicial interpretation compared to the mischief rule, reducing the chances of the judiciary legislating.
The last interpretation rule, is the mischief rule, this is the most flexible rule, which can be shown in Corkery v Carpenter (1950) 8, as in this case the defendant was charged with being drunk in charge of a carriage, in accordance with The Licensing Act 1872 S (12). However the defendant was actually drunk in charge of a bicycle. Thus displaying how the golden rule was needed here, as the literal rule would have created the absurd result of an acquittal, in a modern context when carriages are rarely used and are an outdated mode of transport. This case displays the judiciary making new law, as they are interpreting the words in the statute differently than the interpretation at the time the Act was passed, thus changing the intentions and purpose of the Act.
The Doctrine of precedent can be linked to this as it causes the judiciary to have the role of legislator, due to the fact that lower courts are bound by the decision of earlier higher courts, therefore affecting the development of common law. (Cownie, Bradley and Burton: 20039). This causes problems as decisions and conditions may have been appropriate when the previous case was decided upon, but may not be in a later case due to social change in society. This potentially leads to absurdities and the judiciary abusing their powers, overlapping with the legislative powers of Parliament and therefore reinforcing the idea that the judiciary having a legislative role is not a myth.
In the Human Rights Act 1998 S(3) states, “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with convention rights.” This gives the judiciary much broader interpretation powers than they had previously had, allowing them to be more creative when interpreting legislation and subsequently likely to cause them taking on a legislative role (David Fieldman10). This is reflected in Hansard, as the Home Secretary stated,
“We expect that, in almost all cases the courts will be able to interpret the legislation in compatibility with the convention.” (Hansard.11)
Straw said in Hansard, that the courts should go out of their way to find an interpretation, which is in line with the convention rights, as long as the wording of the statute will allow it. It was also said that the Judiciary should only claim incompatibility as a last resort. (Hansard12). Therefore this seems to encourage and in some ways force the judiciary to use interpretation that is much wider and a lot more flexible, often involving ‘reading into’ or amending a statute. This would be ‘judicial overkill’, as described by Nicol13, as the judiciary would be going beyond their role and would be legislating, thus affirming that the role of the judiciary as interpreters is now a myth. (Nicol: 200414)
An example of ‘judicial overkill’ can be shown in R v A (No. 2)15 which involved the interpretation of section forty-one of the Youth Justice and Criminal Evidence Act 1999, which related to protecting complainants in the process of sexual offence cases. In this case Lord Steyn describes how it was necessary to adopt an interpretation method that strained the language used in the statute, in order to comply with section three of the Human Rights Act 1998, enabling the trial to be fair by including all material evidence. Thus also to prevent a declaration of incompatibility. However this seems to suggest that in order to comply with section three of the Human Rights Act, Lord Steyn elaborated on section forty one, allowing the court to have the power to give leave whenever it was considered necessary. Thus the judiciary often perhaps, use a broad interpretation of a statute, bordering on the lines of legislating, due to section three of the Human Rights Act. This is caused by the fact that they perhaps feel it is expected of them and therefore they feel pressured into legislating and going beyond their role, as incompatibility as a last resort, is described in Hansard16, but also in order to avoid incompatibility and criticism.
In relation to R v A (No.2), Lord Nicholls suggested that the judges have gone too far interpreting section three. He says that they were in fact interpreting, when it was not possible to and instead he suggests that section four have been used in this situation. (Nicol: 2004). Here the courts seem to be amending the statute and creating new law, which is the constitutional role of parliament and is therefore flouting the separation of powers within the United Kingdom.
In a subsequent case Re S (Minors) 2 AC 291 (2002)16, the court of appeal ‘read into’ the Children Act 1989. Hale LJ said that as there was nothing in the statute to stop there intentions or nothing to allow it either, they could ‘ read into’ it. (Nicol:200417). However in relation to this case Lord Nicholls states,
“For present purposes it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment.” (Lord Nicholls, Re S [Minors] case, paragraph 37, 2002).
This shows how the Human Rights Act 1998 has led to judicial interpretation difficulties, resulting in judges actually legislating instead of interpreting, in order to be compatible with the European Human Rights Convention. Therefore affirming that due to the Human Rights Act 1998, the myth that judges In R. (on the application of Anderson) v. Secretary of State for the Home Department [2003]18, Lord Bingham describes the interpretation to be ‘judicial vandalism’, as it was going beyond what parliament intended. Lord Steyn describes the interpretation in the same case to not actually be interpretation, but instead interpolation as interpretation of section three of the Human Rights Act 1998 was not actually possible in this case.
Social change has a large part to play in the difficulties surrounding statutory interpretation; this is reflected in the cases on same-sex couples and tenancy agreements. In the case, Gammans v Elkins [1950]19, there was a discrepancy over a tenancy agreement. There were two partners living together in an unmarried, same sex relationship, one of them subsequently died and the defendant wanted the rights to the tenancy. At first the County Court believed the defendant to be a member of the deceased’s family and therefore gave the judgement for the defendant. However the landlord appealed and the appeal was allowed. It was allowed on the grounds that the Judge believed the word ‘family’ should have been interpreted in s(12), article one of the Increase of Rent and Mortgage Interest (Restriction) Act, 1920, by using its popular meaning, which would therefore not include the defendant. In this case the judge has used the literal interpretation rule, thus not abusing the powers of the judiciary or changing the intentions or purpose of the Act.
The Gammans v Elkins case and a later similar case involving a heterosexual couple, Dyson Holdings Ltd v Fox [1975]20, which was decided on the similar grounds, are examples of where judges have eventually interpreted the statute and have not ‘read into’ it or amended. Therefore they have not gone beyond their role as interpreters. However in 1977 the Rent Act was amended by the Housing Act 1988, so that it was more inline with contemporary society. (Stychin and Mulcahy: 200321).
In Fitzpatrick v Sterling Housing Association Ltd [1999]22, the surviving partner of the same sex couple, declared he was entitled to the tenancy of the house. He declared the right to the tenancy, within the definition of Rent Act 1977, schedule one, paragraph two, as he had been living with his partner, before they died, “As his or her wife or husband.” Secondly he also declared the tenancy on the grounds that he was a member of the deceased tenants family. However the tenancy was never given to the defendant as the County Court, the Court of Appeal and the House of Lords rejected it, once again displaying how the judges interpreted the legislation using its original meaning and did not legislate.
However since the Human Rights Act 1998, in a same sex couple the partner has been allowed the right to the tenancy, if the tenant dies. This is shown in the Ghaidan v Mendoza case23, in which the defendant was given the right to the tenancy agreement. This was due to the fact that the courts interpreted the Rent Act 1977 under S(3) of the Human Rights Act 1998, “as if they were his or her wife or husband.” This was done in order to prevent incompatibility with convention rights, as if they had interpreted the statute literally, this would have violated articles fourteen and eight. (Wintemute:200324). In my opinion the judges are going to far, in trying to interpret this statute in accordance with section three, as they are adding words to the statute, thus amending it, which they do not have the legal authority to do.
Therefore it could be assumed that if the Human Right Act 1988, had been passed before the Fitzpatrick case, then this case would have also had the same outcome. Thus displaying how the Human Rights Act 1998, meant the judiciary were able to interpret the Rent Act by adding words into the Act, in order to alter its original meaning, to include same sex couples in tenancy agreements. Therefore the judges in this case were legislating, as they were changing the original statute’s meaning and the intentions of parliament when the Act was passed and are thus abusing their powers and place within the English Legal system.
However the judiciary could be described as always making legislating, but this is not in the literal form of passing a Bill in Parliament. As judges look at the case before them in court and are called upon to adjudicate. Therefore this may create new common law, which due to the Doctrine of Precedent, meaning previous cases of a higher court, are binding on newer cases of a lower court, this could eventually become statute law. Thus the term quasi-legislative role would be appropriate to describe the judiciary’s role and position in the legislation process. However Parliament still has the sovereign, constitutional role as legislator, and the judiciary are subordinate to Parliament, resulting in Parliament being able to pass legislation to override judicial decisions. Therefore in the literal sense the judiciary are not legislators (Sir Louis Blom-Cooper25), questioning whether ‘the myth that the judiciary interpret and do not legislate’ has been fully shattered.
In conclusion it seems as though the Human Rights Act 1998 has had a great impact on statutory interpretation, meaning it has become a lot more flexible and often leading to the judiciary going beyond their role as interpreters and taking on the role of legislators. Thus meaning that the myth of the judiciary interpreting and not legislating has been shattered. However this is perhaps not just due to the judiciary abusing their powers, but also perhaps Parliament is also at fault for not anticipating the problems caused by the Human Rights Act 1998 on statutory interpretation, when the Act was drafted, discussed and then passed in Parliament.
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Slapper and Kelly (2001) ‘Case law’ The English Legal System (5th ed.London,Cavendish, pp166-186.
3 Pepper v Hart [1993] A.C. 5P93 AT P.617
5 R v Maginnis (1987) AC 303
7 Op Cit 8 Corkery and Carpenter (1951) 1 KB 102
9 Cownie, Bradley and Burton:2003 English Legal System in Context (LexisNexis, London 3rd ed.) pg100-107
10 The Journal of the society of public teachers of law, vol19, No.2, 1999, Butterworth.
11 HL, 5TH Feb 1998, col 840, 3rd reading.
12 HC, 3rd June 1998, col 421
13 Nicol 2004 ‘Statutory Interpretation and Human Rights after Anderson’ Public Law, Summer, pp274-282.
15 R v A (No.2) [2002] 1 AC 45
16 Re S (minors) (Care order: Implementation of Care Plan) [2002] 2 AC 291
19 Gammans v Elkins 2 K.B. 328 CA
20 Dyson holdings Ltd v Fox 3 All E.R. 1031, CA
21 Stychin and Mulcahy (2003)Legal Method: Text and Materials (Sweet and Maxwell, London 2nd ed.) pp218-233
22 Fitzpatrick v Sterling Housing Association [1999] 4 All E.R. 705, HL
23 Ghaidan v Mendoza [2003] 2 W.L.R. 478 (CA)
24 Wintemute(2003) ‘Same-sex partners, “living as husband and wife”, and ‘section three of the Human Rights Act 1998’ Public Law, Winter, pp 621-631
25 Against Judicial Law Making (1993), Sir Louis Blom-Cooper