Rules and Approaches When Interpreting UK Legislation - Essay Example

?Rules and Approaches used when Interpreting UK Legislation Gifford (1990, p. 6) observed that the U.K. is a country that operates under the common law. These laws are made by parliament, which is the legislative arm of the government. These laws normally undergo continuous amendments to conform to the needs of the U.K. society. Once the parliament has made the laws, the judicial arm of the government has the responsibility of applying the statute in cases brought in court. However, some of the laws made by parliament sometimes pose a big challenge to judges, especially where the statute law is ambiguous, has an error, or failed to factor in unforeseen developments (Solan 2010, p. 21). In the event that such a situation arises, the judges must ensure proper interpretation of the statute before applying the statute in a case. The interpretation of such statutes is important to ensure proper identification and elimination of any ambiguity in the statute before applying the law in deciding a given case. However, this has never been an easy undertaking to many judges. As a result, in interpreting any statute, they must follow certain rules and procedures contained in the Interpretation Act of 1978. Apart from following the rules and procedures contained in the Interpretation Act of 1978, judges also have certain rules that help them in interpreting a statute with an ambiguity or error. The first rule that judges must apply in the interpretation of any given statute is the literal rule. Normally, under the literal rule, the judges to a case are required to give the statute its ordinary meaning without any amendment. This implies that the statute is taken the way parliament has made it without making sense of the law as applied in the case of R v Harris (1836) 7 C & P 446 (Gifford 1990, p. 14). In this case, the defendant was accused of biting the nose the plaintiff’s nose. This brought a lot of confusions with the statute law, which stated that it is an offense for someone to stab wound or cut someone intentionally. As such, the judges handling the case had to interpret the statute to see if it was consistent with the alleged offense of nose biting. However, by applying the literal rule, the judges to the case held that the act of biting was not consistent with the word stab cut or wound. The judges attributed this to the fact that the words stab cut or wound in their literal meaning means there is the use of an instrument. This resulted in the squashing of the defendant’s conviction, as noted by (Sullivan 2007, p.38). The same literal rule was applied in the interpretation of ambiguity, in statute, in Fisher v Bell [1961] 1 QB 394. In this case, the statute the defendant displayed a knife at the window of his shop with a price tag indicating that it was for sale. This is notwithstanding the fact that the statute law criminalized any offer for sale of a flick knife. However, the court quashed the defendant’s conviction on grounds that displaying goods in a shop does not constitute to an ‘offer,’ rather an invitation to treat. The judges also applied the literal rule in the interpretation of Whitely v Chappel (1868) LR 4 QB 147(Solan 2010, p.31). The judges can also apply the golden rule in the interpretation of a statute. The golden rule is mainly applied in the interpretation of a statute where the judges feel that the use of the literal rule may result in absurdity or inconsistency. As such, the event that the judges are convinced that applying the literal rule may result in inconsistency or ambiguity then they are allowed to proceed and apply a secondary meaning of the statute. The application of the golden rule has been demonstrated in a number of cases in the past. One such was in R v Allen (1872) LR 1 CCR 367 in which the defendant was accused of bigamy (Solan 2010, p. 28). The statute at that time prohibited bigamy by maintaining that any person already married cannot marry another person as long as the other partner is still alive. When deciding the case, the judges noted an ambiguity as regards the literal meaning of the statute. The literal meaning of this statute is that no marriage is recognizable as valid in a second marriage when the two partners are still alive. As such, the court was forced to deviate from the literal rule by applying the golden rule where they held that the world ‘marry’ as used in the statute ought to be interpreted to mean to pass through a marriage ceremony such as wedding. Based on the golden rule, the judges upheld the defendant’s conviction (Sullivan 2007, p.41). Other cases, which have been interpreted based on the golden rule, include Re Sigsworth [1935] 1 Ch 98 and Adler v George [1964] 2 QB 7. The mischief rule is another interpretation rule that courts sometimes use in interpreting a given statute with ambiguity. Research indicates that the mischief rule is the oldest rule that judges have often used in the interpretation of a statute. This rule was established in 1584 in Heydon's Case (Solan 2010, p.31). In this case, the court hearing the case found it necessary to apply the mischief rule in the event that an ambiguity is found in the statute. The responsibility of courts under the mischief rule is to suppress the existing mischief in the statute and find an appropriate remedy. For example, in Smith v Hughes [1960] 1 WLR 83 case, the defendants who were prostitutes were charged for having breached the Street Offences Act of 1959, which prohibited soliciting for sex in public places (Lady Justice Arden, 2004). The prosecutor argued that the prostitutes had been engaged in soliciting from the windows of their private premises in a manner that can be seen by the public. In ruling the case, the judges handling the case applied the mischief rule by maintaining the acts of the accused prostitutes fell within the mischief that the Act aimed at in spite of the fact that, under the literal meaning, the defendants would be in a private place. The other cases where courts have applied the mischief rule include Royal College of Nursing v DHSS [1981] 2 WLR 279, Elliot v Grey [1960] 1 QB 367, Corkery v Carpenter, [1951] 1 KB 102 and DPP v Bull [1995] QB 88, notes Barak (2007, p. 17). In addition to the rules that courts apply in interpreting a statute with ambiguity, courts may opt to use the purposive approach. The purposive approach is particularly used in the European Courts of Justice where the literal use is not commonly used due to the number of languages that are used and translated. As such, the judges of the European Court of Justice are required to use the purposive approach in all statutes involving EU laws. This approach was developed in Maunsell v Olins [1975] AC 373 Case, where it was first applied (Barak 2007, p. 11). Barak (2007, p. 11) notes that the purposive approach seeks to determine the purpose of the statute first before making any move to interpret the words used in the statute. Legal experts have noted that a purposive approach is a fusion of domestic rules. Nevertheless, in the event that the domestic rules require the application of the literal rule first in determining at the wordings of the state, the purposive purpose will begin with the mischief rule in search of the intention of the legislators in making the statute. Purposive approach was applied in interpreting Pepper v Hart [1992] 3 WLR 1032 case (Barak 2007, p. 13). In this case, the House of Lords was confronted by a dilemma where it had to make a decision as to whether a teacher at one of the private school in the country was supposed to pay tax on the benefits received in the form of waived school fees. In the court ruling, the judges handling the case ruled that the House of Lords deviated from the decision in Davis v Johnson and used the purposive approach to interpret the holding that Hansard may be used, thereby the teacher was not under an obligation to pay taxes on such perks. Other cases that have been interpreted on purposive purpose approach, according to Barak (2007, p. 23), include Pickstone v Freemans Plc [1989] AC 66 and Pepper v Hart [1992] 3 WLR 1032 just to name but a few. Even though the purposive approach has proved helpful to judges in interpreting the statute, the approach has also received considerable criticism based on its shortcomings. The criticism of the approach is based on the claim that the approach award judges exercise powers to make laws, which usurps the powers of the parliament (Barak 2007, p. 26). At the same time, the approach has been criticized grounds that it gives the judges to power to make laws, which goes against the spirit of separation of powers. In addition, some critics have argued that the approach makes the assumption that parliament has only one intention while ignoring the party politics. References Barak, A 2007, Purposive interpretation in law. Princeton University Press, Princeton, NY. Gifford, D. J 1990, Statutory interpretation. Law Book Company of Australia, Cambridge, UK. Lady Justice Arden 2004, The interpretation of UK domestic legislation in the light of European Convention on Human Rights Jurisprudence. Statute Law Review, 25(3), 165-179. Solan, L 2010, The language of statutes: Laws and their interpretation. University of Chicago Press, London, UK. Sullivan, R 2007, Statutory interpretation. Irwin Law Incorporated, London, UK. Read More