Statutory interpretation
While legislators strive for clarity and precision when drafting legislation, the courts will often go to great lengths to determine the true meaning of a statute. Statutory interpretation is an exercise carried out by the courts, with the aid of rules and procedures that are intended to decipher ambiguous and vague legislation. It is in the interest of fairness and justice for a court to properly apply legislation to case facts. Statutory interpretation is therefore an essential process, which cannot be overlooked. It is easy to see why statutory interpretation might be considered a skill of language, rather than law.
When is statutory interpretation used?
Practitioners, academics and students alike, encounter difficulties when interpreting legislation. Complications may be caused by the lexical or syntactical selections of the draftsman. In addition, legislation may appear to be too narrow and insufficient, or too broad and general. Nevertheless, language issues are a common problem that statutory interpretation seeks to combat. It may be the case that statutory interpretation requires a judge to infer or elaborate on imprecise or incomplete legislation. Although legislators will try and account for every eventuality, the court will inevitably be called upon to give guidance. It is important to bear in mind that judges should act as administers of justice, and not creators of law. This remains to be a contested topic in the context of statutory interpretation.
Confusion may be caused by legislation which is poorly or incorrectly drafted (see The Dangerous Dogs Act 1991). The court will therefore be required to read around this, and consider the intentions of Parliament when the statute was drafted. This was the case in Adler v George (1994), where the imprecise drafting of the Official Secrets Act 1920 made it an offence to obstruct HM Forces ‘in the vicinity of’ an army base. The court interpreted the wording of the statute to mean, ‘in or near the prohibited place’, thereby imposing liability on the defendants.
There are three basic rules (sometimes referred to as canons) that the courts will employ to determine the intention of Parliament, and the meaning of a statute.
The Literal Rule
The first rule of statutory interpretation is the literal rule. A court will initially assess the common and everyday understanding of a provision. Therefore, a provision will be construed plainly, as it would be from a dictionary definition. One of the founding cases for statutory interpretation in view of the literal rule is the Sussex Peerage Case (1884). It was purported by Tindal CJ that where legislation is contested because of ambiguity, it:
…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 literal rule is a seemingly straightforward process. Yet in practice, it may result in an unforgiving outcome. For example, where the Fatal Accidents Act 1864 granted compensation for railway workers who were killed ‘relaying’ or ‘repairing’ tracks, an individual who was carrying out ‘maintenance’ would not be compensated (as per the decision in London and North Eastern Railway Co v Berriman (1946)).
The Golden Rule
If statutory interpretation should bring about a repugnant or absurd outcome, the golden rule will seek to apply a reasonable and rational result. It is permissible for a court to modify or vary the language of the statute ‘so as to avoid such inconvenience’ (Becke v Smith (1836)).
There have been a number of occasions where statutory interpretation may have resulted in a perverse outcome, but for the redeeming affect of the golden rule. One particular case of illustration is Re Sigsworth (1953). Here, the literal interpretation of a statute would have benefited the perpetrator, who murdered his mother and was set to inherit her estate. However, the Court adopted a more lenient view of statutory interpretation in the interest of public policy, preventing the son from enjoying the benefits of his mother’s death.
A further feature of statutory interpretation’s golden rule empowers a judge to employ a meaning that he considers to be appropriate. This may be the case where a word could be understood in a number of contexts. The case of R v Allen (1872) is a good example. The Offences Against the Person Act 1861 provided that ‘whoever being married shall marry any other person during the life of the former husband or wife…shall be guilty of bigamy’. It was held that an individual who is already married would not be able to ‘marry’ another, yet they may be able to go through a marriage ceremony. Consequently, the Court held that under the golden rule of statutory interpretation, the phrase ‘shall marry’, will mean an individual ‘who goes through a marriage ceremony’.
The Mischief Rule
Although legislation is both reactive and proactive, there are times when the courts will consider the law prior to the enactment of legislation. This is the mischief rule of statutory interpretation which looks at the intention of the statute. In Heydon’s Case (1584) the Court considered: the law prior to the Act; the mischief which was not within the scope of the Act; the remedy prescribed by Parliament and, the actual or true remedy.
A more recent example of statutory interpretation under the mischief rule is Smith v Hughes (1960). This case considered the fundamental purpose of the Street Offences Act 1959, in preventing the soliciting of ‘sex on a street’ by prostitutes. It was argued that the prostitutes were not physically present on the street, but instead they attracted the attention of individuals by tapping on the windows of their properties. Under the literal rule of statutory interpretation, they would fall outside of the scope of the Act and avoid liability. However, the court concluded that the intention of the Act was to deter prostitution, and that the ‘actions’ of the prostitutes should be included when interpreting the statute.
From an objective standpoint, it may appear that statutory interpretation empowers the court to make the law by deciding how it should be applied.
Rules of Language
‘eiusdum generis’
In addition to the rules above, the courts also rely on rules of language to assist in statutory interpretation. Firstly, eiusdum generis refers to words pertaining to a particular category or class of things. In order for this form of statutory interpretation to apply, the statute must specify at least two words (Allen v Emerson (1944)). However, a judge must endeavour to limit the scope of the terms to prevent a floodgate effect with the statute. Consideration must be given for examples provided in the wording of the statute. Yet, phrases such as, ‘other forms’ or ‘other places’, add obvious difficulties of statutory interpretation, which may or may not favour the parties (see Powell v Kempton Race Course (1884) and Evans v Cross (1938) respectively).
Expressio unius est exclusio alterius
Legislation which explicitly details one category, may implicitly exclude another. This rule of statutory interpretation does not include categories which are omitted from the statute. Notwithstanding the ostensibly broad wording of an Act, if the category is not stipulated, it will not be included. It was held in Tempest v Kilner (1846) that ‘goods, wares and merchandise’ detailed within the Statute of Frauds Act 1677, did not include financial stocks and shares. Statutory interpretation will require a court to determine whether a list is exhaustive, or merely illustrative. Modern legislation will usually state whether the categories are ‘examples’ or requisite elements.
Noscitur a sociis
This language rule of statutory interpretation requires the court to consider the surrounding words which make up the provision. Those words may be situated directly around the provision concerned, or from other areas of the statute. Consequently, the context of the statute will be applied to the case facts. In Inland Revenue Commissioners v Frere (1965) it was held that the term ‘interest’ referred to interest accrued annually – as opposed to weekly, monthly, quarterly, bi annually etc. These terms were detailed at various points in the statute.
Statutory Tools
Explanatory Notes
Legislators have sought to overcome the potential problems associated with statutory interpretation, by drafting statutes that include explanatory notes. This is a relatively new concept, introduced by Parliament in 1999 to originally assist in the interpretation of bills. The significance of explanatory notes as helpful tools to help in the process of statutory interpretation was highlighted in the decision in R (Westminster City Council) v National Asylum Support Service (2002). Lord Steyn mooted that, ‘the Explanatory Notes cast light on the objective setting or contextual scene of the statute… such materials are therefore always admissible as aids to construction’.
Statutes may also include sections dedicated to the interpretation of particular provisions. These sections may be presented in the form of definitions or examples. As an illustration, the Theft Act 1968 offers a definition for the term ‘theft’, in addition to a section that defines ‘property’.
The Title and Headings of a Statute
A broad title may also aid the process of statutory interpretation. It was stated by Lord Simon in the Black-Clawson Case (1975) that, irrespective of the information contained within a statute, the ‘plainest of all the guides to the general objectives of a statute’ is the title. In a similar manner, a heading will often introduce, and clearly state the subject matter for a particular provision or chapter.
The Preamble and Side Notes
It is often the case that a statute has been drafted using ellipsis, whereby its content is sometimes difficult to interpret. A court therefore may refer to the preamble for further guidance when interpreting the statute, as it will be written in prose.
Although a court will not concentrate on the content of a side note, it will however be used to shed light on a provision, which is ambiguous or imprecise. It is evident that the process of statutory interpretation enables a reader to utilise all areas of a statute.
Punctuation and Grammar
Punctuation is an essential feature that may affect the way in which a statute is read. The case of Sir Roger Casement (1917) required the statutory interpretation of the Treason Act 1351. The statute purported that, ‘If a man be adherent to the king's enemies in his realm giving to them aid and comfort in the realm or elsewhere’, he would be found guilty of treason. Casement argued that he carried out his acts ‘elsewhere’ and not within the realm. This argument failed as the Court found that the use of a comma meant that an individual was liable for treason for acts committed ‘in the realm, or elsewhere’. Casement was therefore liable under the Act and given the death penalty.
External Sources used in Statutory Interpretation
If the information within a statute is insufficient or imprecise, a court may refer to external sources. A judge may consider the overall history of a legal area to determine how more recent legislation should be interpreted (see Redrow Homes v Bett Brothers (1998)). This is an inherent feature of the common law, as a judge will utilise previous decisions that draw on statute(s) which are relevant to his case. There may also be other statutes that are in pari material. This could be a statute, which primarily concerns a different legal area, but offers some assistance with a particular element of the case facts.
The Interpretation Act 1978 helps make sense of grammatical issues, and language interpretation for statutes and acts of Parliament. For instance, if an act uses the word ‘may’, this will be considered permissive. On the other hand, where an act uses ‘shall’, this will be interpreted as imperative. Definitions for common provisions such as ‘land’, are also included to help with statutory interpretation.
International Conventions will be acknowledged and adhered to when statutory interpretation takes place. In the case of Fothergill v Monarch Airlines Ltd (1980), the court referred to the original Warsaw Convention for further interpretative help.
It is not uncommon for the courts to draw on the view of academic experts. This may be the case for example, where academics fabricate scenarios of how the law should be applied – where the statute itself fails to provide an example. Although this may not be binding, it may be used to bolster an argument (R v Shipuri (1987)). Where a statute omits a definition or explanation of how a key term should be interpreted, a dictionary may be used to give a general insight.
Law Commission Reports and White Papers
The comprehensive studies conducted by the Law Commission are often useful sources of information in statutory interpretation. The Black Clawson Case (1975) made it permissible for judges to refer to these reports to expose issues which may not be considered in legislation. Further clarification concerning the use of Law Commission reports in statutory interpretation was provided in Davis v Johnson (1978). The Court said, ‘the report may be used to identify the mischief the legislation is intended to remedy but not to construe the enacting words’. Government White Papers are sometimes included, particular if the law in that particular area is subject to review or change.
Hansard
This is the official Parliamentary Report which details the discussions when the Act in its development stages. Since 1992, Hansard has been a feature in court dialogue, and often provides more general and broader considerations that may have not been included in the Act. In Pepper v Hart (1993), the House of Lords held that judges would be allowed to use Hansard in statutory interpretation. However, Parliamentary discussions may also confuse matters due to the general nature of the discussions.
European Union Law and the Purposive Approach
European Union law has had a resounding impact on statutory interpretation. English courts are required to interpret Community law with regard to the explicit wording and intention. This approach stems from the case of Marleasing v LA Commercial (1992), establishing the Marleasing Principles. However, the Court of Appeal clarified the position with statutory interpretation stating:
‘The interpretation of legislation under…the Marleasing principle may involve a substantial departure from the language used though it will not involve a departure from the fundamental or cardinal features of the legislation. It is possible to read the legislation up (expansively) or down (restrictively) or to read words into the legislation’.
However, in the case of Webb v EMO Air Cargo (1993), the House of Lords held that the statutory interpretation of European legislation must be carried out ‘without distorting the meaning of domestic legislation’.
Many European countries adopt a purposive approach to statutory interpretation. This approach enables the courts to skirt around a language issue and employ what they consider is the purpose of the statute. It is becoming increasingly more common for the UK courts to move towards this, particular where statutory interpretation of European Union legislation takes place. However, the English courts are wary of the purposive approach, exercising caution so that the statutory interpretation does not distort the meaning of a statute. As stated by Lord Denning ‘We sit here to find out the intention of Parliament and carry it out by filling in the gaps rather than by destructive analysis’.
The European Convention of Human Rights
The full extent of the European Convention of Human Rights is yet to be realised where statutory interpretation is concerned. Section 3 of the Human Rights Act 1998 provides that, ‘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’.
There has been much debate over the significance of this provision on statutory interpretation. Although the courts have a duty to read this provision in a manner that is compatible with the Act, there are very few examples of its application.
Presumptions
The court will also rely on presumptions in the process of statutory interpretation. For example, there is a presumption that mens rea is a fundamental requirement of guilt in criminal law. There is also a presumption that punishment will not be administered in the absence of fault. Another example is that legislation cannot be applied retrospectively. There are certain exemptions to this rule e.g. Human Rights Act 1998 s 22(4) and the Terrorism Act s 40. Therefore, these presumptions are rebuttable, often where legislation provides definitions illustrating this.
Final Thought
In consideration of this overview, statutory interpretation is an extremely dynamic and demanding process. When reading a statute, it is worth putting yourself in the shoes of a Parliamentary draftsman to understand the real intention and effect of their work. It is inevitable that mistakes will be made and clarity will be sought. These factors make statutory interpretation an essential skill of judgment.
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