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STATUTORY INTERPRETATION
THE PROBLEM OF INTERPRETATION
SOLUTIONS
F.A.R. Bennion (Statute Law, 1990), has identified a
number of factors that may cause doubt:
General methods of statutory interpretation have been
developed by the judges.
1.
The Interpretation Act 1978 only provides certain
standard definitions of common provisions, eg, “he”
includes “she”, and thereby enables statutes to be
drafted more briefly than otherwise would be the case.
2.
3.
4.
5.
The draftsman may refrain from using certain
words that he or she regards as necessarily
implied. The problem here is that the users
may not realise that this is the case.
The draftsman may use a broad term (“a word
or phrase of wide meaning”) and leave it to
the user to judge what situations fall within it.
Ambiguous words may be used.
There may be unforeseeable developments.
There are many ways in which the wording
may be inadequate. There may be a printing
error, a drafting error or another error.
Modern statutes commonly include “definition
sections” in which the meaning of words and phrases
found in the statute are explained, eg ss2-6 of the Theft
Act 1968 explain the elements of the offence in s1.
Explanatory Notes have been published for new Acts
since 1999.
THE RULES OF STATUTORY INTERPRETATION
RULE
1. Literal
By the literal rule, words in a
statute must be given their plain,
ordinary or literal meaning. The
objective of the court is to discover
the intention of Parliament as
expressed in the words used. This
approach will be used even if it
produces absurdity or hardship, in
which case the remedy is for
Parliament to pass an amending
statute.
One of the leading statements of
the literal rule was made by Tindal
CJ in the Sussex Peerage Case
(1844) 11 Cl&Fin 85:
“… the only rule for the
construction of Acts of Parliament
is, that they should be construed
according to the intent of the
Parliament which passed the Act.
If the words of the statute are in
themselves precise and
unambiguous, then no more can be
necessary than to expound those
words in their natural and ordinary
sense. The words themselves alone
do, in such case, best declare the
intention of the lawgiver.”
Lord Esher in R v Judge of the City
CASE EXAMPLE
Whiteley v Chappell (1868) LR 4
QB 147.
The defendant pretended to be
someone who had recently died in
order to use that person’s vote. It
was an offence to “personate any
person entitled to vote”. As dead
people cannot vote, the defendant
was held not to have committed an
offence.
London & North Eastern Railway
v Berriman [1946] AC 278.
The claimant’s husband was killed
while oiling points along a railway
line. Compensation was only
payable if he had been “relaying or
repairing” the line. The HL held
oiling points was maintaining the
line and not “relaying or repairing”.
Cutter v Eagle Star Insurance
[1998] 4 All ER 417.
The claimant was sitting in his
friend’s car in a car park and was
injured when a can of lighter fuel
exploded. The driver was insured,
as required by the Road Traffic Act
1988, for injury caused while on a
“road”. The HL held that the car
park was not a road because a road
provides for cars to move along it
to a destination. Therefore, the
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COMMENTARY
3It encourages draftsmen to be
precise.
3It respects the words used by
Parliament.
3It prevents judges “rewriting”
statute law, which only Parliament
can do.
3Alternative approaches would
make it difficult to predict how
doubtful provisions might be
“rewritten” by judges.
7Judges have tended excessively
to emphasise the literal meaning of
statutory provisions without giving
due weight to their meaning in
wider contexts.
7It assumes that parliamentary
draftsmen are perfect.
7 It ignores the limitations of
language.
7It can lead to absurd or harsh
decisions and Parliament has to
pass an amending statute.
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of London Court [1892] 1 QB 273
said:
“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.”
2. Golden
The golden rule provides that if the
words used are ambiguous the
court should adopt an interpretation
which avoids an absurd result. In
Grey v Pearson (1857) 6 HL Cas
61, Lord Wensleydale said:
“… the grammatical and ordinary
sense of the words is to be adhered
to, unless that would lead to some
absurdity, or some repugnance or
inconsistency with the rest of the
instrument, in which case the
grammatical and ordinary sense of
the words may be modified, so as
to avoid that absurdity and
inconsistency, but no farther.”
This became known as “Lord
Wensleydale’s golden rule”.
In its second, broader sense, the
court may modify the reading of
words in order to avoid a repugnant
situation as in Re Sigsworth (1935).
3. Mischief
The mischief rule is contained in
Heydon's Case (1584) 3 Co Rep 7,
and allows the court to look at the
state of the former law in order to
discover the mischief in it which
the present statute was designed to
remedy.
The court stated that for the true
interpretation of all statutes four
things are to be considered:
insurance company was not liable
to pay out on the driver’s policy
because the claimant had not been
injured due to the use of the car on
a “road”.
R v Allen (1872) LR 1 CCR 367
The defendant was married and
married again. It was an offence
for a married person to “marry”
again unless they were widowed or
divorced. When caught the
defendant argued that he did not
commit this offence as the law
regarded his second marriage as
invalid. The court held that the
word “marry” could also mean a
person who “goes through a
ceremony of marriage” and so the
defendant was guilty.
Re Sigsworth [1935] Ch 89.
The defendant had murdered his
mother. She did not have a will
and he stood to inherit her estate as
next of kin, by being her “issue”.
The court applied the golden rule
and held that “issue” would not be
entitled to inherit where they had
killed the deceased.
3It allows judges to avoid absurd
or harsh results which would be
produced by a literal reading.
3It allows judges to avoid
repugnant situations, as in Re
Sigsworth.
7There is clear way to test the
existence of absurdity,
inconsistency or inconvenience, or
to measure their quality or extent.
7Judges can “rewrite” statute law,
which only Parliament is allowed
to do.
Adler v George [1964] 2 QB 7.
It was an offence to obstruct HM
Forces “in the vicinity of ” a
prohibited place. The defendants
had obstructed HM Forces in a
prohibited place (an army base) and
argued that they were not liable.
The court found them guilty as “in
the vicinity of” meant near or in the
place.
Smith v Hughes (1960) 2 All ER
859.
Six women had been charged with
soliciting “in a street or public
place for the purpose of
prostitution”. However, one
woman had been on a balcony and
others behind the windows of
ground floor rooms. The court held
they were guilty because the
mischief aimed at was people being
molested or solicited by prostitutes.
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4It allows judges to put into effect
the remedy Parliament chose to
cure a problem in the common law.
4It was developed at a time when:
statutes were a minor source of
law; drafting was not as precise as
today and before Parliamentary
supremacy was established.
7Judges can “rewrite” statute law,
which only Parliament is allowed
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1st.
What was the common
law before the making of the Act.
2nd.
What was the mischief
and defect for which the common
law did not provide.
3rd.
What remedy Parliament
resolved and appointed to c ure the
disease.
4th.
The true reason of the
remedy; and then the function of
the judge is to make such
construction as shall supress the
mischief and advance the remedy.
Royal College of Nursing v DHSS
[1981] 1 All ER 545.
The Abortion Act 1967 allows
abortions by “a registered medical
practitioner”. Doctors carried out
the first part of the procedure and
the second was performed by
nurses but without a doctor being
present. The HL held (by 3-2) that
this procedure was lawful because
the mischief Parliament was trying
to remedy was back street abortions
performed by unqualified people.
to do.
7It must be possible to discover
the mischief in order for this rule to
be used.
Corkery v Carpenter [1951] 1 KB
102.
A person could be arrested if found
drunk in charge of a “carriage” on
the highway. The defendant had
been arrested for being drunk in
charge of a bicycle on the highway.
The court held that a bicycle was a
“carriage” for the purposes of the
Act because the mischief aimed at
was drunken persons on the
highway in charge of some form of
transport, and so the defendant was
properly arrested.
DPP v Bull [1994] 4 All ER 411.
A man had been charged with
loitering or soliciting in a street or
public place for the purpose of
prostitution. The court held that
the term “prostitute” was limited to
female prostitutes. The mischief
the Street Offences Act 1959 was
intended to remedy was a mischief
created by women.
4. Purposive
The purposive approach is one that
will “promote the general
legislative purpose underlying the
provisions” (per Lord Denning MR
in Notham v London Borough of
Barnet [1978] 1 WLR 220). There
will be a comparison of readings of
the provision in question based on
the literal or grammatical meaning
of words with readings based on a
purposive approach.
In Pepper (Inspector of Taxes) v
Hart [1993] AC 593, Lord BrowneWilkinson referred to “the
purposive approach to construction
now adopted by the courts in order
to give effect to the true intentions
Jones v Tower Boot Co Ltd [1997]
2 All ER 406.
The complainant suffered racial
abuse at work, which he claimed
amounted to racial discrimination
for which the employers were
liable under s32 of the Race
Relations Act 1976. The CA
applied the purposive approach and
held that the acts of discrimination
were committed “in the course of
employment”. Any other
interpretation ran counter to the
whole legislative scheme and
underlying policy of s32.
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4It gives effect to the true
intentions of Parliament.
7It can only be used if a judge can
find Parliament’s intention in the
statute or Parliamentary material.
7 Judges can “rewrite” statute law,
which only Parliament is allowed
to do.
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of the legislature”.
5. Integrated
Sir Rupert Cross, Statutory
Interpretation (3rd ed, 1995),
suggested that there was a unified
approach to interpretation:
(i) the judge begins by using the
grammatical and ordinary or
technical meaning of the context of
the statute;
(ii) if this produces an absurd result
then the judge may apply any
secondary meaning possible;
(iii) the judge may imply words
into the statute or alter or ignore
words to prevent a provision from
being unintelligible, unworkable or
absurd; and
(iv) in applying these rules the
judge may resort to various aids
and presumptions.
THE RULES OF LANGUAGE
RULE
CASE EXAMPLE
Powell v Kempton Park Racecourse [1899] AC 143.
It was an offence to use a “house, office, room or other
place for betting”. The defendant was operating from
a place outdoors. The court held that “other place” had
to refer to other indoor places because the words in the
list were indoor places and so he was not guilty.
1. Ejusdem generis (of the same kind)
General words f ollowing particular words will be
interpreted in the light of the particular ones.
Muir v Keay (1875) LR 10 QB 594.
All houses kept open at night for “public refreshment,
resort and entertainment” had to be licensed. The
defendant argued that his café did not need a licence
because he did not provide entertainment. The court
held that “entertainment” did not mean musical
entertainment but the reception and accommodation of
people, so the defendant was guilty.
2. Noscitur a sociis (known from associates)
A word will be interpreted in the context of
surrounding words.
Tempest v Kilner (1846) 3 CB 249.
A statute required that contracts for the sale of “goods,
wares and merchandise” of £10 or more had to be
evidenced in writing. The court had to decide if this
applied to a contract for the sale of stocks and shares.
The court held that the statute did not apply because
stocks and shares were not mentioned.
3. Expressio unius est exclusio alterius (the express
mention of one thing is the exclusion of another)
The express mention of things in a list excludes those
things not mentioned.
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INTERNAL AND EXTERNAL AIDS TO INTERPRETATION
There is a wide range of material that may be considered by a judge when interpreting statutes. Some of these
aids may be found within the statute in question, others are external to the statute.
INTERNAL
EXTERNAL
1. Other enacting words
An examination of the whole of a statute, or relevant
Parts, may indicate the overall purpose of the
legislation. It may show that a particular interpretation
of that provision will lead to absurdity when taken
with another section.
1. Dictionaries and other literary sources
Dictionaries are commonly consulted as a guide to the
meaning of statutory words. Textbooks may also be
consulted.
2. Practice
The practice followed in the past may be a guide to
interpretation. For example, the practice of eminent
conveyancers where the technical meaning of a word
or phrase used in conveyancing is in issue.
2. Long Title
The long title should be read as part of the context, “as
the plainest of all the guides to the general objectives
of a statute” (per Lord Simon in The Black-Clawson
Case [1975]).
3. Other Statutes in Pari Materia
Related statutes dealing with the same subject matter
as the provision in question may be considered both as
part of the context and to resolve ambiguities. A
statute may provide expressly that it should be read as
one with an earlier statute(s).
3. Preamble
When there is a preamble it is will generally state the
mischief to be remedied and the scope of the Act. It is
therefore clearly permissible to use it as an aid to
construing the enacting provisions.
4. Official Reports
Legislation may be preceded by a report of a Royal
Commission, the Law Commissions or some other
official advisory committee. These reports may be
considered as evidence of the pre-existing state of the
law and the “mischief” with which the legislation was
intended to deal. However, it has been held that the
recommendations contained in them may not be
regarded as evidence of Parliamentary intention as
Parliament may not have accepted the
recommendations and acted upon them (The BlackClawson Case [1975] AC 591).
4. Short Title
There is some question whether the short title should
be used to resolve doubt.
5. Headings, side -notes and punctuation
Headings, side-notes and punctuation may be
considered as part of the context.
5. Treaties and International Conventions
There is a presumption that Parliament does not
legislate in such a way that the UK would be in breach
of its international obligations.
6. Parliamentary Materials/Hansard
In Pepper (Inspector of Taxes) v Hart [1993] AC 593,
the House of Lords relaxed the general prohibition (in
Davis v Johnson [1979] AC 264) that a court may not
refer to Parliamentary materials, such as reports of
debates in the House and in committee (Hansard) and
the explanatory memoranda attached to Bills, when
interpreting statutes. They may now be used where:
(a) legislation is ambiguous or obscure, or leads to an
absurdity;
(b) the material relied on consists of one or more
statements by a minister or other promoter of the Bill
together if necessary with such other parliamentary
material as is necessary to understand such statements
and their effect; and
(c) the statements relied on are clear.
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PRESUMPTIONS
PRESUMPTION
CASE EXAMPLE
1. Presumption against changes in the common law
2. Presumption against ousting the jurisdiction of the
courts
3. Presumption against interference with vested rights
4. Strict construction of penal laws in favour of the
citizen
5. Presumption against retrospective operation
6. Presumption that statutes do no affect the Crown
7. Others
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