Statutory Interpretation – The Role of the Judiciary System

The role of the judiciary system is to apply the law that had been enacted by parliament. The courts in that sense are not allowed to legislate. If a statute is ambiguous, or unclear, there will be a range of meanings that the word will bear. In fulfilling their task, the courts have to interpret statutes in a manner to reflect the intentions of the legislature.

In a more specific sense, interpretation is required when a doubt or dispute arises about the meaning of a statutory provision[1]. This can happen, broadly, in two situations, the first of which arises from the terms of the statute itself (e.g. where the drafter has made an error or where ambiguous language is used).

The second situation arises in the application of the words of a statute to a particular set of facts (e.g. when the drafter might simply fail to foresee a particular scenario).

General principles

There are essentially two contrasting views as to how courts should go about determining the meaning of statutes, they are commonly known as the literal approach and the purposive approach. Bearing in mind that the UK has joined the EC, an overriding requirement is now contained in the Human Rights Act 1998 in that, so far as it is possible to do so, legislation must be read to give effect in a way which is compatible with the European Convention on Human Rights.[2]

Approaches to interpretation

Literal approach;
In this approach, Judges will consider what the legislation actually says rather than considering what it might mean.[3]

Purposive approach;
This takes into account the objective of Parliament that lies behind the statute.[4]

Lord Denning MR held that “…. the judges can and should use their good sense to remedy it by reading words in, if necessary, so as to do what Parliament would have done, had they had the situation in mind”.[5] A clear example of plain wording being ignored is the case of Smith v Hughes.[6]

Rules of Interpretation:

Literal rule:

Judges will give the words in the legislation its literal meaning, that is, in its plain, ordinary, everyday meaning, even if the effect is to produce what might be considered unjust, absurd or undesirable outcome.[7]

The Golden rule:

It is used in circumstances where the application of the literal rule is likely to result in what appears to the court to be an obviously absurd result.[8]

The Mischief rule:

The court should look at the act prior to passing the act, identify the ‘mischief’ or the thing that was missing from the previous law, identify the way parliament proposed to remedy the defect and also give effect to that remedy.[9]

Aids to interpretation

In addition to the two basic approaches listed above, there are a number of secondary aids to interpretation. Some of these aids may be found within the statute itself (Intrinsic), or external to the statute (Extrinsic).

The intrinsic aids derive from the statute itself. The title long or short may be referred to for guidance.[10] 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”.[11] However, a general intention derived from the title cannot overrule a clear statement to the contrary in the text of the Act.

Headings, side-notes and punctuation can be taken into account in determining the meaning of the provision.[12]

Extrinsic aids, are those sources outside of the Act itself. Some of the straightforward example is the use of “dictionary” to find the meaning of the ambiguous words.[13]

Sources include previous Acts of Parliament on the same topic, earlier case law, the historical setting and international conventions.

Another Extrinsic source, though used in limited situations, would be the use of Hansard.[14] Similarly, explanatory notes to the Bill.[15]

Further, Lord Denning provided an exemplary understanding in the case of Magor and St Melons RDC v Newport Corporation.[16] He held that his purpose was to carry out the intention of parliament by “better filling in the gaps and making sense of the enactment ..”.  This was however not appreciated by the House of Lords.

In 1978 Parliament passed the Interpretation Act to set out general rules for courts to interpret Acts.

The rules of Language

The ejusdem generis (“of the same kind”) 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.[17]

Expressio unius exclusio alterius (“the express mention of one thing excludes all 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[18].

Noscitur a sociis (“a word is known by the company it keeps”) when a word is ambiguous, its meaning may be determined by reference to the rest of the statute.[19]

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[1]  Cross Statutory Interpretation (third edition) – John Belle & George Engle p.2

[2]  R v Secretary of State for the Home Department [1991] 1 ac 696

[3] The Sussex Peerage Case (1844) 11 Cl & Fin 85at 143

[4]  Heydon’s Case (1584) 76 ER 637

[5]  Nothman v London Borough of Barnet [1978]

[6]  [1960] 2 All ER 859

[7] London and North Eastern Railway Company v Berriman [1946] AC 278

[8]   River Wear Commissioners v Adamson (1877) 2 App Cas 743

[9]   Corkery v Carpenter [1951] 2 All ER 745

[10]  Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981], HL

[11]  Lord Simon in the Black-Clawson Case [1975].

[12]  DPP v Schildkamp [1071] AC 1 at 28.

[13]  Eglen (Inspector of Taxes) v Butcher [1988] STC 522

[14]  Pepper v Hart [1993] 1 All ER 42, CA

[15]  R(Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956

[16]  [1950] 2 All ER 1226 at 1236

[17]  Gregory v Fearn [1953] [1953] 2 All ER 559

[18]  Tempest v Kilner (1846) 3 CB 249

[19]  Muir v Keay (1875) LR 10 QB 594

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