The Methods of Statutory Interpretation Available to the Judiciary - Essay Example

?The Methods of Sta y Interpretation Available to the Judiciary Introduction When the legislature passes law, the judiciary is tasked with interpreting and applying the statute to the facts and circumstances of the case to which the statute applies.1 Ultimately, the judiciary attempts to determine Parliament’s intention at the time of drafting and passing the relevant statute. However, there are usually difficulties in ascertaining Parliament’s intention as the statute may not always be clear or may be capable of several interpretations. Moreover, the statute may be inconsistent with another statute. Complicating matters, all law must be interpreted in a way that is consistent with European community law2 and the European Convention on Human Rights.3 The judiciary devised a system of rules used for resolving the tensions that arise in interpreting and applying statutes to avoid inconsistencies in law and in the application of a particular statute. The primary rules are the mischief rule, the literary and the golden rule. The judiciary also uses what is referred to as the purposive approach and typically enter the statutory interpretation process based on a set of presumptions.4 This research study analyses how the judiciary uses these rules, presumptions and the purposive approach for maintain consistency in the application of statutes. Presumptions The judiciary applies presumptions to guide them in the construction of statutes. There are essentially six main presumptions used by the judiciary. The first well known presumption is the presumption that penal laws are interpreted “strictly in favour of the citizen”.5 In R v Cuthbertson the House of Lords construed the Misuse of Drugs Act 1971 in favour of the defendant. Under the 1971 Act, forfeiture was permitted in respect of any items the court felt were related to the offence. However, the House of Lords rules that since the provision did not state conspiracy to commit the offence, but rather specified the actual offence, forfeiture would not be permitted for a conspiracy offence under the Misuse of Drugs Act 1971.6 Other important presumptions include the presumption that statutes are not meant to alter the common law; statutory criminal offences are typically require the mental element of mens rea; Parliament does not intend to usurp the court’s jurisdiction; and statutes do not have “retrospective effect”.7 There are also a number of linguistic or language-based presumptions used by the judiciary in the interpretation of statutes. For example, the maxim noscitur a sociis dictates that words “take meaning from the context”.8 The maxim noscitur a sociis was applied in Muir v Keay in relation to the construction of the Refreshment Houses Act 1860. Under the 1860 Act houses to which the 1860 Act referred were house that provided refreshments, resort and entertainment to the public. It was held that entertainment in the context of the 1860 Act could not refer to theatre or music but rather applied to refreshment, reception and accommodations.9 Another instructive maxim related to the language of a statute used by the courts as a guide for the interpretation of statutes is expression unius exclusion alterius which means that: The express mention of one member of a class by implication excludes other members of the same class.10 For instance should a statute use the word “land” it can be assumed that land includes mines. However, if the word is grouped together with other words such as “lands, houses and coalmines” it can be assumed that the word land does not refer to any other mines aside from coalmines.11 The maxim ejusedem generis is also used by the judiciary as an aid in the interpretation and application of statutes by reference to the language used. The maxim ejusdem generis presumes that where a statute provides a list of specific words, any general term appearing at the end of the list will be interpreted by reference to the list of particularized words.12 Maxims are methods of linguistic interpretation that help the judiciary determine what the legislature likely intended when using certain language or linguistic patterns. As Graham stated: Maxims can provide creative counsel with a series of highly persuasive arguments that are useful in cases involving legislation. Used correctly, the maxims of construction are persuasive. They do not provide ‘pat answers’, or any form of answers for that matter, they raise question.13 Essentially maxims highlight significant presumption such as presumptions relative to “extraneous language” or consistency in language and as such invoke rational inferences that are found in those presumptions.14 However, maxims do not lead to a definitive conclusion in terms of arriving at the meaning and intention of Parliament. Rather maxims shed light on the direction that interpretive inquiries should take. The rules used in statutory interpretation provide a more definitive method for the judiciary. The Literal Rule The literal rule dictates that the judiciary should give words and phrases appearing in a statute it natural and ordinary/dictionary meaning. In this regard, the literal rule is applied regardless of whether or not it is seemingly inconsistent with Parliament’s intentions.15 The literary rule however, can lead to absurd results and thus its strict application is not always desirable. Lord Reid articulated the manner in which the literary rule should be used in the interpretation of statutes and when it should be discarded. Lord Reid stated, that the first course of action for the presiding judge in ascertaining what meaning to attach to a statutory phrase of word is to inquire as its “natural and ordinary meaning” in its statutory context.16 Lord Reid went on to state that: It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature that it is proper to look for some other possible meaning of the word or phrase.17 It therefore follows that the literal rule can lead to an illogical result or a result that is clearly not the intention of the legislature. A good example of this undesirable result is illustrated in the case of Whiteley v Chappell. In this case, a statutory provision created an offence where an individual impersonated another who was eligible to vote in elections. The defendant had been charged under the Act for impersonating an individual who was deceased. However, upon applying the literal rule, it was held that a dead person was not eligible to vote and thus the defendant did not contravene the relevant statutory provision.18 Arguably, Parliament intended to safeguard the integrity of elections by ensuring that the opportunities for erroneous and fraudulent votes were reduced if not eliminated. By applying the literal rule, voters could undermine the intention of Parliament by impersonating deceased persons. The case of Fisher v Bell is also demonstrative of the difficulty of strictly applying the literal rule to the interpretation of statutes. In this case, the defendant put flick knives on display in his shop and was charged with an offence under the Restriction of Offensive Weapons Act 1959. Under the 1959 it was an offence to either sell or offer to sell offensive weapons. However, under contract law which would apply to the display of items in a shop window, the display itself is not an offer to sell, but rather an invitation to treat. By displaying goods in a shop window, the defendant was inviting consumers to make an offer to purchase the knives. Thus the court concluded that the defendant was not guilty of the offence of selling or offering to sell offensive weapons under the 1959 Act.19 The court’s conclusion was obviously a contradiction of Parliament’s intention which was to control the distribution and use of offensive weapons. Problems such as those manifested by Fisher and Whiteley are unavoidable in the application of the literal rule. As Lord Esher explained: If the words of an Act are clear, 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.20 In other words, Parliamentary sovereignty dictates that if the words of the statute are unambiguous, and whether or not the statute may upon a literal interpretation lead to an absurd result, is not a question for the courts. Parliament makes the law and the judges interpret and apply it. Lord Bramwell put the literal rule in its proper perspective by pointing out that it is difficult to define what might be an absurd result as it may mean different things to different people. In this regard, the judiciary serves the public best by adhering to “the words of an Act of Parliament” and let Parliament “set it right” as opposed to altering “those words according to one’s notion of an absurdity”.21 The literal rule therefore informs that the judiciary is not concerned with the result that Parliament intended when the words of the statute are unambiguous and clear enough. The judiciary will simply interpret the statute by reference to their ordinary and plain meaning. The Golden Rule The golden rule is an interpretive technique designed to allow for the use of the literal rule but at the same time avoiding the absurd results in the literal construction of a statutory provision. The golden rule was explained by Lord Blackburn in River Wear Commissioner v Adamson as follows: We are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification, and to justify the Court in putting on them some other signification, which, though less proper, is one which the Court thinks the words will bear.22 In other words, it does not matter whether or not the words used in the statute are clear and concise. The court has a duty to ensure that the interpretation and application of the statute does not lead to an absurd result or one that Parliament clearly could not have intended. It would therefore appear that if the golden rule had been used in the cases of Fisher and Whiteley rather than the literal rule, the results would have been different. The use of the golden rule in Whiteley would have been more likely to avoid exonerating an individual who impersonated another to vote in an election, clearly an act that Parliament intended to prevent. Likewise, the application of the golden rule in Fisher would have resulted in the defendant’s conviction of offering to sell offensive weapons which was clearly an act Parliament intended to criminalize and deter. Essentially, the golden rule permits the judiciary to avoid unjust and absurd results in the interpretation and application of statutes. However, this rule is always prefaced by the requirement that words are to be given their ordinary and natural meaning. It is only when the result is absurd or would lead to an injustice, should the judiciary look at the statute as a whole as a means of avoiding these kinds of outcomes.23 Parke B explained that: In construing wills and indeed, statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or 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 farther.24 Pursuant to the golden rule, the judiciary is first required to apply the literal rule and only when the literal rule produces an absurd or inconsistent result, the judiciary should attempt to identify a more rational meaning. In this regard, the courts typically apply the golden rule in two ways: a narrow or broad approach. In R v Allen the court applied the narrow approach to the golden rule. In this case, the defendant took a second spouse and was charged under the Offences Against the Person Act 1861 which created an offence where an individual married again and had not first obtained a divorce for the previous marriage. The defendant argued that he had not been married a second time because since he had not dissolved his previous marriage, he could not be legally married a second time. The court came to the conclusion that the word marriage within the context of the Act meant the ceremony of marrying rather than the legal act of marrying.25 In other words, the narrow approach arises where a word in a statute could be interpreted in more than one way. The narrow approach thus allows for avoiding an absurd result. The broad approach to the golden rule was used in Re Sigworth. In this case, Section 46 of the Administration of Estates Act 1925 applied. Section 46 of the 1925 Act was interpreted so that an individual was not entitled to inherit the estate of another, he or she murdered because if allowed to do so, the individual would benefit from a crime. In Sigworth’s case, a literal interpretation of Section 46 would have permitted a son who had murdered his mother to inherit her estate.26 The court felt that it was necessary to take a broad approach to the interpretation and application of Section 46 of the Administration of Estates Act 1925 for public policy reasons and to ensure that a murderer did not benefit for his crime. This therefore required a contextual examination of the statute as a whole. The Mischief Rule The mischief rule attempts to go farther than the golden rule and rather than simply seek to avoid an absurd result, and instead takes a contextual approach to statutory interpretation. The mischief rule seeks the wrong or the mischief that the statute is attempting to resolve. The relevant statute is therefore interpreted with this aim in mind.27 The mischief rule was explained in Heydon’s Case as involving the identification and consideration of four factors: 1. The common law position prior to the enactment of the relevant statute. 2. The defect or mischief that the common law did not address. 3. The remedy Parliament uses to address this defect or mischief. 4. The real rational for the remedy and apply it to the case.28 In other words, the mischief rule requires that when a statute is enacted to resolve a deficiency in the law, the statute will be interpreted in a way calculated to address that deficiency. The mischief rule was applied in Smith v Hughes. In this case, prostitutes were charged under the Street Offences Act 1959 which criminalized solicitation in public places. Although the prostitutes had been soliciting from private places they could be observed by members of the public. The court applied the mischief rule and by doing so held that although upon a literal interpretation of the 1959 Act, the prostitutes were not in public, their activities were exactly the kind that the 1959 Act aimed to regulate.29 The court ruled that the 1959 was intended to prevent prostitution in the streets and while the women were soliciting from private balconies and windows, they were soliciting men in the streets.30 It therefore follows that the mischief rule is less concerned with the literal and ordinary meaning of specific words in a statute. Instead the mischief rule looks at the statute and its intended result generally. The statute is therefore interpreted and applied to achieve the result intended by the statute. It can be assumed however, that if the result intended by the statute is absurd, the court will resort to the golden rule to avoid an absurd result. The Purposive Approach The purposive approach is characterized as a modernized version of the mischief rule. By the twentieth century the courts began to avoid the literal and golden rules more frequently although those approaches are still in use today. There has been a more determined effort on the part of the judiciary to look for Parliament’s intention upon the enactment of a specific statute. Essentially, the judiciary looks for Parliament’s intention and attempts to interpret the statute in a way that produces that result. The purposive approach is particularly useful for the interpretation of European law and the European Convention on Human Rights.31 An example of the purposive approach is found in Lister v Forth Dry Dock and Engineering Co. Ltd. This case involved the interpretation and application of a provision originating from a European Directive which had been adopted by virtue of a UK statutory instrument. The relevant part of the Directive related to the transfer of undertakings in which it provided that a transfer does not end employment just before the transfer occurs. Taking the purposive approach, the House of Lords ruled that the words used in the statutory instrument relating to the possibility that the employee would have been employed just before the transfer had he or she not be unfairly terminated were connected to the transfer. Since the statutory instrument intended to protect the rights of employees it would be necessary to use the purposive approach so the Directive was properly implemented.32 In Pepper (Inspector of Taxes) v Harts involved the construction of Section 63 of the Finance Act 1976. In this case, the children of teachers at an independent school could place their children in the school for a price substantially lower than the price paid by the public. The court interpreted Section 63 to reflect Parliament’s intention of taxing employees on the basis of the cost for employers who provide employee concessions. This conclusion was drawn from statements attributed to the Financial Secretary to the Treasury.33 In Jones v Tower Boot Co. the court again used the purposive approach in determining whether or not abuse of a minority worker came under in the “course of employment” pursuant to Section 32 of the Race Relations Act 1976.34 It was argued on behalf of the employer that the abuse did not fall within the employees’ work because it was not a part of their respective job descriptions. Using the purposive approach, the Court of Appeal ruled that Parliament intended by passing the Race Relations Act 1976 to remove workplace discrimination and this goal could be achieved if the Act of 1976 was construed narrowly.35 Thus the purposive approach confers upon the judiciary a great degree of flexibility in the interpretation and application of statutes so that the primary purpose of the statute is achieved and is therefore a more creative upgrade on the mischief rule. Conclusion The judiciary’s interpretation and application of statutes are limited by the role that they play in the law-making process. Since the judiciary does not make law, but rather applies law, the interpretation of statutes must be conducted in a way that does not create law. However, the flexibility accorded the judiciary by virtue of the purposive approach to interpretation of law does provide for some degree of law-making providing the result is consistent with the objectives that Parliament intended to achieve. The literal rule does not allow for any flexibility and thus can result in unjust, absurd and inconsistent laws. However, the flexibility accorded the judiciary by virtue of the purposive approach may also create inconsistency in the interpretation and application of statutes as flexibility by nature allows for departure from previous decisions, particularly those guided by the literal rule or even the golden rule. Even so, these rules are necessary because statutes are often ambiguous and quite often do not contemplate every single factor that may arise in the future. Bibliography European Community Act 1972. Fisher v Bell [1961] 1 QB 394. Gillespie, A. (2007). The English Legal System. Oxford, UK: Oxford University Press. Graham, R. N. (2001). “In Defence of Maxims.” Statute Law, Vol. 22(1): 47-70. Grey v Pearson [1857] 6 HL CAS 61. Heydon’s Case [1584] 76 ER 637. Hill v East and West India Dock Co. [1884] 9 App. Cas. 448. Human Rights Act 1998. Jones v Tower Boot Co. [1997] IRLR 168. Lister v Forth Dry Dock and Engineering Co. Ltd. [1989] 1 All ER 1134. Mattison v Hart [1854] 14 CB 357. Muir v Keay [1875] 10 QB 494. Piner v Everett [1969] 3 All ER 257. Race Relations Act 1976. R v Allen (1872) LR 1 CCR 367. R v Cuthbertson [1980] 3 WLR 89. R v Judge of the City of London Court [1892] 1 QB 273. Re Sigworth [1935] Ch. 89. River Wear Commissioner v Adamson [1877] 2 App. Cas. 743. Samuels, A. (1980). “The Interpretation of Statutes.” Statute Law Review, Vol. 1(2): 86-109. Slapper, G. and Kelly, D. (2011). The English Legal System. Oxon, UK: Routledge. Smith v Hughes[1960] 1 WLR 830. Piner v Everett [1969] 3 All ER 257. Zander, M. (2004). The Law-Making Process, Cambridge, UK: Cambridge University Press. Read More