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Statutory Interpretation - intrinsic and extrinsic aids

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Intrinsic - Internal Aids – within the statute itself

Other enacting words

An examination of the whole of a statute, or at least those Parts which deal with the subject matter of the provision to be interpreted, should give some indication of the overall purpose of the legislation. It may show that a particular interpretation of that provision will lead to absurdity when taken with another section.

 

Explanatory notes as an aid to interpretation

The use of explanatory notes in statutory interpretation is new; the notes were first used by Parliament alongside bills in 1999.

 

The first judicial reference to them by the House of Lords appears to be by Lord Hope in R v A [2001] HL a rape case, when he made the following comment:

"But I think that it is legitimate to refer for the purposes of clarification to the notes to this section in the explanatory notes to the Act prepared by the Home Office. I would use it in the same way as I would use the explanatory note attached to a statutory instrument:..."

However the authority for their use is the ruling on R (Westminster City Council) v National Asylum Support Service [2002] HLLord Steyn made it clear that he considered Explanatory Notes admissible, even when the statute was unambiguous:

"… Insofar as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible as aids to construction."

 

and later...

 

"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."

Again Lord Steyn referred to explanatory notes in R v Chief Constable of South Yorkshire Police ex parte LS and Marper [2004] HL

"Explanatory Notes are not endorsed by Parliament. On the other hand, in so far as they cast light on the setting of a statute, and the mischief at which it is aimed, they are admissible in aid of construction of the statute. After all, they may potentially contain much more immediate and valuable material than other aids regularly used by the courts, such as Law Commission Reports, Government Committee reports, Green Papers, and so forth."

Some Acts have their own interpretation sections

Administration of Estates Act 1925

"Personal chattels" mean carriages, horses, stable furniture and effects...

 

Theft Act 1968

Provides a definition of theft and subsequent sections interpret the definition. E.g. ‘property’ includes money.

 

Aids found in all Acts

Long title

It became established in the nineteenth century that the long title could be considered as an aid to interpretation. The long title should be read as part of the context, "as the plainest of all the guides to the general objectives of a statute" (Lord Simon in The Black-Clawson Case [1975]).

 

Preamble

When there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provisions.

Preambles ceased to be used in the nineteenth century, except in private Acts.

 

Short title

There is some question whether the short title should be used to resolve doubt.

 

Headings, side-notes

Headings, side-notes may be considered as part of the context.

 

Punctuation

Not used in older statutes. See the story of Sir Roger Casement, hanged because of a comma, here.

 

DPP v Schildkamp (1971)

Punctuation could be used as aids in cases of ambiguity as could the long title of the Act, headings and side note.

 

Hanlon v Law Society (1981)

Lord Lowry;

"To ignore punctuation disregards the reality that literate people, such as parliamentary draftsmen, do punctuate what they write."

External aids

Interpretation Act 1978

(This consolidated the 1889 Act and other Acts)

He=she;

Singular=plural;

Person=corporations;

Writing=any other way of producing visible form.

 

Textbooks and eminent writers on law

Can be cited as authoritative statements of the law of their time, and therefore of the present law if it is shown not to have changed.

 

The reputation of the author and the date of the book are important.

 

The Institutes of the Laws of England by Sir Edward Coke and Commentaries on the Laws of England by William Blackstone. Importantly, these legal authorities are not law and, as such, their opinions are merely persuasive.

 

 R v Shivpuri (1987)

A case on criminal attempts, the courts acknowledged academic argument as an aid to interpretation.

 

Other cases

Cases from any branch of law and from any jurisdiction are used by the courts to assist interpretation.  So, in criminal manslaughter the courts used the civil case of Donoghue v Stevenson [1932] to assist in deciding the scope of negligence, and in Re: A Children, they court used a Rabbinic judgment from New York.

 

Dictionaries

Notably dictionaries of the time will be used to find out the meaning of a word in an Act.

 

Treaties

 

Reports of law reform bodies, such as the Law Commission, and advisory committees

 

Which lead to the passing of the Act can be used to discover the reform, which the statute intended to make. These have become acceptable since the Black Clawson Case (1975).

White Papers

Occasionally reference will be made to discussion documents produced by the government even before a Bill has been drafted. 

Such reference is found in W v MPC [2006] on whether the word 'remove' meant a police officer or CSO could use force to take an under 16 year-old home from a 'dispersal area', they a said that it did.

 

In paragraph 31 the Court of Appeal (Civil Division) referred to White Paper to assist them decide the scope of the Act.

 

Historical setting

Clipart Stonehenge

A judge may consider the historical setting of the provision that is being interpreted. Spath Holme (2000) spent considerable time doing precisely this.

Practice

The practice followed in the past may be a guide to interpretation. For example, the practice of eminent conveyancers where the technical meaning of a word or phrase used in conveyancing is in issue.

Hansard

 

The official daily reports and debates in Parliament proceedings (named after the compiler for a long period) can be used as an external aid in statutory interpretation.

 

Davis v Johnson [1979] HL

Lord Denning;

‘… [not to use Hansard] would be to grope around in the dark for the meaning of an Act without switching the light on’.

Pickstone v Freemans (1988) HL

Hansard used to establish why the Equal Pay Act had been passed.

 

Pepper v Hart (1993) HL
Clipart boy

Pepper v Hart concerned the construction of words in a Finance Act.

 

The House of Lords relaxed the old rule that excluded reference to Hansard for the purposes of statutory interpretation; so as to ensure that taxation was not imposed in a way that the Treasury had "assured" the House of Commons was not intended.

   

Hansard may be considered but only where the words of the Act are ambiguous or obscure or lead to an absurdity.

 

Even then, Hansard should only be used if there was a clear statement by the Minister introducing the legislation, which would resolve the ambiguity or absurdity.

 

Until Pepper v Hart using Hansard in that way would have been regarded as a breach of Parliamentary privilege.

 

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

[Pepper v Hart merely provides a limited exception to the general rule that resort to Hansard is inadmissible]

The Rent Acts (Maximum Fair Rent) Order 1999 was made under section 31 of the Landlord and Tenant Act 1985.

 

One question was whether section 31 gave the ministers power to make the Order and in what circumstances. The Act may have been past to control inflation which was not now such a pressing problem.

 

The Order restricted the ability of landlords to increase their tenants’ rent.   Spath Holme was a landlord and challenged the legality of the Order, because the statute was not clear.

 

Other aids

Travaux Preparatoires

Original International Conventions and preparatory material can be used, following the case of Fothergill v Monarch Airlines (1980)

 

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