Statutory Interpretation

Statutory interpretation is essentially a personal matter. No rules can bind the process since any such rule must themselves be subjects of interpretation. - Justin Santiago

Statutory interpretation is used by judges to make sense of the law in relation to their judgements. Statutory interpretation uses rules to help interpret what Parliament has enacted.

However it can be said the interpretation of statute has become a hugely personal affair with judges attempting to have their final say and using whatever means to justify their decisions in a particular case. One judge may use a particular rule of interpretation and another judge may use another rule, even for the same case.

The use of numerous rules of statutory interpretation can give rise to different results. Royal College of Nursing v DHSS regarding the status of medical practitioners to perform abortions was decided on different rules of interpretation of the Abortion Act 1967. Lord Woolf at the court of first instance interpreted the phrase ‘medical practitioner’ broadly to include nurses. Lord Denning at the Court of Appeal chose to interpret the phrase literally to mean doctors only. Lord Diplock at the House of Lords overruling the Court of Appeal interpreted the phrase to mean nurses as he felt that that was the purpose Parliament had in mind.

There is a large dependency on the personality of the judge whether he or she wants to take a formal approach to interpretation statute taking into account the internal context of the statute or to take a more flexible approach and look at the statute in its external context.

Admittedly the fault may lie in the way statutes are drafted. The drafting of statute in the Common Law tradition takes the exhaustive approach to drafting laws and statutes are worded to achieve certainty. However there are a number of factors that can cause uncertainty :-

1.There is a limit to how much can be written down i.e not every single situation can be covered.
2.There is a lack of foreseeability and certain things may have not been anticipated and were left out.
3.There is ambiguity in words or phrases used.

Inherently this style of drafting encourages the development of case law where judges define and interprets words contained in the statute. We see examples of both in case law. In Duport Steel v Sirs, Lord Diplock was of the opinion that it is the work of judges to give plain and unambiguous meaning to words contained in the statute and not to worry about the consequences of doing so known as the literal rule. This followed the declaratory theory of law and provided a safe path for judges and upheld the doctrine of the separation of powers and emphasized Parliamentary sovereignty. This sat well with conservative judges who were of the opinion that it was the job of the courts is to discover how Parliament intended the law to apply and to put that into practice and not to make law (otherwise it would be a naked usurpation of the legislative function as per Viscount Simmonds in Seaford Court Estates Ltd v Asher).

However this approach clearly has its shortcomings. What if the literal approach would give rise to an absurdity? Thus a statute which made it an offence to impersonate any person entitled to vote if taken in its literal sense allowed the acquittal of the accused because he impersonated a dead person since a dead person was not entitled to vote : Whitely v Chappell.

Thus in the case of Stock v Frank Jones (Tipton) Ltd,a departure from this literal rule would be allowed where there was a clear and gross anomaly and this anomaly was not envisaged by Parliament confirming the dictum of Lord Wensleydale in Grey v Pearson. This is known as the Golden Rule.

However some fetters were placed on the judicious use of the Golden Rule in C (A Minor) v DPP there were 5 factors that needed to be considered before judges did more than interpreting the law :-

1.Where the solution to a dilemma was doubtful, judges should be wary of importing their own answer
2.Judges should be cautious about addressing areas where Parliament had rejected opportunities to clear up a known difficulty or had passed legislation without doing so
3.Areas of social policy over which there was dispute
4.Fundamental legal doctrines
5.Whether judges involvement in changing the law would achieve finality and certainty on the issue

For the more activist judges their approach to statutory interpretation has been to read into Parliament’s intention which was expressed in Heydon’s Case otherwise known as the Mischief Rule. Judges should interpret the statute in such a way as to put a stop to the problem that Parliament was addressing. Thus cases like Smith v Hughes allowed for prostitutes to be caught by the Street Offences Act 1959 even though they were soliciting from their windows and not on the streets as envisaged by the statute as the main purpose was to clean up the streets of prostitution.

As an aid to find out the mischief that Parliament was addressing, reference to parliamentary proceedings (Hansard) was allowed following Pepper v Hart where legislation was ambiguous or obscure or led to an absurdity.

Judges could also look into past circumstances as a reference to interpretation as found in Chandler v DPP where Lord Reid invoked the historical conditions of the passing of the Official Secrets Act 1911 to support his interpretation of that Act.

However questions do arise as to whether there has been too much strain placed into the construction of statutes and whether one could find the real intention of Parliament even with the use of Hansard. As Michael Zander argues, the rules and priciples of interpretation do little or nothing to solve problems. They simply justify solutions usually reached on other grounds.

There are various argument as why each judge chose a different approach. Lord Denning was noted for his stance against the practice of abortion and his ruling in Royal College of Nursing v DHSS mentioned above would restrict the practice of abortion to qualified personnel thus limiting its practice. Lord Diplock although known for his strict adherence to literal interpretation chose to look at a more broader approach to possibly assert his higher superiority.

Another case that exemplified how different rules of statutory interpretation that has lead to different decisions is Davis v Johnson. In this particular case various rules of statutory interpretation are employed at the various court levels and by different judges at the same level and even different interpretations by the same judge were evident. In Mandla Singh and another v Dowell Lee the Court of Appeal reached its decision on a literal interpretation of the words actually used in the Race Relations Act but the House of Lords made its decision in the spirit of what it believed the Act aimed to do and construed Sikhs to be a race and thus covered by that particular statute.

In an attempt to imbue certainty in the law there have been attempts to put the brakes on purposive interpretation of statutes -Lord Simmons’ rebuke of Lord Denning in Magor and St Mellons v Newport Corporation that the filling of gaps in statutes was the job of Parliament in the form of an amending Act of Parliament and not for judges.

However with the incorporation of EU law via European Communities Act 1972 (ECA 1972) and the Human Rights Act 1998 (HRA 1998) which requires all legislation to be read, so far as possible, to give effect to the rights provided under the European Convention on Human Rights (ECHR) there is a possibility of UK courts taking a more purposive approach to statutory interpretation because of the inherent ways in which the European laws are drafted in the civil fashion. ECA 1972 states that all parliamentary legislation must be construed and applied in accordance with EC law. It was decided in Bulmer v Bollinger that interpretation of the articles of the Treaty of Rome was not possible using the literal rule since it was so broadly worded. Pickstone v Freeman and Lister v Firth Dry Dock stated that the purposive approach was the preferred approach in reading UK law in light of EU legislation. Whether there is a growing trend towards harmonization with European methods of interpretation however is yet to be realised fully.

The rules of statutory interpretation are in constant flux and there are no definite guidelines to follow which goes to show no one correct approach to interpreting statute. Any attempt to strictly set limits to the approach would restrict the flexibility of the courts to interpret statute and this in itself would cause injustice.

Ultimately it is not important what rule is used what is more important is that there is a convincing argument. This is important because each decision becomes part of case law and binds future courts at the same level or lower.