Topic 3: Statutory Interpretation

Essential Readings:
(a) Catherine Elliott and Frances Quinn, English Legal System, 13th edition, 2012, Chapter 3
(b) Wilson, Mitchell, Storey & Wortley, English Legal System: Directions, 2nd edition, 2011,
Chapter 5
(c) Huxley-Binns and Martin, Unlocking The English Legal System, 4th edition, 2014,
Chapter 3

3.1.0 Introduction
Although Parliament makes legislation, it is left to the courts to apply it. The general public
imagines that this is simply a case of looking up the relevant law and ruling accordingly, but
the reality is not so simple. Despite the fact that Acts of Parliament are carefully written by
expert draftsmen, there are many occasion in which the courts find that the implications of
a statute for the case before them are not at all clear.

3.1.1 What does ‘statute’ mean?

A statute is a document containing the laws made by the Parliament. Parliament consists of
the Queen, the House of Lords and the House of Commons. Parliament is the originator of
all legislation.

3.1.2 The enactment process

An Act of Parliament must begin life in draft form as a Bill, but a Bill may begin life as
consultation paper, sometimes called a ‘Green Paper’ or a ‘White Paper’ which is a
document containing the government’s proposals for legislative changes. A Bill must be
debated by both Houses of Parliament and must undergo set procedures, until it is finally
given the Royal Assent by the monarch, at which stage it becomes an Act (it is enacted) and
enters into force on the day the Bill receives the Royal Assent, unless the Act provides for
other dates.

Below is a passage of a bill:-

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3.1.3 Problems of drafting statutes
A lot of legislation attempts to restate common law rules and principles. Sometimes this
causes a whole new development of case law concerning the meaning of key words. In
rationalising the offence of burglary under the Theft Act 1968, for example, a person was
said to be guilty of burglary when they entered a ‘building’ as a trespasser in order to
commit theft or certain other offences. But what is a building? The word ‘building’ was
subsequently interpreted by the courts at various times as being a houseboat, a caravan and
even a large commercial refrigerator, in addition to houses, warehouses, factories and
shops.

Of course Parliamentary draftsmen cannot foresee future eventualities. Statutory

interpretation is a particular form of interpretation; it is a shared ‘practice’ of the legal
profession. Not only is interpretation inescapable, but interpretation of statutes occurs in a
context mediated by notions of the constitutional separation of powers, ideas of the role of
the judiciary, and the special features of the legislative process.

We should also remember that a piece of legislation has a history and a future. Enacting the
statute represents the culmination of Parliament’s legislative process; but it is also the
starting point for many years of existence.

Statutes are often very complex, as they are an attempt to impose a structure of rules and
directions that provide regulation to social events. But since social, economic and business
relations are complex and if they are to be regulated in part by law, then the laws
expressing that regulation will be drafted in sophisticated language. It sometimes seems
that statutes are designed to be incomprehensible to lay people. This is usually a side-effect
of the fact they are drafted by experts (often with a set of intended meanings that may not
be so clear in application) and undergo a series of ‘readings’ through the Parliamentary
process. In addition, printing or drafting errors can make a statutory provision
incomprehensible. F.A.R. Bennion (Statute law, 1990) has identified a number of factors that
may cause doubt in interpreting a statutory provision:
 Ellipsis: the drafter refrains from using certain words that he regards as implied
automatically, although others may not realise this.
 Broad terms with wide meaning are often used, and it is left up to the user to decide
what situations fall with provision (e.g. the word ‘vehicle’ clearly covers motor cars,
buses, motorcycles. But does it include a donkey cart, an invalid carriage or a child’s
tricycle?).
 The meaning of a statutory expression may change over time (e.g. does ‘family’
include ‘common law spouse’; does ‘father’ refer to the biological or the social
father?).
 Deliberate uncertainty. Drafters may deliberately use ambiguous words (e.g. where
provision is politically contentious).
 Unforeseeable developments. Drafters cannot anticipate all new developments or
devices that may create legislative loopholes.
 Inadequate use of words – especially ambiguity, where words are capable of two or
more meanings.
 Printing errors and drafting errors – provision may be narrower or wider than
intended.

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3.1.4 Interpretation of statutes as sources of law and their application in court processes
A key aspect of the rule of law is that statutes be written in such a way that the public can
understand them. Statutes would fail as an effective source of law if every statement in
them had to be put before the courts so that the meaning could be established. So there is
good reason to start by giving the words of the statute the meaning they bear in their
common sense or everyday usage.

There are, however, numerous difficulties in taking a ‘common sense’ or ‘literal’ approach to
the meaning of words in legal texts. Some standard problems include the following:
 a word used in isolation may have a different meaning from the same word used in a
sentence or a paragraph
 if the ordinary meaning is to be found by reference to a dictionary, then what
dictionary is to be used, and should it be a standard one, or one based on historical
principles?† Moreover, dictionaries often give alternative meanings to words
 even general words can have several meanings
 even when the meaning of a word seems plain, judges may still disagree as to its
interpretation because each may have different views regarding what the plain
meaning is
 when a case comes to court disagreement is plainly possible – or else the case would
not have come to court.

The same basic problem confronts judges when interpreting Acts of Parliament. This
problem is intensified by the adversarial context in which arguments are made about the
meaning of words in statutes. One party’s ascription of meaning to the words of a statute is
always open to dispute by the other.

A great many of the cases heard in the Court of Appeal and the Supreme Court/ House of
Lords involve the meaning of words contained within statutes or delegated legislation. A
major problem entailed in formulating legislation is that the lawyers who draft
Parliamentary Bills work under great pressure of time. And to avoid creating too much
opposition, they use language which must be ‘flat’ in style but which is often verbose.

3.1.5 The need for statutory interpretation

There are many reasons why the meaning of legislation may be unclear and the judges,
therefore have to interpret it. The main reasons are as follows:-
i. Failure of legislation to cover a specific point
 London & North Eastern Railway Co v Berriman [1946] 1 All ER 255

ii. A broad term

 Brock v DPP, The Times, 23 July 1993

iii. Ambiguity
 R v Allen [1872] LR 1 CCR 367
 R v Tolson (1889) LR 23 QBD 168
 Talbot v Talbot (1967) 111 SJ 213

iv. A drafting error

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 v. New developments
 Royal College of Nursing v DHSS [1981] 1 All ER 545
 R (Quintavalle) v Secretary of State for Health [2003] UKHL 13

vi. Changes in the use of language

 Cheeseman v DPP, The Times,2 November 1990

3.1.6 Rules of interpretation

In order to help with the understanding of a statute, the judges have tended to use two
main approaches instead of the supposed ‘rules’ namely:-
i. The literal approach
ii. The purposive approach

The literal approach

(a) Literal rule

Under this rule, courts will give words their plain, ordinary or literal meaning, even if the
result is not very sensible. The idea was expressed by Lord Esher in R v Judge of the City of
London Court [1892] 1 QB 272 when he 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.”

The reason for using the literal rule was explained rather better by Lord Bramwell in Hill v
East and West India Dock Co [1884] 9 App Cas 448 when he said:-

“It is to be remembered that what seems absurd to one man does not seem absurd to
another...I think it is infinitely better, although an absurdity or an injustice or other
objectionable result may be evolved as the consequences of your construction, to adhere to
the words of an Act of Parliament and leave the legislature to set it right than to alter those
words according to one’s notion of an absurdity.”

The literal rule developed in the early nineteenth century and has been the main rule
applied by the courts ever since then. It has been used in many cases, even though the
result may in some cases create an absurdity. This is illustrated in the following case:-
Whiteley v Chappell [1868] 4 LR QB 147
The defendant was charged under a section which made it an offence to impersonate ‘any
person entitled to vote.’ The defendant had pretended to be a person whose name was on
the voters’ list but who had died. The court held that the defendant was not guilty since a
dead person is not in the literal meaning of the words, ‘entitled to vote.’

See also:
(i) Fisher v Bell [1960] 3 All ER 731
(ii) Cheeseman v DPP, The Times, 2 November 1990
(iii) London & North Eastern Railway v Berriman (1946)

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(b) Golden rule
The rule is a modification of the literal rule. The golden rule starts by looking at the literal
meaning but the court is then allowed to avoid an interpretation which would lead to an
absurd result. The first use of the name ‘golden rule’ is thought to have been in Mattison v
Hart [1854] 14 CB 357 when Jervis CJ said:

“We must, therefore, in this case have recourse to what is called the golden rule of
construction, as applied to Acts of Parliament, viz, to give the words used by the legislature
their plain meaning unless it is manifest from the general scope and intention of the statute,
injustice and absurdity would result.”

The rule was more closely defined in Grey v Pearson [1857] 6 HL Cas 61 by Baron Parke
when he stated:

“The grammatical and ordinary sense of the words is to be adhered to, unless that would
lead to some absurdity, to some repugnance or inconsistency with the rest of the instrument,
in which case the grammatical and ordinary sense of the words may be modified, so as to
avoid the absurdity and inconsistency, but no further.”

It is stressed that the literal rule should be applied as a starting point. However, if the wide
term would cause an ‘injustice’, the use of the golden rule is restricted to where there is
absurdity, repugnance or inconsistency with the rest of the Act.

See also:
(i) Jones v DPP {1962)
(ii) Alder v George [1964] 2 QB 7
(iii) Re Sigsworth [1935] Ch 89
(iv) R v Registrar General, ex p Smith [1991] 2 All ER 88

(c) Mischief rule

The rule gives a judge more discretion than the other two rules. The definition of the rule
comes from Heydon’s case [1584] Co Rep 7a, where it was said that there were four points
the court should consider. These, in the original language of that old case, were:

“1st What was the Common Law before making of the Act?
2nd What was the mischief and defect for which the Common Law did not provide?
3rd What remedy the Parliament halt resolved and appointed to cure the disease of the
commonwealth?
4th The true reason of the remedy, and then the office of all Judges is always to make such
construction as shall suppress the mischief, and advance the remedy.”

Under this rule, the court should look to see what the law was before the Act was passed in
order to discover what gap or ‘mischief’ the Act was intended to cover. Then the court
should interpret the Act in such a way that the gap is covered. This is clearly a quite different
approach to the literal rule.

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An example of a case in which the mischief rule was used is Smith v Hughes [1960] 2 All ER
859. In this case, the court had to interpret s1(1) of the Street Offences Act 1959 which said
‘it shall be an offence for a common prostitute to loiter or solicit in a street or public place
for the purpose of prostitution.’

Smith v Hughes [1960] 2 All ER 859

Six women had been convicted under s1(1) of the Street Offences Act 1959 and in each
case, they argued on appeal that there were not ‘in a street or public place’ as required by
the Act for them to be guilty. One woman had been on a balcony and the others had been
at the windows of ground-floor rooms, with the window either half-open or closed. In each
case, the women were attracting the attention of men by calling to them or tapping on the
window. The court decided that they were guilty.

In this case, the court did not use the plain, ordinary grammatical meaning of the words ‘in a
street or public place.’ Instead the judges looked to see what mischief the Act was aimed at.
This was explained by Parker LCY when he said:

“For my part, I approach the matter by considering what is the mischief aimed at by this Act.
Everybody knows that this was an Act to clean up the streets, to enable people to walk along
the streets without being molested or solicited by common prostitutes. Viewed in this way, it
can matter little whether the prostitute is soliciting while in the street or is standing in the
doorway or on a balcony, or at a window, or whether the window is shut or open of half
open.”

See also:
(i) Eastbourne Borough Council v Stirling The Times, 16 November 2000
(ii) Royal College of Nursing v DHSS [1981] 1 All ER 545

Purposive approach
This goes beyond the mischief rule in that the court is not just looking to see what gap was
in the old law; the judges are deciding what they believe Parliament meant to achieve. The
champion of this approach in English law was Lord Denning. His attitude towards statutory
interpretation is shown when he said in the case of Magor and St. Mellons v Newport
Corporation [1950] 1 All ER 1226:

“We sit here to find out the intention of the Parliament and carry it out, and we do this
better by filing in the gaps and making sense of the enactment than by opening it up to
destructive analysis.”

An example of purposive approach can be seen in R v Registrar General, ex p Smith [1991] 2

All ER 88.

R v Registrar General, ex p Smith [1991] 2 All ER 88

This case involved an application by Charles Smith for information to enable him to obtain
his birth certificate. Mr. Smith had made his application in the correct manner and was
prepared to see a counsellor. On a literal view of s.51 of the Adoption Act 1976, the
Registrar General had to supply him with the information, since the Act uses the phrase

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‘shall on an application...supply’. The problem was that Mr. Smith had been convicted of
two murders and was detained in Broadmoor as he suffered from recurring bouts of
psychotic illness. A psychiatrist thought that it was possible he might be hostile towards his
natural mother.

The judges in the Court of Appeal decided that the case called for the purposive approach,
saying that, despite the plain language of the Act, Parliament could not have intended to
promote serious crime. So, in view of the risk to the applicant’s natural mother if he
discovered her identity, they rule that the Registrar General did not have to supply any
information.

See also:
(i) Jones v Tower Boot Co Ltd [1997] IRLR 168
(ii) R (Quintavalle) v Secretary of State [2003] UKHL 13
(iii) Inco Europe v First Distribution [2000] 1 LR 586
(iv) R (W a minor) v Leeds Crown Court [2011] EWHC 2326 (Admin)

The purpose approach is the one preferred by most European countries when interpreting
their own legislation. It is also the approach which has been adopted by the European Court
of Justice in interpreting European Union law.

The use of the purposive approach has been strengthened by the decision in Pepper
(Inspector of Taxes) v Hart [1993] 1 All ER 42.

Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42

In this decision, the House of Lords decided to depart from the long-established practice
that prohibited reference to Hansard (the record of debates in Parliament). This practice
had long been viewed by commentators from other jurisdictions as a strange restriction and
an affront to common sense. The House of Lords laid down that references were only to be
made concerning legislation:

“which is ambiguous or obscure or the literal meaning of which leads to absurdity. Even in
such cases references…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.” (Per Lord Browne-Wilkinson)

Similarly, Lord Griffiths stated:

“The days have long passed when the courts adopted a strict constructionist view of
interpretation which required them to adopt the literal meaning of the language. The courts
now adopt a purposive approach which seeks to give effect to the true purpose of legislation
and are prepared to look at much extraneous material that bears on the background against
which the legislation was enacted.”

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Why is Pepper v Hart such a significant case?
The then Lord Chancellor, Lord MacKay, had dissented, claiming that the change would
drastically increase legal costs since solicitors would need to engage in research to check if
relevant statements had indeed been recorded in Hansard.

It appears that substantial use of Hansard has been made since Pepper v Hart and has gone
beyond the terms of the restrictive criteria laid down by Lord Browne-Wilkinson. In Smith,
Bailey & Gunn on the modern English legal system, the authors state (p.453):

“The first nine years of the operation of Pepper v Hart has largely borne out the fears
expressed by Lord Mackay of Clashfern. Issues concerning the cost of litigation have been
raised with the legal profession. The possibility of reference being made to Parliamentary
material has been raised in over 360 cases to date. In each of these, research will have been
done at the client’s expense; in very few indeed does a ‘crock of gold’ appear to have made a
difference to the outcome. What cannot be estimated is the extent to which awareness of
that material has influenced the supposed ‘independent’ approach of the judges to questions
of interpretation.”

Note, however, the interpretation of Pepper v Hart in R (on the application of Spath Holme
Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 AC 349.
Pepper v Hart does not mean that the courts now approach all statutes in a purposive way.

Ejusdem generis rule

Ejusdem Generis is a Latin term which means "of the same kind." It is used to interpret
loosely written statutes. Where a law lists specific classes of persons or things and then
refers to them in general, the general statements only apply to the same kind of persons or
things specifically listed.

Example: 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. The term Ejusdem Generis in other words means words of a similar class.
The rule is that where particular words have a common characteristic (i.e. of a class) any
general words that follow should be construed as referring generally to that class; no wider
construction should be afforded.

Hobbs v CG Robertson Ltd [1970] 1 All ER 347

A workman had injured his eye when brickwork which he was removing splintered. He
claimed compensation under the Construction (General Provision) Regulation 1961. These
regulations made it a duty for employers to provide goggles for workmen when ‘breaking,
cutting, dressing or carving of stone, concrete, slag or similar material.’

The court held that brick did not come within the term ‘a similar material.’ Brick was not
ejusdem generis with stone, concrete, slag. The reason was that all the other materials were
hard, so that bits would fly off them when struck with a tool, whereas brick was a soft
material. This ruling meant that the workman cannot claim for compensation.
See also:
(i) Wood v Commissioner of Police of the Metropolis [1986] 1 All ER 570

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 Approaches and ‘rules’ of statutory interpretation

Rule / Approach Comment Cases

The literal rule  Uses plain ordinary,  Whiteley v Chappell (1868)
grammatical meaning of words  Fisher v Bell (1960)
 Avoid judicial law-making BUT  London & NE Railway Co v
Assumes ‘unattainable prefect Berriman (1946)
in draftmanship’
 May lead to absurd decision
 May lead to injustice

The golden rule  Starts from literal approach but  Re Sigsworth (1935)
avoid absurdity or repugnance  Adler v Geroge (1964)
or inconsistency
 Court can modify words or
write in words
BUT
What is an absurdity?
 Limited in scope

The mischief rule  Looks at the gap in the
previous law and interprets the
words so as to ‘advance the
remedy’
 The Law Commission favoured
this rule
 Smith v Hughes (1960)
 Eastbourne Borough
Council v Stirling 2000
 Royal College of Nursing
v DHSS [1981]

The purposive approach  Looks for the intention of  R v Registrar General,

Parliament but allows for ex p Smith (1991)
judicial law-making  Jones v Tower Boot Co
Ltd [1997] IRLR 168
 R (Quintavalle) v
Secretary of State
[2003] UKHL 13

Ejusdem generis  Where there is a list of words  Hobbs v CG Robertson

which is followed by general
words, then the general words
are limited to the same kind of
items as the specific words.
Ltd [1970] 1 All ER 347
 Wood v Commissioner
of Police of the
Metropolis [1986] 2 All
ER 570

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3.1.5 Advantages of the rules of interpretation

(a) Literal Rule

 Parliamentary supremacy is respected; uphold the separation of powers
 Judges given a restricted role
 Provides no scope for judges to use their own opinions or prejudices
 Law making left to those who are elected for law making
 Application of literal rule can highlight to parliament problems with an act – Fisher v
Bell – invitation to treat now treated in the same way as offers for sale

(b) Golden Rule

 Prevents absurd and unjust results – Re Sigsworth
 More likely than the literal rule to have produced a result intended by Parliamant
 Errors in drafting can be corrected immediately - R v Allen (1872) LR 1 CCR 367
 Closes loopholes
 Brings common sense to the law

(c) Mischief Rule

 Avoids absurd and unjust outcomes
 Closes loopholes
 Promotes flexibility - allows the law to develop and adapt to changing needs eg Royal
College of Nursing v DHSS
 How Parliament intended it – Smith v Hughes
 Law Commission calls it a ‘rather more satisfactory approach’ – preferred approach

(d) Purposive Approach

 Consistent with EU approach
 Gives effect to parliament’s intentions
 Denning states that it is “preferable to destructive analysis”
 Avoids absurd and unjust results
 Flexible
 Parliament's intention

(e) Ejusdem generis rule

 No requirement for draftsmen to write an exhaustive list of everything
 Adapt to changes in society

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3.1.6 Problems associated with the rules of interpretation

(a) Literal Rule

 Absurd results
 Unjust results – LNER v Berriman (1946)
 Does not always give effect to the intention of parliament
 Where a dictionary definition gives two meanings, the literal rule will not work
 Requires the assumption that draftsmen will always do their job perfectly
 Creates awkward precedents which require Parliamentary time to correct
 Fails to recognise the complexities and limitations of English language
 Undermines public confidence in the law

(b) Golden Rule

 No clear definition of what amounts to an absurd result – therefore unpredictable
 Makes it difficult for lawyers to advise clients whether or not to pursue a case
 Too much power given to judges; they are able to add or change the meaning of
statutes and thereby become law makers infringing the separation of powers.
 Michael Zander calls it a ‘feeble parachute’
 Judges have no power to intervene for pure injustice where there is no absurdity

(c) Mischief Rule

 Too much power to an unelected judiciary - gives judges a law making role infringing
the separation of powers.
 Is it the job of a judge to update legislation? Example: Abortion Act 1967
 Can be hard to discover the original mischief
 Difficult to identify precise intention of parliament
 Out of date – 16th century
 Creates a crime after the event eg Smith v Hughes, Elliot v Grey thus infringing the
rule of law
 Judges can bring their own views, sense of morality and prejudices to a case eg
Smith v Hughes, DPP v Bull.

(d) Purposive Approach

 Too much power to unelected jury
 Judicial decisions based on policy – Fitzpatrick v Sterling Housing Association

(e) Ejusdem generis rule

 Not always predictable what judges will consider to be of the same category as the
specific words – R v Kensington and Chelsea LBC ex p Kihara (1996)
 Allows for judicial law making

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3.1.7 Aids to construction
There are certain ways in which the courts can try to discover the intention of Parliament
and certain matters which they can look at in order to help with the interpretation of a
statute.

(a) Intrinsic Aid

These are matters within the statute itself that may help to make its meaning clearer. The
court can consider the long title, the short title and the preamble, if any. Older statues
usually have a preamble which sets out Parliament’s purpose in enacting that statute.
Modern statutes either do not have a preamble or contain a very brief one.

For example, the Theft Act 1968 states that it is an Act to modernise the law of theft. The
long title may also explain briefly Parliament’s intentions. An unusual approach was taken in
the Arbitration Act 1996 where a statement of the principles of the Act is set out in s.1.

Example: Arbitration Act 1996

“S.1 General principles:

The provisions of this Part are founded on the following principles, and shall be construed
accordingly—
a) the object of arbitration is to obtain the fair resolution of disputes by an impartial
tribunal without unnecessary delay or expense;
b) the parties should be free to agree how their disputes are resolved, subject only to such
safeguards as are necessary in the public interest;
c) in matters governed by this Part the court should not intervene except as provided by
this Part.”

This is a new development in statutory drafting and one that could both encourage and help
the use of the purposive approach.

(b) Extrinsic Aid

These are matters which are outside the Act and it has always been accepted that some
external sources can help explain the meaning of an Act. These undisputed sources are:-

i. Explanatory Notes
Since 1999, Explanatory Notes accompany bill introduced by a government minister during
its parliamentary passage. Explanatory Notes are updates during this time and are published
along with the new Act. They seek to explain the impact of the legislation in layman’s terms
and may be used as an aid to construction of the statute.
In R (on the application of S) v Chief Constable of South Torkshire [2004], Lord Steyn said
that, although Explanatory Notes are not approved by Parliament, they may cast light on the
context of the statute and the mischief at which it is aimed. Explanatory Notes gives the
context of an Act and an indication of what the Act is intended to achieve. They may be
used even in the absence of an ambiguity as it is permissible to read an Act of Parliament in
its context.

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In R (Westminster City Council) v National Asylum Support Service [2002], Lord Steyn again
said that “in so far as the explanatory notes cast light on the objective setting or contextual
scene of the statue, and the mischief at which it is aimed, such materials are therefore
always permissible aids to construction.”

ii. Interpretation Act 1978

This Act is important but its title promises more than it actually delivers. It deals with
details. For example:
Section 4 indicates that an Act comes into force either:
i. When provision is made for it to come into force on a particular day
ii. If there is no such provision, then on the day the Act receives the royal assent.
In each case, the Act is in force from the beginning of the day on which it comes into force.

Section 6 provides that unless a contract intention appears in an Act:

i. Where words used in an Act refer to the masculine gender they also include the
feminine gender and vice versa
ii. Words appearing in the singular include the plural and words in the plural
include the singular

iii. Pre-parliamentary materials / Law Reform Reports

Before a bill is presented to Parliament and then passes into law, it may have been
preceded by a royal commission, Law commission or other official committee report. In
Black Clawson International Ltd v Papierwerke etc AG [1975], the majority of the House of
Lords held that pre-parliamentary could be consulted to ascertain the state of law before
the Act and the mischief that the Act was directed. However, the recommendations
contained in a report, the draft bill and any comments thereon cannot be used in
ascertaining the meaning of the words used in an Act.

In DPP v Bull (1994), the court considered the Wolfrenden Report, ‘Report of the
Committee on Homosexual Offences and Prostitution’, Cmnd 247 (1957). This made it clear
that the ‘mischief’ which had been identified was that of women loitering or soliciting for
the purposes of prostitution (the report did not identify any problem caused by male
prostitutes.) Accordingly, the court held that s.1(1) of Street Offences Act 1959 applied only
to women prostitutes.

iv. Previous Act of Parliament on the same topic

Sometimes there will be a number of statutes on the same subject area. These are known as
statutes in pari materia. Should the words of a statute be uncertain or ambiguous, a court
may consider as an aid to construction other statutes which are in pari materia. It is actually
not clear when statutes are in pari materia, but those Acts on the same subject may fall
within the phrase.

In R v Weatley [1979], the Court of Appeal was asked to decide whether the definition of
‘explosive substance’ in the Explosive Substances Act 1883 should be construed in the light
of the definition of ‘explosive’ in the Explosives Act 1875. The court looked to the long titles
to the Acts and noted that the 1875 Act dealt with ‘explosive substances’ and the 1883 Act
was intended to amend the 1875 Act. S.9 of the 1883 Act provides that ‘explosives

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substance shall be deemed to include....” This is not a complete definition and it was taken
to be expanding the meaning of ‘explosive substance’. S.3 of the 1873 however, gave a
definition of ‘explosive. In the light of this, the court was convinced that both Acts were in
pari materia and therefore it was permissible to use the 1875 definition in construing the
1883 Act.

So far as the other extrinsic aids are concerned, attitudes have changed. Originally the
courts had very strict rules that other extrinsic aids should have not been considered.
However, for the following three aids the courts’ attitude has changes. There three main
extrinsic aids are:
 Hansard – the official report of what was said in Parliament when the Act was
debated
 International Conventions, Regulations or Directives which have been implemented
by English legislation

v. Hansard
For many years, the courts refused to allow the use of Hansard, the official record of
parliamentary debates, as an aid to construction of an Act of Parliament. This practice was
confirmed by the House of Lords in Davis v Johnson [1979]. This was criticised on the basis
that an obvious source of elucidation of the intention of Parliament was being unnecessarily
ignored.

In Pepper v Hart [1993], the House of Lords decided that Hansard could be used as an aid to
interpretation. However, the Lords in favour of the permitting reference to parliamentary
materials clearly recognized the limits to the use of such materials.

Hansard is only to be used within the following limits:

a) The legislation must be ambiguous or obscure or a literal interpretation would lead to
an absurdity,
b) The statement or statements relied on were made by the minister or other promoter
of a Bill, together if necessary with such other Parliamentary material as is necessary
to understand such statements and
c) The statements relied upon are clear

Reference may be made to Hansard where the material identifies the mischief behind the
Act or legislative intention behind the unclear language used. Hansard is only permissible
where Parliament addressed the very issue that a court was being asked to decide. In this
sense, it can be seen that the use of Hansard is very limited.

vi. International Conventions

Where a national law is passed to give effect to a European Union treaty or other law, the
courts will look at the original EU law when deciding on interpretation. This is also the
position where a national law has been passed in order to give effect to any international
treaty or convention.

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In Salomon v Commissioners of Customs and Excise [1967], the Court of Appeal looked at an
international convention because it was thought that English law should be interpreted in
such a way as to be consistent with international law.

In Fothergill v Monarch Airlines [1980], the House of Lords decided that the original
Convention should be considered as it was possible that in translating and adapting the
Convention to UK legislative process, the true meaning of the original might have been lost.
The House of Lords went further and also held that an English court could consider any
preparatory materials or explanatory notes published with an international convention. The
reasoning behind this was that other countries allowed the use of such material, known as
travaux preparatoires, and it should therefore be allowed in UK in order to get uniformity in
the interpretation of international rules.

Table: Aids to Interpretation

Aids Comment Cases

Intrinsic Aids  Matters within the Act
especially
 Short title, long title
and preamble
 Definition sections

Extrinsic Aids  Explanatory notes 1. R (on the application of S) v Chief

 Interpretation Act 1978 Constable of South Torkshire
 Pre-parliamentary [2004]
materials / Law Reform 2. R (Westminster City Council) v
Reports National Asylum Support Service
 Previous Act of Parliament [2002]
on the same topic 3. Pepper v Hart (1993)
 The historical setting 4. Black-Clawson case (1975)
 Earlier case law 5. DPP v Bull [1994]
 Dictionaries of the time 6. R v Weatley [1979]
 Hansard 7. Salomon v Commissioners of
 International Conventions Customs and Excise [1967]
8. Fothergill v Monarch Airlines Ltd
(1980)

(c) Presumption
The courts will also make certain presumptions or assumptions about the law, but these are
only a starting point. If the statute clearly states the opposite, then the presumption will not
apply and it is said that the presumption is rebutted. The most important presumptions
are:-

i. A presumption against a change in the common law

It is assumed that the common law will apply unless Parliament has made it plain in
the Act that the common law has been altered.

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 An example of this occurred in Leach v R [1912] AC 305, where the question was
whether a wife could be made to give evidence against her husband under the
Criminal Evidence Act 1898. Since 1898 Act did not expressly say that this should
happen, it was held that the common law rule that a wife could not be compelled to
give evidence still applied.

If there had been explicit words saying that a wife was compellable then the old
common law would not apply. This is now the position under s.80 of the Police and
Criminal Evidence Act 1984 which expressly states that in a crime of violence one
spouse can be made to give evidence against the other spouse.

ii. A presumption that mens rea is required in criminal cases

The basic common law rule is that no one can be convicted of a crime unless it is
shown that they had the required intention to commit it.

In Sweet v Parsley [1970] AC 132, the defendant was charged with being concerned
with the management of premises which were used for the purposes of smoking
cannabis. The facts were that the defendant was the owner of the premise which
she had leased out and the tenants had smoked cannabis there without her
knowledge. She was clearly ‘concerned in the management’ of the premises and
cannabis had been smoked there, but because she had no knowledge of the events,
she had no mens rea.

The key issue was whether mens rea was required; the Misuse of Drugs Act 1971 did
not say there was any need for knowledge of the events. The House of Lords held
that the defendant was not guilty as the presumption that mens rea was required
had not been rebutted.

See also: B (a minor) v DPP [2000] 1 All ER 833

iii. A presumption that the Crown is not bound by any statute unless the statute says
so expressly or by necessary implication
‘The Crown’ in this presumption means the state. This is an important presumption
since the Crown occupies a great deal of land, for example all bases for the armed
forces.

The Occupiers’ Liability Act expressly applied to the Crown; if it did not then the
Crown would be exempt from liability for any breach in respect of the duties of an
occupier.

The Crown is also the employer of a large number of people. Acts in respect of
employment, such as the Equal Pay Act 1970, the Health and Safety at Work etc Act
1974 and discrimination law all state that the Crown is expressly bound.

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 Where a statute does not expressly state that the Crown is bound, then the Crown
may not be bound even where a statute has been passed for the benefit of the
public.
In Lord Advocate v Dumbarton District Council [1990] 1 All ER 1, it was decided to
build an improved security fence for a submarine base. In order to do this, part of a
public road had to be closed during the construction. Normally, planning permission
from the local Council is needed before a road can be closed. It was held that this did
not apply to the Crown so the Crown did not need planning permission.

iv. A presumption that legislation does not apply retrospectively

This means that no Act of Parliament will apply to past happenings. Each Act will
normally apply from the date it comes into effect. However, since this is only a
presumption, Parliament can enact legislation with a retrospective effect if it
expressly states this in the Act. There are few Acts where Parliament has stated that
there is retrospective effect. Examples are the War Damage Act 1965 and the War
Crimes Act 1991.

However, there are some Acts where it has been held that it is a necessary
implication that the Act is retrospective in effect.

An example is seen in the case of R v Field [2003] 1 WLR 882. The Court of Appeal
had to decide whether s.28 of the Criminal Justice and Court Services Act 2000
(which allowed the court to make an order disqualifying a person who had been
convicted of certain offences against a child from working with children) applied in
respect of offences committed before the Act came into force. They held that it did
as the purpose of the Act (the protection of the children) would be seriously
undermined if a disqualification order could only be made in respect of offences
committed after the Act came into force.

v. Presumption against Parliament being in breach of international law

The UK may enter into treaties with other sovereign states which have effect in
international law, but do not become part of UK domestic law. In order to
incorporate treaty obligations into UK law, Parliament would have to pass an Act to
that effect. Should an Act of Parliament be ambiguous, it is presumed that
Parliament does not intend to be in breach of its international obligations.

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