5 Evaluation of Statutory Interpretation

Statutory Interpretation
Evaluation
Statutory Interpretation
Advantages and disadvantages of the rules of
statutory interpretation
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1
Statutory Interpretation
Evaluation
Objectives
• State the advantages of each rule or approach
to statutory interpretation
• State the disadvantages of each rule or
approach to statutory interpretation
• Give examples of each advantage or
disadvantage of the rules or approaches to
statutory interpretation
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Statutory Interpretation
Evaluation
Literal Rule - Advantages
1. Recognises Parliament as the supreme law
maker
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Statutory Interpretation
Evaluation
Literal Rule - Advantages
1. Recognises Parliament as the supreme law
maker
2. Judges given restricted role
–
–
–
Must keep to constitutional position of applying law
set by Parliament
Thereby maintains the separation of powers
If law needs to be changed then this is responsibility
of Parliament
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Statutory Interpretation
Evaluation
Literal Rule - Advantages
1. Recognises Parliament as the supreme law
maker
2. Judges given restricted role
3. Can highlight the problems with an Act to
Parliament
–
Fisher v Bell [1961] & Partridge v Crittenden [1968]
both led to changes in the law concerning the way
‘invitations to treat’ are dealt with in contract law.
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Statutory Interpretation
Evaluation
Literal Rule - Disadvantages
1. Can produce absurd results
–
See Fisher v Bell [1961] & Whitely v Chapell [1868]
discussed earlier
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Statutory Interpretation
Evaluation
Literal Rule - Disadvantages
1. Can produce absurd results
–
See Fisher v Bell [1961] & Whitely v Chapell [1868]
discussed earlier
2. Can also produce unjust results
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Statutory Interpretation
Evaluation
London and North Eastern Railway v Berriman [1946] AC 278
A railway worker was killed whilst oiling the track. No look out man had been provided.
A statute provided compensation payable on death for those 'relaying or repairing' the
track.
Principle – Under the literal rule oiling did not come into either of these categories.
This result although very harsh could not to be said to be absurd so the golden rule
could not be applied. There was no ambiguity in the words therefore the mischief rule
could not be applied. Unfortunately the widow was entitled to nothing.
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Statutory Interpretation
Evaluation
Literal Rule - Disadvantages
1. Can produce absurd results
–
See Fisher v Bell [1961] & Whitely v Chapell [1868]
discussed earlier
2. Can also produce unjust results
3. Cannot always give the effect to the intention of
Parliament
4. Where more than one dictionary definition
literal rule cannot help
5. Assumes that the draftsmen will always do
their job properly
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Statutory Interpretation
Evaluation
Golden Rule - Advantages
1. Prevents the absurd and unjust results that may be
produced by literal rule.
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Statutory Interpretation
Evaluation
R v Allen (1872) LR 1 CCR 367
The defendant was charged with the offence of bigamy under s.57 of the Offences
Against the Person Act 1861. The statute states 'whosoever being married shall marry
any other person during the lifetime of the former husband or wife is guilty of an
offence'. Under a literal interpretation of this section the offence would be impossible
to commit since civil law will not recognise a second marriage any attempt to marry in
such circumstances would not be recognised as a valid marriage.
Principle – The court applied the golden rule and held that the word 'marry' should be
interpreted as 'to go through a marriage ceremony'. The defendant's conviction was
upheld.
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Statutory Interpretation
Evaluation
Re Sigsworth [1935] 1 Ch 98
A son murdered his mother. She had not made a will. Under the statute setting the law
on intestacy he was her sole issue and stood to inherit her entire estate.
Principle – The court applied the Golden rule holding that an application of the literal
rule would lead to a repugnant result. He was thus entitled to nothing.
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Statutory Interpretation
Evaluation
Golden Rule - Advantages
1. Prevents the absurd and unjust results that may be
produced by literal rule.
2. More likely to produce the result Parliament
intended than the literal rule is.
–
Parliament would want to avoid the results in Fisher v Bell
[1961] & LNER v Berriman (1946)
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Statutory Interpretation
Evaluation
London and North Eastern Railway v Berriman [1946] AC 278
A railway worker was killed whilst oiling the track. No look out man had been provided.
A statute provided compensation payable on death for those 'relaying or repairing' the
track.
Principle – Under the literal rule oiling did not come into either of these categories.
This result although very harsh could not to be said to be absurd so the golden rule
could not be applied. There was no ambiguity in the words therefore the mischief rule
could not be applied. Unfortunately the widow was entitled to nothing.
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Statutory Interpretation
Evaluation
Golden Rule - Disadvantages
1. No clear definition of what amounts to an absurd
result.
– Makes it difficult for lawyers to advise their clients on
whether to pursue a case – see Whitely v Chappell
[1868] & LNER v Berriman (1946)
2. Too much power is given to judges
– (they decide when its used and they are unelected –
its undemocratic)
3. Allows courts to escape from problems caused by
the literal rule
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Statutory Interpretation
Evaluation
Mischief Rule - Advantages
1. Avoids absurd and unjust outcomes that literal rule
may produce.
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Statutory Interpretation
Evaluation
McMonagle v Westminster County Council [1990] 1 All ER 993
The court had to interpret the Local Government (Miscellaneous Provisions) Act 1982
which provided that it was an offence to use premises as a live sex encounter
establishment without a licence from the local authority. The definition of ‘sex
encounter establishment’ in the 1982 Act referred to performances, services and
entertainments ‘which are not unlawful.’ The defendant claimed that the use of his
premises for peep shows was unlawful and that therefore he could not be convicted.
Principle – The House of Lords said that, in order to avoid the absurd result whereby
a person could be convicted if the use of the premises was lawful but not if the use
was unlawful, the words ‘which are not unlawful’ should be ignored. The guilty verdict
was upheld.
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Statutory Interpretation
Evaluation
Mischief Rule - Advantages
1. Avoids absurd and unjust outcomes that literal rule
may produce.
2. Promotes flexibility enabling the law to be applied
as intended by Parliament as opposed to merely
applying the law as stated in the Act.
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Statutory Interpretation
Evaluation
Smith v Hughes [1960] 1 WLR 830
The defendants were prostitutes who had been charged under the Street Offences Act
1959 which made it an offence to solicit in a public place. The prostitutes were
soliciting from private premises in windows or on balconies so could be seen by the
public.
Principle – The court applied the mischief rule holding that the activities of the
defendants were within the mischief the Act was aimed at even though under a literal
interpretation they would be in a private place.
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Statutory Interpretation
Evaluation
Mischief Rule - Advantages
1. Avoids absurd and unjust outcomes that literal rule
may produce.
2. Promotes flexibility enabling the law to be applied
as intended by Parliament as opposed to merely
applying the law as stated in the Act.
3. Law Commission described this rule as a ‘rather
more satisfactory approach’ and suggested it
should be the only rule used.
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Statutory Interpretation
Evaluation
Mischief Rule - Disadvantages
1. Gives far too much power to the unelected judiciary.
2. In some cases it can be said that the judiciary has
updated the law – this is the role of Parliament
–
Royal College of Nursing of the United Kingdom v DHSS (1981)
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Statutory Interpretation
Evaluation
Royal College of Nursing v DHSS [1981] 2 WLR 279
The Royal College of Nursing brought an action challenging the legality of the
involvement of nurses in carrying out abortions. The Offences Against the Person Act
1861 makes it an offence for any person to carry out an abortion. The Abortion Act
1967 provided that it would be an absolute defence for a medically registered
practitioner (i.e. a doctor) to carry out abortions provided certain conditions were
satisfied. Advances in medical science meant surgical abortions were largely replaced
with hormonal abortions and it was common for these to be administered by nurses.
Principle – It was legal for nurses to carry out such abortions. The Act was aimed at
doing away with back street abortions where no medical care was available. The
actions of the nurses were therefore outside the mischief of the Act of 1861 and within
the contemplate defence in the 1967 Act.
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Statutory Interpretation
Evaluation
Mischief Rule - Disadvantages
1. Gives far too much power to the unelected judiciary.
2. In some cases it can be said that the judiciary has
updated the law – this is the role of Parliament
–
Royal College of Nursing of the United Kingdom v DHSS (1981)
3. It is not always easy to see the mischief the
Act was intended to remedy
–
Requires old Act to be researched – may be found
partly in case law and partly in statute
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Statutory Interpretation
Evaluation
Mischief Rule - Disadvantages
Considered out of date because:
–
–
–
–
–
Laid down in 16th Century when Common Law was most
prevalent
In 16th Century Parliamentary Supremacy not as established as
it is now
In 16th Century Acts contained lengthy preambles which clearly
spelled out the mischief
Judges in the 16th Century usually drafted Acts on behalf of
King so were well qualified to know what the Act was meant to
remedy
In the 16th Century drafting was not the exact science it is today
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Statutory Interpretation
Evaluation
Purposive Approach - Advantages
1. Law Commission described this rule as a ‘rather
more satisfactory approach’ and suggested it
should be the only rule used.
2. Advantages generally the same as the Mischief Rule
3. Also the same approach used by courts in other EU
countries – brings UK courts into line with
European counterparts (should always be used
when Judiciary interpreting European Legislation.
4. In some cases more likely to give effect to intention
of Parliament
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Statutory Interpretation
Evaluation
Cotlman v Bibby Tankers [1987] 3 All ER 1068
The court had to interpret the meaning of the word ‘equipment’ in the Employer’s
Liability (Defective Equipment) Act 1969. Ann employee had been killed when a ship
provided by the employer sank. The question was whether a ship was equipment. The
Act defined equipment as ‘any plant and machinery, vehicle, aircraft and clothing’.
Principle – The House of Lords applied a purposive approach and held the employer
liable on the basis that a ship was equipment. Had a more restrictive literal approach
been taken the employer would not have been liable.
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Statutory Interpretation
Evaluation
Purposive Approach - Advantages
5. Lord Denning preferred the purposive approach
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Statutory Interpretation
Evaluation
Magor and ST Mellons v Newport Corporation [1950] 2 All ER 1226
Lord Denning;
‘We do not sit here to pull the language of Parliament to pieces and make nonsense of
it. We sit here to find out the intention of Parliament and carry it out and we do this
better by filling in the gaps and making sense of the enactment than by opening it up
to destructive analysis’
(He was saying that by applying the literal rule the intention of Parliament could be
destroyed). When this case was appealed to the House of Lords, Denning’s approach
was considered by Lord Simonds as a ‘naked usurpation of the legislative function
under the thin guise of interpretation…if a gap is disclosed the remedy lies in an
amending Act’.
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Statutory Interpretation
Evaluation
Purposive Approach - Disadvantages
1. Gives too much power to the unelected judiciary
2. Judges can overstep their role by making decision
based on public policy
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Statutory Interpretation
Evaluation
Fitzpatrick v Sterling Housing Association Ltd [1999] 4 All ER 705
Reversing the Court of Appeal, the House of Lords (Lords Slynn, Nicholls and Clyde,
Lords Hutton and Hobhouse dissenting) held that a gay man was entitled to take over
the tenancy formerly held by his long-term male partner, now deceased, under the
Housing Act 1988. Lord Slynn said the legislation could not be interpreted to allow P's
claim on the basis that he had been living "as the husband or wife" of the deceased - if
Parliament had intended such a relationship to include same-sex partners it would
surely have said so - but P could claim as "a member of the family" living with the
deceased at the time of his death. The word "family" is used in many senses, he said,
some wider than others, and if P could show (as on the facts he could) the mutual
inter-dependence, sharing of lives, caring and love, commitment and support that are
rebuttably presumed to exist between married couples, that would be enough to
establish a family relationship.
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Statutory Interpretation
Evaluation
Objectives
• State the advantages of each rule or approach
to statutory interpretation
• State the disadvantages of each rule or
approach to statutory interpretation
• Give examples of each advantage or
disadvantage of the rules or approaches to
statutory interpretation
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31
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