Statutory Interpretation
Richard O’Neill
University of Hertfordshire
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Legislation and common law
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 lawmaking authority in the land
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Parliamentary Sovereignty
Is it absolute?
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Parliamentary Sovereignty
Is it absolute?
• European Union - ECJ
• Individual freedoms – Human Rights
Act
• Governmental accountability –
Judicial review
• Democracy
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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
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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
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Interpreting statutes
Why do statutes
need interpreting?
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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
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Interpreting statutes
The Facial Hair
and Parks Act
2006
• Statute banning men with facial hair
from parks
• ‘s1 (1) .. men with beards or
moustaches are prohibited from
parks..’
Hypothetical statute
After Elliot and Quinn
English Legal System 1996
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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?
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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’
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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)
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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
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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
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Statutory Interpretation
• rules of language
• ejusdem generis – “of the
Specific rules of
interpretation
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
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Statutory Interpretation
• rules of language
Specific rules of
interpretation
• 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
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Statutory Interpretation
• rules of language
• noscitur a socciis – known by
Specific rules of
interpretation
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
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Statutory Interpretation
• The Interpretation Act 1978
Statutory aids to
interpretation
• 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
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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
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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
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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 Ltd 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
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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
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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
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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
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Statutory Interpretation
• Intrinsic aids
Mischief rule
purposive
approach
• understanding the
context
• Deciding what they
believe Parliament
meant to achieve
• 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)
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Statutory Interpretation
• Extrinsic aids
Mischief rule
• understanding the
context
• 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
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Statutory Interpretation
• Parliamentary debates
Mischief rule
• understanding the
context
• 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
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Statutory Interpretation
Human Rights Act • Increasing importance
• Overrides traditional
1998
approaches
- section 3
• judges obliged to read all primary and
secondary legislation in a way that is
compatible with the European
Convention on Human Rights
(ECHR)
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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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Statutory Interpretation