Chapter 5 Statutory Interpretation

Chapter 5 

Statutory Interpretation 

Introduction  

In this chapter you will learn about : 

• The difficulties of interpreting statutes 
• The various rules and approaches available to assist interpretation of statutes 
• Presumptions that may be used to interpret statutes 
• Rules of language  
• Intrinsic and extrinsic aids of interpretation 
• Significance of handsard 

5.1 Need for statutory interpretation 

1. Statutes are a fundamental source of law. Hence a large number of cases heard by the courts involve the meaning of words in a statute or DL. 

2. Although Parliament makes law, the courts have to apply it . Where the meaning of a statute is uncertain , the court has to determine what Parliament intended and give effect to it. 

5.2 Difficulties in the interpretation of statutes 

1. Words are an imperfect means of communication 

2. There may be ambiguity - words often have more than one meaning and it may not be clear which meaning should be used. 

3. A broad term may have been used which is not clear.  In Brock v DPP (1993) the Queen's Bench Divisional Court decided that 'type' in the Dangerous Drugs Act 1991 had a wider meaning that 'breed' . It could cover dogs which were not pedigree pit bull terriers, but had a substantial number of the characteristics of such a dog. 

4. There may have been a drafting error or omission. 

5. New developments can lead to words not covering present-day situations , In Royal College of Nursing v DHSS (1981) where medical science and methods had changed since the passing of the Abortion Act 1967. 

6. Another problem is the adversarial nature of legal proceedings in the UK. Always at least two parties and each may be putting forward a different meaning for one or more words. 

Hence it is sometimes difficult to ascertain Parliament's intention. 

5.3 Rules of Interpretation 

Not really rules but different approaches which have been developed by judges over the years . There are also rules of language , presumptions , intrinsic and extrinsic aids to help judges in their interpretation of statutes. 

5.3.1 The Literal Rule 

1. Give all the words in a statute their ordinary plain and natural meaning even if the result is absurd. 

2. Increasingly used in the 19th and the earlier part of the 20th century as Parliament became sovereign.  

3. Whiteley v Chappell - the relevant statute made it an offence to impersonate a person entitled to vote. The defendant who impersonated a dead person was found not guilty as a dead person was clearly not entitled to vote. 

4. Advantages - encourages precision in drafting , respects parliamentary sovereignty and encourages certainty in the law 

5. Disadvantages - the 'rule' provided no clear meaning of an 'absurd result'. Show some drift of the power from Parliamentary control to judicial discretion. 

5.3.3 Mischief Rule  

1. Laid down in Heydon's Case (1584) that four things had to be considered : 

• What was the common law before the making of the Act? 
• What was the defect in the common law ? For what mischief did it not provide? 
• What remedy had Parliament decided on to cure the defect and the true reason for the remedy ? 
• The judge should then interpret the statute in such a way as to advance the remedy and to suppress the mischief. 

2. Smith v Hughes (1960) - Section 1(1) of the Streets Offences Act 1958 made it a criminal offence for a prostitute to solicit potential customers in a street or public place. Here although , the women were not in the street but in a house trying to attract the attention of men walking by , the judge decided that the aim of the Act was to enable people to walk along the street without being solicited and hence they were guilty. 

3. Advantages - Helps avoid absurdity and injustice . Allows the judge to find the 'mischief' that Parliament was concerned to remedy by passing the legislation. Allows judges to interpret statutes in the light of changing social , economic and technological circumstances. 

4. Disadvantages - May increase judicial power at the expense of legislative power. Must always look at the common law background. 

5.3.4 The Purposive Approach 

1. The idea of this approach is to give effect to the intention or purpose of the statute. 

2. Magor and St Mellons v Newport Corporation - Lord Denning - '… We do not sit here to pull the language out of Parliament to pieces and to make nonsense of it … we sit here to find out the intention of Parliament and to carry it out and we do it best by filling in the gaps.' 

3. Denning's approach was criticised by the House of Lords with Lord Simmonds describing filling in the gaps 'as a naked usurpation of the legislative function under the guise of interpretation... If a gap is disclosed , the remedy lies in an amending Act.' 

4. Denning's views have contributed to the growth of a more purposive approach which has gained ground in the last 20 years , with courts seeking to interpret legislation in ways which will promote the general purpose of the legislation. In Pepper v Hart [1993] AC 593 , Lord Browne-Wilkinson referred to 'the purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the legislature". However the courts still maintain that this cannot be taken too far. 

5. In R (Quintavalle) v  Secretary of State the House of Lords using the purposive approach decided that embryos produced through CNR ( a new method of creating an embryo without fertilisation in 2003 ) were covered by the 1990 Act as Parliament could not have intended to distinguish between embryos produced by , or without , fertilisation since it was unaware of the latter possibility. 

6. Impact of membership of the European Union - The purposive approach is used by the European Court of Justice . English courts have to use the purposive approach in interpreting European law - H.P. Bulmer Ltd. v Bollinger SA. This has made judges more accustomed to it and therefore more likely to apply it even to English law. 

7. Advantages - Looks to the spirit of the law rather than its letter, Allows judges to investigate relevant extrinsic aids to resolve ambiguities, enables judges to keep up with changing times and new developments. 

8. Disadvantages - Gives more power to the judiciary , at the expense of the legislature . May result in uncertainty in the law and subjective decision-making Looks to extrinsic aids and the broader context , bringing into question parliamentary intention as evidenced by the plain words of the section. 

5.3.5 The Unified Contextual Approach 

This approach is identified by Sir Rupert Cross in Statutory Interpretation ( 3rd ed.,1995) involves not so much of a choice between the approaches (i.e. whether to adopt literal , golden or mischief ), but more as a progressive analysis ,that unifies the traditional approaches taking into account the context, the purpose of the Act , the changing constitutional position in light of the UK's entry into the EU and the advent of the Human Rights Act 1998. 

5.3.6 The Compatibility Approach 

1. Section 3(1) HRA 1998 requires so far as possible to do so , primary and secondary legislation must be read and given effect in a way which is compatible with the European Convention of Human Rights . This applies to any case where one of the rights is concerned , but it does not apply where there is no involvement of human rights. 

2. An example of the effect of the Human Rights Act 1998 on statutory interpretation . In Mendoza v Ghaidan ,the CA held that the Rent Act had to be interpreted to conform to the European Convention of Human Rights which forbids discrimination on the grounds of gender. The CA read the words ' living with the original tenant as his or her wife or husband' to mean 'as if they were his or her wife or husband ' to allow same sex marriage partners to have the same rights as opposite sex couples. 

5.4 Is there a large discretion on how to interpret? 

1. It is up to the courts to decide which method to use to interpret statutes. 

2. A court invokes whichever of the rules that produces a result that satisfies its sense of justice in the case before it but do not assign any reasons for choosing on rather that the other . ( John Willis (1938) ) 

3. The literal approach is preferred by 'conservative' judges who do not believe the judge's role is to create law. 

4. The purposive approach is favoured by activist judges. 

5. The decision in Pepper v Hart on the use of Hansard shows a move towards a more activist role though the limitation placed on the use make it clear it will not be taken too far. 

6. The HRA 1998 likely to prompt a shift to the purposive approach as the courts have to take into account decisions of the ECtHR which itself uses the purposive approach 

7. The European Court of Justice uses the purposive approach and in deciding points of law that involve European law , the English courts use the purposive approach. 

5.5 Presumptions 

The court assumes that certain points are implied in all legislation . However Parliament can go against these presumptions if its sees fit but the wording of the statute must make this clear. 

Examples of presumptions : 

• Legislation does not operative retrospectively 
• that mens rea is required for criminal offences 
• Existing rights are not to be interfered with 
• Statutes do not change the common law unless the express wording suggests it does. 

5.6 Rules of language 

1. The courts have developed certain rules of language which can help to make the meaning of the words and phrases clear where a particular sentence construction has been used. 

2. Ejusdem generis - General words which follow specific ones are take to include only things of the same kind. In Powell v Kempton Park Racecourse (1899) , the defendant was charged with keeping a 'house , office , room or other place for betting'. He had been operating betting at what is known as Tattersall's ring , which is outdoors. The court decided that the general words 'other place' had to refer to indoor places since all the words in the list were indoor places and so the defendant was not guilty. 

3. Expressio unius est exclusio alterius - Express mention of on thing implies the exclusion of another . In Tempest v Kilner (1846) the court had to consider whether the Statute of Frauds 1677 which required a contact for the sale of goods, wares and merchandise' of more than 10 pounds to be evidenced in writing , apply to a contract for the sale of stocks and shares. The list 'goods , wares and merchandise ' was not followed by any general words so the court held that only contracts for those three types of things were affected by the statute ; because stocks and shares were not mentioned they were not caught by the statute. 

4. Noscitur a sociis - A word draws meaning from the other words around it. Words reflect their context . In Inland Revenue Commissioners v Frere where the section set out rules for 'interest , annuities or other annual interest'. The first use of the word 'interest' on its own could have meant any interest paid whether daily , monthly , annually. Because of the words 'other annual interest' in the section , the court decided that 'interest' only meant annual interest. 

5.7 Aids to interpretation 

5.7.1 Intrinsic aids 

1. Intrinsic aids are those other parts of the Act under consideration that may help make the meaning of the particular section clear. 

2. Intrinsic aids : 

• short title (the name of the act and the year) 
• long title (includes the purpose) 
• schedules ( additions at the end of the main body of the legislation) 
• preamble , if any ( a statement preceding the actual provisions of the Act which sets out its purposes 
• interpretation section of the statute itself 
• headings before any section or group of sections 
• punctuation 

5.7.2 Extrinsic Aids 

1. Aids which are outside the Act under consideration. Widely used in the case of the mischief rule and the purposive approach. 

2. Dictionaries, textbooks and journals - may be consulted to find the meaning of a word or to gather information about the views of legal academics. 

3. Interpretation Act 1978 - This statute provides certain standard definitions of common provisions used in statutes. 

4. Documents produced during the law reform process - For example the Report of a Royal Commission , or a Law Commission Report. Good for the mischief rule . Official reports may be considered as evidence of the pre-existing state of the law and the mischief that the legislation was intended to deal with - Black -Clawson International Ltd. 

5. Hansard - see below. 

6. The Human Rights Act 1998 allows the ECHR to be used as an extrinsic aid to statutory interpretation The court are required to ensure the domestic legislation is interpreted in a way that is compatible with Convention rights (S.3 HRA 1998). 

7. Earlier case law. 

8. International conventions , regulations or directives which have been implemented by English legislation. 

5.8 Hansard 

1. Hansard is the official daily report parliamentary debates , and therefore a record of what was said during the introduction of legislation also known as disambiguation. 

2. In 1993 , the House of Lords in Pepper v Hart overruled the previous rule against consulting Hansard (Davis v Johnson). In Pepper v Hart , Lord Browne Wilkinson said that reference to Hansard is now allowed , but only where : 

• the legislation is ambiguous or obscure 
• the material in Hansard to be relied upon must consist of statements made by a Minister or other promoter of the Bill 
• the statements to be relied on in Hansard must be clear and unambiguous 

3. Arguments for use of Hansard 

• Usefulness - Lord Denning in Davis v Johnson (CA) argued that to ignore parliamentary debates would be to 'grope in the dark for the meaning of an Act without switching on the light'. 
• Media reports - since Parliamentary proceedings are reported in newspapers and on radio and television and even judges are exposed to them . Hence it is ridiculous to tell judges to ignore it . 

4. Arguments against use of Hansard 

• Lack of clarity - the House of Lords in Davis v Johnson said that what was said in the cut and thrust of public  debate was not a conducive way to find the meaning of statutory language 
• Time and expense - the House of Lords in Davis v Johnson - would add greatly to the time and expense involved in preparing cases involving the construction of a statute if lawyers were expected to real all the debates in Hansard.. 
• Difficult to pin down Parliamentary intention. 

5. Since 1993 , Hansards have been referred to in a number of cases . The Lord Chancellor's predictions on cost have been confirmed by some solicitors , with one estimating that it had added 25 per cent to the bill . On other occasions it is clear that Hansard has not been helpful or that the court would have reached the same conclusion in any event. 

Learning outcome  

By now you should know that : 

• Not all statutes are clear and concise 
• Following UK's entry into the European Union there has been a shift towards applying the purposive approach to interpret statutes 
• Various rules of language and aids of interpretation both intrinsic and extrinsic are a great contribution to the task of statutory interpretation 
• Today the use of Hansard is no longer taboo 

Self - Assessment 

1. State four difficulties of interpreting statutes. 

2. Define the literal rule. 

3. In what circumstance would the golden rule be used to interpret statutes? 

4. State the principle found in the Heydons Case. 

5. What is the impact of UK's membership into European Union? 

6. State the advantages of purposive approach. 

7. Define the compatibility approach. 

8. Give examples of presumptions available to interpret statues. 

9. List 5 extrinsic aids to interpretation. 

10. What is the principle in Pepper v Hart? 

Further reading  

Jacqueline Martin , The English Legal System , 6th Edition , pgs. 81-96 

Appendix A 

Law of Property Act 1925 

1925 Chapter 20 15 and 16 Geo 5 

1. Legal estates and equitable interests. 

(1) The only estates in land which are capable of subsisting or of being conveyed or created at law are : 

(a) An estate in simple absolute in possession; 

(b) A term of years absolute. 

(2) The only interests of charges in or over land which are capable of subsisting or of being conveyed or created at law are : 

(a) An easement , right , or privilege in or over land for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute; 

(b) A rent charge in possession issuing out of or charged on land being either perpetual or for a term of years absolute; 

(c)A charge by way of legal mortgage; 

(d) … F1 and any other similar charge on land which is not created by an instrument ; 

(e) Rights of entry exercisable over or in respect of a legal term of years absolute , or annexed , for any purpose , to a legal rent charge. 

Appendix B 

Additional Cases 

Royal College of Nursing v DHSS [1981] 1 All ER 545 , HL 

The Abortion Act 1967 made it lawful under certain circumstances for a pregnancy to be "terminated by a registered medical practitioner". At that time , surgery was the only usual method of termination , but subsequent advances in medical technology made it possible and generally preferable to induce the expulsion of the foetus by means of drugs. The DHSS advised in a circular that nurses and midwives carrying out this procedure ( under the genera; supervision of a doctor ) would have the protection of the Act , but the RCN sought a declaration that this advice was wrong and that nurses could not therefore be expected to administer the drugs. The House of Lords reversed the Court of Appeal and restored Woolf J's ruling that the advice was correct. The majority adopted a purposive approach : the Act was clearly meant to legitimise therapeutic abortions and to ensure that they were carried out under properly hygienic conditions. The section should therefore be given a broad interpretation rather that the narrow literal interpretation favoured by the minority. 

R v Harris (1836) CCR 

Harris bit of the end of a woman's . The prosecution alleged the bite was included in " stab , cut or wound". This implied that some instrument must be used . It was evidently the intention of the legislature , according to the words of the statute, that the wounding should be inflicted with some instrument, and not by the hands or teeth hence the court found Harris not guilty. 

R v Maginnis (1987) HL 

D was found by police to have cannabis resin his car. He said that the package had been left in his car by a friend for collection later. Did 'temporarily holding drugs on someone else's behalf' - by taking the drugs from them to return them later - amount to "intent to supply'? It was held that the meaning of supply was the ordinary one , though the majority definition did not come from a dictionary.