Statutory interpretation
Aims of the session
To identify the issue(s) that surround
judicial approaches to statutory
interpretation
II. To look at the principal ‘rules’ of SI
III. Address the critique of these rules
IV. To consider some examples of the
rules in action
I.
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
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
The ‘rules’ of interpretation
1.
2.
The ‘literal’ rule
The ‘golden’ rule
3.
4.
The ‘mischief’ rule
The ‘purposive approach’
Are they really ‘rules’ or just a means of
justifying the desired outcome by judges?
The Literal Rule
1.
When the words of a statute are plain &
unambiguous, Parliament must be taken
to have meant and intended what it has
plainly expressed.
2.
What is the justification for the rule –
Lord Diplock in Duport Steel v Sirs [1980]
1 WLR 142, at 157
3.
Criticisms of the rule
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 Mischief Rule
I.
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
II.
Early example of what is now referred to as
the ‘purposive approach’
III.
Limitations of the Mischief Rule
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….
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?
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.
Role of ‘Presumptions’ in
Statutory Interpretation
1.
In addition to the rules of SI – judges may
also rely on a range of ‘presumptions’ to
assist in the process of SI
2.
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.”
3.
Presumptions are ‘implicit’ to legislation
Some Examples…
1.
2.
3.
4.
5.
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”
Take a break
Aims of this part of the
session
I.
II.
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
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
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))
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”
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
Ghaidan v Godin-Mendoza – the
issues
I.
II.
III.
IV.
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”
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)
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
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 …