Statutory Interpretation

Statutory Interpretation Advantages and disadvantages of the rules of statutory interpretation

Objectives • State the advantages of each rule or approach to statutory interpretation • State the disadvantages of each rule or approach to statutory interpretation • Give examples of each advantage or disadvantage of the rules or approaches to statutory interpretation

Literal Rule - Advantages • Recognises Parliament as the supreme law maker

Literal Rule - Advantages • Recognises Parliament as the supreme law maker • Judges given restricted role • Must keep to constitutional position of applying law set by Parliament • Thereby maintains the separation of powers • If law needs to be changed then this is responsibility of Parliament

Literal Rule - Advantages • Recognises Parliament as the supreme law maker • Judges given restricted role • Can highlight the problems with an Act to Parliament • Fisher v Bell [1961] & Partridge v Crittenden [1968] both led to changes in the law concerning the way ‘invitations to treat’ are dealt with in contract law.

Literal Rule - Disadvantages • Can produce absurd results • See Fisher v Bell [1961] & Whitely vChapell [1868] discussed earlier

Literal Rule - Disadvantages • Can produce absurd results • See Fisher v Bell [1961] & Whitely vChapell [1868] discussed earlier • Can also produce unjust results

London and North Eastern Railway vBerriman [1946] AC 278 A railway worker was killed whilst oiling the track. No look out man had been provided. A statute provided compensation payable on death for those 'relaying or repairing' the track. Principle – Under the literal rule oiling did not come into either of these categories. This result although very harsh could not to be said to be absurd so the golden rule could not be applied. There was no ambiguity in the words therefore the mischief rule could not be applied. Unfortunately the widow was entitled to nothing. 8

Literal Rule - Disadvantages • Can produce absurd results • See Fisher v Bell [1961] & Whitely vChapell [1868] discussed earlier • Can also produce unjust results • Cannot always give the effect to the intention of Parliament • Where more than one dictionary definition literal rule cannot help • Assumes that the draftsmen will always do their job properly

Golden Rule - Advantages • Prevents the absurd and unjust results that may be produced by literal 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. Principle – 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. 11

Re Sigsworth [1935] 1 Ch 98 A son murdered his mother. She had not made a will. Under the statute setting the law on intestacy he was her sole issue and stood to inherit her entire estate. Principle – The court applied the Golden rule holding that an application of the literal rule would lead to a repugnant result. He was thus entitled to nothing. 12

Golden Rule - Advantages • Prevents the absurd and unjust results that may be produced by literal rule. • More likely to produce the result Parliament intended than the literal rule is. • Parliament would want to avoid the results in Fisher v Bell [1961] & LNER vBerriman (1946)

London and North Eastern Railway vBerriman [1946] AC 278 A railway worker was killed whilst oiling the track. No look out man had been provided. A statute provided compensation payable on death for those 'relaying or repairing' the track. Principle – Under the literal rule oiling did not come into either of these categories. This result although very harsh could not to be said to be absurd so the golden rule could not be applied. There was no ambiguity in the words therefore the mischief rule could not be applied. Unfortunately the widow was entitled to nothing. 14

Golden Rule - Disadvantages • No clear definition of what amounts to an absurd result. • Makes it difficult for lawyers to advise their clients on whether to pursue a case – see Whitely v Chappell [1868] & LNER vBerriman (1946) • Too much power is given to judges • (they decide when its used and they are unelected – its undemocratic) • Allows courts to escape from problems caused by the literal rule

Mischief Rule - Advantages • Avoids absurd and unjust outcomes that literal rule may produce.

McMonaglev Westminster County Council [1990] 1 All ER 993 The court had to interpret the Local Government (Miscellaneous Provisions) Act 1982 which provided that it was an offence to use premises as a live sex encounter establishment without a licence from the local authority. The definition of ‘sex encounter establishment’ in the 1982 Act referred to performances, services and entertainments ‘which are not unlawful.’ The defendant claimed that the use of his premises for peep shows was unlawful and that therefore he could not be convicted. Principle – The House of Lords said that, in order to avoid the absurd result whereby a person could be convicted if the use of the premises was lawful but not if the use was unlawful, the words ‘which are not unlawful’ should be ignored. The guilty verdict was upheld. 17

Mischief Rule - Advantages • Avoids absurd and unjust outcomes that literal rule may produce. • Promotes flexibility enabling the law to be applied as intended by Parliament as opposed to merely applying the law as stated in the Act.

Smith v Hughes [1960] 1 WLR 830 The defendants were prostitutes who had been charged under the Street Offences Act 1959 which made it an offence to solicit in a public place. The prostitutes were soliciting from private premises in windows or on balconies so could be seen by the public. Principle – The court applied the mischief rule holding that the activities of the defendants were within the mischief the Act was aimed at even though under a literal interpretation they would be in a private place. 19

Mischief Rule - Advantages • Avoids absurd and unjust outcomes that literal rule may produce. • Promotes flexibility enabling the law to be applied as intended by Parliament as opposed to merely applying the law as stated in the Act. • Law Commission described this rule as a ‘rather more satisfactory approach’ and suggested it should be the only rule used.

Mischief Rule - Disadvantages • Gives far too much power to the unelected judiciary. • In some cases it can be said that the judiciary has updated the law – this is the role of Parliament • Royal College of Nursing of the United Kingdom v DHSS (1981)

Royal College of Nursing v DHSS [1981] 2 WLR 279 The Royal College of Nursing brought an action challenging the legality of the involvement of nurses in carrying out abortions. The Offences Against the Person Act 1861 makes it an offence for any person to carry out an abortion. The Abortion Act 1967 provided that it would be an absolute defence for a medically registered practitioner (i.e. a doctor) to carry out abortions provided certain conditions were satisfied. Advances in medical science meant surgical abortions were largely replaced with hormonal abortions and it was common for these to be administered by nurses. Principle – It was legal for nurses to carry out such abortions. The Act was aimed at doing away with back street abortions where no medical care was available. The actions of the nurses were therefore outside the mischief of the Act of 1861 and within the contemplate defence in the 1967 Act. 22

Mischief Rule - Disadvantages • Gives far too much power to the unelected judiciary. • In some cases it can be said that the judiciary has updated the law – this is the role of Parliament • Royal College of Nursing of the United Kingdom v DHSS (1981) • It is not always easy to see the mischief the Act was intended to remedy • Requires old Act to be researched – may be found partly in case law and partly in statute

Mischief Rule - Disadvantages Considered out of date because: • Laid down in 16th Century when Common Law was most prevalent • In 16th Century Parliamentary Supremacy not as established as it is now • In 16th Century Acts contained lengthy preambles which clearly spelled out the mischief • Judges in the 16th Century usually drafted Acts on behalf of King so were well qualified to know what the Act was meant to remedy • In the 16th Century drafting was not the exact science it is today

Purposive Approach - Advantages • Law Commission described this rule as a ‘rather more satisfactory approach’ and suggested it should be the only rule used. • Advantages generally the same as the Mischief Rule • Also the same approach used by courts in other EU countries – brings UK courts into line with European counterparts (should always be used when Judiciary interpreting European Legislation. • In some cases more likely to give effect to intention of Parliament

CotlmanvBibby Tankers [1987] 3 All ER 1068 The court had to interpret the meaning of the word ‘equipment’ in the Employer’s Liability (Defective Equipment) Act 1969. Ann employee had been killed when a ship provided by the employer sank. The question was whether a ship was equipment. The Act defined equipment as ‘any plant and machinery, vehicle, aircraft and clothing’. Principle –The House of Lords applied a purposive approach and held the employer liable on the basis that a ship was equipment. Had a more restrictive literal approach been taken the employer would not have been liable. 26

Purposive Approach - Advantages 5. Lord Denning preferred the purposive approach

Magor and ST Mellonsv Newport Corporation [1950] 2 All ER 1226 Lord Denning; ‘We do not sit here to pull the language of Parliament to pieces and make 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 and making sense of the enactment than by opening it up to destructive analysis’ (He was saying that by applying the literal rule the intention of Parliament could be destroyed). When this case was appealed to the House of Lords, Denning’s approach was considered by Lord Simonds as a ‘naked usurpation of the legislative function under the thin guise of interpretation…if a gap is disclosed the remedy lies in an amending Act’. 28

Purposive Approach - Disadvantages • Gives too much power to the unelected judiciary • Judges can overstep their role by making decision based on public policy

Fitzpatrick v Sterling Housing Association Ltd [1999] 4 All ER 705 Reversing the Court of Appeal, the House of Lords (Lords Slynn, Nicholls and Clyde, Lords Hutton and Hobhouse dissenting) held that a gay man was entitled to take over the tenancy formerly held by his long-term male partner, now deceased, under the Housing Act 1988. Lord Slynn said the legislation could not be interpreted to allow P's claim on the basis that he had been living "as the husband or wife" of the deceased - if Parliament had intended such a relationship to include same-sex partners it would surely have said so - but P could claim as "a member of the family" living with the deceased at the time of his death. The word "family" is used in many senses, he said, some wider than others, and if P could show (as on the facts he could) the mutual inter-dependence, sharing of lives, caring and love, commitment and support that are rebuttably presumed to exist between married couples, that would be enough to establish a family relationship. 30

Objectives • State the advantages of each rule or approach to statutory interpretation • State the disadvantages of each rule or approach to statutory interpretation • Give examples of each advantage or disadvantage of the rules or approaches to statutory interpretation

Statutory Interpretation