Statutory Interpretation - Teaching With Crump!

Statutory Interpretation
Advantages and disadvantages of
the rules of interpretation
Advantages of the literal rule
• Parliamentary supremacy is respected
• Judges given a restricted role
• Law making left to those who are elected for
law making
• Application of literal rule can highlight to
parliament problems with an act – Fisher v
Bell – invitation to treat now treated in the
same way as offers for sale
Disadvantages of the literal rule
• Absurd results
• Unjust results – LNER v Berriman (1946)
• Does not always give effect to the intention of
parliament – they would not want absurd
• Where a dictionary definition gives two
meanings, the literal rule will not work
• Requires the assumption that draftsmen will
always do their job perfectly
Advantages of the golden rule
• Prevents absurd and unjust results – Re
• More likely than the literal rule to have
produced a result intended by parliamant
Disadvantages of the golden rule
• No clear definition of what amounts to an
absurd result – therefore unpredictable
• Makes it difficult for lawyers to advise clients
whether or not to pursue a case
• Too much power given to judges
• Michael Zander calls it a ‘feeble parachute’
Advantages of the mischief rule
• Avoids absurd and unjust outcomes –
• Promotes flexibility
• How parliament intended it – smith v hughes
• Law Commission calls it a ‘rather more
satisfactory approach’ – preferred approach
Disadvantages of the mischief rule
• Too much power to an unelected judiciary
• Is it the job of a judge to update legislation? –
Abortion Act 1967
• Can be hard to discover the original mischief –
search old law
• Difficult to identify precise intention of
• Out of date – 16th century
Advantages of the purposive approach
• Consistent with EU approach
• Gives effect to parliament’s intentions
• Denning states that it is “preferable to
destructive analysis”
• Avoids absurd and unjust results
• Flexible
• Parliament's intention
Disadvantages of the purposive
• Too much power to unelected jury
• Judicial decisions based on policy – Fitzpatrick
v Sterling Housing Association
Advantages of the ejusdem generis
• No requirement for draftsmen to write an
exhaustive list of everything included
• Adadpt to changes in society
Disadvantages of the ejusdem generis
• Not always predictable what judges will
consider to be of the same category as the
specific words – Kensington and Chelsea LBC
ex p Kihara (1996)
• Allows for judicial law making
Advantages of the noscitur sociis rule
• No need for draftsmen to foresee every
particular circumstance
• Adapt to unforeseen circumstances
Disadvantages of the noscitur sociis
• Offends the separation of powers – judicial
law making
• Unpredictable outcomes due to scope for
judicial discretion
Advantages of the exclusio alterius
A finite list is provided
More predictable
Lawyers can advise due to this
Respects separation of powers
Disadvantages of the exclusio alterius
• Rigidity
• No scope for future changes
• Possible unfair and unjust outcomes
Advantages of the intrinsic aids
• Long title can remind judges of what they are
trying to achieve – mischief/purposive
approach – Black-Cawson (1975)
• Preamble, objectives or puposes sections help
when applying mischief/purposive approach
• Schedules help understand the provisions of
an act – easy to reference
• Definition section helps with interpreting
Disadvantages of the intrinsic aids
• Doubt as to whether punctuation should be
taken into account – wasn’t used prior to 1850
Advantages of the extrinsic aids
• Dictionaries help when using literal approach
• Referring to acts can help with interpreting
• Commission reports help when applying
mischief/purposive approach
• Hansard is a very useful tool – Davis v Johnson
• Explanatory notes use more accessible
Disadvantages of the extrinsic aids
• Dictionaries do not help when looking at
parliament’s intention
• Interpretation Act is limited in scope and not
very technical or specialised
• Commission reports can be erroneous –
Anderton v Ryan
Activity Page 53