Would you agree that judges are free to make laws through the process of Statutory Interpretation?

It is possible for judges to make laws through the process of statutory interpretation. The simple view of the law in this country is that laws are passed by Parliament and delegated legislation and it is the judiciaries role to simply enforce them. However this is a too simplistic view of the judiciary role. It take no account of the fact that many cases are not that straightforward and to apply the legal rules automatically may lead to an injustice. People who draft legislation often do so using general terms, their aim is to pass on to the judiciary what the legislation is supposed to achieve. This may sometimes be very difficult as words can mean different things when used in a different context and the meaning of words can change over time. Most cases are decided on the applications of the legal rules but is inevitably there will be times when the judiciary will have to interpret legislation and try to define its true aim and what the mischief was it was intended to rectify, and in this they have some discretion.

There are two different views on how judges should approach interpreting legislation, The Literal Approach and The Purposive Approach. The literal approach which is dominant in the English legal system holds that the judge should look at the wording of the legislation in order to decide what the legislation means, and not look behind or beyond the legislation in an attempt to find its meaning. The purposive approach says that the literal approach is too limited and that judges should look beyond the wording of he legislation to try and find out its purpose is and the reason it was passed.

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There are three rules when interpreting legislation:

The Literal rule:

The judge must give consideration to the literal wording of the legislation and not consider what the meaning was even if to do this means that the outcome may be undesirable.

Fisher v Bell (1961)

The court decided to take the contract law literal interpretation of the meaning of offer in the relevant act and declined to consider the usual non-legal interpretation of the word offer.

There are some problems which could occur when using the literal rule as shown in R v Maginnis (1987), in ...

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There are three rules when interpreting legislation:

The Literal rule:

The judge must give consideration to the literal wording of the legislation and not consider what the meaning was even if to do this means that the outcome may be undesirable.

Fisher v Bell (1961)

The court decided to take the contract law literal interpretation of the meaning of offer in the relevant act and declined to consider the usual non-legal interpretation of the word offer.

There are some problems which could occur when using the literal rule as shown in R v Maginnis (1987), in this case the judgement was decided on the dictionary term of the word ‘supply’ and each of the judges involved produced results which could be supported by dictionary entries. Problems will occur when cases are decided on words where there is more then one meaning.

The Golden Rule:

The golden rule is applied where to use the literal rule would lead to a result which the court would perceive as absurd. The court is not at liberty to ignore the literal rule and replace or alter legislation just because it considers them absurd it must find it difficult to resolve the issue using the literal rule before it decides to use the Golden rule. What a judge would consider difficult is open to interpretation and could be a source of contention and dispute. The golden rule can be split into two meanings. ‘The narrow meaning’ and ‘The wider meaning’ If a word can have two different meaning and possible contradict itself then the golden rule operates and the word which does not lead to an absurd result is used.

The Narrow Meaning

Adler v George (1964)

This case was about a person charged under the Official Secrets Act with obstruction in the vicinity of a prohibited area. She had in fact been actually in the prohibited area. The court chose not to restrict itself to the literal wording of the act.

The Wider Meaning

Where the wording can mean only one thing and to adopt the literal approach would lead to an absurd result then the court can use the wider meaning of the Golden rule.

Re v Sigworth (1935)

The rule was used in this case to stop the estate of a murderer from benefiting from the property of the party he had murdered.

The Mischief Rule:

This rule allows judges to go behind the wording of the statute to decide what mischief the act was trying to rectify.

Corkery v Carpenter (1950)

A man was found guilty of being drunk in charge of a carriage, he was in fact in charge of a bicycle.

There are other aids that the judiciary can use to aid them in their interpretation of statutes. These can be split into two groups Intrinsic and Extrinsic. In using Intrinsic assistance the judge can study the all the act and this may help in deciding what the meaning of a particular section of the act is. Also the title or the punctuation can help in deciding the meaning of the act. Extrinsic aids are outside sources which judges may examine in order to define the true meaning of statutes. Judges can look up words in dictionaries to define what the true meaning of a word is or consult text books to look up a legal point of law. They can also use Hansards reports on parliamentary proceedings for guidance they may also use statements by ministers to try and define the true aim of legislation.

Conclusion

The judiciary role is too seek to carry out Parliaments wishes when interpreting legislation. It is inevitable that in judging certain cases some judges will interpret the legislation differently and may reach a conclusion that Parliament never intended. The judiciary will use the legal rules when interpreting legislation in hierarchical order unless the result would be considered an absurdity. What would be considered absurd is the decision of the judge and so it is his decision on what rule he uses to interpret statutes and when he decides to use it. The Golden Rule and The Mischief Rule allows the judiciary in appropriate cases to ignore the wording in the statute and look behind statutes and decide on the true meaning of the act, if the judge believes that the verdict will result in an absurdity again this may be open to different interpretation by different judges. Using these rules judges may choose to interpret legislation differently which could mean them effectively making decisions on public policy which may be outside their powers and competence. Judges can and do make new laws by the process of Statutory Interpretation but when making new laws judges have to be very circumspect in the way they use there power. If they act to overtly they may be viewed as challenging Parliaments supremacy.