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1 Statutory Interpretation Richard O’Neill University of Hertfordshire.

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1 1 Statutory Interpretation Richard O’Neill University of Hertfordshire

2 2 Legislation and common law Statute can only be changed or overruled by another later statute - not by common law Doctrine known as Parliamentary Sovereignty – legal and political Parliament is the supreme law- making authority in the land

3 3 Parliamentary Sovereignty Is it absolute?

4 4 Parliamentary Sovereignty Is it absolute? European Union - ECJ Individual freedoms – Human Rights Act Governmental accountability – Judicial review Democracy

5 5 Parliamentary Sovereignty Is it absolute? Parliament’s power and supremacy depends upon the enforcement of it’s statutes Sovereignty depends on the acquiescence of the courts to the power of Parliament

6 6 Parliamentary Sovereignty Judges and statute law Judges must normally apply statutes - - even if contrary to common law - Supremacy of Parliament Judges role is to interpret and apply statute – sometimes they have a great deal of discretion in how they do this Acts drafted in such a way as to minimise interpretation

7 7 Interpreting statutes Why do statutes need interpreting?

8 8 Interpreting statutes Judges and statute law Problems in interpreting Acts language not precise ambiguities may arise meanings change over time drafting imperfect/often hurried legislation applied in situations not envisaged by legislators courts unable to request explanations from Parliament judges and parties involved may interpret statues in different ways

9 9 Interpreting statutes The Facial Hair and Parks Act 2006 Hypothetical statute After Elliot and Quinn English Legal System 1996 Statute banning men with facial hair from parks ‘s1 (1).. men with beards or moustaches are prohibited from parks..’

10 10 Interpreting statutes The Facial Hair and Parks Act 2006 Statute banning men with facial hair from parks ‘s2 (1).. men with beards or moustaches are prohibited from parks.. does this mean that a man who has a beard and moustache would be allowed in? what is meant by park?

11 11 Interpreting statutes Imprecision of language statute banning vehicles from entering parks did Parliament intend to exclude a vehicle for a disabled person? what is meant by vehicle? does this include child’s bicycle; skateboards; rollerskates? Twining v Myers (1982) Meaning of words changes over time Offences Against Persons Act 1861 contemporary meaning of words such as: ‘maliciously’ ‘grievous’

12 12 Interpreting statutes New developments Abortion Act 1967 envisaged that doctors would carry out operation query whether method undertaken by nurses and using drugs was illegal Royal College of Nursing v DHSS (1981) Drafting errors Hurried legislation Dangerous Dogs Act 1991 Ambiguities Language differences (EU)

13 13 Statutory Interpretation Specific rules of interpretation judges assume certain things Presumptions - judges make certain assumptions about the intentions of Parliament, and require strong evidence to the contrary, such as: does not intend to impose criminal liability does not intend to take away fundamental rights does not intend to exclude the courts from deciding disputes

14 14 Statutory Interpretation Specific rules of interpretation judges apply certain rules of language rules of language ejusdem generis expressio unius est exclusio alterius noscitur a socciis

15 15 Statutory Interpretation Specific rules of interpretation rules of language ejusdem generis – “of the same kind” where general words follow a list they are interpreted in the context of the list Powell v Kempton Park Racecourse (1899) – ‘house, office, room or other place for betting’ – “other place” interpreted as other indoor place

16 16 Statutory Interpretation Specific rules of interpretation rules of language expressio unius est exclusio alterius – the expression of one excludes others express mention of one item in a class of things should by implication exclude other items in the same class If there are no general words at the end of a list, only things in the list are covered by the legislation Tempest v Kilner (1846) statute concerned contracts in writing for ‘goods, wares and merchandise – ‘stocks and shares’ not mentioned in statute and so not covered

17 17 Statutory Interpretation Specific rules of interpretation rules of language noscitur a socciis – known by the company it keeps words take their meaning from those around them ambiguous words or phrases can be clarified by referring to the context in which they are used Muir v Keay (1875) – houses kept open for ‘public refreshment, resort and entertainment’ had to be licensed – court held ‘entertainment’ did not mean musical entertainment – so a café required a licence

18 18 Statutory Interpretation Statutory aids to interpretation The Interpretation Act 1978 defines many common terms provides that its definitions are to be used in construing any Act which contains the words defined (unless defined differently in a subsequent Act) provides rebuttable presumption that terms in masculine gender also include the feminine and that singular includes plural

19 19 Statutory Interpretation Rules of statutory interpretation not strictly rules - judges can decide which to adopt literal rule  golden rule  mischief rule Three general rules used by judges in interpreting Acts of Parliament: Literal rule Golden rule Mischief rule

20 20 Statutory Interpretation Literal rule promotes certainty but dictionary-meaning can be misleading interpret the statute literally according to ordinary plain meaning give words their literal meaning, regardless of whether the result is sensible or not first approach taken

21 21 Statutory Interpretation Literal rule “..where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they consider that the consequences of doing so would be inexpedient, or even unjust or immoral.” Lord Diplock in Dupont Steels L td v Sirs (1980) Whitley v Chappell (1864) – ‘illegal to impersonate any person entitled to vote’ – dead person not entitled to vote – defendant acquitted LNER v Berriman (1946) – Fatal Accidents Act 1864 referred to ‘relaying’ or ‘repairing’ the track – man killed ‘oiling’ track was undertaking maintenance – no compensation when killed

22 22 Statutory Interpretation Golden rule avoids obvious foolishness but only applied when literal rule leads to absurdity where an absurdity arises from the literal interpretation, then modify this give a reasonable meaning the the words being construed

23 23 Statutory Interpretation Golden rule “…the ordinary sense of the words” Narrow approach – when word has multiple meanings, judge selects meaning that best fits situation – R v Allen (1872) – word ‘marry’ read as ‘to go through a ceremony of marriage’ Wider approach – when meaning would result in a rediculous or repugnant outcome – Re Sigsworth (1935) – son killed mother for inheritance – Act would have allowed this but court interpreted Act to prevent this

24 24 Statutory Interpretation Mischief rule encourages courts to have regard to context but judges need to know the ‘will’ of Parliament Purposive approach define the problem the Act was meant to remedy and choose the interpretation which best deals with the problem judge required to consider: what was the law before the statute was passed what ‘ mischief’ was sought to be remedied’ what remedy was being provided Heydon’s Case (1584) Smith v Hughes (1960) – interpretation of the Street Offences Act 1959

25 25 Statutory Interpretation Mischief rule  purposive approach understanding the context Deciding what they believe Parliament meant to achieve Intrinsic aids By reading the whole statute long and short titles preamble section Headings interpretations given within the Act schedules punctuation but not marginal notes (not officially part of the Statute – not discussed in Parliament)

26 26 Statutory Interpretation Mischief rule understanding the context Extrinsic aids By reading earlier statutes By reading other cases By consulting other sources International conventions/treaties General historical background Government publications Law Commission reports Parliamentary debates Dictionaries – most common aid when following literal approach - OED Textbooks Custom Quasi-legislation

27 27 Statutory Interpretation Mischief rule understanding the context Parliamentary debates Hansard – verbatim record Pickstone v Freemans (1988) – HL needed to find out reason for amendment to the Equal Pay Act 1970 Pepper v Hart (1993) Court may refer to Hansard: where ambiguity in statute and where it throws light on the mischief aimed at where statements made by Minister or promoter of relevant Bill statement is clear in its meaning

28 28 Statutory Interpretation Human Rights Act section 3 Increasing importance Overrides traditional approaches judges obliged to read all primary and secondary legislation in a way that is compatible with the European Convention on Human Rights (ECHR)

29 29 Statutory Interpretation European approach - purposive approach Approach adopted by European Court of Justice in interpreting European law has influence on UK judges Treaty of Rome – Member States required to ‘take all appropriate measures … to ensure fulfilment of the obligations’ Marleasing case (1992) ECJ ruled that this included interpreting national law in everyway possible in light of the text and aim of the European law

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