8/16/2019 comon law 2

1/6

Statutory Interpretation

STATUTORY INTERPRETATTION

 

Editors Comments

This chapter is highly important .The examination emphasis in this area canrevolve around the following issues:

a) Whether the element of judicial discretion exhibited by the judges ininterpreting statutes has a dominant effect in the process of interpretation.

b) The function of the rules in statutory interpretation in terms of whether 

in practice it is more flexible in relation to the principle establishedby Pepper v Hart.

c) The implications of the European Union and Human Ri!t Act"#$$ upon the rules of interpretation and its effects

 

Interpretation is an inevita%le aspect o& communication '

• Interpretation is not something that happens only in cases of doubt or difficulty; it happens

whenever anyone tries to understand language used by another person.

• (ord Hails!am) “probably 9 out of 10 cases heard by the Court of Appeal and the House of

Lords turn upon or involve the meaning of words contained in statute or secondary legislation. 

• ot surprising in legal affairs! there are plenty of ways in which things may go wrong:

".

". #egal documents $statutes! contracts! etc) tend to be complex.

".

%. & legal document spea's not only to the present but is usually intended to cope with the

future. & draftsman(s capacity to anticipate the future is limited. e may overloo' any

possibility which may occur. *oreover! there are some things that he cannot foresee

simply because later developments are not within the 'nowledge of anyone at the time.

".

8/16/2019 comon law 2

2/6

8/16/2019 comon law 2

3/6

• There seems to be little dispute that for most of the past "66 years or more! the literal rule has

been the dominant one the golden and the mischief rules were merely 5other main principles of

interpretation(.

ii. T!e 2olden Rule

• In 2rey v Pealson /"$34)5 (ord 6ensleyale) “-he literal ule should be used first* but if itresults in absurdity* the grammatical and ordinary sense of the words may be modified* so as to

avoid absurdity and inconsistency* but no further. 

• /ample , R v Allen  2efendant is charged with bigamy *an offence prohibited in 3ffences

 Against 4ersons Act 1561 which reads “whoever is married* marries another commits bigamy.

-he court held that the word “marries need not mean a contract of marriage as it was impossible

for a person who is already married to enter into another valid contract of marriage. Hence* the

court interpreted it as “going through marriage ceremony 

iii. T!e 7isc!ie& Rule

• The classic statement of the mischief rule is that given by the arons of the 2ourt of -xcheuerin Heydon,s Case /"$381: “7for the sure and true interpretation of all statutes in general* four

things are to be discerned and considered,

". 8hat was the common law before the maing of the Act:

%. 8hat was the mischief and defect for which the common law did not provide:

+. 8hat remedy the 4arliament hath resolved and appointed to cure the disease of the

Commonwealth:

of the &ct.

• -xample (ord -iploc.,s approach to the A%ortion Act "#94 in the decision

of Royal Collee o& Nursin v -HSS /"#$"1. e considered the state of law relating to abortion

before the &ct and loo'ed at the whole context of abortion problem from its social and economicaspect as well as its legal history. This system of relying on extrinsic source $common law) in

determining the true intention of the parliament is now universally accepted as part of the

purposive approach! adopted widely in the continent. With the advancing approach towards

liberalisation! judges now appear to be less bound by the blac' letters of the law towards

determining the intention of the 9arliament! and now perceive their tas' as being person who

must give effect to the =legislative purpose> of the &ct.

8/16/2019 comon law 2

4/6

T!e : ;asic

8/16/2019 comon law 2

5/6

T!e Human Ri!ts Act /HRA1 "##$ A Ne> Role o& StatutoryInterpretation

 

S: /"1 o& t!e HRA "##$)

5,o far as it is possible! primary legislation and subordinate legislation must be read and given effect in a

way which is compatible with the convention rights.(

S8 o& t!e HRA "##$)

5If the court cannot construe the statute in such a way! they can issue a declaration of incompatibility.

: What is meant by the word 5possible( in S: /"1C Does this mean that a strained interpretation that is

consistent with the -27 must be preferred to a more natural interpretation which is inconsistent with the

conventionC

• This issue confronted the ouse of #ords in R v A /No' ?1 /?00?1

• S8" o& t!e Yout! Bustice and t!e Criminal Evidence Act "###  severely restrict crossB

examination of a rape victim about her previous sexual conduct which would otherwise be

relevant to a defence based on consent.

• The ouse of #ords $E#) held unanimously that S8" had to be read subject to S: o& t!e

HRA and that the test to be applied whether admitting such evidence was so relevant to the issue

of consent that it would endanger the fairness of the trial in breach of Art'9 o& t!e ECHR $the

right to a fair trial).

• In giving S8" this interpretation! the E# was going against the manifest intention of the

9arliament! rather than issue a declaration of incompatibility! the #aw #ords implied additionalwords into the statutory provision.

• % approaches emerged. The leading speech was given by (ord Steyn)

“7the interpretative obligation under S3 is a strong one.

8/16/2019 comon law 2

6/6

(ord Steyn) S: was supposed to be the 5principal remedial measure( and that S8 was supposed to be a

last resortF

The speeches of the < members of the majority suggest that the approach towards R v A was favoured.

• Fitpatric. v Sterlin Housin Association (td /"###1 )

The word that was interpreted here B 5surviving spouse( in the Rent Act "#44'

E# extended the rights of the sameBsex partners to inherit the lesser assured tenancy by including them

within the deceased person(s family. It decided to allow them to inherit statutory tenancies! on the grounds

that they could not be considered to be wife or husband of the deceased as the &ct reuired.

• In 7endoa5 the courts held that the Rent Act5 as it had been construed by the E# in

GitHpatric'! was incompatible with Art'8 o& t!e ECHR on the grounds of court(s discriminatory

treatment of surviving sameBsex partners.

Points to ponder 

as the introduction of the 7& promoted the use of purposive approachesC