Whatever the intention of Parliament in creating statutes, it cannot accurately be established without reference to Hansard. Methods of statutory interpretation which did not allow Hansard to be used were guesswork. Discuss.

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STATUTORY INTERPRETATION

Whatever the intention of Parliament in creating statutes, it cannot accurately be established without reference to Hansard. Methods of statutory interpretation which did not allow Hansard to be used were guesswork. Discuss.

        According to the traditional theory of the division of powers, the role of the judiciary is simply to apply the law that Parliament ahs created. This view is however, simplistic to the extent that it denies or at least ignores, the extent to which the judiciary has a measure of discretion and creative power in the manner in which it interprets the legislation that comes before .

        Essentially, there are two contrasting views on how judges determine the meaning of a statute, by the restrictive literal approach, or the more permissive purposive approach. The literal approach holds that the judge should look primarily to the words of the legislation in order to construe its meaning, and should not look outside or behind the legislation in an attempt to find its meaning. On the other hand, the purposive approach suggests that the interpretative role of the judge should include, where necessary, the power to look beyond the words of a statute to discover the reason of its enactment and the interpretation should give effect to the reason.  

        The question arises, therefore, as to how judges actually interpret legislation that comes before them and, the usual answer is that, in determining the actual meaning of legislation, they make use of the three primary rules of statutory interpretation and a variety of other secondary aids to construction.

        The three rules of interpretation are the literal rule, the golden rule and the mischief rule. Before any detailed consideration of these rules of interpretation is undertaken, it must be emphasised that they are not really rules, but considered as post hoc justification for decisions taken in line with judicial preference.

        Under the literal rule, the judge is required to consider what the legislation actually says rather than considering what it might mean. In order to achieve this, the judge should give words in legislation their literal meaning, that is their plain, ordinary, everyday meaning, even if the effect of this is to produce what might be considered an otherwise unjust or undesirable outcome.

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        A classic example of this approach from the area of contract law is Fisher v Bell. Here, a shopkeeper who had put a flick-knife in his window shop, together with a price tag, was charged under a particular statute with 'offering the knife for sale'. The charge was dismissed on the basis that, in line with the general contract law principles, the placing of an article in a window did not amount to an offer, but was merely an invitation to treat, and therefore the charge was inaccurate. There was no doubt that the flick knife was an offensive weapon ...

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