“Statutory interpretation”. Introduction to statutory interpretation As we now know, the English...

““Statutory interpretation”Statutory interpretation”

Introduction to statutory Introduction to statutory interpretationinterpretation

• As we now know, the English language is not always ‘clear’

• Thesaurus:Thesaurus:

– (a) InventionInvention: contraption, device, discovery, gadget, fabricationfabrication, development, fantasy, fiction, illusion, creativity, ingenuity, innovation, inventiveness, originality.

– (b) FabricationFabrication: falsehood, fib, lie, forgery, untruth, prevarication, story, construction, manufacture, production

• What if a section of a statute reads?

“An employee must surrender to his employer any inventioninvention made in the course of his employment”

• The court has to deal with phrases likeThe court has to deal with phrases like

“equipment includes any plant and machinery, vehicle, aircraft, and clothing”

– Does the word ‘include’:

• mean that the subsequent items fall within the definition of equipment (while everything else is excluded) or

• that the list is not closed?

• See: Coltman v Bibby Tankers Ltd [1988] AC 276

– See: other difficult words (satisfactory, cause, welfare, safe system of work, defect, pollution, rule of law, dishonest)


• PeoplePeople

– tend to agree that case law can present problems case law can present problems because facts are never the same

– tend to assume that statutes are precise and accurate and that anyone can “look uplook up” the law in a statute!

– but.....but.....

• StatutesStatutes

– are written in a style different from many other documents

– are not designed to entertain, but to declare law

– often use words and expression that are difficult to interpret

– often have to be interpreted in light of new or novel circumstance.......


• ExampleExample:

– The Wills Act 1837, s. 9: the signature to a will must appear “at the foot or end” of the will

– The physical positioning?

– The last thing written?

– In 1952 the Act was amended: the signature should come: “At or after, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the Testator intended to give effect to the will”

– Administration of Justice Act 1982: “No will shall be valid unless….it appears that the testator intended by his signature to give effect to the will”


• What is statutory interpretation?What is statutory interpretation?

– The interpretation and application of statutes

– An exercise in translation

• Why is statutory interpretation necessary?Why is statutory interpretation necessary?

– Uncertainty and ambiguity

– Broad terms

– Bad drafting

– Unforeseeable developments

– Changes in the use of language


““Precedent andPrecedent andStatutory Statutory

interpretation”interpretation”

Precedent and statutory Precedent and statutory interpretationinterpretation

• Although decisions on the construction of statutes, being mattes of law, may constitute binding precedents, it does not necessarily follow that they must do so in every case

• The essential task in statutory interpretation is to find the meaning of the words for the purposes of the Act in which those words appear

• Quillotex Co Ltd v Minister of Housing and Local Government [1965] 2 All Quillotex Co Ltd v Minister of Housing and Local Government [1965] 2 All ER 913 ER 913 – Salmon LJ:

“No real help can be gained as to the meaning of a word in statute A by reference to its meaning in statutes B, C or D. All one can derive from the cases are the relevant principles of construction to be applied”

• Decisions on the interpretation of one statute are no more than persuasive authorities in relation to other statutes

• It appears that a case which decides the meaning of a specific form of statutory words cannot bind a subsequent court unless it is considering the same form of words in the same statute

• There is an exception: in pari materiain pari materia

– A decision in relation to one statute may be binding in relation to another provided that both statutes deal with the same subject matter

– See: Crosley v Arkwright [1788] 100 ER 325Crosley v Arkwright [1788] 100 ER 325Powell v Cleland [1947] 2 All ER 672Powell v Cleland [1947] 2 All ER 672


• R v Wheatley [1979] 1 WLR 144R v Wheatley [1979] 1 WLR 144

– Did “explosive substance” in the Explosive Substances Act 1883 (s. 4) include a pyrotechnic devise

– The 1883 gave no definition

– The Explosive Substances Act 1875 dealt with the same subject matter and encompassed pyrotechnic devises in the term explosives


The ‘rules’ ofThe ‘rules’ of“statutory “statutory

interpretation”interpretation”

The ‘rules’The ‘rules’

• Literal rule:Literal rule:

– you take only the plain, literal meaning of the words plain, literal meaning of the words used since those are the draftsperson chose to use

• Golden rule:Golden rule:

– you try to find out what the draftsperson intended draftsperson intended by the words by looking at the general purpose of the section general purpose of the section and the social, economic social, economic or political contextor political context

• Mischief rule:Mischief rule:

– you look at the history of the Act and the legal wrong history of the Act and the legal wrong that the draftsperson sought to remedy (what was the mischief?)


• The rules are in common use – but they are dangerous!but they are dangerous!

• The word ‘rulerule’ gives the impression that if you follow a specific pattern you will not go wrong – a template for getting the right answer

• They, incorrectly, have the aura of scientific authenticitythe aura of scientific authenticity

• Interpreting statutes = more of an art than a sciencemore of an art than a science

• Throughout legal history, lawyers have had problems applying these rules

– As, by the way, have students of lawAs, by the way, have students of law

• “Each and every pupil told me there were three rules – the literal rule, the golden rule and the mischief rule and that the courts invoke which ever of them is believed to do justice in the particular case. I had, and still have, my doubts”

Sir Rupert Cross, Statutory Interpretation, 1976

• “Many law teachers and commentators still write as if these three supposed ‘rules’ of statutory interpretation really do exist. Some even think they sum up the whole story. In fact they are illusory, and it is high time this was realised”

Francis Bennion (Former UK Parliamentary Counsel) 85 Commonwealth Legal Education Association Newsletter, October, pages 30-33. (http://www.francisbennion.com/pdfs/fb/2000/2000-049-global-method-of-si.pdf )


• These (so-called) ‘rules’ These (so-called) ‘rules’

– are not adhered to in a fixed or unchanging logical form

– are not more than techniquestechniques of reading a document

– may be used singularlysingularly or in any combinationcombination

• even though some suggest there is almost a hierarchy!



• You, as a lawyer, may argue:You, as a lawyer, may argue:

– “the plain meaning of these words show that my client conformed with the requirements of the section” (literalliteral)

– “and if you look at the purpose behind this section you find that it was designed to remedy the very problem for which my client seeks redress” (goldengolden)

– “if you look at why this Act came about, the history shows that the Act was necessary to overcome the problems with previous cases in this area” (mischiefmischief)P

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• What ever the rule or presumption, it must be remembered that the judge’s task is the same

• This task is explained in the following terms (R v. Secretary of State R v. Secretary of State for the Environment, Transport, and the Regions (ex parte Spath for the Environment, Transport, and the Regions (ex parte Spath Holme Ltd) [2001] 2 WLR 15) (Lord Nicholls)Holme Ltd) [2001] 2 WLR 15) (Lord Nicholls)

– “Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used......... As Lord Reid said in Black Clawson International Ltd v Papierwerke-Aschaffenburg AG [1975] AC 591, HL, at 613: “We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking not what Parliament meant but the true meaning of what they said’”

The rules (exams questions)The rules (exams questions)

• Oliver Ashworth (Holding) Ltd v Ballard (Kent) Ltd [1999] 2 All ER Oliver Ashworth (Holding) Ltd v Ballard (Kent) Ltd [1999] 2 All ER 791 – Laws LJ 791 – Laws LJ

– “[I]t is now misleading – and perhaps it always was – to seek to draw a rigid distinction between literal and purposive approaches….frequently there is no opposition between the two, and then no difficulty arises. Where there is a potential clash, the conventional English approach has been to give at least very great and often decisive weight to the literal meaning of the enacting words. This is a tradition which I think is weakening

• Lord Carswell in Majrowski v. Guy's, St. Thomas' NHS Trust No. Lord Carswell in Majrowski v. Guy's, St. Thomas' NHS Trust No. [2006] UKHL 34 [2006] UKHL 34

“Three of the classic methods of interpretation of a statutory provision are construction of the language of the enactment, consideration of the mischief at which the provision was aimed and weighing of the consequences of the conflicting interpretations of the provision in question. All are designed to assist the object of the tribunal interpreting the provision, to determine the meaning which Parliament intended in enacting it. The wording of the enactment, not merely individual provisions, but the whole enactment, is the first resort of the interpreter, and in many, if not most, cases it will resolve the question.”

The rules (exams questions)The rules (exams questions)

Having said this:Having said this:

how do the how do the rules workrules work

in practice? in practice?

The literal ruleThe literal rule


• Founded on the assumption that the words Parliament chose show its intention in passing the Act

• You look at what is said, notnot at what it mightmight mean

• Look for the primary (or most obvious) meaningthe primary (or most obvious) meaning

• The rule does not demand that the word be viewed in isolation from the rest of the section/sentence

• Look at linguistics rather than considerations of the purpose of the Act or the wider context

– Duport Steel v Sirs [1980] 1 WLR 142Duport Steel v Sirs [1980] 1 WLR 142 (Lord Diplock): to do otherwise might mean that the court is not interpreting the Act but rather is making law

– “Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning”


• Under the rule, the literal meaning must be followed even if the result is silly

– R v. City of London Court Judge [18922] 1 QB 273 (Lord Esher)R v. City of London Court Judge [18922] 1 QB 273 (Lord Esher)

– “If the words of an Act are clear, you must follow them, even though they may lead to manifest absurdity. The court has nothing to do with the question of whether the legislation has committed an absurdity”

• Note the importance of words being precise

– Sussex Peerage Case [1884] 8 ER 1034 – Lord TindalSussex Peerage Case [1884] 8 ER 1034 – Lord Tindal

“If the words in the statute are in themselves precise and unambiguousthemselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do, in such a case, best declare the intention to the lawgiver”


• London and North Eastern Railway Co. v. Berriman [1946] AC 278London and North Eastern Railway Co. v. Berriman [1946] AC 278

– A railway worker was knocked down and killed by a train,

– His widow attempted to claim damages

– The relevant statute, the Railway Employment (Prevention of Accidents) Act, 1900, provided that this was available to employees killed while engaging in “relaying and repairing” tracks

– The dead man had been doing routine maintenance and oiling, which The dead man had been doing routine maintenance and oiling, which the court said did not come within the meaning of “relaying and the court said did not come within the meaning of “relaying and repairing“repairing“

– (Note: it has nothing to do with what you think might be fiar))(Note: it has nothing to do with what you think might be fiar))

• Whitely v Chapell [1868-69] LR 4 QB 147Whitely v Chapell [1868-69] LR 4 QB 147

– A statute aimed at preventing electoral malpractice made it an offence to impersonate “any person entitled to vote” at an election

– The defendant, who had impersonated someone who had been entitled to vote but who had died before the date of the election, was convicted

– The defendant’s appeal was successful on the basis that dead men are not entitled to vote – therefore he could not be guilty of the offence

• Simple literalism can produce results which are plainly unsustainable (and which may damage law’s legitimacy)


• Cutter v. Eagle Star Insurance Co. Ltd [1998] 4 All ER 417Cutter v. Eagle Star Insurance Co. Ltd [1998] 4 All ER 417

– HL was concerned with the meaning of the word ‘roadroad’ in the Road traffic Act 1988 Road traffic Act 1988

– The claimant was sitting in the front passenger seat of his friend’s car, which parked in a multi-storey car park

– Inflammable gas leaked inside the car from a can of lighter fuel, so when the driver returned to the car and lit a cigarette the gas was ignited and the claimant was injured

– Claimant sued the driver for negligence and won the case, but the driver had no money with but the driver had no money with which to pay damageswhich to pay damages

– As required by law, the driver was insured under a motor vehicle policy against liability for death or bodily injury to any person arising out of the use of his car on a ‘road’

– The Road traffic Act 1988 defined the word ‘road’ as “any highway and any other road to which the public has access”



• Cutter v. Eagle Star Insurance Co. Ltd [1998] 4 All ER 417Cutter v. Eagle Star Insurance Co. Ltd [1998] 4 All ER 417

• HL (reversing the decision) rejected a purposive approach in favour of giving the word ‘road’ its ordinary, literal meaning.

• The car park was not a road within the definition because a road provides for cars to move along it to a destination.

• A car park simply enables cars to stand and wait; and the fact that a car can be driven across a car park does not make it a ‘road’ because that is merely incidental to the main function of parking

• (Similarly, the fact that a car is parked on a road does not make the road a ‘car park’)

• Accordingly, the claimant had not been injured due to the use of the car on a ‘road’, and the insurance was not liable to pay out on the driver’s policy.

• Cutter v. Eagle Star Insurance Co. Ltd [1998] 4 All ER 417 Cutter v. Eagle Star Insurance Co. Ltd [1998] 4 All ER 417 (Lord Clyde)(Lord Clyde)

– “It may be perfectly proper to adopt a strained construction to enable the object and purpose of legislation to be fulfilled. But it cannot be taken to applying unnatural meanings to familiar words or to stretch the language so that its former shape is transformed into something which is not only significantly different but has a name of its own. This must be particularly so where the language has no evident ambiguity or uncertainty about it."


• R v Harris [1836] 7 C & P 446R v Harris [1836] 7 C & P 446

– Statute made it an offence to ‘stab, cut or wound’ another person

– Harris bit off her “friend’s” nose in a fight – and then the policeman’s finger

• Q: Was she guilty under the statute?

• A: No – the words in the statute pointed towards the use of a weapon

• Teeth are not weapons


• Fisher v Bell [1961] 1 QB 394Fisher v Bell [1961] 1 QB 394

– Restriction of Offensive Weapons Act of 1959 made it an offence “to sell or hire or offer for sale or hire certain offensive weapons such as flick knives

– Bell placed a flick-knife in his Bristol shop window with a price tag on it

• Q: Was he guilty of an offence?

• A: No – placing an item on display is not the same thing as ‘offering it for sale’ (see contract law)

– This case prompted the enactment of the Restriction of Offensive Weapons Act 1961, which extended the offence under the 1959 Act to include anyone who “exposes or has in his possession for the purpose of sale or hire” an offensive weapon


• Sometimes, the search for the ordinary, natural meaning of words can cause disagreement and surprising results at the highest level

• R v. Maginnis [1987] 1 All ER 907 (HL)

– The case was concerned with the interpretation of the Misuse of Drugs Act 1971, s 5(3) of which says “it is an offence for a person to have a controlled drug in his possession, whether lawfully or not, with intent to supply it to another....

– The police found a packet of cannabis resin in the def’s car – he said the package was not his but had been left in his car by a friend for collection later.

– The def was convicted of the offence, and he appealed on the ground that his intention to return the drug to its owner did not amount to an intention to ‘supply’ the drug within the meaning of the Act

– HL (by a majority of 4 to 1 – Lord Goff dissenting) held that the def was guilty of the offence, because a person in unlawful possession of a controlled drug left with him by another person for safekeeping had the necessary “intent to supply it to another” (even though the supply was not being made from the provider’s own resources) if his intention was to return it to the other person and for that other person’s purposes.

– The majority of their lordships purported to apply the ordinary meaning of ‘supply’

– Lord Goff, though, dissented: he referred to the definition in the Shorter Oxford English Dictionary

– In his view (which seems preferable to that of the majority) the word ‘supply’ was not apt to describe a transaction in which A handed back to B goods which B had previously left with A.

– Thus, the cloakroom attendant, left luggage officer, warehouseman, and shoe repairer do not, in ordinary parlance, ‘supply’ their customers.

– For another case where the application of the literal rule produced a disagreement among their lordships, see R v Brown [1996] a All ER 545.


Pros and cons of the literal rulePros and cons of the literal rule

Respects the sovereignty of parliament and prevent unelected judges making law

Can lead to unfair and unjust decisions

Encourages certainty - people know where they stand because the wording will not change

Can lead to absurd decisions which Parliament would not have wanted or intended

Leads to quick decisions because the answer can be found by referring to dictionaries

Words may have more than one meaning, making it difficult to apply a dictionary definition

It is not always possible to word an act to cover every situation

Gives judges little discretion to adapt the law to changing times

Likely to become less relevant because of the growing importance of EU law and Human Rights influences

The golden ruleThe golden rule

• An adaptation of the literal rule

• A rule we use all of the time in our day-to-day business

– Get the door– Wipe that smile off your face– put your heart into it– draw a line under it– Lend me your ear

• The context aids the interpretation

• Corrects absurdities

• What is Plt trying to do? What is the purpose of the Act?

• Carter v Bradbeer [1975] All ER 158 – Lord Diplock:

“If one looks back to the decisions of this house … over the last thirty years one cannot fail to be stuck by the evidence of a trend away from the purely literal towards the purposive construction of statutory instruments”


• Classic exposition of the Rule is found in River Wear Commissioners v. Adamson [1867-77] 2 App Cas 743 – Lord Blackburn:

“I believe that it is not disputed that what Lord Wensleydale used to call the golden rule is right, viz. that we are to take the whole statute together and construe it all together, giving the words their ordinary signification unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification and to justify the court in putting on them some other signification which, though less proper, is one which the court thinks the words will bear”


• Stock v Frank Jones (Tipton) Ltd [1978] ICR 347 – Lord Simon advocated departure from the literal rule only when

– There is a clear and gross anomaly

– Plt could not have envisaged the anomaly and would not have accepted its presence

– The anomaly can be obviated without detriment to the legislative intent

– The language of the statute allows for such modification


• The rule does not exist independently of the literal rule

• Comes into play as a back-up when the literal rule doesn’t work

• The purposive approach will be used when there is confusion within the Act

• A straightforward interpretation is impossible


• Ruther v Harris [1876] 1 ExD 97Ruther v Harris [1876] 1 ExD 97

– The Salmon Fishery Act 1861 prohibited net fishing for salmon at certain times

– Contravention of the Act could result in forfeiture of “all fish taken … and any net used … in taking the same”

– The question which arose was whether the nets could be forfeited even though the poachers had been caught before they had taken any fish

– Grove J, holding that the nets could e forfeited:

“It is no doubt a rule of interpretation that the grammatical construction of a sentence must be followed, but this is not to be adopted when it leads to difficulty. I think it is plain that the language of the section is not strictly accurate and grammatical; and it is my opinion that it was intended that the net should be forfeited”


• R v Allen [1872] LR 1 CCR 367R v Allen [1872] LR 1 CCR 367

– A, who was already married, married another woman (H)

– s. 57 of the Offences Against the Person Act 1861: “whosoever being married shall marry any other person during the lifetime of his spouse” shall commit bigamy

– H was closely related to A so this (apparently) bigamous marriage was void

– A argued that he had not married H (because this was impossible in law) and that he had not committed bigamy

– A argued that the second marriage had to be a legal marriage before bigamy could be committed

– But, this would produce an anomaly – since no bigamous marriage is lawful by definition

– Judges took a purposive approach, reading the words in “shall marry” as meaning “shall go through a marriage ceremony”



• Alder v. George [1964] (unreported)Alder v. George [1964] (unreported)

– The def had been charged, under the Official Secrets Act 1920, with obstruction in the ‘vicinity of’ a prohibited area

– In fact, she had actually carried out the obstruction inside the area

– The court preferred not to restrict itself to the literal wording of the Act and found the def guilty as charged

• The more context-based rule may prevail even over the conventional willingness of the court to give the benefit of the doubt to defendants in criminal cases

– R v Pigg [1983] 1 All ER 56

– Concerned the validity of a conviction for rape

– Under s. 17(2) Juries Act 1974: a majority verdict shall not be accepted unless ‘the foreman of the jury has stated in open the court the number of jurors who respectively agreed to and dissented from the verdict’

– Foreman indicated that 10 jurors had agreed to convict

– Clerk of the court: “ten agreed to two of you”

– Foreman made no reply – and was in contravention of the plain words of the Act…..


• Lord Brandon:

“If the foreman of the jury states no more than that the number agreeing to the verdict is ten, it is nevertheless and necessary and inevitable inference, obvious to any ordinary person, that the number dissenting from the verdict is two. True it is that the foreman of the jury has not said so in terms as the 1974 Act, interpreted literally, requires…in my opinion, however, it is the substance of the requirement… which has to be complied with, and the precise forms of words by which such compliance is achieved, so long as the effect is clear, is not material”.


• Re Sigsworth [1935] Ch 89

– Mrs S was found dead – murdered by her son (who was also found dead)

– Mrs S’s left everything to her son in her will

– Public policy rules determined that the son (his estate!) could not inherit in these circumstances

– So, Mrs S died intestate

– Administration of Estates Act 1925 (s. 46): the person entitled on intestacy was the son (his estate!)

– The Act said nothing about murderers inheriting

– Held: the statute could not have been intended to allow murderers to inherit – despite its silence on the point


Pros and cons of the golden rulePros and cons of the golden rule

The courts can alter the wording and make sense of absurd or repugnant wording

It allows judges to change the wording only when it is absurd or repugnant wording – it can only be used in limited circumstance

It respects the authority of Parliament because in all other circumstances the literal rule should be used

There are no real guidelines on when it should be used, so what may be absurd to one judge may not be absurd to another

The Law Commission argued that the rule was of limited value and noted that the rule provided no clear means to test the existence of the characteristics of absurdity, inconsistency or inconvenience

• A manifestation of a more purposive approach

• Similar to the golden rule, though much older, is the mischief rule (the rule in Heydon’s Case [1584] 3 Co Rep 7a, 7b)

• Emphasises the need to interpret an Act in a way that gives effect to its objectives

• The mischief approach is located in the context of an identifiable common law status quo which existed prior to the Act (Holland and Webb, 2003)

• The courts must consider four things:

– What was the common law before the Act?

– What was the defect or mischief for which the common law did not provide?

– What remedy did Plt intend to provide?

– What was the true reason for the remedy?

The mischief ruleThe mischief rule

• Maunsell v Olins [1975] 1 All ER 16 – Lord Simon:

– The first task of a court of construction is to put itself in the shoes of the draftsman – to consider what knowledge he had and, importantly, what statutory objective he had – if only as a guide to the linguistic register. Here is the first consideration of the ‘mischief’.


• Smith v Hughes [1960] 1 WLR 830Smith v Hughes [1960] 1 WLR 830

– It was an offence under s. 1 of the Street Offences Act 1959 for a prostitute “to solicit in a street… for the purposes of prostitution”

– Prostitutes were behind the windows or on the balconies of buildings overlooking the street – soliciting men who were in the street

– Lord Parker CJ:

• “Everyone knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes…For my part, I am content to base my decision on that ground and that ground alone”

– cf. Fisher v Bell – which seems to frustrate, rather than promote, the suppression of the mischief at which the Act was clearly aimed

– Do Fisher v Bell and Smith v Hughes reflect judges’ attitudes to prostitutes and shopkeepers?



R v Rogers [2007] UKHL 8 [2007] 2 AC 62R v Rogers [2007] UKHL 8 [2007] 2 AC 62

• Rogers (def) encountered three young Spanish women when he was riding his motorised mobility scooter along the pavement.

• Rogers got into a dispute with the young women, during which he called them ‘bloody foreigners’ and told them to ‘go back to your own country’.

• He then pursued them to a kebab shop in an aggressive manner.

• He was charged with an offence of using racially aggravated abusive or insulting words or behaviour with intent to cause fear or provoke violence, contrary to s. 31(1) of the Crime and Disorder Act 1998

• At the end of the prosecution case the defence submitted that there was no case to answer on the ground that the words used by the defendant were not in law capable of demonstrating hostility based on membership of a racial group because foreigners did not constitute a racial group as defined in s. 28(4) of the Act.

• The judge rejected that submission and the jury convicted the defendant.

R v Rogers [2007] UKHL 8 [2007] S All ER 433R v Rogers [2007] UKHL 8 [2007] S All ER 433

• The Court of Appeal dismissed the defendant’s appeal and held that ‘foreigners’ did constitute a racial group within the meaning of s. 28(4).

• s.28(4) of the Crime and Disorder Act: In this section, ‘racial group’ means a group of persons defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins

• Held: dismissing the appeal, that the criterion, nationality or colour, by which a “racial group” was defined was the same whether the group was defined exclusively by reference to what its members were not or inclusively by reference to what they were;

• BARONESS HALE OF RICHMOND: “This flexible, non-technical approach makes sense, not only as a matter of language, but also in policy terms. The mischiefs attacked by the aggravated versions of these offences are racism and xenophobia.”

• The decision of the House of Lords in The decision of the House of Lords in R v RogersR v Rogers may suggest that statutory interpretation is a may suggest that statutory interpretation is a much more flexible art than textbooks often suggest. much more flexible art than textbooks often suggest.



• The distinction between the golden rule and mischief rule is a fine one

• It is suggested that both rules have become subsumed within a general purposive approach

Conclusions (?) about the rulesConclusions (?) about the rules

• Over the years certain changes have occurred in judicial formulation of the three traditional approaches to interpretation

• Judges have become increasingly aware of the importance of context in ascertaining meaning

• With this awareness, the once diverse approaches seems to have merged and become blurred

• It’s now difficult to pigeonhole judgement neatly into one or other of the traditional categories - if it ever was.

• The ordinary meaning of the words will now be determined after the statute has been read as a whole in its appropriate context

• The purpose or object of a statute is commonly regarded as part of the appropriate context

• Is such ‘purposivism’ objectionable?

– Does it transfer to the courts a degree of power which ought properly reside in Parliament?

– A modern understanding of the relationship between the courts and Parliament reveals a functional partnership – inconsistent with the notion that Parliament is supreme

– “it is clearly legitimate to adopt a purposive approach and hold that a statutory provision does apply to a given situation when it was clearly intended to do so, even though it may not apply on its strict literal interpretation” (May LJ: R v Broadcasting Complaints Commission ex Parte Owen[1985] 2 All ER 522)

– It was said that it may not be legitimate to do the opposite – i.e. take a purposive approach to preclude the application of a statute in a situation where a purely literal construction would apply


• So, purposivism is a technique for extending the application of statutory principles rather than restricting them

• A tool for promoting the efficacy of the rules which Parliament has enacted

– Not a tool for frustrating the rules!


• Simply literalism is defective

• Bennion: “nowadays, a legislative drafter …never intends the literal rule to be adopted” (Understanding Common Law Legislation: Drafting and Interpretation, 2001)

• The modern approach is sometimes called contextualism,contextualism, purposivism purposivism or enlightened literalism enlightened literalism

• Pragmatism?Pragmatism?

• HRA 1998!!!!!!!HRA 1998!!!!!!!


• The prevailing method of statutory interpretation in the UK at present is said to be purposive interpretation

– See e.g. R (Quintavalle) v Secretary of State for Health [2003] UKHL 13; [2003] 2 AC 687 at [8] (Lord Bingham, Lord Steyn).

• There are two characteristics of a highly purposive method.

• First, the judge is willing to determine the purpose of a statute at a level more abstract than what is apparent from the ordinary meaning of the statutory text.

• Secondly, where the ordinary meaning of the statute and its purpose support different interpretations, the judge frequently sacrifices the ordinary meaning in favour of a ‘purposive-and-strained’ interpretation, as Francis Bennion has termed it.

• Each of the characteristics of the highly purposive method carries a potential cost.

• First, judges may incur problems of constitutional legitimacy when they attempt to determine the purpose of a statute at a level that is more abstract than what is apparent from the ordinary meaning of the statutory text.

• Secondly, purposive-and-strained interpretations risk reducing legal certainty insofar as citizens can no longer rely on the ordinary meaning of the statutory language to determine its legal effect


Other aids to Other aids to construction and construction and

statutory statutory interpretationinterpretation

Secondary aidsSecondary aids

• The use that can be made to parts of the statute itself

• The use of external (extrinsic) materials

• Many of the rules and rules of grammar!

• Title of the ActTitle of the Act

– R v Galvin [1987] QB 862: Re the Official Secrets Act 1911

– Lord Lane: “One can have regard to the title of a statute to help resolve an ambiguity in the body of it, but it is not, we consider, open to a court to use the title to restrict what is otherwise the plain meaning of the words of the statute simply because they seem to be unduly wide”

– However, this dictum must be regarded as erroneous and given per incuriam. It is contrary to the decision of the Court of Appeal in Watkinson v Hollington [1943] 2 A l l ER 573, which was not cited to the court.

• The Long Title on the ActThe Long Title on the Act

– Cornwall County Council v Baker [2003] EWHC 374 (Admin)

– Toulson J: The long title to the 2000 Act suggests, as its language states, that it was to enable provision to be made for the care, disposal or slaughter of animals to which section 1 of the 1911 Act relates, and not to make provisions for the welfare of animals unrelated to such proceedings.

Secondary aids: titlesSecondary aids: titles

• Statutes often use the word “include”:

– Does this mean that the subsequent terms were included while everything else is excluded or

– that subsequent terms were examples only (viz. other terms can be included)?

• Common sense would suggest that the answer depends upon what was meant by the drafters of the statute.

• This is what the House of Lords decided in Cotman v Bibby Tankers [1988] AC 276.

• Clearly, then, the judge in deciding the meaning of lists and the use of the word ‘includes’ will have to turn to his or her standard repertoire of interpretative techniques.

• But, there are some legal Latin maxims which can be used by judges to help them with the interpretative task. We have set these out with their meanings below.

Secondary aids: Secondary aids: inclusive words & inclusive words & listslists

• Expression unius est exclusio alterius

– What happens where a simple list of words appears?

– Can other words be added to the list?

– expression unius est exclusio alterius: the expression of one thing is the exclusion of others

– If legislation uses a list then it is logical that all other items were specifically excluded

– However, where the word ‘includes’ is used then the maxim does not apply.


• Eiusdem generis

• What is the situation where the law employs a generic, yet non-exhaustive list?

– Cows, sheep, pigs and other animals

– Is a dog included/excluded?– Is fish included?

• A legal method of dealing with this type of problem is to say that where general words follow a list of specific words then the general words must be interpreted according to the genus (type) of the preceding specific words

• Try to discover the genus which the named categories have in common

• As a lawyer, your job is to convince the court that the genus of the preceding words is what you say it is!

• When an Act uses a generic but non-exhaustive list then the meaning of any general word in the list must be limited by the specific examples given in the list. So, for example, in the Housing Act 1996 s. 189(1)(d) provides that people who have become homeless as a result of an emergency ‘such as fire, flood or other disaster’ the nature of the emergency is limited to those emergencies which are similar in cause to flood and fire.



• R v Jordan [1976] 3 WLR 887

– Did pornographic material fall outside the definition of obscene material under the Obscene Publications Act 1959?

– Was it in the interests of science, literature, art or learning, or of other objects of general concern?

– The argument was that the obscene material had psychotherapeutic value, and therefore fell within the definition

– HL: it was obscene material for the purposes of the Act

• Noscitur a sociis

• Associated with eiusdem generis (students often confuse the two)

• The meaning of a word is affected by the surrounding words

• “otherwise destroying” must be read using the eiusdem generis rule

• What if the section read “burning, tearing, mutilating or defacing”?

• What if the will is partially destroyed by fire? How is burning to be interpreted? Does the burning have to be complete before it is revoked?

– The surrounding words (esp. defacing) would suggest that it does not!


The Wills Act 1837: one way of revoking a will The Wills Act 1837: one way of revoking a will is by “burning, tearing or otherwise is by “burning, tearing or otherwise

destroying”destroying”

Other secondary aidsOther secondary aids

• The Interpretation Act 1978

– States that certain words will have a standard meaning (unless specifically changed)

• Month = calendar month• He = she

• Dictionaries

– Can be used where a word has no specific meaning!

– Flack v Baldry [1988] 1 WLR 393

– Firearms Act 1968: was a stun gun ,which could administer 46,000 volts “a weapon designed for the discharge of any noxious liquid gas or other thing”

– Discharge had a dictionary meaning of “emit” – so the stun gun fell within the Act

– Lord Wilberforce once told Bennion that he “never used dictionaries and shut his ears if they were referred to in court” (Bennion (1997) Statutory Interpretation, 3rd edn.

• Travaux Préparatoires

– Preparatory works

– Reports or working papers or law reform bodies (e.g. Law Commission

• Hansard

– Traditionally, Hansard could not be referred to explicitly by a court in order to gauge Plt’s intentions (separation of powers)

• Constitutional reasons• Functional reasons• Article 9 of the Bill of Rights “the freedom of speech and debates or

proceedings in Plt ought not to be impeached or questioned in any court or place out of Plt”

• In practice the Commons gave permission for the use of Hansard• Resolution on 31 Oct 1980


• Lord Denning v HL (Hadmor Productions Ltd v Hamilton [1982] 1 All ER 1042)

• Pepper v Hart [1992] 3 WLR 1032 – Lord Browne-Wilkinson: reference to Hansard should be permitted where:

a. Legislation is ambiguous or obscure, or leads to an absurdity

b. The material relied upon 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

c. The statements relied upon are clear

– Lord Mackay dissented on the Hansard point (functionality / time)


• See other important “Hansard” cases

• Chief Adjudication Officer v Foster [1992] 2 WLR 292

• Stubbings v Webb [1993] 2 WLR 120

• R v Warwickshire County Council, ex parte Johnson [1993] 2 WLR 1

• Thomas Witter Ltd v TBP Industries Ltd [1996] 2 All ER 573

• cf.

• Sheppard v Commissioners of Inland Revenue, [1993] (LEXIS transcript)

• Melluish (Inspector of Taxes) v BMI (No. 3) [1995] 3 WLR 630

• There is an increasing reluctance to rely on extracts from Hansard unless it is justified using the guidelines


• PresumptionsPresumptions

– Against the alteration of the common law

– Against retrospective application

– Against deprivation of property or interference with private rights

– Against the deprivation of an individual’s liberty

– Against application to the Crown

– Against breaking international law (ECHR!)

– In favour of the presumption that mens rea be a requirement in any criminal offence

• Let’s see a couple of examples.


Other secondary aids: presumptionsOther secondary aids: presumptions

• Against the alteration of the common law

– Beswick v. Beswick [1968] Ac 58

– The Court of Appeal had held, in effect, that s.56(1) of the Law and Property Act 1925 had abolished the doctrine of privity of contract - the judge-made rule that a third person cannot sue (or be sued) on a contract to which he is not a party.

– The House of Lords disagreed – holding that in the absence of express, clear words of abolition in s.56(1) it was not possible to imply an intention on the part of Parliament to revolutionise the law of contract

– (NB: The doctrine was eventually expressly modified by the Contracts (Rights of Third Parties) Act 1999)

• Against retrospective effect

– In Birmingham City Council v Walker [2007] UKHL 22 [2007] 2 WLRBirmingham City Council v Walker [2007] UKHL 22 [2007] 2 WLR, the House of Lords refers to a legal presumption against retrospective operation of statute.

– R v. Field [2003] 1 WLR 882R v. Field [2003] 1 WLR 882

– The question for the Court of Appeal was whether (what was then) s.28 of the s.28 of the Criminal Justice and Courts Services Act 2000 Criminal Justice and Courts Services Act 2000 (which allowed the court to make an order disqualifying a person from working with children if he had been guilty of certain offences against a child) applied in respect of offences committed before the Act came into force

– The defendant was granted leave to appeal against the disqualification order on the ground that the court had no power to make such an order in respect of offences which had been committed before s.28 had been brought into force….


• R v. Field [2003] 1 WLR 882R v. Field [2003] 1 WLR 882

– CA: (dismissing the appeal), That a statute did not offend against the presumption against retrospective effect merely because it depended for its future application upon events which might have occurred before it had come into force;

– that, since the purpose of s.28 to protect children would be severely undermined if a disqualification order could only be imposed in relation to offences committed after the section had come into force, the court should not be astute to construe it as having no retro-active element

– and that, since the words of section 28(2)(a) were entirely general in their temporal effect and contained no suggestion that the acts constituting the offence had to have been committed after the Act had come into force, and since the effect of a disqualification *883 order was entirely prospective, on a true construction section 28 applied to a conviction, irrespective of when the offending behaviour had occurred


Interpreting secondary legislationInterpreting secondary legislation

• Largely the same as primary legislation

• But there are some differences

• Delegated legislation does not stand alone!

– Delegated legislation comes as a package..

• Courts are less constrained by issues of sovereignty

• The parent Act

– S11 of the Interpretation Act 1978 requires words used in secondary legislation to be read as having the same meaning as in the parent Act

• Common law

– The courts are reluctant to interpret delegated legislation in a way that conflicts with an established principle of common law

The Impact of the Human The Impact of the Human Rights Act 1998Rights Act 1998

HRAHRA• The Human Rights Act 1998

– Came into force on 2 Oct 2000

– Incorporates elements of the ECHR

– Section 3(1) provides that, “so far as it is possible to do so”, all legislation (primary or secondary) “must be read and given effect in a manner which is compatible with the Convention

– Rights”

– The Convention rights do not override a statute (cf. EC law)

– In cases where consistency cannot be achieved, judges must declare such law incompatible (s. 4)

– The effect of the HRA 1998 is to provide the judiciary with powers of interpretation much wider than those afforded to them by the more traditional rules of interpretation

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“Statutory interpretation”. Introduction to statutory interpretation As we now know, the English...

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