W/E 16th November 2007
This week we looked at our final topic within Statutory Interpretation – Finding Parliament’s Intention.
We looked at the rules of language and the presumptions governing statutory interpretation. Even the Literal Rule does not take words in isolation, but applies rules to help with the interpretation. The rules of language all have Latin names.
1. ‘Ejusdem Generis’- Where there is a list of words followed by general words, then the general words are limited to the same kind of articles as the specific words. See Powell v Kempton Park Racecourse (1899)
2. ‘Expressio unius exclusio alterius’- The mention of one thing excludes the others. Where there is a list of specific words but no general words then it must be on the list for the Act to apply. See Tempest v Kilner (1846)
3. ‘Noscitur a sociis’ – A word is known by the company it keeps. See Inland Commissioners v Frere (1965)
Presumptions are made by certain assumptions made by the Courts. They are used only as a starting point. If they are disparoved then it is said the presumption is rebutted. There are 4 main presumptions (amongst many). They are:
1. A presumption that the Crown is not bound by any statute unless it expressly says so;
2, A presumption that legislation does not apply retrospectively;
3. A presumption against a change in the Common Law; see Leach v R
4. A presumption that mens rea is required in criminal cases – Sweet v Parsley (1970)
A court will attempt to uncover Parliament’s intentions by using a variety of aids – these are either ‘intrinsic’ or ‘extrinsic’.
An intrinsic aid is one that is from inside the Act of Parliament itself which make it easier to interpret. These are:
1. Long title
2. Short title
4. Section headings and marginal notes
An extrinsic aid is one that is from outside the Act of Parliament itself which makes it easier to interpret. The uncontroversial ones are:
1. Previous Acts on the same topic
2. Historical setting
3. Earlier case law
4. Dictionaries at the time
There used to be very strict rules on other aids – they could not be used. Attitudes have changed though. These are:
This is the official report of what was said in Parliament when the Act was debated. Until 1992 a court was not allowed to look at what was said in Parliament. Pepper v Hart (1993)– H of L relaxed the rule and accepted that Hansard can be used in a limited way where is ambiguity, absurdity or obscure;and there is a clear statement introducing the legislation. Wider use is permitted where the court is considering an Act that introduced an international convention or European Directive into English Law; see Three Rivers District Council and others v Bank of England (No 2) (1996). There are problems though – Since 1992 Hansard has been referred to in a number of cases – but has to added up to 25% to the cost of the bill; and Hansard has not always proven useful as the Minister’s statements have often been confusing and misleading.
2. Reports of Law Reform bodies
It used to be the case that courts could not look at Law Commission Reports but this was changed in the Black Clawson Case 1975. It is now accepted that a report could be looked at to discover the mischief which the legislation based on the report is trying to remedy.
3. International Conventions which have been implemented in English Law
Fothergill v Monarch Airlines Ltd 1980 H of L decided that the original convention should be considered as it was possible the original meaning might be lost.
4. Explanatory Notes
Since 1998 explanatory notes have been produced alongside bills. These usually explain the background to any proposed law, summarise its main points and where a point is complicated give a worked example. These notes are updated as the bill goes through Parliament.
5. European Law
Where the law to be interpreted is based on Law the courts must interpret it in light of the wording and purpose of European Law. This is because of the Treaty of Rome.
“take all appropriate measures…to ensure fulfilment of the obligations”. See Marleasing Case 1992 and Diocese of Hallam Trustee v Connaughton 1996.
6. European Convention on Human Rights
s3 – HRA 1998 – legislation must be read in such a way as to be compatible with HRA. It applies to any case where rights are involved. See R v Offen 2001;
We finished off our look at Statutory Interpretation by examining R v Registrar-General ex parte Smith 1990. This case neatly illistrates the basic problem that it is up to each individual judge to decide whether they follow the Literal or Purposive Approach to interpretation.
Take the time to look up these cases in the Resource Centre
Brock v DPP (1993)
Royal College of Nursing v DHSS (1981)
Cheeseman v DPP (1990)
Bulmer Ltd v Bollinger SA (1974)
R v Judge of the City of London Court (1892)
Whiteley v Chappell (1868)
London & North Eastern Railway Co Ltd v Berriman (1946)
Jones v DPP (1962)
R v Allen (1872)
Re Sigsworth (1935)
Heydon’s Case (1584)
Smith v Hughes (1960)
Eastbourne Borough Council v Stirling (2000)
Magor ans St Mellons v Newport Corporation (1950)