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STATUTORY INTERPRETATION
Codifed, with a critical Commentary
F. A. R. Bennion MA (Oxon), Barrister
Former UK Parliamentary Counsel; sometime
Lecturer and Tutor in Jurisprudence
at St Edmund Hall Oxford
London
Butterworths
1984
iii
purpose can sometimes have
Superening factor
JL_J1..
As always in statutory interpretation, it is necessary, when;.
considering the possibilty of applying a purposive construction, to take accountj
of any other applicable criteria as well. The overriding object is to give effect to1
Parliament intention
(See s 98 of this Code. J, and this is unlikely to be to .
chieve th immediate purp se 3.t no
atter what cost. tAs to the weighing of
interpretative factors see P:t VII of this Code.
to decide the mode of trial). J
arraignment; for then is his time to take any exceptions thereto, by way of plea
or demurrer . tKerr Bl (4th edn , 1876) iv 362. Cf
Re Daley
(1982) 2 All ER 974
(the moment relevant for determining whether the accused has attained the age
entitling him to demand trial by jury is the moment when the court is called on'
Example
1 The Treason Act 1695 contained a number of provisions about
trials. One said that the prisoner should have a copy of the indictment five days
at least ' before the trial' . To determine the precise terminus ad quem of this fiveday period it vias necessary, ' as Blackstone perceived, to discern the reasoning
behind the enactment: ' that is, upon the true construction of the act, before hi
the enactment is contained in a consolidation 4ct see s 232 of this Code.
Discerning the exact purpose of a particular enactment is often more dificut
than discerning the purpose of a whole Act. Moreover exactness may be highly
necessary if the point is to be decided correctly.. .
construction. t As to the significance in relation to interpretation of the fact that
quite different aspects. In one sense the purpose of the Bankrptcy Act 1914
to do the things described in the above dictum of Salmon LJ. In a quite diferent
sense its p rpose is simply that indicated by the long title: ' to consolidate the
Law relating to Bankruptcy . Both purposes may be relevant on a point of
A further cOlrtplicating factor is that an Act s
Section 26(7) has its own limited purpose, but this partakes to some extent of
each of the purposes listed above it.
The purpose ofs 26(7)
The purpose ofs 26 (discharge of bankrupt) of the 1914 Act
The purpose oftbe Bankruptcy Act 1914
The purpose oflaw as an instrent of public welfare
The purpose of the bankruptcy law
can construct a descending order of purposes as follows-
containing it - or sometimes within a broader purpose stil, when the subject is
dealt with by several Acts. Beyond this again is the general purpose of the law as
an instrument serving the public welfare. Using the bankrptcy example, we
own limited purpose, to be understood within the larger purpose of the Act
examine him as of right.
The example ilustrates that the concept of legislative purpose is not entirely
straightforward. In statutory interpretation the unit of enquiry is usually a single
proposition (an ' enactment ). fSee s 72 of this Code. J Each enactment has its
This survey was the prelude to a discussion by Salmon LJ of the specific
question whether s 26(7) of the Bankruptcy Act 1914 entitled an opposing
creditor at the hearing of an application for the bankrpt s discharge to cross-
Part XV Legislative Presumptions: Purposive Construction
., .
construction
accepted interpretative criteria wil be
applied. tFor the
persons seeking to
70(2) could be read as requiring the
as the norm. In
Western
A purposive-and- literal construction is one which follows the literal
meaning of the enactment where that meaning is in accordance with the
legislative purpose.
314. Purposive-and- literal construction
provision (s 42) of the Rent (Scotland) Act 1971).
Heritable Investment Co Ltd v Husband
HI983) 3 All ER 65. ), the House of
Lords was called upon to correct this very mistake (made by the Extra Division
of the Inner House of the Court of Session in Scotland under the corresponding
Parliament. The scarcity rents would be treated
Such a reading would produce a result exactly opposite to the one intended by
valuer, in looking at these a tual rents for comparison, to assume that they were
fied under the hypothetical conditions, that is with an even balance
between
available accomodation and would-be tenants.
prevailng in the neighbourhoo. Section
did not foresee. Valuers fi hypothetical rents by reference to the actal rents
This may be summarised as: in fixing the fair rent . assume there is neither a
surplus nor a shortage of similar accomodation in the locality.
This apparently simple piece of make-believe is subject to a trap the draftsman
substantially greater than the number of such dwellng- houses in the
locality which are available for letting on such terms.'
(other than those relating to rent) of the regulated tenancy is not
become tenants of similar dwellng- houses in the locality on the terms
, ... it shall be assumed that the number of
Section 70(2) of the Rent Act 1977 says that in determining a ' fair
rent ' for a dwellng- houseExample
purpose.
Acts often deem things to be what they are not. In
construing a deeming provision it is necessary to bear in mind the legislative
Deeming provisions
the extra-territorial effect of legislation relating to property rights. t As to the
implied application of such rules see s 342 of this Code.
Example
G of New Zealand v Ortiz
HI 982) 3 All ER 432. ) it was held at
first instance that the phrase ' shall be forfeited' in s 12(2) of the New Zealand
Historic Articles Act 1962 was ambiguo s, and that a purposive construction
should be applied to decide whether forfeiture was automatic or depended upon
seizure of the historic article in question. The decision was overruled on appeal
because, though right as far as it went, it failed to take into account a further
(and overriding) criterion. This was the rule of international law which limits
erpretative criteria see Part VI of this Code.
contrary the
It needs to be recognised that contrary purposes of a more general nature may
supervene. Parliament is presumed to intend to further the general policy of the
law, and to legislate in the knowledge that if it does not expressly provide to the
314. Purposive-and- literal