Notes: fourrulesofinterpretation Rulesoflanguage Internal and External aids Advantages & disadvantages of Internal & External aids
What is Statutory Interpretation?
Watch this short clip to give you an overview:
A range of methods used by judges to find out the meaning of words in an act of Parliament.
Why do judges need to interpret Acts of Parliament?
Large numbers of cases need to be decided by judges each year with about 1.9 million of these being criminal law. Often the definition of offences the defendant is charged with is contained within an Act of Parliament. One word in the Act and its interpretation to the case can make the difference between a guilty or not guilty verdict.
Statutory interpretation (SI) is the approach that the judges have developed over time, to find the exact meaning of words or phrases in legislation (including delegated legislation and EU law) — in order to fulfill their role.
Why don’t Parliament make Acts that are easy to interpret?
- Many areas of law a very complex as is the process of debating in the Houses of Parliament and agreeing what should and shouldn’t be against the law. Often words and phrases in acts become a compromise which can then lead to confusion over the actual meaning when applied to cases.
- Lawyers draft the bills for parliament. Sometimes the drafting is either poor or over complicated either because there is little time to ensure it is clear and unambiguous or the draftsman misunderstood what was required from politicians.
- Where the bill is being rushed through urgently the lack of consultation with people it will affect adds the effects of 1 and 2.
- The English language itself can be imprecise when trying to formulate a clear definition of a law in a bill. The meaning of words change over time (e.g. gay meant something different in 1930 to 2013) so this can cause more confusion when applying the law to a case that is a long time after the original Act was made.
- Putting specific definitions of words in Acts sounds like a good idea or putting long lists of what is and isn’t against the law. However, as society changes so does the definition of words and long lists are not exhaustive, there is always something parliament may miss, e.g. an Act made even 50 years ago could not have predicted the internet and social media.
- Acts tend to use what we call general words to try and ensure Acts remain at least partially future proof to changes in the English language, technology and socio economic events. For example they may say cats, dogs and other animals making the Act a lot shorter than give a long list of the other animals. However, the Act then needs interpretation as to what the other animals are relevant to cases that come before courts.
- Once an Act is made it is very difficult to change or get rid of it. So cases that are affected by such Acts will need interpretation to ensure a fair and common sense approach to the law is adopted at all times, e.g. the Offences Against the Person Act 1861 is still the Act that decides whether or not someone has criminally injured another person yet the wording in the Act is almost a foreign language to society in 2013, i.e. Grievous or malicious.
- Where laws are changed Parliament tend to make “amendments”. Instead of making a totally new law and getting rid of an old law they will effectively cut bits out of the old law they don’t like and then put in a new bit. However, the amendment will be in a totally new Act which will give few clues as to what it is changing and why. This can happen on many occasions over many years meaning that to find out what the law is today on Police arrests, for example, requires a lot of time and research to look at different acts. This is a complex process requiring a great deal of interpretation to ensure the correct law is applied to the case.
The methods used by judges to Interpret words in an Act
There are 4 methods used:
- The 4 rules of interpretation – Literal rule, Golden rule, Mischief rule and the Purposive approach
- The other documents judges can use to help find the meaning of words – split into documents inside (internal aids) and outside the (external aids) act
- The 3 rules of language – Express words, General words and looking at the words in the context of the entire act.
- What judges presume Parliament will want to happen with the law if the Act does not give specific instructions – called “legal presumptions” and there are 4 you need to know.
Judges have created these approaches over hundreds of years most of which are common sense. There are no rules saying judges have to apply any of the 4 methods at any particular time so it is totally at a judge’s discretion when and where to apply any rule. It is also often difficult to decide which approach a judge has used in a case as they do NOT state this specifically when giving their judgment. This is a major disadvantage of the rules of SI as this can lead to different judges giving different interpretations of the wording of an Act in exactly the same or similar cases.
In Law we see inconsistency in the application of SI across similar cases as a disadvantage, for potential defendants and victims, and society as a whole. It makes the law very unpredictable. In otherwords if you were advising your client as a lawyer what the possible outcome of a case might be (e.g. whether they should plead guilty or not guilty) based on the interpretation of words in an Act inconsistency would make this very difficult and potentially lead to unfair (unjust) outcomes in cases.
The 4 rules or approaches on Statutory Interpretation
The Literal rule
Where judges give the words in the legislation their "ordinary, natural" meaning, as clearly stated in the Sussex Peerage case in 1844 and as such upholds the separation of powers doctrine —judges clearly interpreting not making law, which is the role of parliament.
Lord Esher in the case of R v Judge of City of London (1892) said "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 of whether the legislature has committed an absurdity”
The judge must use the Oxford English Dictionary (OED) from the time the Act was made and apply whatever the meaning was to the word or phrase regardless of whether or not the case ends up with a stupid or absurd result.
Cases using the Literal rule
LNER v Berriman (1946) The widow of a railway worker killed at work, was denied compensation due to the interpretation of the Fatal Accidents Act. It was held that the worker who was maintaining and oiling the track when he was killed, did not fall within the literal meaning of "relaying or repairing" in the Act. Parliament probably wanted people like Berrimen to claim compensation so regarded as unfair interpretation of the Act using the literal rule.
Whitley v Chappel (1868) A statute aimed atpreventing electoral malpractice was made a nonsense of when the accused was found not guilty of the offence when he impersonated a dead person, to use his vote. The court held, using the literal rule, a dead person was not "entitled to vote"
Fisher v Bell(1961) Is another example of an absurd result. Here, the intention of Parliament (to reduce the number of offensive weapons available, including flick knives ) was rendered ineffective by the literal rule of interpretation when it was held that placing flick knives on display in a shop window did not fall within the contract law meaning of "offering for sale" stated within the Act. The defendant was therefore found not guilty. [However, Parliament then changed the wording of the Act to prevent this occurring in future].
Cheeseman v DPP (1990) the defendant was witnessed masturbating in a public toilet by two police officers. according to the Town Police Clauses Act 1847 they had to be passengers, however the Public Health Amendment Act 1902 stated that ‘street could also mean any public place under the control of the local authority and the oxford English dictionary of the time of the Town Police Clauses Act stated that ‘passengers' could also mean a ‘foot-passenger' but as the police were not actually travelling at the time the defendant could not be arrested in those circumstances.
Advantages and Disadvantages of using the literal Rule
- Judges applying the will of parliament which is democratic as unelected judges are not making law, merely applying law passed by Parliament. For example, In the case of Fisher v Bell clearly Parliament had made a mistake in drafting the Act as advertising a flick knife in a window should have been a criminal offence. But the unelected judge simply applied the law literally to the case which flagged up the problem to parliament who democratically altered the Act to then make this a criminal offence.
Viscount Simmonds in Magor & St Mellons v Newport Corp argued that it was not upto judges to fill in the gaps because of perceived drafting problems with an Act. If a gap was found by a judge “the remedy lies in parliament amending it”.
- The Literal rule makes cases predictable as the same meaning is given every time a word is used in an Act. So in the case of LNER v Berrimen anyone widow whose husband was killed oiling or maintaining railway track now knows they will receive no compensation for their husband’s death without having to waste time and money going to court.
- The result is certain so lawyers can advise their clients on the likely outcome and there is likely to be less litigation (court action). For example in the case of Cheeseman as there is a strict interpretation of the word “passenger” in the Act police will certain that they cannot waste time and money waiting for a suspect to commit an offence as if they do the D will be found not guilty due such surveillance not being allowed in the first.
Lord Simon expressed this argument in Stock v Frank Jones Ltd, when he claimed that leaving Parliament to make changes was “far preferable to judicial contortion of the law to meet apparently hard cases with the result that ordinary citizens and their advisers hardly know where they stand”.
- Rigidity – judges have no discretion so if a bad precedent or absurd results are made in a case then judges cannot provide justice in individual cases. For Example in the case of LNER v Berrimen, surely parliament did mean to offer compensation under the Act to people oiling and maintaining, the purpose of the act was to protect the families of railway workers who died in pursuit of their employment rather than split hairs on what exact activity the deceased needed to be doing in order to comply with the law.
- The rule assumes that the Act is perfectly written but English language is often unclear and unambiguous and the Parliament may not be able to create an Act that cover all future potential issues. So in the case of Whitley v Chappel Parliament may have been very clear as to what was intended as an offence of impersonating someone “entitled to vote” but had not thought of the situation of someone impersonating a person who is dead. In this case the literal rule highlights a loophole left by the literal meaning of the words as a dead person clearly cannot vote, so it cannot be an offence to impersonate them.
- There is a possible need for Parliament to rectify error following case which will be very expensive and time consuming. If parliament don’t have such time the error will then persist throughout cases that use the Act. For example Fisher v Bell where the D was found not guilty of “offering to sell” flick knives but later the government amended the Act to close this loophole.
The Law Commission, 1969, stated that the literal rule "assumes unattainable perfection in draftsmanship".
- There is an assumption that Parliament meant the result which the rule achieves even if it is absurd. So in the case of Berrimen the assumption is Parliament only wanted to grant compensation for those men killed on the railway who were repairing and relaying the track but clearly there are many other tasks involved in making the railways safe for use such as oiling but the literal interpretation of the Act states Parliament do not wish this taken into account when looking at widows compensation.
- The rule cannot be used if words to be interpreted are not in an Act or if the words can have more than one meaning. Michael Zander, a legal writer said the literal rule is, "mechanical and divorced from both realities of the use of language and from the expectations of human beings concerned ... in that sense it is irresponsible.”
The Golden rule
Used only if the literal rule creates an absurd or unjust result. It can be used to:
- Modify the ordinary, natural meaning – known as the wide approach
- OR Choose between different meanings – known as the narrow approach
Judges must follow the literal rule unless it would lead to an unfair result in terms of interpretation. The use of the golden rule is an exception to the literal rule.
1. Narrow interpretation of this rule
By looking in the OED of the time of the Act an alternative meaning that makes sense of the word or phrase in the Act can be used.
R v Allen (1872) The words "shall marry” in the Act were interpreted using the alternative OED of the time of the Act to mean "shall go through a marriage ceremony", so Allen was guilty of the offence of bigamy. The court chose between possible meanings using the Golden rule. If the literal rule had been used the absurd result would have been that the offence of bigamy could not be committed as “marry” is literally interpreted as being legally married. As no one can be legally married to more than one person at once this interpretation would mean no one could commit the offence.
2. The wide interpretation of this rule
Where there is no alternative meaning of a word but the literal interpretation produces an unfair or absurd result the judge can modify the meaning to ensure the meaning of the Act makes sense.
Adler v George (1964) The D’s broke into an Air force base to protest against the keeping of nuclear weapons on the base. They were arrested inside a building. Here the meaning of the words "in the vicinity of" in the Official Secrets Act 1920 was modified to mean "within" - in the context of the Act as a whole, in order to avoid an absurdity of the literal rule. The golden rule enabled a verdict of guilty for obstruction of a member of the armed forces on an air force base. If the literal rule would have been used “vicinity” would not be interpreted to include inside a building as its literal meaning is around the building only.
Re Sigsworth (1935) An only son murdered his mother to claim her money as the Act said as the only surviving children (issue) would be entitled to this money. The meaning of "issue" was modified on the grounds of public policy. The court were effectively writing into the Act "issue" would not be entitled to inherit where they had killed the deceased. Public policy meant the court recognised that society would find it distasteful and unfair for a murderer to benefit financially from his crime.
Task: Watch the video about the mass murderer Jeremy Bamber and then answer the questions below. Look at S46 (ii) of the Adminstration of Estates Act to help with some questions. You will need to understand what the word "intestate" means.
What are the two reasons Bamaber killed his adoptive parents?
Why did Bamber also have to kill his step sister and her two young children?
How does Bamber's case link to the case of Re Sigsworth?
Will Bamber be any more successful in his plans compared to Re Sigsworth? Explain.
Advantages and Disadvantages of using the Golden Rule
- Include fewer absurd and unjust results being made. So in the case of Allen the literal meaning of “marry would have created the absurdity that no one could actually be charged with the offence of Bigamy. But using the golden narrow approach the fair and reasonable interpretation of the word “marry” was applied to ensure those who went through a marriage ceremony whilst already married were charged with this offence.
- Parliament would not have wanted to pass laws that produced unfair results so the golden rule can be seen as a more democratic approach to interpretation than the literal rule. So in the case of Re Sigsworth it is clear that society and Parliament as their law making representatives would not want a son who murdered his mother to financially gain from his terrible crime, so the Golden rule allowed a wide interpretation of the phrase “issue” that specifically excluded those who kill to gain from their mother’s estate.
- Deals with unfairness of literal rule. Society would not want the country’s security being put at risk by allowing protesters (or possibly terrorists) in Adler v George from being let of an offence of breaking into an air force base with nuclear weapons simply because of an unfair interpretation of the phrase “in the vicinity”. The golden rule allowed a wide interpretation of the phrase to include in the building as the aim of the act was to protect the country’s military bases from unlawful entry regardless of where the D’s were found on the base.
Absurdity appears to be based on a judge’s reference to whether parliament’s policy on the issue was in line with the interpretation, it appears to be a more subtle form of the Mischief rule.
- It depends on each individual judge to decide what is an absurdity or a repugnant result. So in the case of Adler v George another judge may have decided that it was not absurdity to allow anti-nuclear protestors to be found not guilty of entering an air force building as they posed no threat to national security and parliament was clear that it only wanted people charged with an offence if they were caught in the area surrounding the base. This can clearly lead to the golden rule being applied inconsistently.
The Law Commission (1969) argued that the rule was of limited value and noted that the rule provided no clear means to test the existence of characteristics of absurdity.
- It gives too much power to judges and is undemocratic nature. Particularly with the wide approach judges are able to effectively substitute meanings of words that may not be what parliament intended at the time the act was created. So in the case of Re Sigsworth the judges effectively added words into the act to exclude the D from claiming his mother’s money after murdering her. Surely the better approach would have been to allow this one case using the plain ordinary meaning of the word “issue” which would act as a signal to parliament to debate and change the act if they felt this was necessary. This approach was adopted in the literal rule case of Fisher v Bell.
- It is unclear what is an absurd result as there are no guidelines for judges on this issue. For example the in the case of Berrimen most people would agree that the golden rule should have been used as the literal rule produced an absurd result in when denying compensation due to oiling and maintaining the track, rather than “repairing and relaying”. However, surely the intention of parliament was to grant railway workers families compensation when the main “bread winner” was killed whilst doing any work on the railway rather than focusing on technical meanings of words but clearly the judge in the case didn’t believe this was an absurd enough outcome to warrant the use of the golden rule. This means the rule may be applied inconsistently across cases with potential injustice where the judge doesn’t correctly use the golden rule. Michael Zander is it is a “feeble parachute”, because it allows judges to change the wording only when it is absurd or repugnant. It can therefore only be used in limited circumstances.
The Mischief rule
An old rule based on Heydon's case in 1584. The rule looks at the problem (the gap) the Act was trying to solve when it was first made and then interprets the words of the Act to solve the problem related to the case. It is not as concerned with dictionary definition meanings of the words in the Act. To use the rule the judge must look at four issues:
- What was the old law before the Act?
- What was the problem (defect or mischief) with the old law before the Act?
- What was Parliaments intention in making the Act?
- Interpret the Act to ensure it meets Parliament’s intentions in the current case.
The Mischief rule does NOT look at the meaning of the Act today so is regarded as backward looking, i.e. Parliaments intention are frozen in time eventhough a case may need interpreting many years later.
This rule is supposed to be used if the literal and golden rules produce an absurd or silly result though this is entirely upto each individual judge.
The golden and literal rules are concerned with finding out what Parliament said, whereas the Mischief rule looks for what Parliament tried to achieve (the "mischief' intended to remedy).
Cases using the Mischief rule
Heydons case 1584 (For interest only – don’t use in the exam) The Claimant alleged that the defendant had no legal right to a piece of land (father and son). The judge created the Mischief rule to interpret the relevant act passed by Henry VIII regarding the rights of land owners and for how long they could lease land to another in their own family. Apparently a way of keeping hold of land when the family business wasn’t going well was to make multiple leases on the same land to family members so the law could not take the land off them for non-payment of rent, this was the mischief the Act was designed to remedy.
However, using the mischief it was decided that the multiple leases created by the father were now regarded as unlawful and therefore the son was able to claim the rights to the piece of land due to non payment of the original rent.
Extension Task: If you really want to test your legal skills read the case and then convert it into text that your “gran” could understand. This is what you will learn if you complete a law degree, e.g. pro bono public, fee-simple – I personally love it! Here is the link to the case note.
Smith v Hughes (1960) in this case a prostitute was calling from the balcony of a private house to men in the street below. If the offence to solicit "in a street" was interpreted literally the defendant would have been found not guilty. The court interpreted this phrase in the light of the Act's clear intention to allow men to walk freely down the street without proposition — finding the prostitute's actions to fall within this "mischief' Parliament intended to stop; hence to be guilty of the offence -using the mischief rule. The key to interpreting “in a street” was in relation to where the men were, so as long as the men were in the street when solicited by a prostitute, where the prostitute was was largely irrelevant as this is the problem parliament wanted to resolve in the Act.
Royal College of Nursing v DHSS (1981) HL The controversial case in which Lord Wilberforce dissented claiming the House of Lords was not interpreting but was rewriting legislation. In the case the House looked to the mischief that the Act sought to remedy — namely the uncertain state of the previous law on abortions by widening the grounds upon which legal abortions could be obtained and hygienically and safely so. Literally interpreted, a nurse is not a "registered medical practitioner" hence would be guilty of carrying out an illegal abortion. However, it was found to be within the Act using the mischief rule as the problem the Act was trying to resolve was the use of unsafe abortions, so as long as the nurse was able to perform an abortion under the framework of the Act this was enough to regarded as a “registered medical practitioner”.
Task: So should abortions now be allowed by prescription from the Chemist? Read this article and give 3 reasons why this might be allowed using the mischief rule and case of RCN v DHSS. Give 3 reasons why this development shouldn’t be allowed.
DPP v Bull A man was charged with an offence under s.1(1) of the Street Offences Act 1959 which makes it an offence for a 'common prostitute to loiter or solicit in a public street or public place for the purposes of prostitution'. The magistrates found him not guilty on the grounds that 'common prostitute' only related to females and not males. The prosecution appealed by way of case stated.
The court held that the Act did only apply to females. The word prostitute was ambiguous and they applied the mischief rule. The Street Offences Act was introduced as a result of the work of the Wolfenden Report into homosexuality and prostitution. The Report only referred to female prostitution and did not mention male prostitutes. The QBD therefore held the mischief the Act was aimed at was controlling the behaviour of only female prostitutes.
Task: The Street offences Act S 1(1) has now been amended at the attached link. Can you explain how this changes the law in relation to the case of DPP v Bull?
Advantages and Disadvantages of using the Mischief Rule
- It avoids the inappropriate outcomes of literal rule by focusing on common sense approaches to the overall meaning of words in an act rather than their strict and sometimes absurd interpretations. So in the case of Smith v Hughes instead of looking at the strict meaning of “soliciting in the street”, which would have meant the prostitutes being found not guilty of the offence, the mischief rule focused on the problem the act was trying to resolve. The problem was men being pestered by prostitutes in the street so parliament wanted this stopped regardless of where the prostitutes were doing the soliciting from, an appropriate and common sense approach.
- It encourages flexibility in adapting the meaning of words in an act to meet social, economic and technological changes in society that allow the mischief to be solved in ways parliament may not have thought of at the time the act was made. For example in RCN v DHSS the mischief recognised that medical practice had changed since the passing of the Abortion Act 1967, because of the development of the new techniques. But allowing nurses to carry out abortions as “registered medical practitioners” was still regarded as solving the problem the original was designed for in allowing safe abortions in certain circumstances.
It allows flexibility for the judge, and has been described by the Law Commission in 1969 as "a rather more satisfactory approach than the other established rules."
- It attempts to follow the will of Parliament. So in the case of DPP v Bull the phrase “common prostitute” was found not to include male prostitutes as the Wolfenden report and parliament concluded the problem the law needed to resolve was men being pestered on the street by female prostitutes. In Lord Denning’s words the mischief rule allowed the judges in Bull to “fill in the gaps” when Parliament has left something out and to use common sense and change wording to reflect that the Act was trying to deal with.
- It has limitations on use. For example it is seen as a backward looking approach that only allows judges to solve parliaments problem at the time the act was made, even though the case may be many years later when society has changed significantly. For example, in the case of DPP v Bull in 1980 highlights the limitation of the mischief rule as the problem in the Wolfendon report was with female prostitutes, not male prostitutes like Bull, so the to solve the mischief with the Act Bull had to be found not guilty, even though parliaments view on this matter had changed. This can be seen through the amendment to the Street Offences made a year after Bull to include male prostitutes.
- It allows judicial law making which is regarded as undemocratic as judges are unelected. So in the case of RCN v DHSS about the emotive subject of who is legally allowed to conduct abortions the mischief rule allowed judges to include nurses as “registered medical practitioners” eventhough the literal interpretation of the phrase includes only doctors. This expansion of this contentious law can be seen as undemocratic as parliament should have debated and voted on any changes to the Abortion Act as they are elected by society to represent their views.
- It is difficult to find mischief that parliament was trying to resolve. Using external aids such has Hansard and Law reform reports does not always allow judges to find the problem parliament was trying to resolve. A study of 32 cases by Vera Sachs in 1993 concluded that the use of Hansard to find the mischief was ineffective as the judges found no material that helped them resolve the problem of interpretation in the Act. So in cases like DPP v Bull it is hit and miss as to whether the judge will be able to find any evidence of what wider meaning parliament intended to a difficult phrase or word in an act such as “common prostitute”.
In Stock v Frank Jones, Lord Simon refused to read the extra words into an Act on employment to give it an effect that would have been fair to an employer, and he emphasised the importance of the Act in its full context.
- It can cause inconsistency in cases as judges may find slightly different solutions to the mischief in the Act and therefore makes the prediction of the outcome of cases for lawyers and their clients very difficult. So in the case of Smith v Hughes lawyers could have been very sure of the outcome of the case if the judge had use the literal interpretation of soliciting in a “street”, the prostitutes would have been not guilty. However, using the mischief rule meant the judge was effectively trying to second guess what parliament intended as the remedy to solve the mischief of prostitutes soliciting from a balcony, clearly a situation parliament would not have contemplated at the time of the Act. So different judges may come to different conclusions as to the remedy and outcome of the case leading to inconsistent interpretation and potential unfairness in similar cases.
Lord Simons felt the disadvantage of the Mischief rule was that judges should not add words to an Act as it could cause ordinary citizens and their advisers unsure as to what the law actually was. He felt it should be left to Parliament if the words in an Act need to be amended, an argument for the literal rule.
Undergraduate Law Task : Click on the link and read the brief case note on Stock v Frank James. Then answer the questions.
The Purposive Approach
This rule is where judges look at the positive reasons parliament created the legislation and interpret the words to bring about that purpose. The purposive approach is regarded as forward looking and is not concerned with the specific meaning of words or phrases in the Act but what parliament created the acted to achieve.
The purposive approach is used in the European Court of Justice, the court that decides on legal disputes between European Union (EU) countries and their citizens of which the UK has been a member since 1973. The literal rule would be of little use in the European Courts since there are several languages in operation and translation is not an exact science. Domestic judges are required to apply the Purposive approach whenever applying a piece of EU law.
The purposive approach must also be used when considering issues to do with the Human Rights Act. Again the European Convention on Human Rights is applied across numerous countries so domestic judges must apply the Purposive approach whenever they are considering human rights issues due to the ambiguities of translation.
The purposive approach allows judges to look at the aims of the Act in the current social context so unlike the mischief rule judges can develop the law to meet parliament’s intentions as perceived today.
Cases using the Purposive approach
R v Registrar General - Ex parte Smith (1990): Smith, who was criminally insane and had killed twice, had been adopted as a baby. In spite of the clear and seemingly absolute right to his birth records provided by the Adoption Act 1976 he was denied access to them on grounds of public policy. It was held that Parliament could not have intended to put the natural mother at risk. He might well have killed her, the positive purpose of the Act was to create closer family relationships.
Jones v Tower Boot Co Jones, whose mother was white and father black, worked for the Tower Boot company as a machine operative for a month. During his employment, he was subjected to racial harassment from his work colleagues. He sued the company for damages under s32 of the Race Relations Act 1976 which said the employer shall be held liable for racial discrimination of its employees "in the course of employment". The company argued that, the racial harassment was not done "in the course of employment" because, under common law, the employees' conduct shall be deemed as conduct in the course of employment only if it was authorized by the employer or closely connected to the job they were hired to do.
The court disagreed. The terms should not be restricted by the common law principles; a broad interpretation has to be adopted. The court then looked at the purpose of the Act and held the company was liable even though it had never authorized the racial abuse and the abuse had nothing to do with the abusers' job. The positive purpose of the Act was to encourage better racial harmony in the work place.
Pickstone v Freemans plc (1998). D, a mail order company employed C (and 4 others) in a warehouse where they claimed they did work of equal value to male colleagues, but were paid less. They claimed equal pay, relying on the Equal Pay Act 1970, which had been amended by Equal Pay (Amendment) Regulations 1983. The House of Lords decided that the literal approach would have left the United Kingdom in breach of its treaty obligations to give effect to an EU directive, an order to make a UK law by the EU. It therefore used the purposive approach and stated that Miss Pickstone was entitled to claim on the basis of work of equal value as this was the positive reasons for the UK requiring equal pay across both genders.
Watch the video explaining what an EU directive is.
RCN v DHSS See the mischief rule for the facts of the case. Some commentators believe the House of Lords used the purposive approach to interpret the Abortion Act as the positive aims of the Act was safe abortions which could equally be carried out by nurses due to developing technology.
R v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) (2003) A licence was requested so that a couple could have a child who would be tissue typed to establish his suitability to provide an umbilical cord after his birth to help treat his future brother. A licence had been granted subject to conditions, and the applicant, the Pro life Alliance, now challenged the right of the Authority to grant that licence, saying that the proposal was not treatment within the Human Fertilisation and Embryology Act 1990 Act, which should only extend to assisting women overcoming infertility. An embryo was defined in the Act as ‘a live human embryo where fertilisation is complete’. However, embryos created using cloning, the type of approach required to produce a child with the correct tissue type, are not fertilised.
The House of Lords used the purposive approach and said that looking at the Acts positive aims as a whole Parliament would have wanted to include the scientific possibility of an embryo that was not live as the act was designed to ensure societies views on advances in human fertility treatments were properly considered under the ethical framework stated in the Act.
Task: Watch the video about cloning and then give three reasons for and against allowing this procedure in law.
Advantages and Disadvantages of using the Mischief Rule
- It allows the law to develop to cover advances in medcial science. So in the case of Quintavalle the House of Lords used the Purposive approach to decide that the cloning of a saviour sibling should be included in the Human Fertilisation and embryology Act as parliament would have wanted this contentious scientific development included within the Act so that the positive benefits and potential risks could be properly debated and controlled to ensure society would benefit as a whole.
- It is a flexible approach which allows judges to develop the law in with Parliaments intentions So in the case of Jones v Tower Boot co the purposive approach was used to interpret “in the course of employment” in broadest sense to include unpaid lunch breaks in the employers place of work to encourage better racial harmony in the work place.
- It allows judges to cope with situations unforeseen by Parliament. So in the case of Ex parte Smith even though the literal interpretation of the Adoption Act was clear in giving adopted children the right to the details of their biological parents the court used the purposive approach to look at the positive aims of allowing this right. The court decided that the aim of the Act was to try and encourage better social relationships and as Smith was very likely to injure or kill his biological mother parliament would have not allowed him to have the right to her details if they had foreseen this situation.
- It allows the courts to give effect to EU Directives. A directive is a legal document issued by the EU which the UK must convert into laws. As it applies to all EU countries the directive is uses very general wording as to what the law should broadly achieve as it would be very difficult to translate into different languages. So in the case of Pickstone v Freeman the purposive approach was used to give effect to an EU directive, ensuring the UK wasn’t in breach of its EU treaty obligations and the Equal Pay Act so that Miss Freeman would be paid the same wage as men completing the same job.
- Allowing reference to Hansard makes it easier for the courts to discover Parliament's intention. So in the case of Pepper v Hart The House of Lords had to decide whether a teacher at a private school had to pay tax on the perk he received in the form of reduced school fees. The teacher sought to rely upon a statement in Hansard made at the time the Finance Act was passed in which the minister gave his exact circumstance as being where tax would not be payable. The House of Lords used the purposive approach holding that Hansard may be referred to and the teacher was not required to pay tax on the perk he received.
- Judges are given too much power to develop the law and usurping (without legal authority) the power of Parliament. So in the case of Quintavalle the House of Lords used the Purposive approach to decide that the cloning of a saviour sibling should be included in the Human fertilisation and embryology Act. However, cloning is a highly contentious method of producing human life that should have been left to parliament to debate as the elected authority for allowing such contentious scientific developments instead of unelected judges.
- Allowing reference to Hansard may lead to prolonged examination of irrelevant material by lawyers which adds to the cost and length of litigation as highlighted by Lord Mackay in Pepper v Hart. For example in R v Deegan an application to consider Hansard was rejected because what ministers said was not sufficiently clear. For example in R v Deegan an application to consider Hansard was rejected because what ministers said was not sufficiently clear.
- Judges become law makers infringing the Separation of Powers. So in the case of RCN v DHSS judges interpreted the phrase “registered medical practitioner” to include nurses as legally allowed to perform an abortion in the Abortion Act. However, using the purposive approach risked judges taking the place of the legislature in enhancing the abortion Act far beyond what parliament originally intended when creating this contentious piece of legislation, as unelected judges.
- There is scope for judicial bias in deciding what Parliament intended. So in the case of Pickstone v Freeman judges may have decided to use the purposive approach and adopt a wide meaning to the legislation and the directive covering the issue of equal pay due to political or social pressures to ensure women were paid the same as men. Judges that prefer to use the literal would argue such decisions can only be made by parliament as the elected body and judges are always going to bring a certain amount prejudice to deciding a case like Pickstone.
Internal and External aids to interpreting Acts
Documents that can be used to help to interpret Acts of parliament?
Judges can use a range of documents to help them interpret the words in an act as well the broader meaning of the act itself. They are split into two types:
- Documents considered as being part of the Act – known as internal aids
- Documents considered as being outside the Act – known as external aids
Internal aid examples
External aid examples
Long & short titles in an Act
Authorised dictionary of the year the Act was passed – normally the Oxford English Dictionary (OED)
External treaties entered into by the UK, e.g. the treaty of Rome
Definition section of the Act
Law reform reports on which the Act is based e.g. Law Commission reports
Human Rights Act
The Interpretation Act 1978
Hansard reports on parliamentary debates
How do internal and external aids link to the four approaches of statutory interpretation?
Internal aids can be used by any of the four approaches to statutory interpretation as well one external aid, the OED from the year the act was passed. The OED is allowed as it is presumed parliament would have had access to such a dictionary and words used in the Act would have been in use in society at the time with a particular meaning.
External aids (except the OED) can only be used by the Mischief rule and the Purposive approach. This is because these two approaches are not as concerned with exact meaning of words in the Act but in ascertaining the broader meaning of the Act and why Parliament created the part of it which is ambiguous.
Are mainly anything inside the Act. Any part of the Act that has been debated and voted on by parliament is regarded as the actual law. However, some parts of the Act are added by Houses of Parliament lawyers after the Act has become law to help aid interpretation of the Act, e.g. notes in the margin of an Act, called marginal notes. Anything not voted on by parliament is considered only guidance as to the meaning of the Act and is not strictly the law.
Long and Short title
The short title is just be the name of the Act. The Long title exists for some acts and gives an explanation of what the Act is trying to achieve. The Long and the short title of the Act are part of the law in the Act.
For example, the Short Title of the Abortion Act also has a long title, which said it was “An Act to amend and clarify the law relating to termination of pregnancy by registered medical practitioners”.
In the case of RCN v DHSS the Long title was referred to decide whether or not changes in the way abortions were carried out by nurses were in breach of the Act.
Older Acts have a preamble, which outlines what the Act covers and its purpose. It is an introduction or explanation of what is to follow. This is also treated as part of the Act. Example the Offences Against the Person Act 1861 has a preamble that says the purpose of the Act is to consolidate all the old law on offences that be committed against a person into one Act of parliament. These included treason and GBH with intent.
Which part of the Offences Against the person Act is the Pre amble? What was the date Queen Victoria gave royal assent?
Provide definitions of key words or phrases in other parts of the Act. These may be different from the meaning of the word in its common everyday use. For example in the Theft Act 1968 Section 1 of the Act has a definition section which defines theft as:
1)A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.
However the Act contains no definition section defining the word dishonestly as jury members and Magistrates are presumed to understand the meaning of this word in the context of stealing.
Provides an explanation of what the words or phrases are in another part of the Act. They tend to give more detail to things defined in the definition section such as theft. So in the Theft Act 1968 the interpretation section containing the details regarding how the law applies the phrase dishonestly states:
A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.
Interpretation Act 1978
The Act is specifically designed to give some basic rules of interpretation for all Acts of Parliament created. For example, strictly speaking an Act should state exactly what genders it applies to where relevant, i.e. male or female or both. However, in Acts the common approach is only to put the Act in the male gender and Interpretation Act means judges will interpret this to also mean female, e.g. he means she.
This also applies to act that are only written in the singular, e.g. boat. The Act means this is interpreted to include boats, plural.
Section 6 of the Act says:
6 Gender and number.E+W+S+N.I.
In any Act, unless the contrary intention appears,—
(a)words importing the masculine gender include the feminine;
(b)words importing the feminine gender include the masculine;
(c)words in the singular include the plural and words in the plural include the singular.
Over a long period of time judges have create a legal set of does and don’t s that they apply to every Act unless the Act specifically says otherwise:
- A presumption against retrospective effect of legislation – All Acts are taken to start from the date the Queen gave it Royal Assent or the commencement date. It is presumed the law in an Act applies to any past situations.
- A presumption that Acts require the proof of the D’s mental awareness of committing any crime in the Act, e.g. intended to kill. Acts presume parliament require the P to prove the Mens Rea of any criminal offence.
Case Example: Sweet v Parsley: A school teacher let her house out to students. The students were smoking cannabis in the house. She was unaware of this activity. She was charged with an offence of being concerned with the management of premises which were being used for the purposes of smoking cannabis contrary the Dangerous Drugs Act 1965. The Act did not state any requirement of mens rea of the offence.
Held: As the offence could mean a prison sentence the HL stated that the legal presumption was that the Act required the proof of Mens rea, that D was aware of the cannabis smoking. As evidence did not show this she was acquitted.
Are all documents a judge can use to interpret and Act and its words that are not classed as part of the Act itself. The aim is to provide better definitions of words or phrases or to actually look at any debates or discussions before the Act became law, made by parliament or organisations recommending the changed law, to decide what the law was trying to achieve.
Authorised dictionary of the year the Act was passed
It is presumed by judges that parliament would want the words in Acts interpreted with the meaning from when the Act was actually debated and voted. So using a dictionary from the year the Act was passed will help in understanding the meaning of such words. However, this means the meaning of a word at the time of the Act may be very different from the meaning today.
Example: Cheeseman v DPP (1990) where the defendant "willfully and indecently exposed his person in a street to the annoyance of passengers." The passengers happened to be police officers, who decided to “station” themselves in the public convenience where the complaints had been made from, catching him exposing himself in public. He was charged under an Act created in 1847.
Held: The 1847 dictionary from the time of the Act was used to decide that the word “passengers” did not include the police officers who were not actually travelling by foot anywhere but were stationed in the toilet. Therefore the judge interpreted the Act to find that Cheeseman did not commit a crime in front of the police officers.
External Treaties entered into by the UK
Any treaties made by the UK with other countries can be looked at by judges to interpret the Act of parliament, where the treaty may have changed the meaning of the Act, e.g. The Treaty of Rome signed by the UK when it joined the EU.
Example: Factortame case: The case was brought to court to decide how to interpret whether Spanish fishermen were able to register their boats as British in order to catch fish in UK waters, and get round a law made by the EU that stopped them doing this.
Held: The Court looked at the Treaty of Rome, which said that the UK government agreed to abide by EU laws, and then interpreted the Merchant Shipping Act to say that the national law should be interpreted to stop Spanish fishermen from contravening EU law.
Law Reform Reports
These are reports which have been requested by Parliament or the government to look at particular problems with an area of law, e.g. Theft, murder. In 1975, the House of Lords in the case of Black Clawson declared that such reports can be used as external aids to interpret an Act.
Example: DPP v Bull: A man was charged with an offence under s.1(1) of the Street Offences Act 1959 which makes it an offence for a 'common prostitute to loiter or solicit in a public street or public place for the purposes of prostitution'. The magistrates found him not guilty on the grounds that 'common prostitute' only related to females and not males. The prosecution appealed by way of case stated. Held: The court held that the Act did only apply to females. The word prostitute was ambiguous and they applied the mischief rule. The Street Offences Act was introduced as a result of the work of the Wolfenden Report , a law reform report, into homosexuality and prostitution. The Report only referred to female prostitution and did not mention male prostitutes. The QBD therefore it was aimed at was controlling the behaviour of only female prostitutes.
Hansard is the official record of parliamentary debates.
In 1993, the House of Lords declared that Hansard could be used as an external aid for the mischief / purposive approach.
However, House of Lords only allowed use of Hansard in limited way:
- To clarify ambiguous words/phrases in an Act:
- Only where words of the Act are ambiguous or obscure or lead to an absurdity
- And only if there was a clear statement by the Minister introducing the legislation
If the judge is interpreting EU law or the Human rights Act then they can use Hansard without these restrictions.
The HL in the case of Pepper v Hart (1993) was the first case when using Hansard was allowed as an external aid.
Pepper v Hart: The House of Lords had to decide whether a teacher at a private school had to pay tax on the perk he received in the form of reduced school fees. The teacher sought to rely upon a statement in Hansard made at the time the Finance Act was passed in which the minister gave his exact circumstance as being where tax would not be payable. The House of Lords used Hansard to decide that the teacher was not required to pay tax on the perk he received.
Human Rights Act
All judges must now interpret every Act so that it grants a person their Human rights. The Human Rights Act allows judges to interpret Acts so that this can take place even if it means taking a very wide interpretation of other pieces of legislation.
The Act makes the European Convention on Human Rights implicit in every other Act made by Parliament. An overriding requirement is now contained in the Human Rights Act 1998 in that, so far as it is possible to do so, legislation must be read to give effect in a way which is compatible with the European Convention on Human Rights.
Case example: R v A: The D argued that it contravened his right to a fair trial if he couldn’t raise previous sexual history between himself and the alleged rape victim as evidence in court.
Held: The HL held that the Youth Justice Act did not contravene to a right to fair trial as evidence could be raised but only in exceptional circumstances, such as having consensual sex 48 hrs before the alleged rape,
Internal Aids – Advantages and Disadvantages
Advantage of Long & Short Title
Long & short titles are of limited use but Long title may remind the court of what Parliament is trying to achieve particularly when using mischief or purposive approach, e.g. Christmas Day Trading Act 2004
‘An Act to prohibit the opening of large shops on Xmas day and to restrict the loading & unloading of goods at such shops on Xmas day.’ Aim is clear…….stop large shops trading on Xmas day.
Disadvantage of Long & Short Title
As the information given is very limited it is often difficult to learn anything particularly useful from the Long and Short title of the Act. Some Acts give little clue in their long and short title as to what is contained within them. For example The Coroners and Justice Act 2009, the short title, gives no help to a judge when trying to find out what the Acts meaning is in regard to the defence of Loss of Control, even though this defence is a totally new one for murder, embedded within the Act.
Advantage of Definition Section
Most acts contain a definition section which help judges understand what specific words or phrases mean in the act. For example in the Theft Act 1968 Section one of the Act defines what Theft is as a criminal offence. This helps the judge understand what the key parts of theft are that the P have to prove, for example the D must be shown to have stolen property, which is defined in section of the act not include the taking of wild flower as long as they are only for personal use. This detail could not be obtained without the use of the definition section so results in a fairer interpretation of the Act in each case.
Disadvantage of Definition Section
A disadvantage of definition sections is they are not always helpful in providing the detail required to help interpret the Act for a specific case. For example TheTheft Act 1968 S3 defines appropriation as “any assumption of the rights of the owner”. However in the case of R v Morris the court had to decide whether or not simply switching a label for a lesser price was sufficient to be a right of the owner. The definition section of Section 3 gave little help to the courts in providing an answer so the courts decided that even assuming one right, the switching of the label, was sufficient, even though the definition section does not say this, so could go against parliament’s intention with this issue in the Act.
Advantage of Authorised English dictionary from the time of the Act
Dictionaries are useful when using the Literal Rule as they allow the court to understand the meaning of the word at the time parliament created the act. For example in the case of Cheeseman the meaning of the word ‘passenger’ from the time of the Act in 1847 was not as wide as the meaning that was in use at the time of the case. Therefore as the police officers were not passengers for the purposes of the Act Cheeseman could not be found guilty of the offence of exposure.
External Aids – Advantages and Disadvantages
Disadvantage of Authorised English dictionary from the time of the Act
The Dictionary from the time of the Act can produce absurd results compared to using the meaning of the word in use today. For example in the case of Cheeseman the meaning of the word ‘passenger’ from the time of the Act in 1847 was not as wide as the meaning that was in use at the time of the case. Therefore as the police officers were not passengers for the purposes of the Act Cheeseman could not be found guilty of the offence of exposure, which clearly is an absurd result as in the modern wider sense of the word the police officers were acting on behalf of other passengers who were exposed to the D’s indecent exposure.
Advantage of using Hansard
- Hansard is useful in that it can be helpful to look at what was said in Parliament when the Bill was being passed to aid the understanding of what parliament was trying achieve. So in the case of Pepper v Hart the House of Lords were able to see that the teacher should not pay tax on a specific expense as parliament had specifically stated that such expenses should be exempt from payment.
- Hansard can help find parliaments intention when considering acts based on European Union law. In the case of Three Rivers District Council case the court used Hansard to find parliaments intention on an Act based on European law on the issue of a lawyers professional privilege.
Disadvantage of using Hansard
- Hansard often lacks clarity. Parliamentary debates do not necessarily clarify the meaning/intention of legislation —even the speech by minister introducing the legislation can be vague and unhelpful. In the case of R v Deegan the court found Hansard unhelpful in finding the meaning of words in the Act so could not use this approach to decide the case.
- Hansard is a very expensive way to interpret an act and recent research suggests it can add an extra 25% to the cost of a case and may not give any real advantage to finding out the meaning in the Act. A study of 32 cases by Vera Sachs in 1993 concluded that the use of Hansard to find the mischief was ineffective as the judges found no material that helped them resolve the problem of interpretation in the Act.
Task: R v A - the alternative Human Rights interpretation. Read the attached article and summarise what this alternative view to the actual outcome of the case is.
Rules of Language
Judges have developed three common sense rules when dealing with phrases in Acts:
- Ejusdem Generis – Words of the same kind
- Expressio Unius – Express wording
- Noscitur a Sociis - A word is known by the company it keeps
What to look for: The judge looks for a list of specific words followed by a general word. The list must have two or more words in it.
Applying the rule: General words are limited to kind of items in the list. The judge looks for the theme in the list and can only apply the Act to this theme.
Example: "cats, dogs and other such animals". Under this rule the other animals must be of the same kind as "cats, dogs", arguably domestic animals / pets.
Case Example: Powell v Kempton Park Racecourse (1899) The D was charged with running an illegal betting stall at a racecourse. The Act said "house, office, room or other place for betting"
Held: As the outdoor tent called "Tattersall's Ring" did not fall within meaning of words in the Act as it was outdoors, and the specific words in the Act were limited to indoor places. Hence defendant not guilty of offence.
Alan v Emerson: Concerning whether a ‘funfair’ was a place of amusement. There must be at least two specific words in a list before the general word or phrase for this rule to operate.
Held: The phrase ‘theatre or other place of public entertainment’ in the act includes a funfair even though it was not of the same kind as theatres.
Advantages of Ejusdem Generis
- There is no need for draftsman to write an exhaustive list of everything that is included. So the Act can cover circumstances not thought of by the draftsman but which they would have included if they had thought about it, for example in the case of Alan v Emerson.
- Allows the Act to adapt to changes in society such social or technological change.
Disadvantages of Ejusdem Generis
- The rule is unpredictable as what judges will consider is of same category as the specific words may differ. For example in the case ex parte Kihara four homeless asylum seekers claimed they were in priority need for housing due to their extreme financial hardship caused by the withdrawal of their benefits. The Housing Act 1985 gave priority to those who were ‘vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason.’ The Court of Appeal felt the phrase included the asylum seekers despite the words referring to mental and physical needs.
- The rule could mean judges conflict with the theory of separation of powers. For example in the case of Powell v Kempton allowing the defendant to escape prosecution for running an illegal betting stall simply as the act only allowed those outside to be prosecuted may not have been parliaments true intention.
What to look for: Where there is no general words with a list in the Act the judge must interpret the Act to only include things in the list.
Example: If Act specifically mentioned "Persian cats and
Siamese cats" (and no general words) then under this rule the Act would not apply to other breeds of cat.
Case example: Tempest v Kilner (1846): The case was about whether "goods, wares and Merchandise" listed in the Statute of Frauds 1677 applied to sale of stocks and shares.
Held: Stocks and shares were not in the list and there were no general words, hence the sale of stocks and shares do not have to comply with requirements of the Act: i.e. the sale need be evidenced in writing.
Inhabitant of Sedgley, R v (1831): A statute raised taxes on 'lands, houses and coalmines'.
Held: That taxes did not apply to limestone mines as these were not specifically mentioned nor did the as these were not specifically mentioned nor did the statute suggest that it would apply to other types of mines.
Advantages of express wording
- A finite list is provided which makes outcomes of cases more predictable. So lawyers can advise clients whether to pursue a case or not.
- the sovereignty of Parliament – judges apply the law as stated by the elected Parliament
Disadvantages of express wording
- Rigidity – There is no scope for development of the Act to suit a new situation, for example in the case of Sedgley at the time of the Act perhaps limestone mines were not being worked but parliament may have wanted these taxed if they had known about them.
- The Draftsman of the Act may not have foreseen the situation now being interpreted strictly with this rule but may have intended to cover it. So in Tempest v Kilner the trading of stocks and share was a development in managing risks to benefit the investor but clearly when the Act was made such trading was not invented. On a strict in interpretation of the Act society would miss out on the economic benefits that the tax from such trading would bring but using express wording such benefits are missed out on.
A word is known by the company it keeps
What the judge looks for: NOT USUALLY A LIST. The judge looks at words in the context of the Act as a whole, and interpret accordingly.
The rule looks at words in same section or in other sections in the Act.
Example: If an Act states "hamster cages, straw and food", the meaning of "food" is found by looking at the other words in the sentence — hence meaning hamster food and not dog food.
Case examples: Inland Revenue Commissioners v Frere (1965): An stated "other annual interest" and in the same section of the Act led the court to declare that "interest" only meant annual interest.
Bromley LBC v GLC (1982): The case concerned the operation of a cheap fare scheme which resulted in the Greater London Council running the bus service at a loss.
Held: That "economic" in the Act meant run on business lines by looking at another section in the Act, which detailed a duty to run at least at break even (no loss and no profit). Therefor the cheap fares policy was illegal and had to be stopped.
Advantages of Noscitur a Sociis
- There is no need for draftsman to write an exhaustive list of everything that is included. So the Act can cover circumstances not thought of by the draftsman but which they would have included if they had thought about it. So in Frere the judge could simply look at another part of the act to make sense of the phrase that needed interpreting in the case, "other annual interest".
- The rule treats the whole act as a tool for interpretation, rather than just the specific phrase being considered. So the judge can use the rest of the act to help interpret the phrase causing concern, such as definition and interpretation sections. For example in Bromley v GLC the word “economic” in the act was used in conjunction with a another part of the act stating bus routes should be run on economic lines to interpret that Bromley could not a cheap fair scheme at a loss.
Disadvantages of Noscitur a Sociis
- Leaves room for judicial development of the law, which can be seen as judicial law making. So in the case of Frere parliament may not have wished another part of the Ac to be referred to in order to decide that tax was not payable on Frere’s earnings. This interpretation meant that not only did society miss out on the benefits these payments could bring to society in general but may not have been the approach parliament intended.
- The rule can risk clashing with the doctrine of Parliamentary sovereignty. In the case of Bromley GLV v GLC reading the word economic with the other part of the act that said not to run at a loss was a broad interpretation of the section. This may conflict parliamentary sovereignty as the council could have been left to continue with its cheap bus fares and it should be for local and national voters and ultimately parliament to decide whether this scheme was of value to society as a whole, with the legislation amended as appropriate.
Task: Watch the video and write down the answers to questions on SI that it poses, ie names of cases