Statutory interpretation

Statutory interpretation:

Interpretation is in general the discovering of the meaning of words, this is the search of the meaning of a word. Since in law we just have words, this exercise is very important in law and in legislation in particular. An interpretation may be needed when there is an ambiguity in the drafting of a statute or even when there’s an error that might has been made by the parliament.

To know what a specific word in a statute means is of the almost importance:

– Example: Fisher v Bell (1961). In this case, an ambiguity arose about one specific word in one act, in the Restriction of Offensive Weapons act in 1959. In this act there is provision which states: “any person who manufactures, sells or hires or offers for sale or hire’s a flick knife (couteau à crand’arrêt) shall be guilty of an offence”.

Mister Fisher had a shop and displayed in his shop a flick knife. He was prosecuted for this offense. He argues that he didn’t make an offer while just displaying the knife in the shop.

Pb: What’s an offer? Is a display in the shop an offer for sale or hire of a flick knife? The word offer can have 2 meanings: a law of contract. It has the meaning of the everyday conversation but it may have also a technical legal sense which is the proposition made by a party to another person with this proposition containing terms and this proposition being made with an intention to be bound by the terms of the proposal. More less the same definition has “l’offre” in French contract law.

If this is the technical meaning in English law, the display in the window shop isn’t an offer. If we understand this act with the ordinary sense then this Mister Fisher could be prosecuted of this offense. The technical sense was adopted by the judges and so Mister Fisher wasn’t prosecuted. Whose task is it to interpret? It’s the task of the courts when they have to decide a case. Statutory interpretation is the activity courts have to undertake. The lawyers also, the barristers, if they want to convince the courts of such meaning of one word in the act they have also to indicate which interpretation the court should follow. This isn’t only the judge task.

How to interpret? There are some rules of interpretation. There are some rules of interpretation.There is a sort of guide lines for judges when they have to interpret a statute.

A) Rules of Interpretation:

1) The literal rule: this is nothing unusual that a court interprets literally the rule. The judge must look at the literal, grammatical meaning whatever the result is. This is the most restrictive rule since it gives really small space for judge to understand what the word could mean. The problem with that rule of interpretation is that it may lead to unfair or even absurd conclusion. In the case Fisher v Bell, it’s a literal rule interpretation. The judges didn’t look at what the intention of the legislator was, they just decided between two possible meanings of word, and deciding just for the legal one. Then, another rule is the golden rule of interpretation.

2) The golden rule: this rule says that you should interpret a word according to a literal sense unless to an absurd result. Courts should give the reasonable meaning of the word. We may found an example: this is a way to achieve an intention of the Parliament to give the word their reasonable meaning. Example: the case R(Crown) v Allen (1872).Mister Allen who was already married, married another woman who was his cousin. Under an act the fact that a man marries a second woman is an act of bigamy, there is an act which prohibits the bigamy. Mister Allenb said that “I’m not a bigam because my second marriage with my cousin is actually void. Marriage between cousins at that time was considered to be void. He argues that he didn’t commita bigamy. But then, when the case was brought before a court, the court has seen that there was an absurdity in interpreting the word marriage as the strict legal sense. But if the word marriage in the act prohibiting bigamy was to be interpreted in the brother sense, then this person could be charge of bigamy. We have to interpret the word as a valid marriage or just the fact of having celebrity the marriage even if it’s void? In that case, the golden rule was explained and used that if the court sticks to the legal meaning of marriage, it will lead an absurd result. They thought that they have to give the reasonable meaning of the word marriage in this act, this is a way to overcome the absurd result that the literal rule can give.

3) The Mischief rule: Heydon’s case (1584).Under this rule of interpretation the judge will look at the act to see what the purpose of the act was. And what mischief act (actemalicieux) the law was trying to prevent. Example: the case Smith v Hughes (1960): a case about prostitution. Prostitutes in house thought to attract the attention of men passing in the street but they remain in the house. There is an act that, a street offenses act (1959) which prohibit to being the street and to solicit in a street the prostitution. When these ladies were prostituted, they argued that they remain in the house. The problem here was that the street offenses act didn’t make clear where the prostitute had to be when the solicitation took place. The statute was ambiguous. The court looked at what was the mischief that this act was trying to prevent. This mischief was that just to prevent a gaveling of prostitute in the street and this act was also made to clean up the street so the course decided that it didn’t matter where the prostitutes were in houses or outside the house. The solicitation was projected in the street and that was considered to be important. And so wherever the prostitutes were, the act could be applied because the courts looked at the purpose of the act and what kind of mischief was being prevented.Who can said that mischief can be attempted to be avoided in the law? It’s an act of interpretation to decide what kind of mischief was prevented.

4) The purposive approach: it’s something rather new in English law. This approach seems to ensure that the wording of an act is interpreted in the light of the purpose of the lined. With that approach it is possible for courts to look not only inside the act but outside the act to discover the purpose of it. This approach has been introduced in the English law mainly because of the EU law (interprétationtéléologique) when we try to see in an act what were the purposive of this act. There is an example in the case R v Z in 2005 (attorney general for NI reference).

Mister Z and others were charged under the terrorism act of 2000 because they belong to an association which name wasReal Irish Republican Army. The terrorism act prohibits the Irish Republican Army but the problem here was that this person didn’t belong to the IRA but to another IRA which wasn’t named in the act.

Real IRA: included in the Terrorism Act 2000.

The question was: Is Real IRA included in the terrorism Act of 2000?

The defendant, Mister Z argues that the words used by parliament hadn’t made clear the intention of the parliament to include the real IRA on the list of prohibited organizations. And since it was different names, different organizations he shouldn’t be prosecuted. He tries to use the literal interpretation of the text. But the courts found otherwise using this purposive approach. They thought that what the purpose of the terrorism act was. The purpose was to try to fight the Irish terrorism so whatever the exact name of the organization is, it considers to be prohibit. The court decidesthat the real IRA was on the blacklist of prohibited organizations and these persons were prosecuted.

These 4 rules of interpretation are the rules that courts have to use when they have a problem of interpretation. There is no strict rule say that courts should start with a rule and not using another one. There is no a strict frame work which articulate, coordinate these rules of interpretation, it’s the decisions of the courts. These rules are useful but sometimes they aren’t enough in order to find what a statute really means. Courts may use aids to construction to have an interpretation.

B) Aids to construction:

1) Aids in the Act of Parliament itself: this act can give some information concerning the meaning of the word. There are some details such as the notes, the title and the preamble that might help to interpret an act. => The same sex Marriages act.

2) Aids outside the act of Parliament:

– Explanatory notes: the government may write explanatory notes on a statute to explain what the purpose of the act was.

– Interpretation Act of 1978 which gives some general principles and gives some definitions of frequent provisions and terms. For instance, in this act it’s said that when a rule uses the singular it should also include the plural. Such rules may be used by courts in this act. And then, there is a possible Hansard.

– Hansard: the nomination for the official reports of the parliamentary debates. All the work of the parliament is reported in a publication which name is Hansard. Hansard was in the 19th century the printer of the Queen and he initiated this process, it was a private initiative at the beginning. There has been a controversy of the use of Hansard by courts. Is it possible, can the courts use Hansard or not? (travauxparlementaires). It’s a very normal rule to interpret the statute in France. But it’s not the case in England. For many years, the courts refused to allow the use of Hansard. This was held in the case David v Johnson (1979).This case stays the traditional approach which is we don’t use Hansard to interpret the statute. A court may not refer to parliamentary materials.

Modern approach: in the Pepper v Hart (1993).The court decided that it could use the report of parliamentary debates. This case was dealing with a taxation issue for teachers in a private school that could sendtheir children to this school for one fifth of the normal fee. They gain more and they wanted to tax this school on the money that they spared. What a cost of the benefit was for taxation purpose? The use of Hansard was helpful since this kind of this fact was discussed during the debates. They could refer to the report and they will have an interpretation of the statute. For this reason it was allowed to use the report of the parliamentary debates in this case. But it’s not really used by courts.

– The Human Rights Act 1998: this act has given a rule of interpretation which is that the court must interpret UK legislation in a way which is compatible with the EU Convention rights (CEDH). The English courts should always give the meaning that is compatible with the CEDH.

Key notions:

  • – What Parliament is? Houses function? And what they do.
  • – Legal consequences of parliamentary sovereignty?
  • – Primary and secondary legislation.
  • – How primary legislation is passed?
  • – Particularities of statutes in England? (Compared with civil law countries).
  • – Main rules of interpretation.
  • – And what aids courts may use to construe statutes.