statutory interpretation(study paper)

7/28/2019 Statutory Interpretation(Study Paper)

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www.lawlectures.co.uk Paul Chynoweth 2002

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7. Statutory Interpretation

7.1. The Role of Statutory Interpretation

The courts must ascertain the meaning of a statute in order to apply it.

Even the most well drafted statute may be capable of more than oneinterpretation in any particular situation this is a function of the nature of

language and the desire of opposing parties to find interpretations which

favour their own case. Additionally, some statutes may be inherently

ambiguous.

The courts have developed principles to assist them in ascertaining themeaning of statutes. Although some of these are described as rules they

do not have the binding force of law and there is no universal acceptance

regarding their precise meaning.

These principles can be divided into 4 categories:Primary Rules

Secondary Rules

Extrinsic AidsPresumptions

7.2. Primary Rules of Statutory Interpretation

7.2.1. Nature of Primary Rules

The primary rules deal with the courts overall approach to

interpretation. It is not possible to say, in advance, precisely whichapproach a court will take in a particular case. (Whichever approach is

taken, the court will also make use of secondary rules, extrinsic aids

and presumptions.)

7.2.2. The Traditional Rules

(a) The Literal Rule


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Traditionally, the English courts have taken a literal approach

to the interpretation of statutes. The Literal Rule is the

cornerstone of this approach.

The literal rule requires the courts to give the words of a statutetheir plain meaning. It is for a court to interpret Parliaments

intention from what it has actually said not from what it

thinks it meant to say. This can produce some surprising results

as, in practice, words seldom have a single plain meaning.

Whiteley v Chappell(1868-69) LR 4 QB 147

It was a statutory offence to impersonate any

person entitled to vote at an election. The

defendant impersonated someone who was onthe electoral register but who had died before the

election. He was acquitted as deceased persons

had no right to vote in the election.

Inland Revenue Commissioners v Hinchy [1960] 1 All

ER 505

Section 25(3) of the Income Tax Act 1952

provided that a person who failed to deliver a

correct income tax return should forfeit the sum

of 20 and treble the tax which he ought to be

charged under this Act. The House of Lords

held that, in addition to the penalty of 20, a

taxpayer who had declared only part of his Post

Office interest was liable to pay treble the whole

tax chargeable for the year, and not merely

treble the tax on the undeclared income.

(b) The Golden Rule

The Golden Rule is an extension of the Literal Rule. It allows

the court to depart from the Literal Rule where this would

produce an obviously absurd result.

McMonagle v Westminster City Council[1990] 1 All

ER 285

McMonagle was charged with using premises asa 'sex encounter establishment' without a


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licence, contrary to the Local Government

(Miscellaneous Provisions) Act 1982. The

definition of such an establishment was

premises at which performances which are not

unlawful are given which...comprise the sexual

stimulation of persons admitted to thepremises...

McMonagle's defence was that the prosecution

had not proved that the performance in question

were not unlawful. As they may have been

unlawful he would not therefore have required a

licence and he was not therefore guilty of the

offence! The House of Lords rejected this

interpretation as being absurd. The words

which are not unlawful had been introduced

by an incompetent draftsman simply toemphasise that the grant of a licence conferred

no immunity from the criminal law.

Keene v Muncaster[1980] RTR 377

The Motor Vehicles (Construction and Use)

Regulations 1973 make it an offence to park a

motor vehicle overnight in the road with the

offside against the kerb. However, this is not an

offence if a uniformed police officer has given

permission to park in this way. The defendant

was a uniformed police officer who parked his

car overnight with its offside against the kerb.

He was prosecuted and relied on the defence that

he had given himself permission. His defence

was rejected. The court applied the golden rule

and held that permission meant that

permission had to be given by one person to

another. He was therefore convicted of the

offence.

(c) The Mischief Rule

The Mischief Rule can be applied by the courts to resolve an

ambiguity which is produced by the application of the Literal

Rule. It involves asking what mischief in the common law,

was intended to be corrected by the statute. The court then

applies the interpretation which is consistent with correcting the

mischief.


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Gardiner v Sevenoaks Rural District Council(1950) 66

TLR

The Celluloid and Cinematograph Act 1922

imposed various health and safety requirementson those controlling premises where film was

stored. Gardiner stored large quantities of film in

a cave and the Council served notice on him,

requiring him to comply with the Act. He

claimed that his cave was not subject to the Act

as it could not be described as premises. The

court held that the Act was designed to protect

people who worked in storage locations and

there was no reason why a cave which was used

for this purpose should be excluded from the

Act. Accordingly, in this Act, the wordpremises applied to a cave.

Smith v Hughes [1960] 1 WLR

Under section 1 of the Street Offences Act 1959

it was an offence for a prostitute to loiter or

solicit in a street.for the purpose of

prostitution. The defendants were prostitutes

who solicited men in the street from the

balconies of buildings overlooking the street.

Their defence was that they had not committed

the offence as they were not in the street when

they were soliciting. This was rejected by the

court which applied the Mischief Rule as to the

meaning of in a street. This is explained by

Lord Parker CJ in his judgment:

Everybody knows that this was an Act intended

to clean up the streets, to enable people to walk

along the streets without being molested orsolicited by common prostitutes..For my part,

I am content to base my decision on that ground

and that ground alone.

7.2.3. The Purposive Approach

The Purposive Approach to statutory interpretation can be seen asan extension of the Mischief Rule. Instead of confining itself

simply to the mischief which the statute was intended to correct,the court resolves ambiguities by reference to the statutes overall


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purpose. Indeed, many modern statutes are not simply intended to

correct mischiefs in the common law but have a wider social

agenda. Under the purposive approach the courts should try to give

effect to this wider statutory purpose in interpreting ambiguous

provisions in statutes.

The purposive approach has gained favour in recent years. In 1969the Law Commission urged the courts to adopt this approach. It has

been the traditional approach of the courts in European

jurisdictions. The statutes in these countries are expressed in broad

general principles and the courts fill the gaps by interpreting

them in the context of their legislative purpose. English courts

increasingly have to adopt this approach when interpreting

European Community legislation and there is also a trend towards a

more purposive approach when interpreting domestic legislation.

Whilst the English courts continue to place their emphasis on thelanguage of the statute, there is an increasing willingness to resolve

ambiguities in domestic legislation by reference to the statutory

purpose (and even to read words into the statute where this is

inadequate to give effect to an EC directive: Three Rivers District

Council v Bank of England[1996] 2 All ER 363).

Knowles v Liverpool City Council[1993] 1 WLR 1428

Knowles was employed by the Council and was injured

at work whilst handling a defective flagstone. He

claimed damages from them under the Employers

Liability (Defective Equipment) Act 1969. The Council

claimed that they were not liable as a flagstone could

not be equipment within the Act.

The House of Lords held that it could. The purpose of

the statute was to protect employees from exposure to

dangerous materials. The words equipment should beinterpreted in this context. The Council were therefore

liable for Knowles injuries.

7.3. Secondary Rules of Statutory Interpretation

7.3.1. Nature of Secondary Rules

The secondary rules are concerned, less with the overall approach to

interpretation, and more with the precise application and structure of


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language within the statute. They are therefore sometimes described as

rules of language or intrinsic aids to interpretation.

7.3.2.Noscitur a sociis

(The meaning of a word can be gathered from its context.) Individual

words or sections should not be interpreted in isolation but in the

context of the whole statute.

All parts of the Act can be referred to in this context, including the

long and short title, the preamble (if any), the definition section as well

as section headings and marginal notes.

7.3.3. The ejusdem generis rule

(Of the same class) Where general words follow particular words, the

general words are construed as being limited to the subject matter of

the class outlined by the particular words.

Powell v Kempton Park Racecourse Co Ltd[1899] AC 143

A statute prohibited the keeping of a house, office,

room or other place for betting. The defendant kept an

uncovered enclosure for betting. The House of Lords

held that he was not in breach of the statute. The

enclosure was not an other place within the meaning

of the statute. It was not ejusdem generis with the

particular places previously listed as they were all

indoor places.

7.4. Extrinsic Aids to Interpretation

7.4.1. Nature of Extrinsic Aids

Extrinsic aids to interpretation are those which come from outside the

statute which is being interpreted. They include the following:

7.4.2. Dictionaries


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7.4.3. Other Statutes

Human Rights Act 1998

This Act requires existing legislation to be interpreted in a way

which is compatible with the Convention rights, so far as this is

possible.

Interpretation Act 1978

This Act lays down various definitions which apply unless

there is a contrary intention (express or implied) in a particular

statute. For example under section 6, unless the contrary

intention appears:

(a) words importing the masculine gender shall include

females; and

(b) words in the singular shall include the plural and

words in the plural shall include the singular

7.4.4. Judicial Precedent

Where a court has previously made a decision on the interpretation of

the statutory provision being considered, this decision will be binding

under the doctrine of judicial precedent.

Decisions by the courts on an earlier statutory provision that has been

subsequently replaced by the provision under consideration do not

strictly constitute binding precedents. Nevertheless the courts will

generally follow them unless there is a reason for departing from theearlier interpretation.

7.4.5. Pre-Parliamentary Materials

Courts may have recourse to official publications that precede and

form the basis for legislation, including:

Government White Papers Royal Commission Reports


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Law Commission Reports Criminal Law Revision Committee Reports

7.4.6. Parliamentary Materials (Hansard)

Traditionally, courts were not permitted to refer to records of

Parliamentary debates to assist them with the interpretation of a statute.

Although this continues to be the general position it must now be

understood in the context of the rule laid down in the following case.

Pepper v Hart[1993] 1 All ER 42

The case concerned the liability to income tax of

schoolmasters at Malvern College. They were entitled

to educate their children at the school at a concessionary

fee rate of about 20% of normal fees. As this was a

benefit in kind they were obliged, under section 63 of

the Finance Act 1976, to pay income tax on the

difference between the amount they paid and the cost to

the school of educating their children. The Inland

Revenue argued that this should be calculated on the

basis of the marginal cost to the school for each child.The schoolmasters claimed that the full cost to the

school, including an apportionment of overheads,

should be used for the calculation.

Section 63 was capable of either interpretation but when

the provision was going through Parliament the

Financial Secretary to the Treasury had made it clear

that the government intended it to have the meaning

being argued by the schoolmasters. The House of Lords

decided to admit the evidence of the parliamentary

debate (in Hansard) and found in the schoolmastersfavour. Their Lordships ruled that Hansard could be

referred to by courts where:

Legislation is ambiguous or obscure, or leads toan absurdity

The material relied upon consists of statementsby a minister promoting the Bill

The statements relied upon are clear


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7.4.7. Post-Parliamentary Materials

The courts may refer to guidance published by government

departments about the implementation of legislation in interpreting bits

meaning.

7.5. Presumptions

7.5.1. Nature of Presumptions

Certain presumptions of statutory interpretation have developed over

the years.

In the absence of a clear contrary intention within the statute the courts

will presume that Parliament intended the statute to have the meaning

favoured by the presumption.

All presumptions may be rebutted by clear contrary wording in the

statute.

7.5.2. Examples of Particular Presumptions

In favour of individual liberty

Against the interference with private property rights

Against retrospective operation

Against ousting the jurisdiction of the courts

7.6. Bibliography

Wood, D.,Law and the Built Environment, Macmillan, 1999, p. 16

Owens, K.,Law for Non-Law Students, Cavendish, 2001, pp. 22 - 25


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Slapper, G. & Kelly, D., The English Legal System, Cavendish, 2001, pp. 166

182

McLeod, I.,Legal Method, Palgrave Macmillan, 2002, chapters 18 & 20

Keenan, D., Smith & Keenans English Law, Longman, 2001, pp. 162 167 &

644 646

Card, R., Murdoch, J. & Murdoch, S.,Law for Estate Management Students,

Butterworths, 1998, paras. 3.21 3.32

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