Statutory Interpretation - Assignment Example

Sta y Interpretation Introduction: Parliament is sovereign, as articulated by Oxford A.V. Dicey who d that “in theory, Parliament has total power, it is sovereign” thereby it is the source of all valid authority.1 Therefore, applying this criterion, the judicial function of interpretation of the law is also based upon the absolute and indivisible sovereignty of the British Parliament2. No one has the authority to set aside any law of Parliament except Parliament itself, hence Courts may only use their powers to constrain any abuse of powers by the other arms of Government, such as the legislative and executive branches.3 Statutory interpretation may be addressed both from the legal and non legal perspectives. While a legal approach to statutory interpretation may focus upon the kinds of arguments that are likely to succeed in a court of law, approaches from the non legal side include philosophical language and constitutional theory since a different objective is sought to be attained.4 As Bell points out, the legal approach will take into consideration the role of the Judge as an interpreter of the constitution and some presuppositions about how words derive their meaning. Bennion identifies several factors that can create difficulties in interpretation of statutes, such as for example, the use of ambiguous words or unforeseen developments or in some cases where a drafting error may cause literal interpretation of the statute to produce an absurd result.5 Interpretation of statutes as such, occurs on the basis of rules and principles developed by judges, although the Interpretation Act of 1978 does provide some definitions of provisions to facilitate the function. The Three statutory rules: The three statutory rules employed by judges in interpreting statutes are (a) the mischief rule (b) the literal rule and (c) the golden rule6. The Mischief rule derives from a time when common law prevailed with Parliamentary Supremacy in place, where statutes were not significant. Four factors were laid out for consideration in applying the statutes: (a) what was the common law in existence (b) what was the defect that presented itself which was not addressed in the common law? (c) what was the remedy devised by Parliament to cure this aspect? (d) How could the judge interpret the statute to allow such defect to be cured?7 This rule was applied in the case of Smith v Hughes.8 The literal rule requires that a Judge interpret a statute in strict accordance with the literal language that has been used by the framers of the Statute, on the basis that such language best declares “the intention of the lawgiver.”9 This rule has been applied in some cases such as Whiskey v Chappell.10 Some of the advantages of employing this approach include the facility of precision in interpretation and the fact that the legislative function of Parliament is protected from usurpation by the judiciary. However, this approach has also been criticized on the basis that a literal interpretation may place too much emphasis on imperfect language without looking into the spirit of the law and thereby hinder justice. Moreover, it does not take into account mistakes in the use of language or the inadequacy of language to express exact meanings. The golden rule came into existence in order to address the problems created by the literal approach where such strict statutory interpretation often led to absurdity in results, therefore such a result had to be modified since an interpretation that was not absurd was to be preferred11. The rule was first set out in the case of Grey v Pearson12 where Lord Wenslydale clarified that the words of a statute “may be modified, so as to avoid that absurdity and inconsistency, but no father.” However, this approach also leaves some ambiguity in interpretation, since there is no clear measure to test absurdity or its extent. In the selection of the choice of rule that must be applied, judges have shown flexibility and tend to “treat all three as valid and refer to them as occasion demands.”13 However, a system of purposive interpretation has been developing, whereby judges try to give effect to the intentions of law makers by adopting precedents established in earlier cases. The system of precedent: The adopting of the literal interpretation approach is one that is often inadequate, for the reasons that are cited above. Therefore the general practice that has been adopted by judges is to consider the ordinary meaning of the words within a general context of the issue at hand in the particular case14. If these general principles of statutory interpretation yield an absurd result, the decision of the judges will not reflect it. The system of interpretation of statute by precedent relies upon the decisions that have been spelt out in previous cases, using them as a guideline for further interpretation of fresh cases through the use of a purposive approach. For example, in the case of Notham v London Borough of Barnet15 a purposive approach was used on the basis that it would “promote the general legislative provisions” of the statute under consideration. In the case of R v Barnet LBC16 it was further clarified that purposive interpretation may be used only when it can be shown to be an aid to decipher Parliamentary intentions. The need to give effect to true legislative intent was further corroborated in subsequent cases such as Pepper (Inspector of Taxes) v Hart.17 EC Law: The European Communities Act of 1972 requires that all rights and powers, etc that arise under the EC treaties, together with the remedies provided for, are to be “given legal effect….in the United Kingdom.”18 Thus in effect, through the incorporation of the Communities Act of 1972, the UK has handed over its power to the European Community, so that EU law will take precedence over UK law, as was also established in the case of Factorame19. According to Dicey, the judicial role is to protect Parliamentary sovereignty from any encroachment by the executive, interpret statutes in accordance with Parliamentary intention and in doing so, fulfill the function that Parliament has assigned to judicial authorities.20 However, in the context of universal human rights as mandated by the European Convention of Human Rights, there is a potential conflict that is posed with the pervasive power of Parliament and the potential revamping of the statutory interpretation process.21 For example, in the case of Ghaidan v Mendoza22 Mr. Mendoza’s application for statutory tenancy which would have been invalid using UK statutes, was granted on grounds of discriminatory violation of his Convention Rights under Article 14 and Article 8 on the basis of his sexual orientation. Hence EC law now requires statutory interpretation by judges in such a manner that it will be given precedence over UK law. The Human Rights Act of 1988: The Human Rights Act of 1988 incorporated the goals of the European Convention of Human Rights23 within the framework of national law, by including a provision that Parliament legislation is to be interpreted and read in such a manner as to give effect to the goals of the Convention24, while the judiciary has also been given the power under the Act to declare Parliament legislation incompatible with Convention rights25. Within the UK, the European Convention was not directly relevant to statutory interpretation26 until the introduction of the Human Rights Act of 1998. Parliamentary sovereignty means that UK law can override international law27, however, the Communities Act of 1972 and the Human Rights Act have raised the question of supremacy of EU law over national law and its application within the country. However, it must be noted that the declaration of incompatibility28 is a limited judicial function, it does not override the supremacy of UK parliament legislation, judicial prerogative extends only up to a declaration of incompatibility and it is up to Parliament to reform or modify the incompatible national law to conform to the European Convention. Parliamentary Sovereignty in the UK has therefore posed the urgent need for Constitutional reform within the country.29 A collection of regulatory rules and political practices have constituted constitutional implementation, which has traditionally imbued Parliament with the right to modify the constitution on the basis of a majority in both houses of Parliament.30 The current existence of the Human Rights Act has resulted in significant changes within the UK, with the individual supremacy mandated by the European Convention often rising in conflict with established principles of UK law and statutes31. However, as pointed out by Justice Arden, Parliamentary sovereignty is still preserved and the Courts “are not given any power to strike down statues which infringe Convention rights.”32 It merely allows some judicial latitude in interpretation, in order to ensure that universal human rights principles are to be given added weight in adjudication33. Conclusions: The process of statutory interpretation for UK judges has been limited by Parliamentary Sovereignty. Where fundamental rights are concerned, British judges have used such interpretation to protect what they consider as fundamental rights.34 In the case of R v Secretary of State, Lord Bridge clarified that in cases involving fundamental rights, the Courts are “perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it.”35 As pointed out by Lord Steyn36, the developments in European law have created a new legal order in the U.K. The incorporation of the Human Rights Act into UK law has mandated interpretation of statutes in accordance with EC law, in opposition to Parliamentary Sovereignty. While the literal interpretative approach has been criticized on many grounds, judges are increasingly adopting a purposive approach and the provisions of EC law have allowed a greater degree of flexibility in interpretation to UK judges, such that they may also declare the incompatibility of a statute with EU law. Therefore, in contravention to the period when the mischief rule was adopted, statutory interpretation has assumed greater importance as compared to common law. In view of developments in EC law, judges are required to exercise a greater degree of judicial discretion in applying precedents to cases. Bibliography Books/Journals: * Bell, John, 1986. “Bennion’s statutory interpretation” Oxford Journal of legal Studies, 6(2): 288-298 * Bennion, F.A.R., 1990. “Statute Law” * Craig, Paul, 1990. Public Law and Democracy in the United Kingdom and United States of America, pp 21-22 * Cross, Rupert, 1955. “Statutory interpretation” (3rd edn) * Dicey, A/.V. (1885) “Law of the Constitution” 10th edition, 1914. Oxford: Oxford University Press * Elliot, Mark, 2001. The Constitutional Foundations of Judicial review, 44-49. * Justice Arden, 2004. The interpretation of UK domestic legislation in the light of European Convention on Human Rights jurisprudence Statute Law Review, 25(3):166 * Lord Browne Wilkinson, 1992. The infiltration of a Bill of Rights. Public Law 397, at 409. * Lord Bingham, Dicey Revisited (2002) Public Law 39 * McCrudden, Christopher, 2000. A common law of human rights?Transnational judicial conversations on constitutional rights Oxford Journal of legal Studies, 20(4) at 503 * Smith & Bailey, 1996. Smith and Bailey on the Modern English Legal System (3rd edn): 351-403 * Turpin, C, 2002. British Government and the Constitution. Text, Cases and materials 5th edn. London: Butterworths, pp 10 * Willis John (1938) “Statutory interpretation in a nutshell” Cases: * Cheney v Conn [1958] 1 WLR 242 * Ghaidan v Godin Mendoza (2004) UKHL 30 * Grey v Pearson (1857) 6 HL Cas 61 * Heydon’s Case (1584) 3 Co Rep 7 * Jackson and Others v Her Majesty’s Attorney General (2005) UKHL 56 * Notham v London Borough of Barnet [1978] 1 WLR 220 * Pepper (Inspector of Taxes) v Hart [1993] AC 593 * R v Allen (1872) LR 1 CCR 367 * R v Secretary of State for the Home Department, ex parte Brind (1991) 1 AC 696 at 748-49 * R v Barnet LBC [1983] 2 AC 309 * R v Secretary of State for Transport ex p FactortameLtd. [1989] 2 WLR 997 No2 [1990] 3 WLR 818 and No3 3 All ER 769. * Smith v Hughes (1960) 2 All ER 859 * Sussex Peerage Case (1844) 11 CI&Fin 85 * Whiskey v Chappell (1868) LR 4 QB 147 Legislation: * European Convention of Human Rights and Fundamental Freedoms * European Communities Act 1972 * Human Rights Act of 1988 * Interpretation Act of 1978 Read More