(1) Legislation
(2) Interpretation
(3) Rules of language
Mark Van Hoorebeek
Types of Law
Case Law: Bolton v Stone
Statute Law: Copyright, Designs and
Patents Act 1988.
Treaties: ECHR: HRA 1998
Custom: Consuetudo est altera lex: A
custom has the force of law.
Conventions: Established rules
Each has a specific role to play in society
Statute Law
Statutes are Acts of Parliament (What the
MP's do at Westminster)
Highest form of domestic law (supremacy
of Parliament)
Glorious Revolution 1688 – King giving
power to Parliament
Statutes override inconsistent Common Law
Treaties
The EU has primacy over inconsistent
domestic law following ECA 1972 s.2.
Custom
Various regions / industries have own
customs.
E.g – Baker's dozen = 13 not 12
E.g – rights of fishermen to dry nets on
private land
These rights have grown over many years –
where there was no effective parliament or
source of national law.
Conventions
Rules established
E.g. – PM must come from the Commons
not the Lords
E.g. – MP's not allowed to deliberately
mislead to Parliament – must resign
E.g. – MP's not allowed to call another MP a
liar
LEGISLATION: What is it ?
One of the main sources of law
Made by Parliament
Statute law is based on the will of parliament
and subsequently interpreted by judges
LEGISLATION: What is it ?
Of increasing importance
Increasingly delegated
Subject to EU direction and Human Rights
Legislation
Enables ‘quick’ changes of direction
Potentially more authoritative?
LEGISLATION: Relevance to Business?
Ability to influence development via
consultation
Adapt to meet requirements and early
identification of opportunities and threats
Avoid or Manage Risk arising from
implementation through
– Awareness of ambit
– Recognition of alternative courses of
action
– Ability to understand and interpret
LEGISLATION: Why use it ?
Creates new areas of law
– Where none exists
– Where common law inadequate
to develop
– Where required by EC law
LEGISLATION: Why use it ?
Rationalize or amend
existing provision
– Abolish common law or
statutory rule
– Amend or consolidate
common law or statutory
rule
LEGISLATION: Where do I find it ?
Proposals: Contained in range of
Consultation Papers and informed
commentaries and responses
Reports, Green papers, White papers
Implementation
Available from public/private and
free/subscription
services providing actual text and
informed commentaries
LEGISLATION: Types
Form
– Public Acts
– Private Acts
– Enabling Legislation [delegated
legislation]
Function
– Consolidating
– Codifying
– Amending
LEGISLATION: How is it made?
Preparatory formal/informal consultation
Parliamentary Process
First Reading, Second reading
Committee Stage
Report stage
Third reading
House of Lords: Royal Assent
NB Bill usually lost if not completed all
stages before end of Parliamentary
session but see recent reforms
Legislation is one of the three main sources
of law
The Parliamentary process - aims?
1) Speed 2) Debate 3) Check
Consultation & Notification via:
Green Paper
White Paper
Manifesto
Queens Speech
THE PASSAGE OF A PUBLIC BILL
(introduced by the Govt into the House of
Commons)
First Reading (Bills may be introduced into
either House but Bills with financial implications
or those deemed controversial will be introduced
in the Commons by a Minister).
The First Reading gives notice - no questions or
debate are entertained at this stage.
The Bill is then printed.
SECOND READING
The general principles behind the legislation will
be debated and if necessary a vote will be taken.
COMMITTEE STAGE
After the second reading the Bill will be passed to
a committee to consider the Bill clause by clause.
The committee has wide powers to make
amendments, view documents and call witnesses
(i.e. ministers) if deemed appropriate.
REPORT STAGE
The committee will report back to the House
highlighting any amendments which may have
been made.
THIRD READING
The Bill is considered in its revised form (if
applicable). Note however that any debate is
restricted to the revised contents of the Bill.
The general principles are not debated again.
OTHER HOUSE: In the other House the Bill
will follow a similar procedure (some
differences do exist).
ROYAL ASSENT: A pure formality (see the
Royal Assent Act 1967). This is reflected by
the fact that Royal Assent was last refused in
1707.
EFFECTIVE FROM?1) The date of Royal
Assent or 2) Some specified date in the future
or 3) When determined by a designated
person
LEGISLATION: Delegated Legislation
Legislation made by some person or body
to whom parliament has delegated its
general law making powers.
Types
– Orders in Council
– Statutory Instruments
– Bylaws
– Court Rules Committees
– Professional regulations
LEGISLATION: Delegated Legislation
Advantages
– Speed thereby permitting?
– Expertise
– Flexibility
– Local Knowledge
Disadvantages
– Lack of media coverage
– Potential abuse of power
– May be deemed unconstitutional
– Cumbersome
LEGISLATION: Delegated Legislation
Controls
– Parliamentary
• Power may be removed
• Parliamentary Committees
• Ministerial responsibility
– Judicial
• Doctrine of ultra vires
LEGISLATION: Interpretation Rules
Legislation being written is at risk of
differing interpretation as generality of
application achieved at expense of
detailed clarity
Judges charged with interpretation of the
will of Parliament
LEGISLATION: Interpretation Rules
Rules of Interpretation adopted
– Literal rule
– Golden Rule
– Mischief Rule
Plus additional aids of
– Intrinsic and extrinsic information
– Presumptions
LEGISLATION: EC Legislation
Community law depending on nature and
source may have
– Direct effect without need for member state
enactment
– Indirect effect through specific enactment
into internal law
Four Sources
– Internal Treaties and Protocols
– International Agreements
– Secondary Legislation
– Decisions of the European Court of Justice
LEGISLATION: Human Rights Legislation
The Human Rights Act 1998 incorporates the
European Convention on Human Rights into
UK law
LEGISLATION: Human Rights Legislation
The Convention Rights are
– Right to life
– Prohibition of torture
– Prohibition of slavery and forced labour
– Right to liberty and security
– Right to a fair trial
– No punishment without lawful authority
– Right to respect for private and family life
– Freedom of thought, conscience and religion
– Freedom of expression
– Freedom of assembly and association
– Right to marry
– Prohibition against discrimination
– Protection of property
– Right to education
– Right to free elections
Statutory interpretation
Literal rule
Golden rule
Mischief rule
The literal rule
The literal rule gives the words in question their
plain, ordinary dictionary meaning.
An example can be seen in the case of London
and North Eastern Railway Co v Berriman
(1946). This case involved a widow claiming
compensation for her husband, who had died at
work. He was killed while oiling points on a
railway line.
The literal rule
The Fatal Accidents Act 1864 stated that
there should be a lookout when workers
were 'relaying' or 'repairing' the track. The
court interpreted the words 'relaying' and
'repairing' literally and concluded that oiling
was maintenance, not relaying or repairing.
'relaying' or 'repairing'
Advantages
It results in a quick decision because the
meaning can be found in a dictionary or
other source.
It respects parliamentary supremacy
because a judge's function is to apply the
words of Parliament and not to make law.
It is also advantageous when the words
under discussion are clear, lacking
ambiguity or broadness.
Disadvantages
It can produce absurd outcomes, create
injustice and result in outcomes that do not
match parliamentary intentions.
The golden rule
The golden rule is a variation on the literal
rule. The golden rule can be used in two
ways: The narrow and the wide approach.
The narrow approach occurs when a word
has multiple meanings. The judge selects
one meaning that best fits the situation. This
approach is illustrated in the case of R v
Allen (1872).
Golden Narrow
This case involved the word 'marry'. The court
noted that there were two primary meanings of
this word. The first involved a legal commitment
to another person and the second meant being
involved in a ceremony. It was noted by the
judges that the first meaning would create a
loophole - since the second marriage would be
void, it would be impossible to commit bigamy in
a criminal sense. Therefore, the court was
prepared to read 'marry' as 'to go through a
ceremony of marriage'.
Golden Wide
The wide approach is adopted when the
meaning of a word would result in a
ridiculous or repugnant outcome.
Golden Wide: Re Sigsworth (1935).
A son had murdered his mother. She
had not made a will so, as the next of
kin, he would inherit the estate. The
wording of the Act in question was
clear and if the courts applied the
literal rule the son would inherit the
estate. However, the courts were not
prepared to allow this to happen, so
the wider approach of the golden rule
was adopted.
The mischief rule
The origins of the mischief rule can be
traced back to Heydon's Case (1584). This
rule looks at the law before the Act was
passed and at what the Act was intended to
amend. The judges interpret this Act to
cover any defect.
The mischief rule
This situation is illustrated in Smith v Hughes
(1960). This case involved the Street
Offences Act 1959, which made it an offence
for a prostitute to solicit or loiter in a street or
public place for the purposes of prostitution.
The mischief rule
The court had to
consider appeals by six
women. They had all
been charged under the
Act, but they argued
they were not guilty
because they were not
in a street.
The mischief rule
They were inside a house and had been
attracting attention by tapping on windows or
shouting out. The court used the mischief
rule and it was noted that the Act was
designed to clear up prostitution in the
streets so people could walk along the street
without being molested. Therefore, although
the prostitutes were not actually in the
street, the Act was interpreted to include the
activity they were engaged in.
Hansard
Hansard is an external aid, a record of what
has been said in Parliament. Whether this
aid should be used has caused judicial
debate. Lord Denning in Davis v Johnson
(1979) discussed the benefits of using
Hansard, but in this case judges in the
House of Lords thought it would result in
greater confusion and not give the judge a
clearer insight into the Act.
Hansard
In Pepper v Hart (1993) the House of Lords
overruled Davis and allowed Hansard to be
used in certain situations:
Hansard
if the legislation is ambiguous or obscure or
leads to anabsurdity
if the material relied on consists of one or
more statements by a minister or promoter
of the bill, together with such other
parliamentary material as is necessary to
understand such statements and their effect
if the statements relied on are clear
Rules of language
Rules of language have developed to help in
the interpretation of statutes. They allow
judges to look at other words in the Act in
order to make the meaning clear.
There are three rules of language:
(1) Ejusdem generis
This rule is used when there is a list of
words in the statute followed by a general
word - the general word is taken to include
only things of the same kind.
Ejusdem generis
This rule was used in Powell v Kempton
Park Racecourse (1889). The defendant had
been operating an outside betting place. The
Act stated 'house, office, room or other place
of betting'. The court therefore had to define
if 'other place' would cover the defendant's
situation. As the terms in the list all referred
to indoor places, it was decided that 'other
place' also referred to an indoor place.
(2) Expressio unius est exclusio
alterius
This rule is used when the express mention
of one thing implies the exclusion of another.
An example can be seen in Tempest v
Kilner (1846). This considered the Statute of
Frauds Act 1677, which noted that a
contract for the sale of 'goods, wares and
merchandise of £10 or more' needed to be
evidenced in writing. This case concerned
stocks and shares and, because they were
not expressly mentioned in the list, they
were excluded.
(3) Noscitur a sociis
This rule is used by looking at the words of
the relevant section or other sections of the
Act. It is sometimes described as
'a word is known by the company it
keeps'.
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.