Approaches for Determining the Meaning of a Statute

Statutes are acts of parliaments, these have been approved by both the House of Commons and the House of Lords and been given Royal Assent by the Monarch.  Parliament, the government and the courts are all independent and so act as a control on each of the others. The courts interpret legislation and, in this way, affect the way a statute is applied in any given situation. The courts can create law through the development of case law (e.g. Company Director Disqualification Act).

There are two separate views as to how judges should determine the meaning of a statute – the restrictive, literal and the more permissive, purposive approach. A judge should primarily be concerned with the words of the legislation. In certain circumstances the judge should not look beyond the legislation to find its meaning.  In Pepper v Hart [1993] 1 All ER 42¹ at 50: the move from the literal to the purposive approach is described. “The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation…”. In simple words, the words of legislation should be understood in terms of the purpose of the legislation. To identify this purpose a judge should be able to look beyond the words of an Act (e.g. to contemporary social factors). “The pendulum has swung towards purposive methods of construction.” Lord Steyn in R (on the application of Quintavalle) v Secretary of State for Health [2003] 2 All ER 113² at 123. 

A case where the Literal Rule has been used is the Whitely vs Chappel³ (1868) case, and this led to an absurd result. A Section made it an offence to impersonate any person entitled to vote. The defendant in this case had impersonated a man who had died, therefore rendering that person not entitled to vote. The Act relating to voting rights required an individual to be living to be entitled to vote. In the case, the Literal Rule was applied, and the defendant was thus acquitted of any wrongdoing.

Another example of The Literal Rule was the Fisher v Bell⁴ case (1960). Under the offensive weapons act of 1959, it is an offence to offer certain offensive weapons for sale. Bristol shopkeeper, James Bell displayed a flick knife in his shop window. When brought to trial it was concluded that Bell could not be convicted given the literal meaning of the statute. The law of contract states that having an item in a window is not an intention of sale but is an invitation to treat. Given the literal meaning of this statute, Bell could not be convicted⁵.

This is used when the application of the literal rule is likely to result in an absurdity. There must be “genuine difficulties”⁶ before the golden rule can be used instead of the literal rule. Slapper & Kelly, 2014:99

The Golden Rule enables the court to look at the literal meaning of an Act. This rule allows a Judge to depart from a statute’s normal meaning to avoid an absurd result. This rule of statutory interpretation may be applied when an application of the Literal Rule would lead to an absurdity. The Golden Rule gives the words of a statute their basic, ordinary meaning. However, when this may lead to an illogical result that is unlikely to be the legislature’s intention, the golden rule allows a Judge to depart from this meaning. There are two approaches to the Golden Rule that can be used; the Broad approach and the Narrow approach.

The Narrow approach can be used when the words are capable of more than one literal meaning, hence the Judge can select the appropriate meaning that avoids absurdity. A case where the Narrow approach has been used is the R vs Allen⁷ (1872) case. The defendant was charged with the offence of bigamy under a Section of the Offences Against the Person Act 1861. The Section stated that ‘whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an offence’⁸. Under a literal interpretation of this Section, the offence wouldn’t be able to be carried out, and it would lead to an absurd result. However, the Court applied the Golden rule and used the Narrow approach to deduce that the word ‘marry’ should be interpreted as ‘to go through a marriage ceremony’. Consequently, the Defendant’s conviction was upheld.

The Broad approach can be used when there is only one literal meaning of a word, however to apply it would be absurd. Therefore, the court may modify the meaning of the word to avoid absurdity. A case where the Broad approach has been used is the Adler vs George⁹ (1964) case. Under a specific Act, it was an offence to be in the general vicinity of a prohibited place. The defendant in this case had entered the prohibited place, rather than being near it and was eventually caught. The court applied the Golden rule and used the Broad approach; and the court deduced that it would be absurd for an individual to be liable for being near a forbidden place and not if they were in it. The Defendant’s conviction was therefore upheld.

Another example for this is Partridge v Crittenden⁹ [1968] 2 All ER 421. Mr Partridge, the defendant, advertised in a magazine that he had Bramblefinch cock and hens to sell. The price he quoted for each bird was 25 Shillings. The Bramblefinch was a protected bird category under the Protection of Birds Act 1954 and he was consequently charged with offering to sale a protected bird species. The conviction was quashed on the appeal and it was held that advertisement to sell the bird was an invitation to treat and did not constitute an offer.

The Mischief Rule is applied to recognise what ‘mischief’ Parliament was attempting to rectify. The court will examine the original legislation and will attempt to identify what Parliament was trying to accomplish. When applying the Mischief Rule, Judges need to consider what the law was before the Act was passed, identify what was wrong with that law, decide how Parliament intended to enhance the law through the Section in question and apply that finding to the relevant case brought before the court. Ultimately, this rule requires that where an Act has been approved to correct a defect or limitation in the law, the interpretation which will correct that limitation or defect is the one to be adopted. A case where the Mischief Rule has been used is the Smith vs Hughes¹⁰ (1960) case. The defendants in this case were several prostitutes who had been caught and charged with soliciting in a public place, in contravention of the Street Offences Act 1959. The defendants argued that as they were soliciting from private property (balconies and windows), they had not contravened this Section of the Act. The court used the Mischief Rule and decided that even though the defendants were on private property, they were nonetheless soliciting to individuals in the street and therefore had breached the Act. Consequently, the defendants were found guilty.

The Purposive approach focuses on what Parliament intended when establishing new legislation. Judges can consult Hansard and reports from the Law Commission and Royal Commissions, so they can apply the legitimate intentions of Parliament. Transcripts of the Parliamentary debate can also be used to help determine the actual intentions of Parliament. The Purposive approach is widely used by the EU, since its law is very abstract; unlike UK law that is more specific and attempts to cover many possibilities. Courts in the UK are required to follow EU interpretations when interpreting EU law. Likewise, they must have regard to the wider economic and social context of an Act to determine its true intention. The Purposive approach is generally used in the European Court of Justice because there are several languages in operation; hence translation is often not very precise. Judges are required to apply the Purposive approach whenever applying a piece of EU law. Essentially, this approach seeks to look for the purpose of the legislation before interpreting the words. The Purposive approach has been used previously during the case of Jones vs Towerboot Company¹¹ (1997). A young black male worker was physically and verbally abused by fellow workmates in the workplace. The court had to decide whether this abuse fell within ‘the course of employment’ under a specific Section of the Race Relations Act 1976. The employer had argued that these abusive actions fell outside the course of the worker’s employment, because such behaviour was not part of their job. The court used the Purposive approach to interpret this Section of the Act; and they deduced that Parliament’s intention when implementing this Act was to eliminate all racial discrimination in the workplace. This would not be achieved by applying a narrow construction to the wording. This approach allows Judges to decide what intention of the Parliament was for the Act to say rather than what the Act says. To help Judges with interpreting legislation, there are a variety of aids that they may refer to. These can be internal (intrinsic aids) or external (extrinsic aids). Intrinsic Aids are derived from the Section itself. Judges may use the full Section, the long and short titles, preamble and schedules to achieve the understanding of the meaning of a section of it. An example of long and short titles is “The Abortion Act 1967”, a short title, “an Act to amend and clarify the law relating to termination of pregnancy by registered medical practitioners”¹², a long title. Extrinsic Aids are derived from sources outside the Section of an Act. Judges may use dictionaries to identify the meaning of non-legal words, textbooks to seek guidance on points of law.

There are also language rules that judges use to interpret statutes. ‘Ejusdem Generis’ this rule applies where specific words are followed by general words and means that the general words are limited to things of the same nature. This rule of language applies where a statute contains a list of items that are followed by ‘and other’. When the courts are determining what counts as ‘other’, they will look at the context of the things in the list. It is also used to resolve the problem defining or giving meaning to groups of words where one of the words is ambiguous or vague. Where a piece of legislation lists specific classes of individuals or things and then refers to them in general, the general statements only apply to the same kind of individuals or things specifically listed. For example, a piece of legislation might refer to cars, lorries, tractors, motorbikes, vans and other vehicles. In this context, ‘other vehicles’ would not include aeroplanes since the list only comprised of land-based transportation. Therefore, when applying this rule of language, the general words must be restricted to the same class as the specific words in the list.

This rule has been applied during the Gleaves & Others vs Insall¹³ (1999) case. Section 8 of the Law of Libel Amendment Act 1888 states “no criminal prosecution shall be commenced against any proprietor, publisher, editor, or any person responsible for the publication of a newspaper for any libel published therein without the written order of a Judge being obtained”. In this case, a journalist had submitted articles which featured challenging headlines that had later been published. Using the Ejusdem Generis rule, the court deduced that a journalist could not be found guilty of libel because they contribute to newspapers and don’t publish them. Consequently, the journalist was not liable to a fine or imprisonment, and the case was dismissed.

‘Expressio Unius Est Exclusio Alterius’ this rule of language means ‘the explicit mention of one thing is the exclusion of another’. This Latin phrase indicates that items not on the list are assumed not to be covered by the statute. That which is expressed is included and that which isn’t is excluded. This rule of Statutory Interpretation says that if in a statute something is mentioned as being included, then anything that isn’t mentioned is by implication meant not to be included. For example, if a statute stated it applies to cars and motorbikes and didn’t specify ‘others’, then it would apply to cars and motorbikes only and not lorries. This principle of law enables statutes to be interpreted correctly to the intentions of Parliament. This rule has been applied during the R vs Inhabitants of Sedgely¹⁴ (1831) case. A statute was introduced which raised taxes on ‘lands, houses and coalmines’. The court deduced that the statute did not apply to limestone mines as there was no mention of Limehouse mines nor did the statute suggest that it would apply to other types of mines. This rule indicates that items not on the list are assumed not to be covered by the statute; hence limestone mines were not covered by the statute in this case.

 ‘Noscitur A Sociis’ this rule of language applies where the intended meaning of an ambiguous word depends on the context in which it is used. The meaning of an unclear word should be determined by considering the words with which it is associated with in the context. Ultimately, the meaning of a doubtful word can be derived from its association with other words. For example, if a statute stated it applies to dog kennels, dog tags, leads, balls and food, under this rule a bar of chocolate would not be in the context of the statute. The ‘Noscitur A Sociis’ rule has been applied during the Muir vs Keay¹⁵ (1875) case. The defendant in this case ran a successful café and it was found open at night. An Act stated that all houses kept open for entertainment during specific hours would need a license. There were several men and women at the café and they had all been supplied with cigars, ginger beer and coffee, which they consumed. The court considered the Refreshment Houses Act 1860 since this Act was established to deal with public refreshment, resort and entertainment. The court had to determine the meaning of entertainment and so applied the ‘Noscitur A Sociis’ rule. They implied that entertainment did not only mean musical and theatrical entertainment but meant other forms of entertainment including drinking coffee. The café was allowed to remain open to the public and continue, however required a license.                

Footnotes                  

1. Pepper v Hart [1993] 1 All ER 42 at 50

2. R v Secretary of State for Health [2003] 2 All ER 113 at 123

3. Whitely vs Chappel (1868)

4. Fisher v Bell case (1960)

5. All Answers ltd, ‘www.lawteacher.net’ (Lawteacher.net, March 2018) accessed 22 March 2018

6. Slapper & Kelly, 2014:99

7. R vs Allen (1872)

8. Offences Against the Person Act 1861

9. Partridge v Crittenden [1968] 2 All ER 421

10. Smith v Hughes 1960

11. Jones v Towerboot Company 1997

12. https://en.wikipedia.org/wiki/Abortion_Act_1967

13. Gleaves & Others vs Insall (1999)

14. R vs Inhabitants of Sedgely (1831)

15. Muir vs Keay (1875)