STATUTORY INTERPRETATION
LAW01: Law Making and the Legal System 2014/15
Teachers: Mr Howells (Head of Law), Ms Vollam, Mrs Moses.
Name: _____________________________________________________
1.The Need for Statutory Interpretation
When Parliament passes an Act, the meaning of the law should be clear and explicit for the courts to
apply. In practice, many cases come before the court because there is a conflict over the meaning of
the Act.
There are a number of reasons as to why the meaning of an Act may be unclear and uncertain:
1. AMBIGUITY – the words used within the Act have more than one meaning.
2. BROAD TERMS – these may be used by Parliament to cover several possibilities. It is then for
judges to interpret their correct meaning. For example, what did “type” of dog mean in the
Dangerous Dogs Act (1991)? This was the key point in dispute in Brock v DPP [1993].
3. DRAFTING ERRORS – the wording may be inadequate as Parliament has not noticed an error
in the original Bill.
4. NEW DEVELOPMENTS – the detail of a case before the court may not have been foreseen
when the Act was made, as in Royal College of Nursing v DHSS (1991) – see below.
5. CHANGES IN LANGUAGE – The meaning of words can change over time, which was one of the
problems in the case of Cheeseman v DPP (1990)
The courts have therefore developed RULES to establish what an Act means. The different approaches
are as follows:
The Literal
Rule
(Approach)
The Golden
Rule
The Mischief
Rule
The Purposive
Approach
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2. The Literal Rule
2a. Definition
The judge reads the statute as a whole, putting the words into context and having done this, he gives
them their normal meaning. In doing so, he will be expressing Parliament’s true intention from the
words used within the statute.
Where the words of the statute are quite clear the courts have no option but to give them their normal
meaning even if this leads to an injustice
R v Judge of the City of London Court
“If the words of an Act are clear then you must follow them even though they lead to a manifest
absurdity. The court has nothing to do with the question whether the legislature has committed
an absurdity.”
– Lord Esher
The literal rule has been the main rule applied since the early 19th century. The literal rule respects
the separation of powers and promotes certainty.
2b. Literal Rule Cases
Whiteley v Chappell
Defendant pretended to be a person whose name was on the voter’s list, but who had died. The
statute made it an offence to impersonate any person ‘entitled to vote’ at an election.
Using the literal rule: The defendant was found not guilty as dead people are ‘not entitled to vote.
This was an absurd decision.
LNER v Berriman
The Fatal Accidents Act stated a look out man must be provided for railway workers who were
relaying or repairing the line. Berriman was maintaining the line and oiling the points when he was
killed by a train. There was no look out man provided.
Using the literal rule: His wife did not get compensation as he wasn’t entitled to a look out man as
maintaining the line was not the same as relaying or repairing. This was a harsh decision.
Fisher v Bell
The defendant displayed flick knives in his shop window. He was charged under The Restriction of
Offensive Weapons Act 1959. The Act made it an offence to ‘sell or offer for sale’ an offensive weapon.
In contract law, the display of goods in a shop window is not an offer for sale but an invitation to treat;
it therefore invites a customer to make an offer to buy the goods.
The court found the defendant not guilty despite the obvious aim of the Act being to prevent such
behaviour.
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2c. Evaluation of the Literal Rule
Advantages
Disadvantages
It respects the words used by Parliament and as a
result parliamentary sovereignty is respected.
Judges are given a restricted role. They must
keep to the constitutional position of applying the
law as set by Parliament.
Leads to absurd decisions: This was illustrated
in Whiteley v Chappell and Fisher v Bell.
Law making is left to those elected for the law
making role – that is MPs in Parliament. Judges
are not elected, and it is therefore not democratic
for them to be involved in the creation or even
modification of the law. If the law needs to be
changed, then this is the responsibility of
Parliament.
Leads to unjust results - In London and North
Eastern Railway v Berriman an Act placed railway
companies under a duty to provide a look-out
man whenever a railwayman was ‘repairing or
relaying’ the track. Mr Berriman’s job was to top
up the oil that lubricated the points on the line.
His employer, a railway company, did not provide
him with a look-out man or any other warning
system, and Mr Berriman was killed by a train.
Mr Berriman’s widow was not entitled to
compensation as the words ‘relaying or repairing’
did not cover oiling points on the line, this was
only maintaining.
Application of the literal rule can highlight to
Parliament the problems with an Act, and then
Parliament can amend the legislation. The literal
interpretation in Fisher v Bell and Partridge v
Crittenden prompted Parliament to amend the
law so that invitations to treat are dealt with the
same way as offers for sale.
It assumes Parliamentary draftsmen are
perfect. This is virtually impossible, as not only
will they sometimes be careless, as is human
nature, but language has its limitations.
The Law Commission in 1969 pointed out that the
interpretation based on literal meanings
“assumes unattainable perfection in
draftsmanship” even the most talented and
experienced draftsmen cannot predict every
situation to which legislation may be applied.
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3. The Golden Rule
3a. DEFINITION
This rule states that the literal rule should be followed unless it would lead to an absurd decision
which Parliament would not have intended. This rule is known as the safety valve. The Golden Rule is
a modification of the literal rule
The golden rule is thought to have its origins in the dictum of Parke B in Becke v Smith [1836]
“… that the words of an Act should be taken literally but they can be modified or varied to avoid
inconsistency with the Act or repugnant outcome.”
In Grey v Pearson [1857] Lord Wensleydale stated:
“The grammatical and ordinary sense of the word is to be adhered to unless that would lead to some
absurdity … in which case the …words may be modified, so as to avoid that absurdity…”
There are two views on how far the golden rule should be used:
3b. The Narrow View – Golden Rule
Definition of the narrow view: where a word or words have two possible meanings but one would
produce an unwanted or absurd outcome the court may choose between them - Jones v DPP.
The narrow view can be seen in practice in:
R v Allen
D was already married when he married again. It was an offence to marry again unless you were
divorced or widowed. The court had to consider the meaning of the word ‘marry’.
Using the golden rule: The meaning of the word marry was modified to mean ‘going through the
ceremony’. The court decided that being married meant ‘being validly married’ but that ‘shall marry’
meant simply ‘go through a marriage ceremony’, which Allen had done. As a result he was found
guilty based on this meaning.
3c. The Wide View/broad approach – Golden Rule
Definition: Where the words have only one clear meaning, but to give its literal meaning it would
lead to a repugnant situation. In such a case the court will use the golden rule to change the words of
the statute in order to avoid this problem.
Adler v George
Adler gained access to a RAF station (a prohibited place within the meaning of the Official Secrets Act
1920) and was actually within its boundaries. He obstructed a member of Her Majesty's forces
engaged in security duty in relation to the station ‘in the vicinity of a prohibited place’ He argued
that, as he was actually in the prohibited place, he could not be said to be "in the vicinity" of the
prohibited place.
Held: The defendant was guilty of the offence because "in the vicinity of" should be interpreted to
mean on or near the prohibited place.
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Re Sigsworth
The Administration of Estates stated the order of relatives that could inherit property where
there was no will. Sigsworth was the only surviving son of the deceased, his mum, but he had killed
her.
Using the golden rule: He was not allowed to inherit as he had killed her.
Advantages
Disadvantages
Avoids absurdity and unjust results, it can
avoid the worst problems of the literal rule.
Examples of cases where absurd or unjust results
have been avoided by the use of the golden rule –
R v Allen
There is no clear definition of what amounts
to an absurd result.
As a result the use of the golden rule is
unpredictable, which in turn makes the outcome
of cases unpredictable. This makes it more
difficult for lawyers to advise their clients on
whether to pursue a case.
Example in LNER v Berriman and Whiteley v
Chappell a different court might have chosen to
avoid the absurd outcomes of these cases.
It allows judges to re-write statute law and
therefore gives them too much power.
Ensures justice and fairness is achieved.
Example: Re Sigsworth
Judges are not elected so should not be
empowered in this way. It is undemocratic and as
a result goes against Parliamentary Sovereignty
It respects the exact words of Parliament
except in limited situations. Where there is a
problem with using the literal rule, the golden
rule provides an ‘escape route’.
Parliament would want to avoid absurd and
unjust outcomes such as those in Fisher v Bell
and LNER v Berriman
It is very limited in its use, so it is only used on
rare occasions.
Michael Zander has described the rule as a
‘feeble parachute’. It allows the court to escape
from problems caused by the literal rule, but the
courts are still limited in what they can do.
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4. The Mischief Rule
4a. Definition
Under this rule, the court looks at the gap in the law that Parliament had felt it necessary to fill by
passing the Act. It then interprets the Act to fill that gap and to remedy the ‘mischief’ Parliament had
been aiming to remedy.
It is also known as the rule in Heydon’s case (1584), which states that four things must be considered
by the court:
1. What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law did not provide?
3. What was the remedy that Parliament resolved?
4. The true reason for that remedy.
Smith v Hughes
The new law made it an offence for prostitutes to loiter or solicit in the street. A well known
prostitute occupied a first floor flat and tapped the window to attract the attention of men.
Using the mischief rule: She was found guilty as she could be seen from the street and was aiming
her services at people on the street.
Eastbourne Borough Council v Stirling
A taxi driver was charged with “plying for hire in any street” without a license to do so. His vehicle
was parked on a taxi rank on the station forecourt.
Under the mischief rule: He was found guilty even though he was on private land he was likely to get
customers off the street
Royal College of Nursing v DHSS
Under the Abortion Act, only doctors were permitted to carry out abortions legally (had to be a
medical practitioner). However, as medicine progressed, nurses were able to perform part of this
without a doctor.
Using the mischief rule: The majority of the judges said that the procedure was lawful. The reason:
the ‘mischief the Act was trying to prevent was back street abortions.
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Advantages
Disadvantages
Application of the mischief rule avoids absurd
and unjust outcomes that might result from
the application of the literal rule.
It could be argued that the judiciary has
updated the legislation.
It is the role of Parliament to update the
legislation through an amending Act
In the case of RCN v DHSS (1981) The House of
Lords had to interpret the Abortion Act 1967.
In McMonagle v Westminster City Council
(1990) 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 his use of the
premises for peep shows was unlawful and that
therefore he could be not be convicted.
The House of Lords said that the words ‘should be
unlawful should be ignored’. The guilty verdict
was upheld.
The majority in the House of Lords used the
Mischief rule to interpret the meaning of the
word ‘medical practitioner’ and said that nurses
can also carry out the abortion.
The dissenting Law Lords felt that the majority
were rewriting the Act. Lord Edmund Davies
referred to the decision as ‘redrafting with a
vengeance’.
The mischief rule promotes flexibility,
enabling the law to be applied as intended by
Parliament rather than the way it is stated in
the Act.
It is not always easy to discover the mischief
that the Act was intended to remedy.
Discovering the mischief requires research of the
old law and the reports concerning how the law
should be reformed.
In Smith v Hughes the judges used the flexibility
of this rule to make a decision on what Parliament
meant rather than what was stated in the Act.
The old law may be contained partly in legislation
Parker LJ in his judgement specifically referred to and partly in cases. Reports may contain many
what the Act was intended to do.
different viewpoints on how the new law should
remedy the mischief.
For these reasons it may be difficult to identify
the precise intention of Parliament.
The Law Commission prefers the mischief rule The mischief rule is considered to be out of
and, as long ago as 1969, recommended that it
date.
should be the only rule used.
It was laid down in the 16th century, when
It described the rule as a ‘rather more satisfactory common law was the main source of law.
approach’ than the literal and golden rules.
In the 16th century parliamentary supremacy was
not as established as it is now.
In the 16th century Acts contained lengthy
preambles which spelt out the mischief the Act
was intended to remedy.
In the 16th century , drafting was not the exact
science that it is today.
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5. The Purposive Approach
5a. Definition
This is not actually interpretation but construction as it applies where the meaning of the statute is
not clear from the words. The courts try to discover the reason for which parliament passed the
statute and then give the words a meaning to fulfil its purpose.
This approach is fairly recent and seen as a modern version of the mischief rule. The judges are not
just looking to see what the gap was in the old law but they are deciding on what they believe
Parliament meant to achieve. It was introduced as a means of interpreting European law.
The Human Rights Act (1998) also encourages the use of the purposive approach as it states that all
UK legislation must be interpreted so as to be compatible with the European Convention on Human
Rights (ECHR).
Lord Denning actively promoted this approach, and in the case of Magnor and St Mellons v Newport
Corporation he said:
“We sit here to find 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.”
Denning’s attitude was criticised by Lord Simonds for being:
“A naked usurpation of the Legislative function under the thin disguise of interpretation.”
R (Quintavalle) v Secretary of State
The HOL used the purposive approach when they decided that organisms created by cell nuclear
replacement (CNR) came within the definition of “embryo” in the Human Embryology and
Fertilisation Act 1990. Section 1(1)(a) of this Act states that “embryo means a live human embryo
where fertilisation is complete”. CNR was not possible in 1990 when the Act was passed, and the
problem was that fertilisation is not used in CNR.
Lord Bingham stated:
“The Court’s task, within permissible bounds of interpretation is to give effect to Parliament’s
purpose…Parliament could not have intended to distinguish by embryos produced by, or without,
fertilisation since it was unaware of the latter possibility.”
Pepper v Hart (1993)
The issue was how to interpret s63 of the Finance Act (1976). Teachers at an independent school for
boys were having their children educated at the school for a fifth of the price charged to the public.
This was a taxable benefit based on the ‘cash equivalent’ of the concession. Under s63 of the 1976 Act
the words ‘cash equivalent’ could be interpreted to mean either the additional cost of providing the
concession to the teachers or the average cost of providing the tuition to the public and the teachers.
The House of Lords referred to statements made by the Financial Secretary to the Treasury during the
Committee stage, which revealed that the intention of Parliament was to tax employees on the basis
of the additional cost to the employer of providing the concession.
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Jones v Tower Boot Co (1997)
The Court of Appeal had to decide whether the physical and verbal abuse of a young black worker by
his workmates fell within ‘the course of employment’ under s32 of the Race Relations Act (1976).
The employer had argued that these actions fell outside the course of the workmates’ employment,
because such behaviour was not part of their job.
The Court of Appeal reversed the Employment Appeals tribunal’s decision. Using the purposive
approach they found that the employer was responsible. Parliament’s intention when enacting the
Race Relations Act was to eliminate discrimination in the workplace, and this would not be
achieved by applying a narrow construction to the wording.
Advantages
Disadvantages
Enables Judges to interpret EU Law.
It gives too much power to the unelected
judiciary.
The purposive approach is the approach to
interpretation used in courts in other EU
countries. Since the UK joined the EU in 1972, UK
courts have increasingly used the purposive
approach. This brings the UK more in line with its
European counterparts.
It leaves it up to a judge to decide the intention of
a democratically elected Parliament rather than
applying the law as stated by Parliament.
Conflicts with the Separation of Powers as it leads
to judicial law making.
Abides by Parliament’s intention.
Judges can overstep their role by making
decisions based on public policy something
that should be left to Parliament.
In some situations it is more likely to give effect
to Parliament’s intention.
In Coltman v Bibby Tankers (1987) the court
had to interpret the meaning of the word
‘equipment’ in the Employers’ Liability
(Defective Equipment) Act (1969).
In Fitzpatrick v Sterling Housing Association
(1999) the House of Lords used the purposive
approach to interpret the word ‘family’ in the
Rent Act (1977) to include a homosexual
relationship. This was a majority decision.
In this case an employee had been killed when a
ship provided by the employer sank. The
question was whether a ship was ‘equipment’.
The dissenting judges stated that recognition of
homosexual relationships was a matter of public
policy and therefore for Parliament to decide.
The House of Lords applied the purposive
approach and stated that a ship was equipment.
Approach is supported by Lord Denning
In Magor and St Mellons v Newport
Corporation (1950).
Lord Denning stated:
“we sit here to find the intention of Parliament and
of ministers 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.”
Can make the law uncertain – conflicts with
the rule of law
It is not always clear when it will be used and as a
result would make it difficult for lawyers to
advise their clients on the prospect of a case.
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6. The Rules Of Language
These have been developed by lawyers over the years to aid the interpretation of statutes.
6a. Ejusdem Generis Rule (General Rule)
This states that where there is a list of words followed by general words, then the meaning of the
general words are limited to the same kind of items as the specific words.
There must be at least two specific words in a list before the general word or phrase for this to
operate.
It can be used where Parliament has provided a list with the words “and any others” at the end.
E.g. “Cats, dogs, hamsters, and any other animals”.
The “any other animals” refers to any other ___________________ as these are the same as the animals
listed.
Powell v Kempton Park Race Course
It was an offence to take bets in a “house, office, room or other place”. Powell took bets in an open air
stand.
Held: The general words of ‘or other place’ following the specific words ‘house’, ‘office’ and ‘room’
referred to any defined spaces used for betting which their open air enclosure was not. As all other
places listed were indoors – outside was not covered, so he was found not guilty.
6b. Expressio Unius Est Exclusio Alterius (Specific Rule)
The express mention of one thing excludes another.
If there are no general words at the end of a list then only the things that appear in the list are covered
by the legislation.
E.g. “dogs, cats and rabbits” will mean only those and nothing else.
Inhabitants of Sedgley (1837)
Rates were charged on ‘land, titles and coal mines’. Therefore rates could not be charged on any mine
other than coal mines.
6c. Noscitur A Sociis (context rule)
The meaning of a word must be derived and interpreted from the words surrounding it.
Words are generally interpreted in the context of the section and the Act as a whole.
E.g. “cats, kittens and food”, therefore “food” must mean “cat food”.
Muir v Keay (1975)
The defendant kept his café open to the public during the night without a licence. The Refreshment
Houses Act 1860 stated that all houses, rooms, shops or buildings kept open for ‘entertainment’
during certain hours of the night must be licenced. The court applied the noscitur a sociis rule and
held that ‘entertainment’ in the context of the Act did not mean only musical or theatrical
entertainment, but included other forms of enjoyment, such as drinking coffee late at night. Therefore
the defendant had committed an offence under the Act.
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Aids To Interpretation
When the courts are deciding what an Act of Parliament means, they may look for help
either within (intrinsic) the Act itself or outside (extrinsic) of the act.
Intrinsic aids to interpretation are found within the Act itself. The judge may use other
parts of the Act to understand the meaning of the word or phrase in question.
6e. Intrinsic Aids – Inside The Statute
AID
COMMENT
The name of the Act (there are arguments as to how helpful this
actually is). It is used as guidance.
Short Title
Provides the general intentions of a statute and may be used as
guidance.
Long Title
The Preamble
Interpretation
definition Section
The Long title of the Abortion Act (1967) was referred to by four of
the five Law Lords who heard the appeal in Royal College of Nursing
v DHSS
Older statutes usually have a preamble which sets out Parliament’s
purpose in enacting the statute. It sets out the purpose of the Act in
detail. Newer Acts may contain an objectives or purposes section at
the beginning of the Act.
For example, the purposes section of the Climate Change and
Sustainable Energy Act (2006) states the principal purpose of this
Act is to enhance the United Kingdom’s contribution to combating
climate change.
Most modern Acts contain an interpretation section which explains
the meaning of key words used in the Act. For example, the Law
Reform (Year and a Day Rule) Act (1996) provides that the
defendant can be guilty of a fatal offence where the death follows
more than a year and a day after the defendant’s act or omission.
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16f. Extrinsic Aids – Outside The Statute
These are aids which are external to the legislation. Extrinsic Aids are materials found
outside the Act that may be referred to by the judge. The mischief rule directs the judge
to external aids.
AID
COMMENT
Oxford English
Dictionary
Dictionaries can be used to find the literal meaning of words. In
Vaughan v Vaughan the Court of Appeal had to interpret the word
‘molest’. The defendant was subject to injuctions in respect of
previous violence towards his ex-wife, who was afraid of him. The
defendant argued that pestering his ex-wife to resume their
relationship by going to her home early in the morning and late at
night, and also calling on her at work, did not amount to molesting her.
The court held that the defendant’s behaviour did amount to ‘molest’
according to the dictionary definition.
Commission Reports
These reports help to discover the gap in the law and the reason why
the Act was passed. It includes reports of The Law Commission, Royal
Commissions and other official law reform bodies. A Law
Commission’s Report usually includes a draft bill, designed to update
or improve the law.
In the Black Clawson case the House of Lords said that official reports
should be looked at to discover the mischief or gap in the law which
the legislation based on the report was designed to deal with.
Previous Acts of
Parliament
Hansard
Previous Acts may be referred to. In Wheatley (1979) the Court of
Appeal had to interpret the provisions of the Explosive Substances
Act (1883). The Long title of the Act was ‘An Act to amend the law
relating to explosive substances, amending the Explosives Act
(1875)’. The Court of Appeal therefore looked at the earlier Act to
make sense of the 1883 Act.
The official report of what was said in Parliament when the Act was
being debated.
The House of Lords in Pepper v Hart stated that Hansard could be
used in a limited way when interpreting statutes.
Firstly, when the wording in the Act is obscure or ambiguous, judges
may only look at statements made by a Minister or other promoter of
the bill.
Secondly, the statements must be clear in order to be relied upon.
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ADVANTAGES OF USING HANSARD
DISADVANTAGES OF USING HANSARD
Usefulness: Lord Denning argued in Davis v
Johnson that to ignore parliamentary debates
would be to ‘grope in the dark for the meaning of
an Act without switching on the light’. Therefore,
it would be ridiculous to ignore it.
Lack of clarity: Parliamentary debates may not
be reliable and what was said in the “cut and
thrust of public debate was not conducive to a
clear and unbiased explanation of the meaning of
statutory language”.
Media Reports: Parliamentary proceedings are
reported in newspapers and on the radio and
television. Since judges like anyone else are
exposed to these, it seems ridiculous to blinker
themselves in court or to pretend that they are
blinkered.
Time and expense: time should be spent
considering the language itself in the statute.
It has added 25% to the Solicitor’s Bill.
Hansard on some occasions has not been helpful.
The court would have reached the same
conclusion in some cases.
Parliamentary intention: Parliamentary
intention is impossible to pin down.
Parliamentary debates usually reveal the views of
only a few members and even then, those words
may need interpretation.
Therefore, ministerial statements should not be
classed as indicative of the intention of
Parliament.
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