1. Statutory interpretation

2. Aims of the session
To identify the issue(s) that surround judicial approaches to statutory interpretation
To look at the principal ‘rules’ of SI
Address the critique of these rules
To consider some examples of the rules in action

3. Role of SI in the legal process
No matter how careful the legislative draftsman tries to be – no provision can hope to cater for all circumstances.
Lawyers will also argue for alternative ‘interpretations’ of legislation to support client’s case
Judges are consequently called on to adjudicate on the meaning and application of legislation.
Statutory interpretation arises in the majority of reported cases
Although parliamentary draftsmen will go to great lengths to pin down exactly what the provisions mean and to reduce to the greatest possible extent any ambiguity - New situations will always arise which raise questions about how the legislation should be applied.
For example – legislation on the abuse of drugs will outlaw the sniffing of glue.
The legislation will contain a list of substances that fall within the definition of “glue”.
However, the legislation may not define the term “sniffing” – or may define it to a certain extent – ie, inhaling the fumes from glue.
However, the complexity of human life is such that situations will arise in which glue is arguably being inhaled – but perhaps in a new way. The application of the legislation to these situations will require judicial interpretation.
Closer to home – important case in which the HC of NI was asked to rule on whether the term Irish Republican Army as used in the Terrorism Act 2000 included the Real IRA.
R v Z ([2004] NICA 23
Girvan J ruled that it did not – this was appealed to the CA which reversed his decision – but the HL restored Girvan’s decision on further appeal.

4. However… Process of SI is an inherently subjective and human process.
Immediately raises a tension about the role of judges in the legal process – passive process of judicial ‘interpretation’ v the more active process of judicial ‘law-making’
Over decades a series of ‘rules of statutory interpretation’ have evolved
TENSION ISSUE:
By necessity the process of interpretation gives judges the opportunity to express their own opinions and to allow them to colour their interpretation of legislation – these could be opinions about social policy questions – rights to life, rights to civil partnerships for gay couples, regulation of pollution by major industry etc…
Sometime judges opinions do not command universal assent and they don’t always accord with the views of Parliament.
Differing philosophies about the judicial role – and the separation of powers.
The rules of SI are all judge made – they are not laid down in legislation and the principles in question go back 100s of years – and continue to evolve to this day.

5. The ‘rules’ of interpretation
The ‘literal’ rule
The ‘golden’ rule
The ‘mischief’ rule
The ‘purposive approach’
Are they really ‘rules’ or just a means of justifying the desired outcome by judges?
Before we begin to address each in turn – its important to emphasise that judges rarely state “I’m applying the golden rule or literal rule” when carrying out the process of SI.
But as you read judgements you’ll see the rules in action.
The rules can also be broadly divided into two camps – the first two keep the judge v closely tied to the wording of the provision being interpreted. The second two allow the judge to go beyond the words of the legislation in order to understand the true intention of Parliament.
The purposive approach has undoubtedly supplanted the other three – with consequent implications for a highly activist judiciary in modern legal system.
Why have the rules evolved & are they really rules at all?
Judge made rules….not control by parliament
On the one hand, the rules of SI are designed not only to ensure a level of consistency in the interpretation process – but also to protect judges from accusations that they have transgressed the separation of powers.
Cynics have argued that they are just a loose framework of principles designed to provide justifications for interpretations reached for entirely other reasons!

6. The Literal Rule
When the words of a statute are plain & unambiguous, Parliament must be taken to have meant and intended what it has plainly expressed.
What is the justification for the rule – Lord Diplock in Duport Steel v Sirs [1980] 1 WLR 142, at 157
Criticisms of the rule
One of the key rationales underlying the LR is that judges have no desire to be accused of making political judgments about the meaning of legislation at variance with the Parliament that adopted it.
Diplock – page 127 Glanville Williams (READ IT OUT)
CRITICISMS:
Blindly applied, the literal rule can be characterised as a rule against using intelligence and common sense in understanding language
In ordinary life – if a person interpreted words absolutely literally – being indifferent to what the speaker or writer meant – they would be regarded as a pedant/eccentric or mischief maker..
EG – Parents ask childminder to keep children amused by teaching them a card game. In the parents’ absence, the childminder teaches them to play strip poker. There is no doubt this is a card game – but there’s also no doubt that this is not what the parents had in mind when they gave their instructions….
Although the separation of powers remains a core constitutional principle in the UK – in reality the literal rule is widely recognised as being fairly limited. In reality, legislation is often badly drafted, adopted in a hurry, and the result of months of political barginning between and within political parties. Legislation that becomes the subject of litigation is generally not clear and therefore the plain meaning is not clear – and the judges have to turn to the golden and/or purposive approach

7. The Golden Rule
Court must give words their ordinary meaning unless this produces an absurdity – in which case the judge must try to give the words some other contextual meaning….
But is this consistent with the literal rule?
The Golden Rule essentially allows judges to depart from the plain or ordinary meaning of the words of a statute where it would produce an absurdity or would produce an unreasonable or unjust outcome.
CONSISTENCY:
Some have argued that the GR is consistent with the LR provided that the existence of the potential absurdity is viewed as an ambiguity in itself – Parliament wouldn’t have wanted an absurd outcome.
In effect – the literal rule cannot be applied.
However, - the GR does represent a departure from Diplock’s postion in that the inexpediency, injustice or immorality of a proposed interpretation cannot be a reason for finding ambiguity in the statute.
In practice, the GR has been used for example to correct a section in a statute which uses the word “and” when it really meant “or” or vice versa.
However, there have also been occasions when courts have refused to apply the golden rule even though an absurd outcome arises because they take the view Parliament should come back and amend the legislation. Its not the role of the courts to resolve badly drafted or absurd legislation.

8. The Mischief Rule
Also known as the rule in Heydon’s case (1584) 3 Co Rep 7a, 7b) – look to the previous common law position and identify the mischief that the legislation sought to correct
Early example of what is now referred to as the ‘purposive approach’
Limitations of the Mischief Rule
The Mischief Rule enables judges to look at:
the common law (ie the legal position) before the legislation in question was enacted
The mischief that the legislation was designed to remedy
The legislation is then interpreted in a way that is designed to suppress the mischief and advance the remedy.
The mischief rule is widely regarded as an early form of the ‘purposive approach’ to SI –
Whereas the golden and literal rule required the judge to focus only on the words of the legislation being interpreted, the Mischief Rule is an early example of the courts trying to understand the ‘purpose’ of the legislation as an aid to interpretation.
Taking a contextual approach to the process of interpreting legislative provisions.
HOWEVER, the MR is limited in that it adopts a v narrow view of the purpose of legislation – it assumes that legislation is principally designed to remove problems – solve mischiefs – huge amount of legislation is adopted to promote social goods, economic or environmental objective.

9. Purposive Approach
Largely supplanted other rules as the most appropriate method of ascertaining Parliament’s intention.
R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme [2001] 2 AC 349, 397 – per Lord Nicholls, this approach bids judges “to identify and give effect to the purpose of the legislation”.
Courts now asking ‘what was Parliament really getting at?’ – not just seeking to identify the mischief being remedied….
The mischief rule was v narrow in that the judge could ONLY take the previous state of the law into account and the nature of the mischief.
The purposive approach is much more broadly defined in that it is essentially a process of judges trying to understand the broad purpose of the legislation and to give effect to it.
In other words – judges are asking themselves “what was parliament really getting at?”.

10. Why has it become the prevailing approach?
Greater openness and acceptance of a proactive judiciary
Influence of European Court of Justice, North American courts favour this approach and Human Rights Act 1998 requires judiciary to interpret UK legislation so as to ensure conformity
What are the (potential) problems with the rule?
Section 3 of Human Rights Act requires UK courts to interpret UK legislation, so far as is possible, to ensure conformity with the HR Convention. This has profound implications for process of statutory interpretation and expanding the predominance of the purposive principle.
You’ll see in Rights and Accountability module – 100s of cases already on this issue – the borderline between judicial law making and interpretation is becoming ever more blurred as judges fill in the gaps to ensure conformity and avoid a declaration of incompatibility.
PROBLEMS with purposive approach?
The old chestnut of the extent of judicial activism remains an issue – this is particularly clear in the ECJ and EU law where ECJ is responsible for developing the core constitutional principles of EU law. Major law making role.
This is in part due to the civil law background of many of the judges – purposive approach is very much how they do business – but also the Treaties themselves were v broadly sketched in 1950s and didn’t answer/address many key issues.
UK courts are more conservative by culture – but becoming less so.
At a practical level – one of the key issues has been to clarify the types of information that judges may take into account when trying to divine the ‘purpose’ of legislation….
When judges are considering the purpose of legislation – they will clearly take account of the statute as a whole, however, - what other forms of information might they look at?
A key issue here was their power to consult official documents concerning the parliamentary history of the legislation – ie, Parliamentary debates recorded in HANSARD and other records of scrutiny committees etc.
Common sense would suggest that these debates would be a very useful source of information concerning Parliament’s real intention in adopting legislation.
However for years there was a rule against this – seen as too political and unreliable.
Lord Denning in CA had deviated from this rule more than once and was roundly criticised by HL.
However, in 1992 the HL in Pepper v Hart finally accepted that this prohibition should be relaxed.

11. Pepper v Hart [1992] 3 WLR 1032
Permits recourse to extraneous materials, i.e. Hansard provided 3 conditions satisfied.
Problems in applying the conditions - see R v Secretary of State, ex p Spath Holme [2001] 1 All ER 195
Rule in Pepper v Hart also applies to other documents like Reports of Law Reform Commissions, Dept Scrutiny Committees etc.
Pepper v Hart laid down 3 conditions:
(a) Legislation is ambiguous or obscure or where a literal interpretation leads to an absurdity
The material being relied on consists of one of more statements by a Minister or other promoter of the Bill together with such other parliamentary material as is necessary to understand the statement and their effect
The statements relied on are clear.
HOWEVER, exactly how these conditions should be applied remains a matter of controversy. In the Spath Holmes Case, two members of the HL dissented on the issue of how Hansard records should be used.
HL asked to interpret the meaning of s31 of the Landlord and Tenant Act Under s.31 the Minister was given the power to make orders restricting the amount of rent that could be demanded by a landlord. However, the grounds for making such an order were unclear on the face of the legislation – but it might have included factors such as:
(a) The need to ensure a degree of equity and justice in relations between landlords and tenants
(b) The need to control inflation
The majority of the House concluded that conditions A and B in PvH had not been met and therefore they could not look at the Hansard debates. Minority took the view that the Hansard reports could be consulted – but that they were inconclusive of the issue.
This case shows (a) differing judicial conclusions as to whether condition (a) met. However, there have also been differences of opinion about whether condition (b) and (c) are met….
In particular – how do you know whether (b) is met unless you look at the Hansard records!!!

12. Role of ‘Presumptions’ in Statutory Interpretation
In addition to the rules of SI – judges may also rely on a range of ‘presumptions’ to assist in the process of SI
Presumptions are the “background of legal principles against which the Act must be viewed, and in the light of which Parliament is assumed to have legislated.”
Presumptions are ‘implicit’ to legislation
In other words – the presumption may not appear in the wording of the legislation – but they will nevertheless be assumed by the court to be implicit in Parliament’s intentions concerning the meaning and operation of the legislation

13. Some Examples…
Legislation adopted by UK Parl will only apply within the UK…
Presumption against interference with personal liberty
A person cannot profit from his own wrongdoing
Presumption against the taking of property without compensation
Legislation can authorise an activity expressly or “by reasonable implication”
– common sensed
This presumption means for example:
that criminal law statutes will be interpreted restrictively to minimise the interference with personal liberty – they have to be drafted very carefully.
Also means that Parliament will be presumed not to intend to legislate retrospectively in criminal context - to retrospectively criminalise certain behaviour
3. Example of this arose in relation to the application of the Wills Act under which children are automatically entitled to inherit from a parent where they die intestate. However, son had killed his mother – this was proven in earlier criminal trial. Question then was should the Wills Act be interpreted literally? The judge interpreted the statute in light of the presumption – to exclude this son from inheriting. This was done even though the legislation was completely silent re the position of murder.
4. This is an example of the fundamentally capitalist principle – which used to be even stronger in UK legal system – protecting the rights of landowners.
Government may need on occasion to compulsorily acquire land – for example – building motorway or protecting rare habitat.
Although legislation may be silent – rules governing the compulsory acquisition of land will be interpreted in light of this presumption to ensure compensation is granted.
HOWEVER – as socialist and environmental agenda has gained ground – the operation of this presumption has altered. Judges have to be careful not to overstep the mark. While they may not agree with compulsory acquisition or interferences with land ownership – there are instances where, land may be declared to be part of protected zone for nature conservation – v strict controls imposed on what goes on – farmer may regard this as reducing commercial freedom and value of land – seek compensation. Nature Conservation legislation had to be interpreted – but judge had to conclude that the legislation made it clear that compensation was not to be offered.
5. There are situations whereby the meaning of a provision will be implicit as opposed to explicit – implicit meaning will be given where it is reasonable to do so – but there is once again fine line.

14. Take a break

15. Aims of this part of the session
To illustrate how different approaches to interpretation can lead to different results in practice
Three cases: Re Northern Ireland Human Rights Commission [2001] NI 271 & [2002] NI 236; Robinson v Secretary of State for the Northern Ireland [2002] NI 207 & 390; and Ghaidan v Godin-Mendoza [2004] 3 All ER 411

16. NIHRC – the issues
The origins and purposes of the Northern Ireland Human Rights Commission (NIHRC)
Wished to intervene in a Coroners Inquest
Coroner considered that the NIHRC didn’t have an express statutory power to intervene
NIHRC sought judicial review of that decision, arguing that the power was either express or implicit
HRC was set up under the Northern Ireland Act 1998 pursuant to the Good Friday Agreement – which required the Commission to be established as one of a range of bodies required for devolution.

17. Commission’s Statutory Role
Northern Ireland Act 1998, s 69:
“keep under review the adequacy and effectiveness … of law and practice relating to the protection of human rights” (69(1))
make recommendations to the Secretary of State (69(2))
assist individuals involved in proceedings (69(5)(a))
“promote understanding and awareness of the importance of human rights” (69(6))

18. The contrasting approaches of Carswell LCJ and Kerr J
Carswell LCJ said: “The Human Rights Commission has not been given any overall function such as advancing the observance of human rights. On the contrary, its functions set out in section 69 are specific and fairly precise and do not seem to me capable by reasonable implication of extending to making submissions to the coroner at an inquest”

19. In contrast, Kerr LJ ruled…
that it “unmistakable” that the NIHRC had been given an overall role.
He thus found that the power to intervene was expressly provided for by section 69(6)
Failing that, he considered that the power could be read as “incidental to or consequential upon its general duty to promote the observance of human rights”
Majority of NICA agreed with Carswell LCJ; majority of the HL agreed with Kerr J

20. Ghaidan v Godin-Mendoza – the issues
Homosexual relationship, which was stable and monogamous
Mr Wallwyn-James was a protected tenant; Mr Godin-Mendoza was his partner
Mr Wallwyn-James died and the landlord sought possession of the flat
Held that Mr Godin-Mendoza did not succeed to the tenancy as a surviving “spouse”, but was entitled to an assured tenancy by succession as a member of the original tenant’s “family”

21. Ghaidan v Godin-Mendoza – the legislation
Para 2(1) of Schedule 1 of the Rent Act 1977: “The surviving spouse … shall after the death be the statutory tenant”
Para 2(2): “ … a person living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant” (unmarried heterosexual couples)
Section 3 of the HRA: “So far as it is possible to do so, primary legislation … must be read and given effect in a way which is compatible with the Convention rights” (Articles 8 & 14 ECHR)

22. Ghaidan v Godin-Mendoza – the decision
It was possible to read the legislation in a way that “spouse” included the survivor of a same-sex partnership
But see Lord Millett’s dissenting opinion: “These are questions of social policy which should be left to Parliament … it is in my view not open to the courts to (adopt) an interpretation of the existing legislation which it not only does not bear but which is manifestly inconsistent with it”
And see now the Civil Partnerships Act 2004

23. Conclusions
Important to remember that the rules of SI are not absolute
Judicial personalities and perspectives play a major role in how rules of SI are applied
Little doubt that the purposive approach to SI is on the rise …