Approaching Interpretation of Legislation For Judges

Statues which are passed by Parliament are spelled in words that are not always perfect and fit in interpreting them. Because of this uncertainty, Parliament works on the words that might lead to confusion to be clear in meaning. It requires a delicate approach as some words can have multiple meaning or be interpreted diversely. Judges might have different ideas with Acts of Parliament and feel the needs for enhancement even though judges’ role does not cover the part where they question an Act. Any judge should apply an Act even if it brings an odd result or if it causes a clash with the Human Rights Act 1998. However, judges’ role includes interpreting statute and applying it to cases they handle. There can be lots of reasons why statute is needed certain interpretation. The Act is not possible to be well fitted in all cases and situations, some words can be changed in their meaning, and the Act can be drafted badly in the first place. In this essay, various approaches to statutory interpretation and the methods that judges can use to interpret statute and rules of languages will be discussed.

Mainly there are two ways of how to approach interpretation of legislation for judges. These are; the literal approach and the purposive approach.

The literal approach refers that judges to look at the wording on the legislation for deciding what it is meant to be, and leave out and not to make an attempt to oversee the legislation in finding its meaning. The purposive approach is concerned about the purpose in the legislation as it believes the literal approach is too narrow and limited to apply so that the judges should see not just its wording but the purpose of the legislation and why it was passed. The former approach is mainly used in English legal system.

The judges have come up with three important rules of interpretation as they cannot decide which approach should be used. They are the literal rule, the golden rule and the mischief rule.

However, as each rule contains different views the judges can have different preference to choose one rule over the others. It means that the interpretation of a statute can be differed depend on the judge of each case. Then the interpretation would be set as a precedent for later cases within the rule of judicial precedent of English legal system.

Among them, the literal rule is the firstly developed approach and also the most important approach. In this approach, the interpretation should follow the literal meaning of the wording of the legislation. It assumes that Parliament wrote in the Act very carefully to direct what it wanted and intended. For the aspect of the legal supremacy of Parliament, this is treated critically, and it is natural and reasonable that this approach is being the majorly preferred and commonly used method for interpretation. However, there are a few weaknesses. It mainly criticised over absurd outcomes of always applying literal interpretation without considering other facts. Fisher v Bell [1961] in the area of contract law is a good example. In this case, a shop owner who displayed a flick knife on his shop’s window was charged for offering sale by police under the Restriction of Offensive Weapons Act 1959, section 1(1) stated, “it was illegal to manufacture, sell, hire, or offer for sale or hire, or lend to any other person, amongst other things, any knife “which has a blade which opens automatically by hand pressure applied to a button, spring or other device in or attached to the handle of the knife”. [1] However, according to the law, judge decided placing an item on a window cannot be considered as offering for sale but an invitation to treat. This showed that the literal rule looks at what the words in legislation states rather than what it could be read. In the case of Whitley v. Chappell [1868], the law said it was illegal to impersonate any person entitled to vote. The defendant who theft the identity of a dead person to vote was ruled not guilty as the judge saw as a dead person is not entitled to vote by applying the literal rule on interpreting the legislation. To avoid absurd results, words must be clear on its meaning and its extent. Although applying the literal rule is simple and formal, it can be very problematic as not every word has clear and exact meaning and the meaning can be changed in times. Furthermore, there can be different meanings at each circumstance even if words have got certain definition.

The golden rule was introduced as an enhanced interpretation method so it could produce less absurd results. The golden rule allows judges to choose alternative meaning or modification when they face circumstances where the literal approach could lead to absurd outcomes. While the literal approach may provoke unexpected absurdity as sticking to the plain meaning of words, the golden rule could be questionable as there is no measurement for absurdity. The golden rule was defined by Lord Wensleydale from Grey v. Pearson [1857] as saying “the ordinary sense of the words is to be adhered to, unless it would lead to absurdity, when the ordinary sense may be modified to avoid the absurdity but no further.” [2] The case of Re Sigsworth [1935] is an example of the golden rule interpretation. In this case, the court decided a son who murdered his mother in an attempt to get inherited was not appropriate to claim his inheritance. As there was no will left, it was supposed to go to the deceased’ next of kin according to statute, but instead, the judge applied the rule that no one should benefit from their wrong doing. The decision still followed as parliament’s legislative intention even though the court might have modified the statues.

The mischief rule is more flexible than the others. This rule seeks to Parliament’s intention when it comes to apply statutory interpretation and in addition to it, it looks at the previous interpretations and decisions to aid defects. Although judges can have more discretion than the former rules, it could be thought that it might weaken the supremacy of Parliament. Four questions were set out for the mischief rule from Heydon’s Case [1584] 3 CO REP 7a as following.

What was the common law before the passing of the statute?

What was the mischief in the law which the common law did not adequately deal with?

What remedy for that mischief had Parliament intended to provide?

What was the reason for Parliament adopting that remedy? [3]

For example, in the case of Smith v. Hughes [1960], it was ruled as guilty to solicit prostitution from the balconies or windows of private building. The court went further than the literal meaning which was “to loiter or solicit in a street or public place for the purpose of prostitution” to avoid abuses that could result from the fall of the literal interpretation.

The purposive approach is another way of approaching interpretation of legislation which shares some similarities with the mischief rule but more likely to weigh on the purpose Parliament intended than defects in the past law interpretations. It was initiated from Pepper v. Hart [1993] AC 593 announcing that the courts to take purposive approach to determine legislative intention. In the case of Coltman v. Bibby Tankers [1987], an employer who was charged for negligence under the Employer Liability Act [1969] was found guilty over a death of a man on a defected ship. Even though the word “ship” is not included in the definition of the word “equipment”, the judge found it is relevant as extensively looking the intention behind the legislative.

There are two other methods that assist the interpretation of statute.

Internal aids are derived from the Acts itself and exist to help judges’ understanding of the aim and intention of the statute. This includes the long titles, short titles, preamble and schedules, and judges should read the full statue to gain the legislative intention.

Extrinsic aids refer to sources outside from the Act that can assist judges to understand the meaning of statute. Judges can use dictionaries to find the definition of words that are not legal words, previous acts on same subjects for the guidance and the historical setting including earlier statutes and dictionaries at that time to determine mischief and provide remedy. Hansard which contains recording of parliamentary debates, law commission reports and international regulations and conventions that have effects on English legislation are the three main extrinsic aids.

The rules of language are also what judges need for deciding the meaning of Acts. The rules of language look at the words in a statute and were developed by lawyers.

The Ejusdem Generis rule refers to general words which follow specific words that are taken to include things that are of same kind. For example, in Powell v Kempton Racecourse [1899], the stated term ‘other places’ ought to only include indoor places as the rest of words listed were indoor places. Also the term ‘other person whatsoever’ in the Sunday Observance Act 1677 was to interpret not to includes occupations such as a barber or a farmer since it was followed by a list of words that “no tradesmen, artisan, workmen, labourer”.

Expressio unius exclusio alterius rule is that the expression of one particular thing mentioned exclude other members of words in same category in general meaning. In other words, if an act specifically mentioned ‘hybrid car’, then the cars that are not hybrid are not included. As shown in the case of Tempert v Kilner [1846], the court ruled that ‘stocks and shares’ were not caught by statute because it was a sales contract of goods, wares, and merchandise.

Noscitur a sociis means that the meaning of a word can be gathered from the other word used in similar context. For example, In the case of Muir v Keay (1875), when the court had to decide what ‘entertainment’ means, they looked at the other words and found that the word could not mean theatrical or musical entertainment. [4]

In addition to the above rules, judges can make presumptions and assumptions regarding the law. Unless the opposite is firmly stated in the statute, judges may apply presumptions. If there is the opposite in statute, presumptions will not be applied and rebutted. There are certain points on how presumptions operate. Firstly, a presumption is against the alternation of the common law unless the statue clearly states that the common has been changed. Secondly, Mens Rea is needed in criminal cases that no one can be convicted unless they had a certain intention to commit a crime. Thirdly, it is presumed that the crown court is not bound by any statue. Fourthly, it is presumed that the legislation does not apply retrospectively. Furthermore, it is presumed not to breach any of international law and nothing will be removed from the court jurisdiction and so on.

To conclude, in English courts, rules of interpretation on statute are very important. Not only the rules exist to assist the interpretation of Acts of Parliament for judges and other members in English courts but also to set proper tools for understanding legislative intentions that might could lead to confusions. These rules are to minimise bad decisions comes from personal moods or thoughts of judges or mistakes, also to distribute the power equally between Parliament and the courts.