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Statutory Interpretation - approaches | Literal | Purposive | Integrated |

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Size of the problem

It is estimated that 50% of High Court cases and 90% of cases in the House of Lords involve interpretation of statutes (Twining and Miers 4th ed)

 

Former Lord Chancellor Lord Hailsham

Hamlyn lectures 1983 he stated that over nine out of ten cases heard before the Court of Appeal or the House of Lords involve the meaning of words contained in enactments of primary or secondary legislation.

Three general approaches

These approaches are not always clearly defined, least of all by judges who often interpret a statute without saying which approach they are using, or use words interchangeably. 

 

Academics too have differing views on their true extent, some, for example, ignore the Integrated Approach.

Literal (or Constructionist) Approach

Canons and rules

The Literal Approach uses canons and rules of interpretation, to establish the meaning of words or the intention of Parliament.

Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg [1975] HL

Lord Reid:

'We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used.'

Purposive Approach (Mischief Approach)

EC Law

The purposive approach is typical of the way EC Law needs to be interpreted.

Human Rights Act 1998

The Human Rights Act has to be dealt with this way as it is a 'living document' that has to be interpreted differently from some other legislation.

Sec 3 gives a positive duty to interpret legislation in accordance with the Act

 3. - (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2) This section-

(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

Lord Denning 50 years ago said that by applying the literal rule the intention of Parliament could be destroyed.

Magor and St Mellons v Newport Borough Council (1952) HL

‘We do not sit here to pull the language of Parliament to pieces and make nonsense of it. We sit here to find out the intention of Parliament and carry it out and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis’

 

R v SOS for the Environment ex parte Spath Holme (2000) HL

Lord Cooke;

"While today the purposive principle of interpretation is the governing one if available, other established canons may come into play. … such as that Parliament does not lightly take the exceptional course of delegating to the executive the power to amend primary legislation; that, when it does so, a restrictive approach to interpretation is legitimate; and that, in the absence of clear language Parliament is presumed not to take away property rights without compensation."

Courts try to find the intention of Parliament

Lord Nicholls in Spath Holme:

"...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. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House."

How the approaches are used

If the intention of Parliament is clear from the words used there is no need for the courts to go outside the statute to find the intention of Parliament.

Maunsell v Ollins (1975)

Lord Simon (not the Simonds in Magor)

‘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 …being thus placed…the court proceeds to ascertain the meaning of the statutory language.’

Royal College of Nursing v DHSS (1981) HL

 

 

Clipart pregnant woman

Section 1(1) of the Abortion Act 1967 states that ‘a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner…’

 

Terminations, which involve nurses playing a substantial role, are acceptable provided that a registered medical practitioner accepts responsibility. Therefore, a doctor need not be present at a termination.

 

It appears that their Lordships had not engaged in interpretation but rewriting legislation or as Lord Edmund-Davies put it, "redrafting with avengance", this may have been to protect a large number of nurses who otherwise would have been performing illegal abortions since 1972.

The literal and mischief rules appeared not appropriate.

INCO Europe v First Choice Distribution (2000) HL

Lord Nicholls

Before adding or omitting words the court must be

1. ‘Abundantly sure [of] the intended purpose of the statute or provision in question;

2. That by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and

3. The substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed.

The third of these conditions is of crucial importance.

"Even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching."

Tesco v Brent LBC [1993] DC

A 14 year old was sold a video with a "18" classification, and the supermarket chain were prosecuted for an offence under the Video Recordings Act 1984.

 

The Act provided that it would be an offence to sell such a video where the seller had reason to believe the buyer was under age; on the facts, this applied to the checkout operator but not to the company itself.

 

Staughton LJ said Parliament clearly intended the company to be liable on the strength of its employee's knowledge, otherwise no national company could ever have been prosecuted.

The Integrated  (Contextual or Unified) approach

Courts have in recent years integrated the traditional approaches.

The courts respect the actual words used but rather than stick religiously to them interpret them in the context in which they appear, and the underlying purpose of the Act.

Integrated Approach identified Sir Rupert Cross, Statutory Interpretation (3rd ed, 1995)

The approach involves not so much a choice between alternative rules but as a progressive analysis in which the judge:

  • first considers the ordinary meaning of the words in the general context of the statute,

  • then takes a broad view of what constitutes the "context", and then

  • considers other possibilities where the ordinary meaning leads to an absurd result.

This unified "contextual" approach is supported by dicta in decisions of the House of Lords where general principles of statutory interpretation have been discussed.

An integrated approach

Tries to establish the intention of Parliament considering the act as a whole.

 

In addition to the Act itself and the intrinsic aids to interpretation the context includes the historical passage of the Act, both Parliamentary and Pre-Parliamentary material.

 

This approach was illustrated by R v G and another (2003) HL where their Lordships explored every authoritative work touching on the issue of mens rea in Criminal Damage (Interpreting the Sec 1(1) Criminal Damage Act 1971).

 

Their approach was complicated by different approaches by each of the Law Lords, nevertheless, they explored the "context" vigorously.

 

The judgment finally distils to accepting the meaning of "recklessly" as found in the Law Commission's Report and the Working Paper that preceded it.

Conclusions on R v G (2003)

Lord Bingham

"...this appeal is ... one of statutory construction: what did Parliament mean when it used the word "reckless"...? 
 

Since a statute is always speaking, the context or application of a statutory expression may change over time, but the meaning of the expression itself cannot change.

 

So the starting point is to ascertain what Parliament meant by "reckless" in 1971.

 

It cannot be supposed that by "reckless" Parliament meant anything different from the Law Commission...both in its Report and in Working Paper No 23 which preceded it.

 

These materials...reveal a very plain intention to replace the old-fashioned and misleading expression "maliciously" by the more familiar expression "reckless"..."

Attorney General’s Reference (No 1) [1988]

Lord Lowry considered two meanings of the word "obtained" in this order:

  • the literal meaning of the disputed word,

  • the purpose of the legislation and the intention of Parliament

  • then the context in which it was being used

and decided on the final basis.

Addition, omission or substitution of words.

The integrated approach allows cautious use of these three elements.

Lord Nicholls

"… the purpose has to be inferred from the language used, read in its statutory context and having regard to any aid to interpretation which assists in the particular case. In either event, whether the purpose is stated expressly or has to be inferred, the exercise is one of statutory interpretation."

Magor and St Mellons v Newport Borough Council (1952) HL

 

Lord Denning;

‘We do not sit here to pull the language of Parliament to pieces and make nonsense of it. We sit here to find out the intention of Parliament and carry it out and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis’

(He was saying that by applying the literal rule the intention of Parliament could be destroyed).

 

When this case was appealed to the House of Lords, Denning’s approach was considered by Lord Simonds as a

‘naked usurpation of the legislative function under the thin guise of interpretation…if a gap is disclosed the remedy lies in an amending Act’.

Contrasting judicial approaches

Most important

Of the approaches the purposive approach appears to be the most important.

R v SOS for the Environment ex parte Spath Holme (2000) HL

Lord Cooke;

"While today the purposive principle of interpretation is the governing one if available, other established canons may come into play. … such as that Parliament does not lightly take the exceptional course of delegating to the executive the power to amend primary legislation; that, when it does so, a restrictive approach to interpretation is legitimate; and that, in the absence of clear language Parliament is presumed not to take away property rights without compensation."

Do judges really set out to interpret Acts according to the intent of Parliament?

Fisher v Bell (1961), the decision was, in Parliament's eyes, so bad that they overruled it by statute the same year the offending decision was made.

Registrar General (ex parte Smith), R v (1991) CA

The applicant in this case was refused a copy of his birth certificate because he was likely to murder his mother.

"Clearly, in this case, it would be absurd for a court to insist on implementing the clear words used by Parliament without having any thought to the consequences."

Cheeseman v DPP (1990)

Policemen in a toilet were not ‘passengers’ and so could not be annoyed by a man exposing his person.

Stock v Frank Jones (Tipton) Ltd [1978]

Held: "dismissal of employees who take part in a strike", did not include 'dismissal of employees taking part in a strike',

 

Was this the intention of Parliament?

Cutter v Eagle Star Insurance Co Ltd [1998] HL

C burnt by lighter fuel. The meaning of Road did not include a car park.

Court used purposive approach rather than the Literal approach.

Duport Steels Ltd v SIRS (1980) HL

Lord Diplock;

‘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 because they themselves consider that the consequences of doing so would be inexpedient or even unjust or immoral’.

Lord Scarman;

‘In the field of statute law the judge must be obedient to the will of Parliament…Parliament makes…the law: the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what justice requires…Unpalatable statute law may not be disregarded or rejected, merely because it is unpalatable.’

‘If Parliament says one thing but means another, it is not, under the historic principles of the common law, for the courts to correct it…We are to be governed not by Parliament’s intentions but by Parliament’s enactments’.

Magor and St Mellons v Newport Borough Council (1952) HL

Lord Denning said that by applying the literal rule the intention of Parliament could be destroyed.

When this case was appealed to the House of Lords, Denning’s approach was considered by Lord Simonds as a

‘naked usurpation of the legislative function under the thin guise of interpretation…if a gap is disclosed the remedy lies in an amending Act’.

"Statutory Interpretation in a Nutshell" (1938)

The rules of statutory interpretation were analysed by Professor John Willis in his influential article. He suggested that:

'a court invokes whichever of the rules produces a result that satisfies its sense of justice in the case before it. Although the literal rule is the one most frequently referred to in express terms, the courts treat all three as valid and refer to them as occasion demands, but, naturally enough, do not assign any reason for choosing one rather than another.'

Thus, on some occasions the literal rule would be preferred to the mischief rule: on others the reverse would be the case. It was impossible to predict with certainty which approach would be adopted in a particular case.

 

Purposive approach

Held to be one that will "promote the general legislative purpose underlying the provisions" (Lord Denning in Notham v London Borough of Barnet [1978]).

 

Pepper (Inspector of Taxes) v Hart [1993]

Lord Browne-Wilkinson;

"the purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the legislature".

Lord Griffiths;

"The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted."

R v Barnet LBC [1983]

Lord Scarman;

A purposive interpretation may only be adopted if judges

"can find in the statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament's purpose or policy"

INCO Europe v First Choice Distribution (2000) HL

Lord Nicholls

Before adding or omitting words the court must be

1. ‘Abundantly sure [of] the intended purpose of the statute or provision in question;

2. That by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and

3. The substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed.

The third of these conditions is of crucial importance.

"Even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching."

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