Purposive rule
Encyclopedia
There are two broad approaches to interpretation
: the literal approach and the purposive approach. The literal approach is dominant in the UK
. The judge
looks at the words in the statute
and it is rare for him to look outside the Act to find the meaning. In contrast, the Purposive approach looks beyond the words of the statute. This is common in civil law
countries. Legislation
is set out as general principles and filled in by judges later. European Community law adopts the continental style and brings the purposive approach into English courts when judges are interpreting European law.
There are three canons of interpretation, which are not really rules but rather principle
s or approaches. They have been developed by the courts and are secondary rules of recognition
. They form part of the common law
.
The idea that 'The purposive rule is derived from the case of Pepper v Hart
[1993] AC 593' is wrong, as it says: In Pepper v. Hart [1993] AC 573, the House of Lords
held that courts now take a purposive approach to interpreting legislation
Cross defines statutory interpretation as:
Statutory Interpretation’s main question is whether it should give effect to the wordings of the statute or to parliament
s intention.
Parliament is the supreme lawmaker. Common law is subordinate to legislation. The declaratory theory of law should be followed. It is for the courts to apply law and not make it.
By interpretation you can change the meaning of a statute. It is for the courts to interpret and apply the law. Note: The danger with statutory interpretation is that biased judges can interpret law
so as to promote their prejudice
s.
In this case Hailsham accepted that 9/10 of the case heard in the House of Lords dealt with statutory interpretation.
Zander (The Law-Making Process) gave three reasons why it is necessary:
The Interpretation Act 1978
defines many words and phrases. There definitions should be used in interpreting statutes. For example a reference to the masculine
gender
includes the feminine
unless otherwise stated. A limited number of words have been defined. The rest are left to the court to deal with. Therefore the courts have developed their own rules of statutory interpretation.
This is supposed to demonstrate the courts deference to Parliament’s supremacy and supports the declaratory theory of law. However this could lead to absurd results.
R v Harris (1836) 7 C & P 446
In this case an Act was passed making it an offence to “stab, cut, or wound any person”. Harris bit off his victim’s nose. Did he commit the offence? The court held that he would have required use of an instrument/implement (e.g. a knife
). Harris was found not guilty. If a word has a technical meaning, it should be given this technical meaning.
Fisher v Bell [1961] 1 QB 394
D had flick knives in a shop window. The Restriction of Offensive Weapons Act 1958 made it an offence to “offer for sale” an offensive weapon. There was no question that the flick knife was an offensive weapon. “Offer for sale” has a technical meaning. The customer
makes an offer by taking the product to the shopkeeper
. D had a knife in the window. There was no offer to sell by putting the knife in the window. Therefore D could not have committed the offence.
In some cases the literal rule will lead to the right result but that is coincidental
. Zander likened it to the “intellectual equivalent of deciding a case by tossing a coin.”
This approach is derived from the literal rule. It is based on the premise that the Literal rule is applied first. If this leads to “ambiguity
” or “absurdity” the court should try to find a different interpretation in order to avoid the “ambiguity” or “absurdity”.
Adler v George [1964] 2QB 7
S.3 of the Official Secrets Act
1920 states that “no persons shall in the vicinity of any prohibited place obstruct any member of Her Majesty’s forces”. D was actually on the airfield. The courts had to determine whether “in [the] vicinity of” includes on/in the premises. The court said that in the vicinity did include on or in as well.
The Law Commission said the golden rule was a less explicit form of the mischief rule
. The golden rule requires words to be interpreted in their context. Based on the literal rule, it is only used if the former rule leads to absurdity or ambiguity. However how ambiguous or absurd does the literal rule’s result have to be before the golden rule may be used? The answer depends on the individual judge. The application of the Golden Rule is very erratic. It is difficult to predict what meaning will be given to a word. Zander said the golden rule was a “safety valve”. The courts are given some leverage when the literal rule will result in an absurd meaning.
The Golden rule can have either in a narrow meaning or a broad meaning. In the narrow meaning, where there are two contradictory meanings of a word preference is given to the meaning that does not create an absurdity. This occurred in Adler v George (above). A wider meaning of the golden rule enables judges to use it where the literal meaning results in an ‘inconsistency, absurdity, or inconvenience’. In Re Sigsworth (1935) the Court prevented the estate of a murderer from benefiting from property of the victim. The common law of public policy
was applied (a murder cannot benefit from a crime
), and extended to the facts of the case.
1. What was the common law before such legislation is enacted.
2. What was the mischief and defects for which are not provided by the common law.
3. What remedy does the parliament provides to cure the disease of the mischief.
By the case of Smith v Hughes, the court ruled that a prostitute soliciting inside the house by tapping on the windows, from the point of mischief rule, is soliciting and molesting the public. Therefore it is the same as if she is outside the street.
This is a much broader approach. It requires the court to look at the purpose of the statute and the intention of parliament. It is more flexible than the literal rule. However, it is limited to previous common law rules.
Corkery v Carpenter [1951] 1 KB 102
The Divisional Court
had to decide whether a bicycle
could be classified as a carriage
. According to S.12 of the Licensing Act 1872
, a person found drunk in charge of a carriage on the highway can be arrested without a warrant. A man was arrested drunk in charge of a bicycle. According to the literal rule a bike is not a carriage. Under the Mischief rule the bike could constitute a carriage. The mischief the act was trying to remedy was that of people being on the road on transport while drunk. Therefore a bike could be classified as a carriage.
Royal College of Nursing
of the UK v DHSS [1981] 1 All ER 545
Abortion
is generally unlawful. However there are exceptions on grounds where it may lawfully be performed. The termination must be performed by a registered medical practitioner. The court had to decide the meaning of this. Abortions were done using a chemical inducing labour. The Doctor inserted a catheter
and the nurse gave the patient the drug
. The nurse caused the woman to abort. Question: Were the nurses acting unlawfully as they were not medical practitioners? The house of Lords found that because a doctor was on call and the doctor made the decision to perform an abortion, it was perfectly acceptable for a nurse to administer the drug. The literal rule would have found the nurses criminally liable. The mischief in this case was abortions being carried out by backstreet abortionists. Parliament wanted terminations done by doctors.
In addition to the three ‘rules’ of interpretation, a court may also use internal (inside the Act) and external (outside the Act) aids.
X Marginal notes may NOT be used
The Law Commission considered the question in 1969. They said Hansard should not be used in interpretation of statutes because:
In 1975 the Renton Committee reported that Hansard should not be used because of time constraints. The Hansard society argued that Hansard should not be used because it would lead to confusion and time wasting. In the case of Pickstone v Freemans Plc (1988) the House of Lords held that parliamentary debates could be used in interpreting delegated legislation. The remaining restrictions were lifted in the case of Pepper v Hart (1993) where the House of Lords decided by 6 to 1 that Hansard should be available for interpretation.
Summary: The three 'rules'of interpreting statutes are:
1. Literal Rule - taking literal meaning from sources such as dictionaries, legal dictionaries, other sections of Acts
2. Golden Rule - judges can refer to the general aim of a statute
3. Mischief Rule - judges can consider what the statute set out to prevent
Judicial interpretation
Judicial interpretation is a theory or mode of thought that explains how the judiciary should interpret the law, particularly constitutional documents and legislation...
: the literal approach and the purposive approach. The literal approach is dominant in the UK
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
. The judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
looks at the words in the statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
and it is rare for him to look outside the Act to find the meaning. In contrast, the Purposive approach looks beyond the words of the statute. This is common in civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
countries. Legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
is set out as general principles and filled in by judges later. European Community law adopts the continental style and brings the purposive approach into English courts when judges are interpreting European law.
There are three canons of interpretation, which are not really rules but rather principle
Principle
A principle is a law or rule that has to be, or usually is to be followed, or can be desirably followed, or is an inevitable consequence of something, such as the laws observed in nature or the way that a system is constructed...
s or approaches. They have been developed by the courts and are secondary rules of recognition
Rule of Recognition
A central part of H.L.A. Hart's theory on legal positivism, in any legal system, the rule of recognition is a master meta-rule underlying any legal system that defines the common identifying test for legal validity within that system...
. They form part of the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
.
The idea that 'The purposive rule is derived from the case of Pepper v Hart
Pepper v Hart
Pepper v Hart [1992] UKHL 3, is a landmark decision of the House of Lords on the use of legislative history in statutory interpretation...
[1993] AC 593' is wrong, as it says: In Pepper v. Hart [1993] AC 573, the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
held that courts now take a purposive approach to interpreting legislation
Cross defines statutory interpretation as:
- “The process by which the courts determine the meaning of a statutory provisionProvisionProvision may refer to:* Provision , an industrial dance / synthpop band from Houston, Texas, USA* Provision , a term for liability in accounting* Provision , a term for a procurement condition...
for the purpose of applying it to the situation before them” (Statutory Interpretation, 2nd Ed, at 30)
Statutory Interpretation’s main question is whether it should give effect to the wordings of the statute or to parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
s intention.
Parliament is the supreme lawmaker. Common law is subordinate to legislation. The declaratory theory of law should be followed. It is for the courts to apply law and not make it.
- “The interpretation of statutes is a constitutionConstitutionA constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
al function rather than a mere technical matter... it bestows considerable power on the courts.”(Ashworth “Interpreting Criminal Statutes: A Crisis of Legality?” 1991 107 LQR 419, at 426)
By interpretation you can change the meaning of a statute. It is for the courts to interpret and apply the law. Note: The danger with statutory interpretation is that biased judges can interpret law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
so as to promote their prejudice
Prejudice
Prejudice is making a judgment or assumption about someone or something before having enough knowledge to be able to do so with guaranteed accuracy, or "judging a book by its cover"...
s.
Why is Statutory interpretation necessary?
Johnson v Moreton [1980] AC 27In this case Hailsham accepted that 9/10 of the case heard in the House of Lords dealt with statutory interpretation.
Zander (The Law-Making Process) gave three reasons why it is necessary:
- ComplexityComplexityIn general usage, complexity tends to be used to characterize something with many parts in intricate arrangement. The study of these complex linkages is the main goal of complex systems theory. In science there are at this time a number of approaches to characterizing complexity, many of which are...
of statutes. They are difficult and complex subjects. They tend to mix legal and technical language. Most are created with more than one draftsman causing incoherence. - Statutes must anticipate the future and often use indeterminate terms. It is impossible to deal with every situation which might arise. Judges therefore have to interpret statutes because of the gaps in law. Situations originally not intended have to be covered. Indeterminate terms used include words such as “reasonable”. The courts determine this e.g. they determine what “reasonable force” actually means.
- Words are an imprecise form of communicationCommunicationCommunication is the activity of conveying meaningful information. Communication requires a sender, a message, and an intended recipient, although the receiver need not be present or aware of the sender's intent to communicate at the time of communication; thus communication can occur across vast...
. Words may have different meanings. Each party in curt will use the meaning most helpful to their argumentArgumentIn philosophy and logic, an argument is an attempt to persuade someone of something, or give evidence or reasons for accepting a particular conclusion.Argument may also refer to:-Mathematics and computer science:...
and the courts have to decide which meaning is the one to be followed.
The Interpretation Act 1978
Interpretation Act 1978
The Interpretation Act 1978 is an Act of the Parliament of the United Kingdom. The Act makes provision for the interpretation of Acts of Parliament, Measures of the General Synod of the Church of England, Measures of the Church Assembly, subordinate legislation, "deeds and other instruments and...
defines many words and phrases. There definitions should be used in interpreting statutes. For example a reference to the masculine
Masculine
Masculine or masculinity, normally refer to qualities positively associated with men.Masculine may also refer to:*Masculine , a grammatical gender*Masculine cadence, a final chord occurring on a strong beat in music...
gender
Gender
Gender is a range of characteristics used to distinguish between males and females, particularly in the cases of men and women and the masculine and feminine attributes assigned to them. Depending on the context, the discriminating characteristics vary from sex to social role to gender identity...
includes the feminine
Feminine
Feminine, or femininity, normally refers to qualities positively associated with women.Feminine may also refer to:*Feminine , a grammatical gender*Feminine cadence, a final chord falling in a metrically weak position...
unless otherwise stated. A limited number of words have been defined. The rest are left to the court to deal with. Therefore the courts have developed their own rules of statutory interpretation.
The Literal Rule
This approach was developed during the early part of the 19th century. It has been the most influential rule until recent times. Words must be given their plain, ordinary meaning. Sussex Peerage Claim (1844) 11 C1 & Fin 85:-- “The only rule for the construction of Acts of ParliamentAct of ParliamentAn Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such a case, best declare the intention of the lawgiver.” (Per Tindal CJ, at 143)
This is supposed to demonstrate the courts deference to Parliament’s supremacy and supports the declaratory theory of law. However this could lead to absurd results.
R v Harris (1836) 7 C & P 446
In this case an Act was passed making it an offence to “stab, cut, or wound any person”. Harris bit off his victim’s nose. Did he commit the offence? The court held that he would have required use of an instrument/implement (e.g. a knife
Knife
A knife is a cutting tool with an exposed cutting edge or blade, hand-held or otherwise, with or without a handle. Knives were used at least two-and-a-half million years ago, as evidenced by the Oldowan tools...
). Harris was found not guilty. If a word has a technical meaning, it should be given this technical meaning.
Fisher v Bell [1961] 1 QB 394
D had flick knives in a shop window. The Restriction of Offensive Weapons Act 1958 made it an offence to “offer for sale” an offensive weapon. There was no question that the flick knife was an offensive weapon. “Offer for sale” has a technical meaning. The customer
Customer
A customer is usually used to refer to a current or potential buyer or user of the products of an individual or organization, called the supplier, seller, or vendor. This is typically through purchasing or renting goods or services...
makes an offer by taking the product to the shopkeeper
Shopkeeper
A shopkeeper is an individual who owns a shop. Generally, shop employees are not shopkeepers, but are often incorrectly referred to as shopkeepers. Today, a shopkeeper is usually referred to as a manager, though this term could apply to larger firms .*In many south asian languages like Hindi, Urdu,...
. D had a knife in the window. There was no offer to sell by putting the knife in the window. Therefore D could not have committed the offence.
Problems with the Literal rule
- Parliament uses indeterminate terms such as reasonable and dishonest. It is up to the courts to decide what is reasonable and what is dishonest.
- It is unsuitable for general words that have a multitude of different meanings. Judges give words their dictionaryDictionaryA dictionary is a collection of words in one or more specific languages, often listed alphabetically, with usage information, definitions, etymologies, phonetics, pronunciations, and other information; or a book of words in one language with their equivalents in another, also known as a lexicon...
definition. Most words have more than one definition. Judges usually say that words should be given their plain meaning. However five Law Lords may define a word differently. Goodridge has argued that a literal meaning is nothing more than an interpretative meaning i.e. a selection has to be made between the different ordinary meanings of the word. - The literal rule gives effect to a literal meaning of a word without considering their context. The context will give the word its true meaning. Without it any meaning could be substituted. Professor Hart said that most words have a core meaning. Professor Fuller said that a word’s meaning depends entirely on it author’s intention. He claimed the true meaning can only be derived from the context in which it is used.
- The Plain meaning rule leads to uncertainty because of its subjectiveness.
- It has been argued that the Literal rule encourages precision in drafting. No statute will cover every situation and so the draftsmen resort to general phrases which are not precise. Legislation is drafted by a team of draftsmen and not just one individual. Each draftsman may mean a different thing by the same word or use different words to mean the same thing. Judges do not look at the contextContextContext may refer to:* Context , the relevant constraints of the communicative situation that influence language use, language variation, and discourse summary...
of the word and so cannot possibly see what the true meaning is. The Law CommissionLaw CommissionA Law Commission or Law Reform Commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal changes or restructuring...
1969 in a Report of Interpretation of Statutes said the literal rule assumes an unattainable perfectionPerfectionPerfection is, broadly, a state of completeness and flawlessness.The term "perfection" is actually used to designate a range of diverse, if often kindred, concepts...
in draftsmanship. - By adopting the literal meaning judges are demonstrating deference to Parliament. This is a rather superficial argument. If a judge interprets a statute and creates an absurdityAbsurdityAn absurdity is a thing that is extremely unreasonable, so as to be foolish or not taken seriously, or the state of being so. "Absurd" is an adjective used to describe an absurdity, e.g., “this encyclopedia article is absurd”. It derives from the Latin absurdusm meaning "out of tune", hence...
such as in Harris, this seems more like contemptContemptContempt is an intensely negative emotion regarding a person or group of people as inferior, base, or worthless—it is similar to scorn. It is also used when people are being sarcastic. Contempt is also defined as the state of being despised or dishonored; disgrace, and an open disrespect or willful...
for parliament. - The literal rule is seen as a technique to allow a judge to be lazy. Rather than trying to discover the true meaning, he defies it. The plain meaning is used regardless of whether that complies with Parliament’s intention or leads to an injusticeInjusticeInjustice is the lack of or opposition to justice, either in reference to a particular event or act, or as a larger status quo. The term generally refers to misuse, abuse, neglect, or malfeasance that is uncorrected or else sanctioned by a legal system. Misuse and abuse with regard to a particular...
.
In some cases the literal rule will lead to the right result but that is coincidental
Coincidence
A coincidence is an event notable for its occurring in conjunction with other conditions, e.g. another event. As such, a coincidence occurs when something uncanny, accidental and unexpected happens under conditions named, but not under a defined relationship...
. Zander likened it to the “intellectual equivalent of deciding a case by tossing a coin.”
The Golden Rule
This has been described by Parke B in Grey v Pearson (1857) 6 H.L. Cas. 61 as :-- “In construing… statutes… the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency, but no father.” (at 106)
This approach is derived from the literal rule. It is based on the premise that the Literal rule is applied first. If this leads to “ambiguity
Ambiguity
Ambiguity of words or phrases is the ability to express more than one interpretation. It is distinct from vagueness, which is a statement about the lack of precision contained or available in the information.Context may play a role in resolving ambiguity...
” or “absurdity” the court should try to find a different interpretation in order to avoid the “ambiguity” or “absurdity”.
Adler v George [1964] 2QB 7
S.3 of the Official Secrets Act
Official Secrets Act
The Official Secrets Act is a stock short title used in the United Kingdom, Ireland, India and Malaysia and formerly in New Zealand for legislation that provides for the protection of state secrets and official information, mainly related to national security.-United Kingdom:*The Official Secrets...
1920 states that “no persons shall in the vicinity of any prohibited place obstruct any member of Her Majesty’s forces”. D was actually on the airfield. The courts had to determine whether “in [the] vicinity of” includes on/in the premises. The court said that in the vicinity did include on or in as well.
The Law Commission said the golden rule was a less explicit form of the mischief rule
Mischief rule
The mischief rule is one of three rules of statutory construction traditionally applied by English courts. The other two are the “plain meaning rule” and the “golden rule.”...
. The golden rule requires words to be interpreted in their context. Based on the literal rule, it is only used if the former rule leads to absurdity or ambiguity. However how ambiguous or absurd does the literal rule’s result have to be before the golden rule may be used? The answer depends on the individual judge. The application of the Golden Rule is very erratic. It is difficult to predict what meaning will be given to a word. Zander said the golden rule was a “safety valve”. The courts are given some leverage when the literal rule will result in an absurd meaning.
The Golden rule can have either in a narrow meaning or a broad meaning. In the narrow meaning, where there are two contradictory meanings of a word preference is given to the meaning that does not create an absurdity. This occurred in Adler v George (above). A wider meaning of the golden rule enables judges to use it where the literal meaning results in an ‘inconsistency, absurdity, or inconvenience’. In Re Sigsworth (1935) the Court prevented the estate of a murderer from benefiting from property of the victim. The common law of public policy
Public policy
Public policy as government action is generally the principled guide to action taken by the administrative or executive branches of the state with regard to a class of issues in a manner consistent with law and institutional customs. In general, the foundation is the pertinent national and...
was applied (a murder cannot benefit from a crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
), and extended to the facts of the case.
The Mischief Rule (Policy)
From Heydon’s Case (1584) 3 Co. Rep. 7: States the requirement to review,1. What was the common law before such legislation is enacted.
2. What was the mischief and defects for which are not provided by the common law.
3. What remedy does the parliament provides to cure the disease of the mischief.
By the case of Smith v Hughes, the court ruled that a prostitute soliciting inside the house by tapping on the windows, from the point of mischief rule, is soliciting and molesting the public. Therefore it is the same as if she is outside the street.
This is a much broader approach. It requires the court to look at the purpose of the statute and the intention of parliament. It is more flexible than the literal rule. However, it is limited to previous common law rules.
Corkery v Carpenter [1951] 1 KB 102
The Divisional Court
Divisional Court
A Divisional Court, in relation to the High Court of Justice of England and Wales, means a court sitting with at least two judges. Matters heard by a Divisional Court include some criminal cases in the High Court as well as certain judicial review cases...
had to decide whether a bicycle
Bicycle
A bicycle, also known as a bike, pushbike or cycle, is a human-powered, pedal-driven, single-track vehicle, having two wheels attached to a frame, one behind the other. A person who rides a bicycle is called a cyclist, or bicyclist....
could be classified as a carriage
Carriage
A carriage is a wheeled vehicle for people, usually horse-drawn; litters and sedan chairs are excluded, since they are wheelless vehicles. The carriage is especially designed for private passenger use and for comfort or elegance, though some are also used to transport goods. It may be light,...
. According to S.12 of the Licensing Act 1872
Licensing Act 1872
The Licensing Act 1872 is an Act of the Parliament of the United Kingdom. It enacted various regulations and offences relating to alcohol, particularly licensing of premises. Most parts of the Act have been superseded by more recent Licensing Acts, but some parts remain in force...
, a person found drunk in charge of a carriage on the highway can be arrested without a warrant. A man was arrested drunk in charge of a bicycle. According to the literal rule a bike is not a carriage. Under the Mischief rule the bike could constitute a carriage. The mischief the act was trying to remedy was that of people being on the road on transport while drunk. Therefore a bike could be classified as a carriage.
Royal College of Nursing
Royal College of Nursing
The Royal College of Nursing is a union membership organisation with over 395,000 members in the United Kingdom. It was founded in 1916, receiving its Royal Charter in 1928, Queen Elizabeth II is the patron...
of the UK v DHSS [1981] 1 All ER 545
Abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
is generally unlawful. However there are exceptions on grounds where it may lawfully be performed. The termination must be performed by a registered medical practitioner. The court had to decide the meaning of this. Abortions were done using a chemical inducing labour. The Doctor inserted a catheter
Catheter
In medicine, a catheter is a tube that can be inserted into a body cavity, duct, or vessel. Catheters thereby allow drainage, administration of fluids or gases, or access by surgical instruments. The process of inserting a catheter is catheterization...
and the nurse gave the patient the drug
Drug
A drug, broadly speaking, is any substance that, when absorbed into the body of a living organism, alters normal bodily function. There is no single, precise definition, as there are different meanings in drug control law, government regulations, medicine, and colloquial usage.In pharmacology, a...
. The nurse caused the woman to abort. Question: Were the nurses acting unlawfully as they were not medical practitioners? The house of Lords found that because a doctor was on call and the doctor made the decision to perform an abortion, it was perfectly acceptable for a nurse to administer the drug. The literal rule would have found the nurses criminally liable. The mischief in this case was abortions being carried out by backstreet abortionists. Parliament wanted terminations done by doctors.
In addition to the three ‘rules’ of interpretation, a court may also use internal (inside the Act) and external (outside the Act) aids.
Internal Aids to construction
This means within the statute itself. The whole statute should be read. What is not clear in one section may be explained in another. Other aids:- The long and short title
- The PreamblePreambleA preamble is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute...
- Section headings may be used if they do not contradict the rest of the statute
- Schedules
X Marginal notes may NOT be used
Rules of Language
- Ejusdem generis - of the same kind. A word will take its meaning from the foregoing words. For example the Sunday Observance Act 1677 stated no tradesmen, artisanArtisanAn artisan is a skilled manual worker who makes items that may be functional or strictly decorative, including furniture, clothing, jewellery, household items, and tools...
, workmen, labourer or other person whatsoever shall work on a Sunday. To interpret “other person whatsoever” does not include occupations such as estate agentEstate agentAn estate agent is a person or business that arranges the selling, renting or management of properties, and other buildings, in the United Kingdom and Ireland. An agent that specialises in renting is often called a letting or management agent...
s, barberBarberA barber is someone whose occupation is to cut any type of hair, and to shave or trim the beards of men. The place of work of a barber is generally called a barbershop....
or a farmerFarmerA farmer is a person engaged in agriculture, who raises living organisms for food or raw materials, generally including livestock husbandry and growing crops, such as produce and grain...
. - Noscitur a sociis - the meaning of a word can be ascertained from the other words used. In the case of Muir v Keay (1875) the court considered the Refreshment Houses Act 1860. This dealt with public refreshment, resort and entertainmentEntertainmentEntertainment consists of any activity which provides a diversion or permits people to amuse themselves in their leisure time. Entertainment is generally passive, such as watching opera or a movie. Active forms of amusement, such as sports, are more often considered to be recreation...
. The courts had to decide how to determine the meaning of entertainment. They looked at the other words and found it could not refer to theatrical or musical entertainment. The case referred to refreshment rooms and reception and accommodation of the public. - Expressio unius est exclusio alterius - The express member of one member of the class excludes other members of the class by implication. The case of Tempest v Kilner (1846) dealt with a fraudFraudIn criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
s statute. A contract for the sale of goods, wares, and merchandise for £10 or more had to be evidenced in writing. The contract for sales of stocks and shares did not have to be evidenced in writing because they were not goods, wares or merchandise.
External Aids to interpretation
- Related statutes dealing with the same subject matter and the legislative antecedents of a particular act. The courts may look at earlier statutes that have been repealed or supplemented by the Act under consideration. This is a good way to put an act in its context. If Acts are consolidated there is the presumption that Parliament did not intend to change the existing law unless there is clear language to the contrary.
- Dictionaries and other literary sources. Judges frequently resort to dictionaries in order to interpret statutes. In Eglan v Butch [1988] the question was raised whether tax allowance could be claimed for a child. The case involved a dependantDependantThis article is related to law. For the personality trait, see Dependent Personality DisorderA dependant or dependent is a person who relies on another as a primary source of income...
who was infirm. The Oxford dictionary was consulted for the meaning of infirm. The third definition was chosen: “illnessIllnessIllness is a state of poor health. Illness is sometimes considered another word for disease. Others maintain that fine distinctions exist...
”. The first definition “ weakness or want of strength” was rejected, as this may not have excluded healthy children. Other literary sources include textbookTextbookA textbook or coursebook is a manual of instruction in any branch of study. Textbooks are produced according to the demands of educational institutions...
s. This gives a social setting and a historical background to the Act. For example, the Abortion Act’sAbortion Act 1967The Abortion Act 1967 is an Act of the Parliament of the United Kingdom legalising abortions by registered practitioners, and regulating the free provision of such medical practices through the National Health Service ....
(1967) main aim was to avoid back-street abortionists.
- International conventions and treatiesTreatyA treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
. This is a monist system. Any international treaty that we sign up to will not become part of domestic law unless incorporated in an Act of Parliament. There is a presumption that Parliament will not pass legislation in conflict with the United Kingdom’s international obligations. Example: Salomon v Commissioners of Customs and Excise 1967. The Court of Appeal considered an international convention in order to interpret a domestic Act of Parliament. They said the convention was relevant because the statute was intended to embody the convention. It was also useful if printed in a foreign languageForeign languageA foreign language is a language indigenous to another country. It is also a language not spoken in the native country of the person referred to, i.e. an English speaker living in Japan can say that Japanese is a foreign language to him or her...
. The courts may consider the text in another language if the English text is ambiguous. Example: Fothergil v Monarch AirlinesMonarch AirlinesMonarch Airlines, often shortened to and trading as Monarch, is a British charter and scheduled airline based at London Luton Airport in Luton. It is one of the United Kingdom's largest charter airlines, operating to Europe, the United States, the Caribbean, India and Africa, serving mainly leisure...
1980 in which the House of Lords used French text because of the ambiguity in the English text the Lords chose the French Travaux a préparatoires. Preparatory materials leading up to the convention could also be used to aid interpretation. This approach has been adopted in other countries when dealing with international lawInternational lawPublic international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
all countries should strive for uniformityUniformityUniformity may refer to:* Distribution uniformity, a measure of how uniformly water is applied to the area being watered* Religious uniformity, the promotion of one state religion, denomination, or philosophy to the exclusion of all other religious beliefs...
.
- Government Publications. Documents, such as white and green papers and explanatory memoranda, attached to bills may not be considered by the courts. Reports of commissions of committees such as the Royal CommissionRoyal CommissionIn Commonwealth realms and other monarchies a Royal Commission is a major ad-hoc formal public inquiry into a defined issue. They have been held in various countries such as the United Kingdom, Australia, Canada, New Zealand, and Saudi Arabia...
, departmental committees or the Law Commission preceding and leading to the Act, may be used as an aid to interpretation. The House of Lords decided the use of these in the Black-clawson case. They can be used in order to ascertain the mischief. There is however a disagreement on whether the reports should be used to interpret the words of a statute. Reid and Wilberforce held that reports could not be used for the meaning of words. Dilhom and Simon of Blysdale said reporting could be used to interpret the words. The current position, however, is that of Lords Reid and Wilberforce. In R v Allen (1985) the House of Lords did consider a report by the Criminal Law Revision CommitteeCriminal Law Revision CommitteeThe Criminal Law Revision Committee of England & Wales is a standing committee of learned legal experts that may be called upon by the Home Secretary to advise on legal issues and to report back recommendations for reform...
. It was only considered to discover the mischief. In opinionated reports only the mischief may be found and not the interpretation of words.
- Parliamentary debateParliamentary DebateParliamentary Debate is an academic debate event. Many university level institutions in English speaking nations sponsor parliamentary debate teams, but the format is currently spreading to the high school level as well...
s e.g. HansardHansardHansard is the name of the printed transcripts of parliamentary debates in the Westminster system of government. It is named after Thomas Curson Hansard, an early printer and publisher of these transcripts.-Origins:...
(Note: Hansard is the official reporter of all debates in government). Until very recently courts could not consider Parliamentary debates in order to interpret legislation. Denning challenged this for a number of years. In Davis v Johnson (1979) the case concerned the Domestic Violence and Matrimonial proceedings Act 1966. The question raised was did the Act protect co-habitees as well as wives? Denning considered Hansard and said he couldn’t determine the intention of Parliament, and said we should not have to “grope about in the dark”. In the House of Lords all five Law Lords rebuked him. Lord Scarman gave two reasons why courts should not look at Parliamentary debates:
- Unreliable guide to the meaning of what is enacted. Looking at Hansard would lead to confusionConFusionConFusion is an annual science fiction convention organized by the Stilyagi Air Corps and its parent organization, the Ann Arbor Science Fiction Association. Commonly, it is held the third weekend of January. It is the oldest science fiction convention in Michigan, a regional, general SF con...
rather than give clarity. - Counsel are not permitted to refer to Hansard in their argument (this rule has now been abolished)
The Law Commission considered the question in 1969. They said Hansard should not be used in interpretation of statutes because:
- Difficult to tell whether what was said in the early stages of the bill actually reflected the final view of the authority.
- They argued that it would take too much time and effort.
In 1975 the Renton Committee reported that Hansard should not be used because of time constraints. The Hansard society argued that Hansard should not be used because it would lead to confusion and time wasting. In the case of Pickstone v Freemans Plc (1988) the House of Lords held that parliamentary debates could be used in interpreting delegated legislation. The remaining restrictions were lifted in the case of Pepper v Hart (1993) where the House of Lords decided by 6 to 1 that Hansard should be available for interpretation.
Summary: The three 'rules'of interpreting statutes are:
1. Literal Rule - taking literal meaning from sources such as dictionaries, legal dictionaries, other sections of Acts
2. Golden Rule - judges can refer to the general aim of a statute
3. Mischief Rule - judges can consider what the statute set out to prevent