aids and rules statutory interpretation © the law bank statutory interpretation approaches to...

Aids and rulesStatutory Interpretation

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Statutory InterpretationApproaches to statutory interpretation

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Starter

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You be the Judge …

Each students gets one card containing a case in which the

courts used statutory interpretation to make a decision.

Examine the facts of the case and the outcome and then decide which rule was applied by the

courts and why.

Share your thoughts in a mobile paring activity.

Royal College of Nursing of the UK v DHSS (1981) 1 All ER 545

Use of nurses to carry out abortions who used drugs and procedures not thought of when the Act was passed in 1967. The Act required abortions to be carried out by a ‘registered medical practitioner’.

Principle – The Act was intended to provide for safe abortions and nurses could do this. Lord Wilberforce and Lord Edmund Davies claimed that judges were not interpreting legislation but re-writing it.

Example


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Objectives• State the different

intrinsic aids to interpretation

• State the different extrinsic aids to interpretation

• State the different rules of language

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Look at each of the objectives and then taking into account your pre-reading colour code yourself for each of them. Red – I don’t get it. I need some help understandingAmber – I think I understand but I need a little supportGreen – I understand and can try to help others who are not so clear


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Key Terms• Presumptions

• Intrinsic Aids

• Extrinsic Aids

• The ejusdem generis rule

• Expressio unius est exclusio alterius

• Noscitur a sociis

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What aids are available to judges?

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Look at the following section of the Human Organ Transport Act 1989 (you have your own example on your

desk). Highlight the words or phrases you think might cause a problem for the court. Use a QCI format if this

helps.

Presumptions

Intrinsic

Extrinsic


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Aid One: Presumptions

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Common law is not changed unless the act

expressly say so

Meaning: Things we assume to be true

Queen is not bound

Criminal Offences require mens rea

R v ShivpuriCriminal Attempts Act 1981 s.1(3)

The law should not act retrospectively

Human Rights Act 1998

B v DPP 2000Sweet v Parsley 1970

Human Rights Act 1998War Crimes Act 1991

http://www.bailii.org/ew/cases/EWCA/Civ/2009/407.html





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Aid Two: Intrinsic Aids

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Definition sections

Meaning: Things that are internal to the Act itself

Headings

Long (& short) titles

Schedules

Look at your Human Organ Transplant Act again – can you find examples of each of

the intrinsic aids in the statute?

Other sections of the Act

Draftsmen/side notes








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Lets try it for ourselves…

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Look at your Human Organ Transplant Act

1989 again.

Using the Act answer the following questions.

1. Look at the following scenarios:

a. Have they broken the law?

b. What other sections of the Act did you find useful in working out the answers?

c. Link the different sorts of law together – can you find the delegated legislation element of the Act?

Mark is given a new liver by Nat,

he hands over the keys to his house

in return.

Dan texts all his friends asking

them if they want to make some

money by donating an eye.

Ian’s grandfather donates his

kidney to Ian, who pays for his

medical expenses for the donation.


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Intrinsic Aids – Long and Short Title

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May be used as guidance

Abortion Act 1967

Fully entitled ‘An Act to amend and clarify the law relating to termination of pregnancy by registered

medical practitioners.

Royal College of Nursing of the United Kingdom v DHSS (1981)

1. Read your copy of the Act.2. Does the short and long title

help you answer the following question:

a. Is it OK for nurses to carry out abortions?



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Royal College of Nursing of the UK v DHSS (1981) 1 All ER 545Use of nurses to carry out abortions who used drugs and procedures not thought of when the Act was passed in 1967. The Act required abortions to be carried out by a ‘registered medical practitioner’.

Principle – The Act was intended to provide for safe abortions and nurses could do this. Lord Wilberforce and Lord Edmund Davies claimed that judges were not interpreting legislation but re-writing it.


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Intrinsic Aids – Other sectionsOlder statutes may have a preamble serving as a purpose statement

Newer acts may have objectives or purposes section - E.g. Climate Change and Sustainable Energy Act 2006

Look at your copy of the purpose section of the Act:

1. How might this extra section help judges make decisions?

2. What does the purposes section tell you about the intention of the drafters?

3. What are the main objectives of the Act?



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Intrinsic Aids – Schedules

Look at your copy of the Hunting Act 2004

1. What are the exemptions to hunting contained in the Schedule?

2. I ask my neighbour to bring his Jack Russell around to dig out some rats I have found in my garden – does the schedule exempt my neighbour from prosecution?

3. Make a list of five other exemptions

Schedules appear as additions to main body of Act



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Intrinsic Aids – Schedules

Look at your copy of the Law Reform (Year and a Day

Rule) Act 1996:

1. How does the Act define a fatal offence?

2. Which section is this contained in?

3. How do you think this might specifically help a judge in interpreting the Act?

Most new Acts contain a special interpretation definition section



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Intrinsic Aids – PunctuationPunctuation is now seen to have an effect

`in Hanlon v Law Society (1981) Lord Lowry commented;

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

In your groups come up with two sentences which use the same

words but which have two different possible meanings

because of the way you have punctuated it.



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Aid Two: Extrinsic Aids

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Dictionaries

Meaning: Things that are external to the Act itself

Previous Acts

The Interpretation Act 1978

Reports of the Law Commission

International Treaties

Hansard

Explanatory Notes

Textbooks

Vaughan v Vaughan (1973)

1. Before you read the facts of the case what do you think the word molest means?

2. Now check your meaning against a dictionary definition.

3. Are they the same, close or different?4. If I pester my wife to take me back after a

marital split does that merit molestation?










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Vaughan v Vaughan (1973) 1 WLR 1159

In this case the court had to interpret the word ‘molest’. D had been subject to injunctions in respect of previous violence towards his ex-wife who was afraid of him. D argued that pestering his ex-wife to resume their relationship by going to her home early in the morning and late at night and also calling on her at work, did not amount to molesting her.

Principle – The judges consulted the dictionary, which defined molest as ‘to cause trouble, vex, annoy or , to put to inconvenience’ and held that the defendant's behaviour did amount to molestation.


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Extrinsic Aids – Previous ActsExplosives Substances Act 1883

amending the Explosives Act 1875

How can the judge use the 1883 short title to justify applying the previous 1875 Act when he defined the term explosive

in Wheatley?

Wheatley (1979)



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R v Wheatley [1979] 1 All ER 954

A man D was found in possession of a metal pipe filled with sodium chlorate and sugar, and was charged with possessing an explosive substance contrary to s.4 of the Explosive Substances Act 1883. He argued that its effects would be pyrotechnic rather than explosive, but the court referred to the Explosives Act 1875, in which "explosive" was defined as including "pyrotechnic".

Principle – Since the long title of the 1883 Act referred expressly to the 1875 Act, the definition from the earlier statute could be imported into the later.


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Extrinsic Aids – The Interpretation Act 1978

1. How does section 6 assist the Judge when making a decision?2. How many other idiosyncrasies of the English language need clearing up to

make things easier to interpret?3. Can you find 3 more in your groups?4. Can you think of any occasion when this may still not make things clear?

Extrinsic aids also includes Reports of the Law Commission (e.g. when they highlight what is wrong with old Act) and International Treaties (such as the EU Law)



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Extrinsic Aids – Hansard

Hansard (the Official Report) is the edited verbatim report of proceedings of both the House of Commons and the House of Lords.

Click here or on the image opposite to access the Parliamentary Hansard Page

1. Take a look around the Hansard web site

2. When do you think Judges might want to consult Hansard as an extrinsic aid?

3. What might be the problems using Hansard?

Davis v Johnson (1979)To Pepper v Hart (1993)

http://www.parliament.uk/business/publications/hansard/









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Extrinsic Aids – Hansard

Research Task – Take a look at the decisions in the two cases above.

What was Lord Denning’s position about the use of Hansard in Davis?

What did the House of Lords say?

When did the rules change?

What do the rules say now?

Davis v Johnson (1979) To Pepper v Hart (1993)



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Davis v Johnson [1978] 2 WLR 553 House of LordsThis case concerned the interpretation of the Domestic Violence and Matrimonial Proceedings Act 1976. At the Court of Appeal Lord Denning referred to Hansard stating, that not to do so would be like 'groping in the dark without switching on the light'. On appeal to the House of Lords the Lords reprimanded Denning for referring to Hansard and restated the rule that Hansard must not be referred to.

Lord Kilbrandon - "It has always been a well established and salutary rule that Hansard can never be referred to by counsel in court and therefore can never be relied on by the court in construing a statute or for any other purpose.”

Viscount Dilhorne: - "While, of course, anyone can look at Hansard, I venture to think that it would be improper for a judge to do so before arriving at his decision and before this case I have never known that done. It cannot be right that a judicial decision should be affected by matter which a judge has seen but to which counsel could not refer and on which counsel had no opportunity to comment.”


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Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42 The House of Lords had to decide whether a teacher at a private school had to pay tax on the perk he received in the form of reduced school fees. The teacher sought to rely upon a statement in Hansard made at the time the Finance Act was passed in which the minister gave his exact circumstance as being where tax would not be payable. Previously the courts were not allowed to refer to Hansard.

The House of Lords departed from Davis v Johnson and took a purposive approach to interpretation holding that Hansard may be referred to and that the teacher was not required to pay tax on the perk he received. The rules were however: 1. The wording in the Act must be ambiguous or obscure, or a literal interpretation

would lead to an absurdity.2. Judges may look only at the statement as made by a minister or other promoter of

the bill.3. The statements must be clear in order for them to be relied upon.


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Extrinsic Aids – Texts and Notes

Re Castioni (1891) – J. F. Stephen referred to his own book History of the Criminal Law of England to define ‘political crime’

Task

You have 200 words. Explain the difference between intrinsic and

extrinsic aids to statutory interpretation using examples. You

have a +/- 10% margin on your word count.

Explanatory notes are not part of Act so not an internal aid



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The Rules of Language

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These are all about lists – often referred to as subsidiary rules

The courts may also choose to look at other words in the statute to ascertain the meaning of specific words. To enable them to do this they have

developed a number of rules of language to help make the meaning of words and phrases clear. There are three main rules of language. The first

is Ejusdem generis. There is also Expressio unius est exclusio alterius -where there is a list of words which is not followed by general words, then

the Act applies only to the items in the list and Noscitur a sociis which means the words must be looked at in the context and interpreted

accordingly. This involves considering other words in the same section of the Act.



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The Rules of Language - ejusdem generis

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Where general words follow particular words the general words are interpreted to be of the same kind as the particular words:

Dogs cats and other animals

Particular words General words

Under this rule ‘other animals’ interpreted like ‘cats and dogs.’ They are domestic animals so this means other domestic animals




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Powell v Kempton Park Race Course (1899) AC 143D’s company kept an open-air enclosure used by bookmakers and race-goers who wished to place bets. Under a Regulation it was prohibited to keep a ‘house, office, room or other place’ for betting purposes.

Held – The court applied the ejusdem generis rule and held the defendant was not guilty because the enclosure was not a relevant place. The general words of ‘or other place’ following the specific words ‘house,’ ‘office,’ and ‘room’ referred to any defined spaces used for betting which their enclosure was not.


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The Rules of Language - Expressio unius est exclusio alterius

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Expression of one thing implies the exclusion of another. Where ‘particular’ words are used and not followed by ‘general words’ the Act applies only to the

particular words

Inhabitants of Sedgley (1837) Rates were charged on ‘land, titles and coal mines’ – therefore rates could not charged on any mine other than coal mines.

Q - So what if I bite off your nose and the Act says its an offence to

‘stab, cut or wound.’


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R v Harris (1836) 7 C & P 446

The defendant bit off his victim's nose. The statute made it an offence 'to stab cut or wound'.

Held – under the literal rule the act of biting does not mean that it comes within the act of stabbing, cutting or wounding as these words implied an instrument had to be used. Therefore the defendant's conviction was made void.


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The Rules of Language - Noscitur a sociis

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Meaning of word is to be gathered from the context in which it is written.

Refreshment Houses Act 1860 – all houses, rooms, shops or buildings kept open for ‘entertainment’ during certain hours of the night must be licensed.

Using the definition above if a café stays open during the night without a licence do they break the law under the Refreshment

House Act? If so why?


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Muir v Keay (1875) QBD

D ran premises called The Café; it was found open during the night, and seventeen women and twenty men were there. They had been supplied with cigars, coffee, and ginger beer, which they consumed..

Held – The Court applied noscitur a sociis rule and implied that ‘entertainment’ did not only mean music and theatre, but meant other form of entertainment including drinking coffee.e house was kept open for public refreshment, resort, and entertainment, and required a licence.


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Consider all three rules of language and explain (using case

examples) which rule is likely to be applied to each situation

Apply the Rules of Language

Decision Reason Case example

1. An Act uses the phrase ‘hamsters, dogs, cats and other animals’ and the animal in question is a pig.

2. An Act states that it specifically applied to ‘hamsters, dogs and cats’ and the animal in question is a pig.

3. An Act mentions tigers, cages and food’ and the food in question is domestic cat food.


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QuestionConsider whether the current approach to Statutory Interpretation gives too much power to the judgesDescribe the impact of membership of the EU on statutory interpretationDescribe the difference between the broad and narrow approaches in the golden ruleExplain what is meant by the literal ruleIdentify one word which has caused problems for the court and explain why.

Choose a question appropriate to your

level of understanding – try and push yourself.

Prepare an answer that you will have to explain

to other members of the class

Consolidate your understanding of Statutory Interpretation


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Can you apply all you have learnt?Apply the law to the following scenarios, using the rules or aids to interpretation

1. Bob owns a very large house with a long, windy drive. He has placed a wreath at the gate at the top of the drive.

2. The Smiths decide to purchase a holly bush to celebrate

3. Louise has decided to paint the noses of the deer in the local park red for Christmas

4. Carol does some research and discovers that Jesus was born in March. She decides to celebrate Christmas then.

5. James does not like mince pies and takes a in turkey as his free food.

6. Pick two cards from the act which you think will cause problems, and come up with a better definition!

The Christmas Day Act 2010

This is an act to encourage the celebration of

Christmas as a national holiday and time of charity

This Act provides that:

1. Christmas shall only be celebrated in Christmas

the month of December

2. Every household shall buy a tree, wreath or other

greenery.

3. Every household shall display a wreath at the

entrance to their house

4. All deer shall be given a red nose for the occasion.

5. All adults shall be entitled to a free mince pie,

Christmas cake or food in celebration

6. Breach of the sections will result in a summary

conviction punishable by a maximum of £200 fine


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Objectives• State the different intrinsic

aids to interpretation

• State the different extrinsic aids to interpretation

• State the different rules of language

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Look at each of the objectives and then colour code yourself for each of them. Red – I don’t get it. I need some help understandingAmber – I think I understand but I need a little supportGreen – I understand and can try to help others who are not so clear

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