- Slides: 18
Statutory interpretation Approaches to judicial interpretation Many cases heard by the highest courts involve the meanings of words in a statute or delegated legislation. There is a major debate as to whether judges should interpret legislation so as to give effect to the intention or purpose of that legislation (purposive approach), or whether judges should take the words at their literal meaning (literal approach).
Rules of interpretation The courts developed three rules of interpretation: Literal Rule uses the ordinary, literal meaning of the words (Whitely v Chappel 1868); Golden Rule is used to avoid literal approach in cases where the application of the literal rule would result in absurdity (R v. Allen 1872). Mischief Rule is used where the court takes into consideration the gap or ‘mischief’ in the law that the Act was passed to cover. It was first applied in Heydon’s case (1584).
Literal rule Whitely v Chappel (1868) LR 4 QB 147 A statute made it an offence 'to impersonate any person entitled to vote. ' The defendant used the vote of a dead man. The statute relating to voting rights required a person to be living in order to be entitled to vote. Held: The literal rule was applied and the defendant was thus acquitted.
Golden rule R v Allen (1872) LR 1 CCR 367 The defendant was charged with the offence of bigamy under s. 57 of the Offences Against the Person Act 1861. The statute states 'whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an offence'. Under a literal interpretation of this section the offence would be impossible to commit since civil law will not recognise a second marriage any attempt to marry in such circumstances would not be recognised as a valid marriage. Held: The court applied the golden rule and held that the word 'marry' should be interpreted as 'to go through a marriage ceremony'. The defendant's conviction was upheld.
Mischief rule Heydon's Case  EWHC Exch J 36 In an action determining the validity of a lease the court formulated the mischief rule. In applying the mischief rule the court must discern and consider: 1. What was the common law before making the Act? 2. What was the mischief and defect for which the common law did not provide? 3. What was the remedy Parliament passed to cure the mischief? 4. What was the true reason for the remedy? The role of the judge is to suppress the mischief and advance the remedy.
Aids to interpretation Intrinsic aids to statutory interpretation are the parts of the Act which may help to clarify the meaning of a particular section. Extrinsic aids are sources outside the Act which may be consulted by the courts (e. g. dictionaries, previous Acts of Parliament, earlier case law, Hansard)
Rules of interpretation Rules that help interpret certain formats of words are: 1) Eiusdem generis: where a list of words is followed by general words, then the general words are limited to the same kind of items as those in the list. For instance: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, "vehicles" would not include airplanes, since the list was of land-based transportation. 2) Expressio unius est exclusio alterius - the mention of one thing excludes another. Where there is a list of words which is not followed by general words then the Act applies only to the items in the list. For example, if a statute refers to lions and tigers it only refers to lions and tigers and will not include leopards or any other wild animals. 3) Noscitur a sociis - a word is known by the company it keeps. Words must be looked at in their context. For example, food supermarket indicates that food supermarket in the lease means a supermarket limited to the selling of items of food.
Domestic Violence and Matrimonial Proceedings Act 1976 CHAPTER 50 An Act to amend the law relating to matrimonial injunction; to provide the police with powers of arrest for the breach of injunction in cases of domestic violence; to amend section 1(2) of the Matrimonial Homes Act 1967; to make provision for varying rights of occupation where both spouses have the same rights in the matrimonial home; and for purposes connected therewith. [26 th October 1976]
Read extracts from the judgment in Davis v. Johnson and explain which problem related to judicial interpretation was discussed. The case concerned the interpretation of the Domestic Violence and Matrimonial Proceedings Act of 1976. The court had to consider whether the Act protected cohabitees as well as wives. In doing so the court looked at whether it could look to parliamentary debates. At the Court of Appeal Lord Denning referred to Hansard (transcripts of Parliamentary debates) stating, that not to do so would be like 'groping in the dark without switching on the light'. On appeal to the House of Lords the Lords restated the rule that Hansard must not be referred to. Here are some opinions of judges related to this issue:
Davis v Johnson  2 WLR 553 House of Lords Lord Kilbrandon: "It has always been a well-established and salutary rule that Hansard can never be referred to by counsel in court and therefore can never be relied on by the court in construing a statute or for any other purpose. "
Davis v Johnson  2 WLR 553 House of Lords Lord Scarman: "There are two good reasons why the courts should refuse to have regard to what is said in Parliament or by Ministers as aids to the interpretation of a statute. First, such material is an unreliable guide to the meaning of what is enacted. It promotes confusion, not clarity. The cut and thrust of debate and the pressures of executive responsibility, essential features of open and responsible government, are not always conducive to a clear and unbiased explanation of the meaning of statutory language. And the volume of Parliamentary and ministerial utterances can confuse by its very size. Secondly, counsel are not permitted to refer to Hansard in argument. So long as this rule is maintained by Parliament (it is not the creation of the judges), it must be wrong for the judge to make any judicial use of proceedings in Parliament for the purpose of interpreting statutes. "
Davis v Johnson  2 WLR 553 House of Lords Viscount Dilhorne: "While, of course, anyone can look at Hansard, I venture to think that it would be improper for a judge to do so before arriving at his decision and before this case I have never known that done. It cannot be right that a judicial decision should be affected by matter which a judge has seen but to which counsel could not refer and on which counsel had no opportunity to comment. "
Pepper v Hart  3 WLR 1032 House of Lords The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. A teacher sought to rely upon a statement in Hansard made at the time the Finance Act was passed in which the minister gave this exact circumstance as being where tax would not be payable. Previously the courts were not allowed to refer to Hansard (See Davis v Johnson). The House of Lords had to decide whether a teacher at a private school had to pay tax on the bonus he received in the form of reduced school fees.
Pepper v Hart  3 WLR 1032 House of Lords Held: The House of Lords departed from Davis v Johnson and took a purposive approach to interpretation holding that Hansard may be referred to and the teacher was not required to pay tax on the bonus he received.
Pepper v Hart  3 WLR 1032 House of Lords Lord Griffiths on the purposive approach: "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 and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted. "
Pepper v Hart  3 WLR 1032 House of Lords Lord Brown Wilkinson: „My Lords, I have come to the conclusion that, as a matter of law, there are sound reasons for making a limited modification to the existing rule (subject to strict safeguards) unless there are constitutional or practical reasons which outweigh them. In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words. In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these criteria. "
Statutory interpretation https: //www. youtube. com/watch? v=J-zf. YF 24 NRw https: //www. youtube. com/watch? v=p 99 R 57 M 7 L 4 E