Statutory Interpretation
Parliament passes statutes and judges must interpret and apply them in court. Where the meanings of words are unclear, judges will apply one of the various rules of interpretation. These rules were developed in the following way:
1. The Mischief Rule
The mischief rule is contained in Heydon's Case (1584), and allows the court to look at the state of the former law in order to discover the mischief in it which the present statute was designed to remedy. For example:
- Smith v Hughes (1960). Six women had been charged with soliciting “in a street or public place for the purpose of prostitution”. However, one woman had been on a balcony and others behind the windows of ground floor rooms. The court held they were guilty because the mischief aimed at was people being molested or solicited by prostitutes.
- Corkery v Carpenter (1951). A person could be arrested if found drunk in charge of a “carriage” on the highway. The defendant had been arrested for being drunk in charge of a bicycle on the highway. The court held that a bicycle was a “carriage” for the purposes of the Act because the mischief aimed at was drunken persons on the highway in charge of some form of transport, and so the defendant was properly arrested.
2. The Literal Rule
Lord Esher in R v Judge of the City of London Court (1892) said: “If the words of an Act are clear then you must follow them even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity.” Case examples of the literal rule include:
- Whiteley v Chappell (1868). The defendant pretended to be someone who had recently died in order to use that person’s vote. It was an offence to “personate any person entitled to vote”. As dead people cannot vote, the defendant was held not to have committed an offence.
- London & North Eastern Railway v Berriman (1946). The claimant’s husband was killed while oiling points along a railway line. Compensation was only payable if he had been “relaying or repairing” the line. The House of Lords held oiling points was maintaining the line and not “relaying or repairing”.
3. The Golden Rule
The golden rule provides that if the words used are ambiguous the court should adopt an interpretation which avoids an absurd result. For example:
- Adler v George (1964). It was an offence to obstruct HM Forces “in the vicinity of ” a prohibited place. The defendants had obstructed HM Forces in a prohibited place (an army base) and argued that they were not liable. The court found them guilty as “in the vicinity of” meant near or in the place.
In its second, broader sense, the court may modify the reading of words in order to avoid a repugnant situation as in:
- Re Sigsworth (1935). The defendant had murdered his mother. She did not have a will and he stood to inherit her estate as next of kin, by being her “issue”. The court applied the golden rule and held that “issue” would not be entitled to inherit where they had killed the deceased.
4. The Purposive Approach
The purposive approach is one that will “promote the general legislative purpose underlying the provisions” (per Lord Denning MR in Notham v London Borough of Barnet (1978). For example:
- Royal College of Nursing v DHSS (1980). The court had to decide if nurses could lawfully continue an abortion started by a “registered medical practitioner” (a doctor). Although Lord Diplock referred to the mischief of illegal abortions, Lord Keith referred to the purpose of the Abortion Act 1967, which was to ensure that socially acceptable abortions were carried out in safe conditions. The House of Lords held that the procedure was lawful.
- Jones v Tower Boot Co Ltd (1997). The complainant suffered racial abuse at work, which he claimed amounted to racial discrimination for which the employers were liable under s32 of the Race Relations Act 1976. The CA applied the purposive approach and held that the acts of discrimination were committed “in the course of employment”. Any other interpretation ran counter to the whole legislative scheme and underlying policy of s32.
THE RULES OF LANGUAGE
There are three rules of language which reflect the way in which people speak and write:
(a) Ejusdem generis (of the same kind)
General words following particular words will be interpreted in the light of the particular ones. For example:
- Powell v Kempton Park Racecourse (1899). It was an offence to use a “house, office, room or other place for betting”. The defendant was operating from a place outdoors. The court held that “other place” had to refer to other indoor places because the words in the list were indoor places and so he was not guilty.
(b) Noscitur a sociis (known from associates)
A word will be interpreted in the context of surrounding words. For example:
- Muir v Keay (1875). All houses kept open at night for “public refreshment, resort and entertainment” had to be licensed. The defendant argued that his café did not need a licence because he did not provide entertainment. The court held that “entertainment” did not mean musical entertainment but the reception and accommodation of people, so the defendant was guilty.
(c) Expressio unius est exclusio alterius (the express mention of one thing is the exclusion of another)
The express mention of things in a list excludes those things not mentioned. For example:
- Tempest v Kilner (1846). A statute required that contracts for the sale of “goods, wares and merchandise” of £10 or more had to be evidenced in writing. The court had to decide if this applied to a contract for the sale of stocks and shares. The court held that the statute did not apply because stocks and shares were not mentioned.
INTERNAL AND EXTERNAL AIDS
There is a wide range of material that may be considered by a judge when interpreting statutes. Some of these aids may be found within the statute in question, others are external to the statute. They are also known as intrinsic and extrinsic aids.
INTERNAL
1. Other enacting words
An examination of the whole of a statute, or relevant Parts, may
indicate the overall purpose of the legislation. It may show
that a particular interpretation of that provision will lead to
absurdity when taken with another section.
2. Long Title
The long title should be read as part of the context, “as the
plainest of all the guides to the general objectives of a statute”
(Lord Simon in
The Black-Clawson Case). For example,
Lord Diplock referred to the long title of the Abortion Act 1967.
3. Preamble
When there is a preamble it is will generally state the mischief to
be remedied and the scope of the Act. It is therefore clearly
permissible to use it as an aid to construing the enacting
provisions.
4. Headings, side-notes and punctuation
Headings, side-notes and punctuation may be considered as part of
the context. However, they may not have been discussed in
Parliament.
EXTERNAL
1. Dictionaries and other literary sources
Dictionaries are commonly consulted as a guide to the meaning of
statutory words. Textbooks may also be consulted.
2. Practice
The practice followed in the past may be a guide to interpretation.
For example, the practice of eminent conveyancers where the
technical meaning of a word or phrase used in conveyancing is in
issue.
3. Other Statutes in Pari Materia
Related statutes dealing with the same subject matter as the
provision in question may be considered both as part of the context
and to resolve ambiguities. A statute may provide expressly
that it should be read as one with an earlier statute(s).
4. Official Reports
Legislation may be preceded by a report of a Royal Commission, the
Law Commissions or some other official advisory committee.
These reports may be considered as evidence of the pre-existing
state of the law and the “mischief” with which the legislation was
intended to deal. However, it has been held that the
recommendations contained in them may not be regarded as evidence of
Parliamentary intention as Parliament may not have accepted the
recommendations and acted upon them (The Black-Clawson Case).
5. Treaties and International Conventions
There is a presumption that Parliament does not legislate in such a
way that the UK would be in breach of its international obligations.
6. Parliamentary Materials/Hansard
In
Pepper (Inspector of Taxes) v Hart, the House of Lords
relaxed the general prohibition (in Davis v Johnson) that a court
may not refer to Parliamentary materials, such as reports of debates
in the House and in committee (Hansard) and the explanatory
memoranda attached to Bills, when interpreting statutes. They
may now be used where: (a) legislation is ambiguous or obscure, or
leads to an absurdity; (b) the material relied on consists of one or
more statements by a minister or other promoter of the Bill together
if necessary with such other parliamentary material as is necessary
to understand such statements and their effect; and (c) the
statements relied on are clear. However, using Hansard results
in three problems: the research adds to cost of a case; it may not
be of assistance or confirms the view already taken by the court.
7. Explanatory Notes
Since 1998, Bills are presented with Explanatory Notes, written in
clear and simple English. They are updated as a Bill goes
through Parliament and changes its wording and meaning.