English European Union Legal System

English European Union Legal System: Give an account of the main rules of statutory interpretation and illustrate their operation by reference to decided cases. Do these rules provide a helpful guide to the way cases are likely to be decided?

Despite the best endeavours of draftsmen, the meaning of legislation is not always clear. Lawyers and judges therefore spend a substantial amount of time interpreting documents such as statutes and statutory instruments, as well as other legal documents such as contracts and wills. Where legislation is concerned, it is necessary to interpret the words correctly to see if they can be applied to a particular set of facts. The rules of construction are guidelines that have been developed through the years to assist lawyers and judges with this task.

The literal rule (or the ‘plain meaning rule’)[1] denotes that words must be given their plain, ordinary, literal meaning. Where the words of a statute are in themselves precise and unambiguous, then it is not necessary to do anything more than å…Žxpound those words in that natural and ordinary sense・[2]. In interpreting the legislation, the courts should 都trive not to create ambiguities by strained construction・[3]. This ensures that the courts apply the will of Parliament rather than ‘making law’, which is not their function.

However, the rule can sometimes defeat the intention of Parliament: for example, in Whiteley v Chappel[4], the Court reached the conclusion that Whiteley could not be guilty of impersonating any person entitled to vote[5], since he impersonated a dead person who literally was not a ‘person entitled to vote’. Clearly this is not the outcome that Parliament would have intended when enacting the legislation, but the judges thought that it would be 努rong to strain words to meet the justice of the.. case・[6]. The literal rule therefore has only limited application: it is only relevant where the wording of the statute is very clear, and more recently, the courts have been seen to give preference to other aids of interpretation which is acceptable, bearing in mind that the rules are guidelines, not laws[7].

The golden rule[8] is an adaptation of the literal rule which requires that words are given their ordinary meaning so far as is possible, to the extent that this does not lead to 都ome absurdity or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified・[9].

The rule was applied in R v Allen[10] in which the courts were required to interpret Section 57 of the Offences Against the Person Act (1861). The statute provided that 展hosoever being married, shall marry any other person during the lifetime of his spouse・will be guilty of bigamy. Applying the literal rule, it would be impossible to commit this offence since the second marriage would not really be a marriage at all. The court therefore interpreted the word ‘marry’ to mean ‘appearing to contract a second marriage and going through a form of ceremony known to and recognised by the law as capable of producing a valid marriage’[11].

The golden rule is also used to avoid a result that would be against public policy[12]. For example, in Re Sigsworth[13], a son who had murdered his mother was not permitted to inherit her estate under Section 46 of the Administration of Estates Act 1925, even though the word ‘issue’ had only one literal meaning. It is a rule of public policy that a person who has unlawfully killed another is precluded from acquiring a benefit in consequence of the killing[14].

The golden rule is clearly of benefit in that courts do not have to apply a statute in a way that would produce a ridiculous result; Parliament then has the opportunity to amend the legislation to cover the peculiarities of the case in question, if they choose to.

The mischief rule, sometimes known as the rule in Heydon’s Case[15], requires that the court looks at all factors relating to the legislation in question, and make an informed interpretation of the meaning of the words used in the statute based on those factors[16]. The court must consider the context of the enactment, including all matters that may shed light on the meaning intended by the legislator; this means that they can review publicly available material which the court considers proper to admit (although this is somewhat limited: see R (oao Westminster City Council v National Asylum Support Service[17]). The court are also required to consider the state of the law prior to the Act being passed, the history of the enactment, and the events which occurred subsequent to its passing; collectively referred to as the legislative history of the enactment. The mischief rule was applied in Royal College of Nursing v DHSS[18], in which the court were required to examine the provisions of the Abortion Act 1967 which was enacted to remedy the unsatisfactory and uncertain state of the law that existed previously with regards to abortions. Although a literal interpretation of Section 1(1) of the Act would not have produced an absurdity, an application of this rule would have meant that many doctors had unknowingly performed illegal abortions since the Act came into force, which was not what Parliament intended the words of the statute to mean.

When considering the meaning of provisions of European Law, the courts are required to take a more flexible approach to interpretation, which reflects the fact that European Law tends to be drafted in a continental manner laying down general principles and leaving the fine details to be filled out later by judges[19]. In contrast to the mischief rule, which assists judges in finding out the intended meaning of the words of a statute, the purposive approach looks at the purpose which the legislature intended to achieve by passing a particular statute. By Section 2(2) of the European Communities Act 1972, the courts must adopt a purposive (or ‘teleological’) approach which requires the court to determine, in light of the aims and objectives of the Treaties and legislation, what was intended and what result would assist those goals[20]. This may include reference to Parliamentary materials: demonstrated in Pickstone v Freemans plc[21], in which the House of Lords were required to consider the meaning of Section 1(2)(c) of the Equal Pay Act 1970[22] by reference to the draft regulations, in order to give effect to a decision of the Court of Justice of the European Communities.

A further example of the application of the purposive approach can be found in Lister v Forth Dry Dock and Engineering Co Ltd[23]; a case in which all employees were dismissed from a company one hour before it was transferred to a new owner and the employees thus claimed unfair dismissal. By Regulation 5 of the Transfer of Undertakings (Protection of Employment) Regulations 1981[24], a transfer may not terminate the contract of any person employed immediately before the transfer. The words ‘immediately before the transfer’ in Regulation 5(3) were read by the House of Lords to include ‘or would have been so employed if he had not been unfairly dismissed …’, in order to achieve the purpose of the EC Directive, which was to protect the employees on transfer of the business[25].

The purposive approach was not something that was introduced to English courts by “the teleological approach of European Community jurisprudence, and the influence of European legal culture generally” but its use has certainly been accelerated by European ideas[26]. Indeed, its application has not been restricted to the application of EC Law alone in recent times. In Gotham v Doodes[27] the Court considered the reason for the enactment of Section 313 of the Insolvency Act 1986 , which was to postpone a trustee’s rights of possession and sale of the family home and to give the court a wide discretion to do justice in the circumstances of the individual case. This was a consequence of the Report of the Review on Insolvency Law and Practice[28]. The purpose of the legislation, revealed by the Report, both å…Žnlightened and informed the Court of Appeal’s determination of the issue before it・[29]. Clearly, the purposive approach is a useful means of interpreting legislation to achieve what was truly intended by Parliament. However, the courts cannot take a direction that goes directly against the wording of a statute. Where a statute’s wording is plain and unambiguous (ignoring for the moment the issues of incompatibility with EC Law which give rise to other issues) a judge must apply them: it is for Parliament to change the law at its prerogative if the result is not what it intended[30]. Further, judges may only adopt the purposive approach where they are able to discover a clear statement of the purpose of the legislation which is expressed either in the statute itself, or in other material which they are legitimately permitted to refer to for guidance[31]; such material may include discussions made in Hansard only where these include clear statements of ‘Parliament’s true intention’[32].

The increased utilisation of the purposive approach has seen the adoption of other rules to interpretation – for example, the ‘always speaking’ rule applied in School of Finance Management Ltd (17182)[33], in which the Tribunal examined the underlying purpose of the education exemption and held that its provisions should be extended to include private companies teaching and facilitating the granting of university degrees. Since there was wider provision of university education in recent times, the Tribunal felt that the purpose of the exemption, as regards university education, would be defeated if not extended in the manner advocated. The ‘always speaking rule’ thus presumes that Parliament intends the courts to apply to current legislation a construction that continually updates the wording of the Act to give effect to the true original intention or purpose; such an application may take account of current conditions which have changed since the enactment of the provisions[34].

The purposive approach has had increasing support in recent years by the English courts since “it accords with our democratic sensibilities that judges simply carry out the will of Parliament when they interpret legislation”[35]: as a result, the older rules have been given far less credence[36]. There are however well established principles that suggest a cautious approach should be adopted before dismissing the old rules altogether. For example, the literal rule still arguably has value since Parliament has supreme law-making authority and therefore free to amend statutory provisions where it does not like result produced by the literal meaning. It is also possible that judges will encroach on the legislature’s role of law maker by being too creative when adopting a purposive approach, or utilising a meaning from materials that do not correctly reflect what was intended by Parliament.

Other aids to interpretation which may prove useful when faced with ambiguity include intrinsic assistance (the use of the full statute including, for example, the preamble to aid understanding[37]), extrinsic assistance such as dictionaries[38], textbooks and earlier statutes, and presumptions such as that new law will not have retrospective effect[39]. However, such aids should be used with caution: for example, on occasions, explanatory notes have contained significant legal inaccuracies, such as those that sought to state the law governing bad character evidence prior to the introduction of the Criminal Justice Act 2003, which failed to take on board the circumstance that Section 1(3) of the Criminal Evidence Act 1898 had been amended in 1979[40]. This is a difficulty faced by judges employing a purposive approach also; the materials to which they refer in discovering the apparent intention of Parliament may contain any number of positions and it is often uncertain what the 鍍rue・intention of a particular enactment really is.

Rules of language provide some limited additional assistance: for example, the rule ‘eiusdem generis’ denotes that if a general word follows two or more specific words, that general word will only apply to things of the same type as the specific words. In Powell v Kempton Park Racecourse Co[41], the Court held that an outdoor area at a racecourse did not fall within the prohibition of the keeping of a ‘house, office, room or other place’ for the purpose of betting[42], since all the examples given were indoors. Other similar rules including ‘noscitur a sociis’ (recognition by associated words)[43] and ‘expressio unius est exclusio alterius’ (expressing one thing excludes another)[44] provide similar useful rules which may assist judges with interpretation.

Clearly these aids to interpretation provide useful tools for judges faced with a set of facts which are apparently not specifically referred to by the law, such as where statutes are imprecise as in Pepper v Hart[45]. The popularity of the purposive approach which requires that the courts look at the spirit, rather than the letter, of the legislation, and solve the problem before them by examining the design and purpose of the legislature, suggests that the courts will be more successful in applying the effect that Parliament sought to achieve in enacting a particular piece of legislation[46]. Courts are increasingly posing the question: what is the sensible way of dealing with this situation so as to give the presumed purpose of the legislation?’[47]

However, the increased use of the purposive approach leaves many questions such as how far a judge should exercise their discretion in ‘filling in the gaps’. A uniform application of the wide purposive approach could see criticism of the courts in doing more than just interpreting and applying the law, as has been the case for the European Court of Justice[48].

Cases referred to

Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd (1983) 1 All ER 101

Barber (C-262/88)

Burmah Oil Co (Burmah Trading) Ltd v Lord Advocate (1965) AC 75, (1964) 2 All ER 348, HL

Chandler v DPP (1964) Ac 763

Gotham v Doodes (2006) EWCA Civ 1080, (2007) FLR (forthcoming)

Grey v Pearson (1857) 6 HL Cas 61

Heydon’s Case (1584) 3 Co Rep 7a

Lister v Forth Dry Dock and Engineering Co Ltd (1989) 1 All ER 1134

Oxfordshire County Council v Oxford City Council and another (2006) 4 All ER 817

Pengelly v Bell Punch Co Ltd (1964) 1 WLR 1055 re Factories Act 1961

Pepper v Hart (1993) AC 593, (1993) 1 All ER 42, HL

Pickstone v Freemans plc (1988) 2 All ER 803, (1989) AC 66

Powell v Kempton Park Racecourse Co (1899) Ac 143

R (o/a Quintavalle) v. Secretary of State for Health (2003) 2 AC 687, 700

R (oao Westminster City Council v National Asylum Support Service(2002) 4 All ER 654

R v Allen (1872) LR 1 CCR 367

R v Inhabitants of Sedgeley (1831) 2 B & Ald 65

Re Sigsworth (1935) Ch 89

Royal College of Nursing v DHSS (1981) 1 All ER 545

Shah v Barnet London Borough Council (1983) 2 AC 309

Sussex Peerage Case (1844) 1 Cl & Fin 85

Whiteley v Chappell (1868) LR 4 QB 147

Bibliography

Amanda Brown, Statutory Presumption Legislative Interpretation, Tolley’s Practical VAT Newsletter (15 PVN 8, 57 1 August 2001)

Beloff, “’What Does it All Mean?” Interpreting the Human Rights Act 1998′

Criminal Law, Evidence and Procedure (Vol 11(2) (2006 Reissue)) 2. Offences Against the Person (6) Bigamy 832. Evidence of being married

Francis Bennion, Statutory Interpretation (4th Edition, 2002, Butterworths, London)

Gary Slapper & David Kelly, The English Legal System (2001, 5th Edition, Cavendish Publishing Ltd, London) 168

Gerrit Betlem, The Doctrine of Consistent Interpretation―Managing Legal Uncertainty, Oxford Journal of Legal Studies (1 September 2002, OJLS 2002 22 (397))

Harvey on Industrial Relations and Employment Law: Division F Transfer of Undertakings: 1. Transfer of Undertakings A. Introduction (2) European Law

Ian Leigh and Lawrence Lustgarten ‘Making Rights Real: the Courts, Remedies, and the Human rights Act’ (1999) CLJ 538–539

Jonathan Legg, Tax Avoidance ― The Voyage of Discover (Issue 876, 23, 12 March 2007) Tax Journal

Keir Starmer and Iain Byrne, Blackstone’s Human Rights Digest (2001, Blackstone Press, London)

Lammy Betton (ed) The Human Rights Act 1998: What it Means Martinus Nijhoff Publishers, London 1999

Nigel Foster, EC Law (5th Edition, 2005, Oxford University Press, Oxfordshire) 28

Rebecca Bailey-Harris, Gotham v Doodes (2006) EWCA Civ 1080 Case Reports: Bankruptcy, Family Law (1 January 2007, Fam Law 37 (15))

Roderick Munday, Explanatory Notes and Statutory Interpretation, Justice of the Peace (170 JPN 124, 2006)

Statutes (Volume 44(1)) Reissue) 5. Statutory Interpretation (4) The Interpretative Criteria (iv) The Informed Interpretation Rule A. statement of the informed interpretation rule 1414. The informed interpretation rule.

Statutes (Volume 44(1)) Reissue) 5. Statutory Interpretation (4) The Interpretative Criteria (v) Principles derived from Legal Policy D. Principles Regarding the Public Interest 1453. Illegality

Statutes (Volume 44(1)) Reissue) 5. Statutory Interpretation (4) The Interpretative Criteria (ii) Miscellaneous Common Law Rules 1391. Plain meaning rule

Statutes (Volume 44(1)) Reissue) 5. Statutory Interpretation (4) The Interpretative Criteria (ii) Miscellaneous Common Law Rules 1392. Commonsense construction rule

Statutes (Volume 44(1)) Reissue) 5. Statutory Interpretation (4) The Interpretative Criteria (iii) The Functional Construction Rule A. in general 1393. Statement of the functional construction rule

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Footnotes

[1]Statutes (Volume 44(1)) Reissue) 5. Statutory Interpretation (4) The Interpretative Criteria (ii) Miscellaneous Common Law Rules 1391. Plain meaning rule.

[2]Sussex Peerage Case (1844) 1 Cl & Fin 85

[3]Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd (1983) 1 All ER 101 per Lord Wilberforce

[4]Whiteley v Chappell (1868) LR 4 QB 147

[5]Under 14 & 15 Vict. c. 105, s. 3

[6]Per Hannen J

[7]For example, there is no reason why the literal rule could not have been applied in Royal College of Nursing v DHSS (1981) 1 All ER 545 but the mischief rule was applied instead

[8]See generally: Statutes (Volume 44(1)) Reissue) 5. Statutory Interpretation (4) The Interpretative Criteria (iii) The Functional Construction Rule A. in general 1393. Statement of the functional construction rule; and Statutes (Volume 44(1)) Reissue) 5. Statutory Interpretation (4) The Interpretative Criteria (ii) Miscellaneous Common Law Rules 1392. Commonsense construction rule

[9]Grey v Pearson (1857) 6 HL Cas 61

[10]R v Allen (1872) LR 1 CCR 367

[11]Criminal Law, Evidence and Procedure (Vol 11(2) (2006 Reissue)) 2. Offences Against the Person (6) Bigamy 832. Evidence of being married.

[12]Statutes (Volume 44(1)) Reissue) 5. Statutory Interpretation (4) The Interpretative Criteria (v) Principles derived from Legal Policy D. Principles Regarding the Public Interest 1453. Illegality.

[13]Re Sigsworth (1935) Ch 89

[14]Now contained in the Forfeiture Act 1982 Section 1

[15]Heydon’s Case (1584) 3 Co Rep 7a

[16]See generally: Statutes (Volume 44(1)) Reissue) 5. Statutory Interpretation (4) The Interpretative Criteria (iv) The Informed Interpretation Rule A. statement of the informed interpretation rule 1414. The informed interpretation rule

[17]R (oao Westminster City Council v National Asylum Support Service(2002) 4 All ER 654: “What is impermissible is to treat the wishes and desires of the Government about the scope of the statutory language as reflecting the will of Parliament. The aims of the Government in respect of the meaning of clauses as revealed in Explanatory Notes cannot be attributed to Parliament. The object is to see what is the intention expressed by the words enacted.” (per Lord Steyn)

[18]Royal College of Nursing v DHSS (1981) 1 All ER 545

[19]Gary Slapper & David Kelly, The English Legal System (2001, 5th Edition, Cavendish Publishing Ltd, London) 168

[20]Nigel Foster, EC Law (5th Edition, 2005, Oxford University Press, Oxfordshire) 28

[21]Pickstone v Freemans plc (1988) 2 All ER 803, (1989) AC 66

[22]Introduced by the Equal Pay (Amendment) Regulations 1983, SI 1983/1794

[23]Lister v Forth Dry Dock and Engineering Co Ltd (1989) 1 All ER 1134

[24]Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1981 no 1794)

[25]Harvey on Industrial Relations and Employment Law: Division F Transfer of Undertakings: 1. Transfer of Undertakings A. Introduction (2) European Law

[26]R (o/a Quintavalle) v. Secretary of State for Health (2003) 2 AC 687, 700 per Lord Steyn: cited in Roderick Munday, Explanatory Notes and Statutory Interpretation, Justice of the Peace (170 JPN 124, 2006)

[27]Gotham v Doodes (2006) EWCA Civ 1080, (2007) FLR (forthcoming)

[28]Report of the Review on Insolvency Law and Practice, Cmnd 8558 (HMSO, 1982) (The Cork Report)

[29]Rebecca Bailey-Harris, Gotham v Doodes (2006) EWCA Civ 1080 Case Reports: Bankruptcy, Family Law (1 January 2007, Fam Law 37 (15))

[30]Beloff, “’What Does it All Mean?” Interpreting the Human Rights Act 1998′ (p.29) in Lammy Betton (ed) The Human Rights Act 1998: What it Means Martinus Nijhoff Publishers, London 1999 11: Ian Leigh and Lawrence Lustgarten ‘Making Rights Real: the Courts, Remedies, and the Human rights Act’ (1999) CLJ 538–539: Keir Starmer and Iain Byrne, Blackstone’s Human Rights Digest (2001, Blackstone Press, London) at 28: all cited in Gerrit Betlem, The Doctrine of Consistent Interpretation – Managing Legal Uncertainty, Oxford Journal of Legal Studies (1 September 2002, OJLS 2002 22 (397))

[31]Shah v Barnet London Borough Council (1983) 2 AC 309: cited in Slapper & Kelly (n.17) p.168

[32]Pepper v Hart (1993) AC 593, (1993) 1 All ER 42, HL

[33]School of Finance Management Ltd (17182), see TPV 2001, p54

[34]Amanda Brown, Statutory Presumption Legislative Interpretation, Tolley’s Practical VAT Newsletter (15 PVN 8, 57

1 August 2001)

[35]Jonathan Legg, Tax Avoidance — The Voyage of Discover (Issue 876, 23, 12 March 2007) Tax Journal

[36]Legg (n.26)

[37]For example, the preamble to the Bubble Act 1720 (made with the objective of suppressing rival bubbles and restricted the formation of joint-stock companies without the approval of Parliament) made more sense than the actual body of legislation: and in Chandler v DPP (1964) Ac 763, reference was made to a marginal note for clarification

[38]See for example Oxfordshire County Council v Oxford City Council and another (2006) 4 All ER 817: reference is made to the Concise Oxford Dictionary (9th Edition, 1995) and their Lordships cite Bennion’s Statutory Interpretation (4th edn, 2002) p 480, which notes that: ‘Whatever meaning may be expressly attached to a term, it is important to realise that its dictionary meaning is likely to exercise some influence over the way the definition will be understood by the court. It is impossible to cancel the ingrained emotion of a word merely by an announcement.’

[39]Although this can be rebutted: see War Damage Act 1965 with reference to Burmah Oil Co (Burmah Trading) Ltd v Lord Advocate (1965) AC 75, (1964) 2 All ER 348, HL

[40]Roderick Munday, Explanatory Notes and Statutory Interpretation, Justice of the Peace (170 JPN 124, 2006)

[41]Powell v Kempton Park Racecourse Co (1899) Ac 143

[42]Under Section 1 of the Betting Act 1853

[43]See for example Pengelly v Bell Punch Co Ltd (1964) 1 WLR 1055 re Factories Act 1961

[44]See for example R v Inhabitants of Sedgeley (1831) 2 B & Ald 65 re Poor Relief Act 1601

[45]See n.16

[46]Amanda Brown, n.31

[47]James Buchanan and Co v Babco Forwarding and Shipping (UK) Ltd (1977) 2 WLR 107

[48]For example, following the decision in Barber (C-262/88): Foster (n.19) p.30