The Principal Powers Available to the Courts in England & Wales - Coursework Example

?Contents Contents Introduction 2 The Literal Rule 2 The Golden Rule 3 The Mischief Rule 4 The Human Rights Act of 1998 4 Approach to Sta y interpretation 5 Judicial Precedent and Statutory Interpretation 5 References 6 Introduction In a democratic form of government there exists a division of powers. The power to make laws has been given to the legislative branch or the parliament. However, these laws are not upheld by the parliament in full. What the law stands for and what it means is decided by the courts. Statutory interpretation is the process by which legislation made by the parliament is interpreted and applied to the various cases by courts. Statutory interpretation is a very important job of the court as it is this interpretation which actually decides how the law will be implemented and takes effect. Before the implementation of the Human Rights Act of 1998, the courts of England and Wales used to apply 3 rules to statutory interpretation which are the literal rule, the golden rule and the mischief rule. We will consider all three rules of statutory interpretation below and also the effect of Human Rights act of 1998. The Literal Rule The literal rule means that the words in the statue are given their ordinary and natural meaning .I t is supposed that if some extraordinary meaning was to be given to a particular word, the lawmakers would have specified it in the statue and if they have not; then the ordinary meaning of the word should be followed. The 18th and 19th century saw a trend towards the strict implementation of the literal rule for the statutory interpretation. This was the era in which the supremacy of the Parliament had been established and courts were reluctant to give any other meaning to law other than the one which had been explicitly stated by the parliamentarians. In the Sussex Peerage Case of 1844 the court made the observation that if the words of the statue are precise and unambiguous; then the courts do not need to interpret them in any other way or take a broad view of the words used in the statue. The court observed in the above mentioned case that the words of the parliament give the best indication of the intention of framing the statue, no further exploration of the intent is required by the courts of law.1 The literal rule has been hailed by many jurists as well as the law commission. This rule is said to have encouraged precision in drafting of the statues. It also ensures that law making remains the preserve of the elected representatives of the people and the courts are not able to give a new direction or definition to the law. The judge it is argues should not be given the flexibility to take a broad view of the law as it is not their function to make laws. However the law commission of 1969 was critical of the courts for relying too heavily on the literal rule2. The commission observed that there are many limitations of language which should not become the ground for denial of justice. The judges will be abdicating their responsibilities if they were to give more weight age to the words rather than to the intent with which the law has been framed. The Golden Rule If after applying the literal rule of statutory interpretation the courts arrive at a result which is absurd or arbitrary, the courts can substitute a new meaning in place of the absurd result. This is called as the Golden rule of the statutory interpretation. The Golden rule of the statutory interpretation ensures that the intent of the law makers is given precedence over the actual words which are used in the statue. The Adler vs. George case of 1964 is considered as a classic example of this rule’s interpretation.3 This case was concerned with the conviction of a person under the Official Secrets Act of 1920 in which he was charged with creating nuisance and hindering the work of officials in the Royal Air Force Station. The official secrets acts said that a person who creates hindrance in the ‘vicinity’ of a Government installation is liable for punishment. The defendant claimed that he should be charged “not guilty “as he created hindrance not in the vicinity of the air force station but inside the air force station. Thus the application of the literal rule in this case would have created an absurd situation in which a person will be convicted for creating hindrance outside the government establishment but not inside it. The courts rightly applied the Golden rule of statutory interpretation in order to uphold the intent with which the law was made. The Mischief Rule The mischief rule has been laid down in the Heydon’s case. This rule states that for the true interpretation of all the statues 4 things need to be considered. The first thing is to consider the provisions under the common law which were in place before the statute was implemented. The second thing is to consider the shortcomings of the common law due to which the new statue was required. The third thing is the cure for the defect provided by the parliament. The fourth and the final thing are for the judge to analyse the true reason for the statue and to ensure that the mischief is suppressed and the remedy is advanced.4 The mischief rule of statutory interpretation was established by courts during the time when common law was the main source of law and the making of statues was a rarity. During that time the absolute supremacy of the Parliament in statutory matters was still not established in England and Wales. The Human Rights Act of 1998 While considering the impact of the section 3 of the Human Rights Act, the House of Lords has said that all primary and subordinate legislation needs to be read in such a way that they are compatible with the human rights act which has made as a result of the European Convention of Human Rights. Thus what this in effect means is that the Human Rights Act of 1998 now has to be considered to be the most basic law which can never be violated and needs to be given precedence over all other laws. The case of Ghaidan vs. Godin-Mendoza of 2004 is an iconic case in the statutory interpretation of the Human Rights Act of 1988.In this case the House of Lords overturned it’s earlier judgement in which low tenancy benefits were not passed on to homosexual partners. As this was considered to be a violation of human rights , the House of Lords overturned the earlier precedent and gave due importance to the Human Rights Act of 1998. Approach to Statutory interpretation The three rules presented above are used by courts as they seem fit in order to provide justice in the case. There are no set criteria according to which the above mentioned rules are applied by the English courts. The Literal rule is the one which is used most often after the absolute supremacy of Parliament has been established. The judge usually first considers the ordinary meaning of the words which have been used in the statue .If the ordinary meaning of the words lead to an absurd result then other rules i.e. the mischief rule and the golden rules are applied in order to ensure that the true intention with which the parliament made the statue is upheld. Judges call it the “purposive” statutory construction 5.This means that the courts no longer go strictly by the word of the law but are more concerned with the spirit in which the law has been framed by the parliament. Judicial Precedent and Statutory Interpretation Judicial precedent in the statutory interpretation follows the doctrine of ‘Stare Decisis’ which simply means that judges are bound to follow prior precedence’s which have been set by the courts of records. 6An appellate court should follow its own previous decisions and each lower court is bound to follow the decisions of the higher court. Stare Decisis is usually divided into 2 components – binding precedent and persuasive precedent. A binding precedent is a mandatory or binding authority .This is a precedent which needs to be compulsorily followed by the lower courts under the common law legal system. This is considered to be a unique feature of the English law. The Supreme Court of United Kingdom has taken over the judicial functions which were earlier performed by the House of Lords. Following this, the decisions made by the Supreme Court serves as a binding precedent which is too followed by all the lower courts of the country. A persuasive precedent is one which is not binding upon the courts but should be looked at before taking the decision. These precedents are set by lower courts or courts which are equal in power to the court considering the question. Apart from this the other criteria to be followed in judicial precedent of statutory interpretation is called as ‘Ratio Decidendi’ which means that the judges are obliged to stand by the previous decisions which have been taken in relation to the judicial interpretation of the statute concerned. References Brady, Paul. 'Convention Compatible Statutory Interpretations: A comparison of British and Irish Approaches', Statute Law Review, vol. 33, no. 1, 2010, online. Farnsworth, W; Guzior, D.F and Malani ,A.’ 'Ambiguity about Ambiguity: An Empirical Enquiry into legal interpretation ', Journal of Legal Analysis Today, vol. 2, no. 1, 2010, pp. 10-36. Keenan, D.J and Riches, S. Business Law, 8th edition, Pearson Education, Oxford, 2007. Read More