Statutory InterpretationIntroduction and Presumptions

The main body of the law is to be found in statues, together with the relevantstatutory
instruments, and in a case of law as enunciated by judges in the courts.
Butthe judges not only have the duty of declaring the common law, they are alsofrequen
tly called upon to settle disputes as to the meaning of words or clauses
in astatute.Parliament is the supreme law-maker, and the judges must
follow statutes.Nevertheless there is a considerable amount of case law which gathers
round Acts of Parliament and delegated legislation since the wording sometimes turns
out to beobscure. However, the rules relating to the interpretation of statutes are
so numerous,have so many exceptions, and several are so flatly contradictory, that
some writershold view that there are in effect no rules at all.Statutes are extremely
complex legal documents and no parliamentarydraughtsman can anticipate future
contingencies; neither can they alwaysaccommodate the natural ambiguities of our
language. As a result, judges are oftencalled upon to interpret a word or phrase which
can be crucial to the outcome of acase.
Presumptions
To aid interpretation there are several presumption which guide the judiciary
ininterpreting Acts.

There are presumptions that the Act applies to the whole of the United Kingdombut no
further, that the Crown is not bound, that the statute is not retrospective andthat the
common law is not altered.

A statute is resumed not to alter the existing law unless it expressly states that itdoes.

When a statute deprives a person of property, there is a presumption thatcompensation
will be paid. Unless so stated it is presumed that an Act does notinterfere with rights
over private property.
Canons of Construction
The rules, also known as canons of construction, are used to interpret
statutes.Examples include:

Literal Rule

Golden Rule

Mischief Rule
Literal Rule
This rule gives all the words in a statute their ordinary and natural meaning. Underthis
rule the literal meaning must be followed, even if the result is absurd.See: London
& North Eastern Railway Co v Berriman 1946


Fisher v Bell 1961
Commentary

The Literal rule has been the dominant rule, whereby the ordinary, plain, literalmeaning
of the word is adopted. Lord Esher stated in 1892 that if the words of an act are
clear, you must follow them, even though they lead to manifestabsurdity

There are, however, a number of disadvantages in using this rule. It is oftencalled the
dictionary rule, but dictionary definitions can attribute several meaningsto one word. It
also restricts judicial creativity and holds back development of thelaw in keeping
with changing social conditions.

With the
literal rule
- it must be remembered that in extreme cases the statutemay be carelessly drafted
where certain words in isolation can have severalmeanings. The
Law Commission
1969 was very critical of the literal rule as itassumed that Acts of Parliament were
perfectly worded.

The Law Commission in an instructive and provocative report on the subject
of statutory interpretation said of this rule that to place undue emphasis on the
literalmeaning of the words of a provision is to assume an unattainable perfection
indraftsmanship.

The rule, when in operation, does not always achieve the obvious object andpurpose of
the statue. A classic example is
Whiteley v Chappell
(1868-9). In thatcase a statute concerned with electoral malpractices made it an offence
topersonate any person entitled to vote at an election. The defendant was accused
of personating a deceased voter and the court, using the literal rule, found that therewas
no offence. A dead person was not entitled to vote or do anything else for thatmatter. A
deceased person did not exist and could therefore have no rights. It will beseen,
however, that the literal rule produced in that case a result which was clearlycontrary to
the object of Parliament.
Golden Rule

The Golden Rule is an improvement on the above, as some attempt is made toput a
word into its proper context. It is basically reverting to the literal rule but if amanifest
absurdity results, judges can consider contextual alternatives, i.e. it is anextension or
offshoot of the literal rule.

It is used by the courts where a statutory provision is capable of more than oneliteral
meaning and leads the judge to select the one which avoids absurdity, orwhere a study
of the statute as a whole reveals that the conclusion reached byapplying the literal rule
is contrary to the intensions of Parliament.
Example:

In
Sigsworth
(1935)

the court decided that the Administration of Estates Act1925, which provides for the
distribution of the property of an intestate amongst his

next of kin, did not confer a benefit upon the person (a son) who had murdered
theintestate (his mother), even though the murderer was the intestates next of kin, forit
is a general principle of law that no one profit from his own wrong.

Lord Wensleydale commented on the use of the Golden rule in the following way:The
grammatical and ordinary sense of the words is to be adhered to unlessthat would lead
to an absurdity or repugnancy or inconsistency with the rest of the instrument, in which
case the grammatical or ordinary sense of the wordsmay be modified so as to avoid
such absurdity, repugnancy or inconsistencyand no further - Lord Wensleydale in
Grey v Pearson
(1875).

In
Sweet v Parsley (
1970
),
a schoolteacher was convicted for a strict liabilityoffence because she had permitted her
house to be used for cannabis smoking,even though she herself was abroad at the time
and had no knowledge of theactivity. The House of Lords held that the
mens rea
element should be read into thecase, as Parliament would never have intended that an
innocent person should everbe convicted. This illustrates how flexible the law can be by
putting the allegedcommission of an offence into its proper context.

The Law Commission submitted a report in 1979, entitled The Interpretation
of Statutes , and supported the use of the Golden Rule, although it also
recommendedthe use of an explanatory memorandum to clarify parliamentary intention.
Mischief Rule


Here the judge should interpret the statute in such a way as to put a stop to theproblem
that Parliament was addressing. This rule was laid down in Heydons Casein the 16
th
century and provides that judges should consider three
factors:1 . W h a t t h e l a w w a s
b e f o r e t h e s t a t u t e w a s p a s s e d 2 . W h a t p r o b l e m / m i s c h i e f
t h e s t a t u t e w a s t r y i n g t o r e m e d y
3.
What remedy parliament was trying to provide.

See Smith v Hughes (1960), Elliot v Grey (1960) and Royal College of Nursing vDHSS
(1981).

The mischief rule/mischief approach implies an ability and willingness on the partof the
judge to look beyond the words of the statute itself.

The Laws Commission in 1969 suggested that the rules be relaxed and thatgreater
focus should be placed on the Mischief Rule approach
The European/Purposive approach

EC law takes precedence over UK domestic law.

If there is a conflict between EC and UK law, then EC law prevails; see
Factortame(1990), Tachographs (1979) andVan Duyn v Home Office 1974.


During his judicial career, Lord Denning was in the forefront of moves to establisha
more purposive approach, aiming to produce decisions that put into practice thespirit of
the law even if that meant paying less that usual regard to the letter of the law.

Denning stated his view in Factortame (1990):We do not sit here to pull the language
of Parliament apart to pieces andmake nonsense of it We sit here to find out
the intention of Parliament and carry it out, and we do this better by filling in the gaps
andmaking sense of the enactment than by opening it up to destructive analysis

Dennings view contributed to the growth of a more purposive approach whichgained
ground in the last 20 years.
Commentary:

Blackstone also believed that the mischief/purposive approaches should prevail as,in
his opinion, the fairest and most rational method to interpret the will of thelegislator is
by exploring his intention at the time the law was made...



Possibly the way forward is to again draw on the experience of
continental law,
where the judiciary are given much more freedom to interpret the law and oftenhave
training in the Parliamentary field to call upon. Denning and Lord Simon
longcampaigned for a more open approach and favour the European model
of statutory interpretation.
Intrinsic Aids:

The literacy rule and the golden rule both direct the judge to internal aids,

Acts passed since the beginning of 1999 are provided with explanatory notes,published
at the same time as the act

Headings and subheadings used in an act can be a useful intrinsic aid
External Aids:

Dictionaries

Law reports

EU directives

Treaties

Since Pepper v Hart 1993 Hansard, which is a daily report of parliamentarydebates.

Using Hansard:

Lord Dennings argument, advanced in Davis V Johnson (1978), was that to ignoreit
was to grope in the dark for the meaning of an act without switching on thelight. When
such an obvious source of enlightenment was available, it wasridiculous to ignore it
in fact Lord Denning said after the case that he intended tocontinue to consult Hansard,
but simply not say he was doing so!


Using Hansard can be time consuming, because lawyers may spend too much timeand
attention to ministerial statements and so on at the expense of considering thelanguage
used in the act itself.

Parliamentary intention is difficult if not impossible to pin down.

Parliamentary debates usually reveal the views of only a few Members of Parliament
and even then those words may need interpretation too.
Rules of Language:
Rules of language developed by lawyers are really little more than common
sensealthough they are not always precisely applied. Examples include:

Ejusdem generis
: general words which follow specific ones are taken to includeonly things of the same
kind. For example dogs, cats and other animals the otheranimals would probably
include other domestic animals.

Noscitur a socis
: a word draws meaning/ context from the other words around it.For example, if a
statute included cats, toys and food it would be reasonable toassume that the food is
cat food.