Are the Courts the Recognised Interpreters of the Law?

Question

“The Courts are the recognised interpreters of the law”

Consider this statement with reference to the various methods of statutory interpretation and explain why it is necessary for the courts to utilise different approaches in the first place.

Introduction

Statutes are the primary source of English law. The word ‘statute’ has been defined as ‘the will of the legislature’[1] subject to the agreement of the reviewing chamber and the Queen’s stamp of approval, pursuant to the Parliament Acts of 1911 and 1949. There is no doubt that the courts are the recognised interpreters of those agreements – they are one aspect of law. This essay sets out the major methods by which courts interpret law and thus give effect to statutes which have been passed.

The Meaning of ‘Statutory Interpretation’

According to Bannion, ‘statutory interpretation’ means ‘an enactment whose legal meaning in relation to a particular factual situation falls to be determined’.[2] In other words, statutory interpretation is the process by which the courts determine the meaning of a statutory provision in order to apply it to a particular situation. The courts interpret statutes in accordance with similar situations of the past. However, it should be noted that the courts have to interpret the statute ‘according to the intent of them that made it.’[3] The guiding theme is that courts need to give effect to the meaning of the ‘ordinary word’ in statutes. If the wording of the statute is clear, the courts have to give effect to it as ‘the words of the statute speak the intention of the Legislature.’[4] No interpretation in fact takes place, however, if the words in a statute are not disputed. Furthermore, it should be borne in mind that the function of interpretation is jus dicere, not jus dare. This means that judges must not overrule the words of statute, because reforming law is Parliament’s business.[5]

Methods of Interpretation

In most cases, ‘interpretation’ will only be required when disputes or doubts arise about the meaning of a statute. There are two broad categories which divide the question of interpretation[6]: 1) the terms of a statute; and 2) whether the disputed wording in a statute can apply in a particular situation. The first category arises when the meaning of the ordinary word in a statute is unclear, whether because of ambiguous terms, faulty grammar or any other failing in expression. The second category arises when broad terms such as ‘reasonable care’ are used. Terms such as these have a clear enough ordinary meaning, but problems arise when it comes to applying it to a particular case. It is usually, however, a question left to the discretion of the judges. However, even if statutes have contained in them the most precise words, culture and social conditions may change the meaning which is to be given to a statute. As a further consequence, statutes are applied in new circumstances which may not have been foreseen by Parliament. The interpretation of a statute which is given by the court on one day may, therefore, still be in doubt after some years. The courts have, nevertheless, developed various methods of interpretation in order to assist in the breaking-down of difficult legislation.

The following is a list of the rules which courts employ in order to interpret statutes:

1. 1. The ‘literal rule’: The courts have to give effect to the grammatical, ordinary and natural meaning of the words and sentences in statutes, and ensure that they are in accordance with the technical meaning of those terms. The courts must also ensure that there is consistency with the whole text of the statute. Furthermore, the courts should also determine the extent to which the general meaning is to be attributed to certain words in a difficult provision with reference to any other relevant text.

1. 1. The ‘golden rule’: If the application of words in their ordinary and grammatical sense would be contradicted by the main purpose of the whole text of statute, judges may exercise a ‘discretionary power’ to apply those words to give a ‘secondary meaning’ if that is appropriate. The rule is aimed to prevent a provision from being abused, and rendered unintelligible with the whole statute.

1. 1. The ‘mischief rule’: The courts will attempt to determine the intention of the legislator, Parliament. This rule gives the courts more discretion than the literal and golden rules since the courts have power to decide Parliament’s intention. However, it has been criticised that such power undermines Parliamentary sovereignty and weakens the system of the ‘separation of powers’ since the courts may, in effect, be taking away the law-making powers of the legislator.

In order to apply the aforementioned rules, courts may resort to aids of presumption or construction (particularly in special circumstances). However, thus far it is not possible for courts to interpret a statute which conflicts with European Community law. Indeed, courts should positively avoid applying statutory provisions in a way which might conflict with community law.

The Literal Rule

The literal rule, also known as the ‘plain meaning rule’, is the first and most important rule of statutory construction. The rule is designed ‘to intend the Legislature to have meant what they have actually expressed (sic)’[7]. The rule assumed that words and sentences are interpreted by the ordinary meaning of the language of the statutes unless they have been expressly defined otherwise; for example, some technical meaning to be given to technical legislation.[8] Therefore, ‘the safer and more correct course of dealing with a question of construction is to take the words themselves and arrive if possible at their meaning without, in the first instance, reference to cases.’[9]

In order to avoid dispute or doubt, most legislation includes a ‘definitions’ section at the beginning or end of the text. That usually expressly defines most of the essential words used in the statute. However, some statutes do not have a definitions section, not even one defining those essential words. The literal rule therefore tries to guide courts – it instructs them to give statutory term(s) their natural and ordinary meaning. If the meaning is clear enough, the court must apply what the statute said, even if there may be some differences between the statutes and the intention of Parliament or if the result is absurd and harsh.[10] The interpretation of a statute under the literal rule is not to determine what the law was supposed to be. Instead, it is about what the law says in ‘word’.[11] The duty of the court, therefore, is to maintain the law as it should stand, and ‘leave the remedy (if any) to others [Parliament].’[12]

The Golden Rule

Maxwell[13] thought of the ‘golden rule’ as a modification to the literal rule. In some circles it has been seen to act as a compromise between the literal rule and the mischief rule. Parke[14] stated that ‘it is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.’

The golden rule gives the ordinary and natural meaning of words of statutes like the literal rule. However, the courts normally impose a limit to this kind of interpretation when it leads to an irrational or absurd result which is totally different with the Parliament’s intention.[15] In this circumstance, courts are allowed to depart from the plain meaning. If the word has more than one meaning, and the legislators have not defined such words in the statutes, the courts can choose the most suitable meaning for a particular case. However, if the word only has one meaning, the courts have a degree of discretion to apply a completely different meaning if the ordinary meaning would lead to an absurd result.[16]

This rule can be applied in two situations. The most frequent situation will be, in a narrow sense, when there are some ironic, ridiculous meanings to the word itself. For example, section 77(1) of the Road Traffic Act 1960 requires the driver of a motor vehicle to ‘stop’ after an accident. The court said that the word ‘stop’ properly required the driver to ‘stop’ the vehicle and ‘remain where he has stopped for a period of time’. The requirement of ‘stop’ should provide a sufficient and reasonable time for the driver to do so, but there is no requirement of ‘immediate stop’ in the statute.[17] Indeed, it would be an absurd result if the law required the driver to stop immediately without considering the circumstances, such as the state of the traffic at the time of the stopping. In a wider sense, the second situation will be to avoid a contradiction with public policy, even if there is only one meaning to the word. For example, section 46 of the Administration of Estates Act 1925 requires that the government should “issue” people inheritances in certain circumstances. Moreover, the court held that nobody should benefit from any type of crime, and the golden rule was designed to avoid an absurd result, even though there was no other meaning of “issue”.[18]

Nevertheless, some commentators have criticised that the golden rule has weakened the power of Parliament because the courts have been exercising too wide a discretion to interpret statutes – in effect, applying their own understanding which may be different with the intention of Parliament. The courts have therefore tended to use literal rule more often.

The Mischief Rule

The mischief rule emanated from Heydon’s Case[19]. It allowed the courts to determine the intention of legislators, Parliament. The main purpose of the rule is to determine the ‘mischief and defect’ when a statute is brought into doubt or question. The principal issue in those circumstances is: what remedy should be set out, and what kind of rule would effectively implement such remedy?

Heydon’s Case[20] set out four main principles:

1. 1. What was the common law before the making of the Act in question?
   2. What was the “mischief and defect” for which the common law did not provide?
   3. What remedy did Parliament create to cure the disease?
   4. What is the true reason for the remedy?

The mischief rule gives courts a very broad discretionary power to interpret a statute – more than the literal and the golden rules. The mischief rule allows courts to decide the ‘intention’ of Parliament. It is arguable whether such interpretation of the ‘intention’ actually comes from Parliament, or if it is only the ‘intention’ of the courts which are interpreting statutes and giving them a particular meaning. Similar to its counterparts, the mischief rule has been criticised. It has been argued that the courts have weakened the supremacy of Parliament. Further, it had been argued that the rule is ‘undemocratic’ on the basis that the courts have been able to take away the power of making law from Parliament.

The mischief rule was illustrated in the famous case, Smith v Hughes[21]. That case involved section 1(1) of the Street Offence Act 1959, under which it was a crime for prostitutes to ‘loiter or solicit in the street’. The defendant in the case claimed that she should not be guilty of an offence under the 1959 Act since she had attracted the attention of men in the street from balconies or windows instead of ‘in a street’. However, the judge applied the mischief rule to state that ‘everybody 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.’ [22]The court held that she was guilty since the purpose of the Act was to eliminate the mischief of harassment of prostitutes. The phrase ‘in the street’, therefore, was thought not to be relevant.[23]

Although the Law Commission thought that the mischief rule was the most satisfactory method of statutory interpretation, and the most effective way to avoid absurd results in practice, various disadvantages have since been identified. It seems that the rule has given too much power to the court and that this is absolutely undemocratic. Furthermore, the rule has been in use since the 16th century. Does this render the rule out-of-date? The history of the rule provides some explanation – it was the judges who would have always drafted the statutes on behalf of the King – the judges were the ones who were well qualified in both understanding and amending statutes.

The Interpretation Act 1978

Finally, it is important to discuss the function of the Interpretation Act. Since most statutes have an interpreting section in relation to some of the main words, the Interpretation Act only intervenes when there is a contrary intention – all statutes should be read as indicated. The Act provides useful guidance for judges and lawyers, setting the background to ‘methods of interpretation’ of law.

Conclusion

Lord Wilberforce asked whether courts should really hold a discretionary power to interpret statutes. Most lawyers would answer in the affirmative. In fact, there is no single rule which can be employed for the purposes of interpreting a statute so that the original intention of the legislator is fully reflected in the application of that statute. There is no precise meaning which can be given to any one word. People from different backgrounds or situations will define the meaning of the same word differently. Different judges do have different interpretations of words in particular cases, although common law now requires that similar cases should be treated similarly. We can only say that the literal, golden and mischief rules are the most appropriate methods for the courts to interpret the law, but it doesn’t mean that the courts have to follow it. Lord Wilberforce did not answer the question of statutory interpretation directly; instead, he said ‘it is a matter of educating the judges and practitioners and hoping that the work (statutory interpretation) is better done.’[24] I tend to agree – the various methods of statutory interpretation will not be sufficient without continual guidance as to how they should be applied.

(2,627 words)

Bibliography

Texts

1. 1. Maxwell, P.B. (1969) On the interpretation of statutes (12th ed.) – Sweet & Maxwell, London
   2. Bennion, F.A.R. (1984) Statutory Interpretation: codified, with a critical commentary – Butterworths, London
   3. Coke, E. (1644) The fourth part of the Institutes of the laws of England: concerning the jurisdiction of courts – printed by M, Flesher for W. Lee and D. Pakeman, London
   4. Wilson W.A. (1987) Questions of interpretation – Oxford University Press, Oxford
   5. Cross, R. (1912) Statutory interpretation (2nd ed.) – Butterworths, London
   6. 277 HL Official Report (5th series) col 1294 (16 November 1966)

Cases

1. 1. Warburton v Loveland (1832) 2 D. & Cl. 480
   2. Cheney v Conn [1968] 1 W. L. R. 242
   3. R v Banbury (Inhabitants) (1934) 1 A. & E 136
   4. R v Commrs of Income Tax (1888) 22 Q.B.D. 296
   5. Barrell v Fordree [1932] A.C. 676
   6. Cartledge v E Jopling & Sons, Ltd [1963] A.C. 758
   7. Gwynne v Burnell (1840) 7 Cl. & F. 572
   8. Sutters v Briggs [1922] 1 A.C. 1
   9. Becke v Smith (1836) 2 M&W 195
   10. Chung Fook v. White (1924) 264 U.S. 433
   11. Rector, Holy Trinity Church v. United States (1892) 143 U.S. 457
   12. Lee v Knapp [1967] 2 Q.B. 442
   13. Sigsworth, Re, Bedford v Bedford [1934] All ER Rep 113
   14. Smith v Hughes 3 CO REP 7a
   15. Randall v Motor Insurers’ Bureau [1968] 1 W.L.R. 1900
   16. Heydon’s Case [1584] 3 CO REP 7a

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Footnotes

[1] Maxwell, P.B. (ibid), p. 1

[2] Bennion, F.A.R. (ibid), p. 137

[3] Coke E. (ibid) p. 330

[4] Warburton v Loveland (1832) 2 D. & Cl. 480, per Tindal C.J. at 489

[5] Cheney v Conn [1968] 1 W. L. R. 242

[6] Wilson, W.A. [1987]

[7] R v Banbury (Inhabitants) (1934) 1 A. & E 136, per Parke J. at p. 142

[8] R v Commrs of Income Tax (1888) 22 Q.B.D. 296;

[9] Barrell v Fordree [1932] A.C. 676, per Lord Warrington of Clyffe at p682

[10] Cartledge v E Jopling & Sons, Ltd [1963] A.C. 758

[11] Gwynne v Burnell (1840) 7 Cl. & F. 572, per Coleridge J.

[12] Sutters v Briggs [1922] 1 A.C. 1, per Lord Birkenhead L.C. at p. 8

[13] Maxwell, 12th ed, p. 43

[14] Becke v Smith (1836) 2 M&W 195 per Parke B

[15] Chung Fook v. White (1924)

[16] Rector, Holy Trinity Church v. United States, 143 U.S. 457 (1892)

[17] Lee v Knapp [1967] 2 Q.B. 442, at pp. 447-448

[18] Sigsworth, Re, Bedford v Bedford (1935; Ch 89)

[19] 3 CO REP 7a

[20] [1584] 3 CO REP 7a

[21] [1960] 2 All E.R. 859

[22] Smith v Hughes 3 CO REP 7a p. 832

[23] Randall v Motor Insurers’ Bureau [1968] 1 W.L.R. 1900

[24] 277 HL Official Report (5th series) col 1294 (16 November 1966)