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LAW / Statutory Interpretation by Csanad Kormos

Statutory Interpretation In General | Literal Rule | Golden & Mischief Rule | The Purposive Approach/The Contextual Approach | Hansard

STATUTORY INTERPRETATION
BACKGROUND

Interpretation of statutes - Approaches to construction (literal and purposive); the use of intrinsic and extrinsic materials.

STATUTORY AIDS TO THE INTERPRETATION OF STATUTES

Extrinsic aids to interpretation consist of everything not found within the statute, whereas intrinsic aids are those found within the statute being interpreted. The use of extrinsic aids thus implies non-adherence to literalism.

In general

1. Judicial interpretation is unregulated by Parliament, however Parliament (usually!) drafts Acts in such a way as to minimise the amount of interpretation that is necessary.

The reason for this is that to have a high degree of judicial interpretation would compromise certainty and result in redrafting of laws by judges. This would in turn result in more complex legislation drafted to avoid judicial rewriting.

However, civil servants may, in certain circumstances, deliberately draft legislation ambiguously to avoid an argument in Parliament, if they are unsure as to the effects of the Act, or to allow for future developments.
2. Although judges in the past have often been strict literalists, it is rare to find a judge that adheres to any one rule, and most will pick and choose in order to do the best result.
3. Judges have to be given a degree of flexibility if they are to cope with unforeseen situations, e.g., in Attorney General v. Edison Telephone Company, could the Telegraph Act 1869, passed before telephones were invented, apply?
4. Greater liberties are taken with secondary legislation (since it is not passed by Parliament in the usual way).
5. Do judges really set out to interpret Acts according to the intent of Parliament? For instance, in Fisher v. Bell 1961, the decision was, in Parliament's eyes, so bad that they overruled it by statute the same year the offending decision was made. Equally was interpreting (in Stock v. Frank Jones (Tipton) Ltd. [1978] 1 WLR 231) "dismissal of employees who take part in a strike", as not including 'dismissal of employees taking part in a strike', the intention of Parliament?

Perhaps the most flagrant disregard for the wishes of Parliament was displayed in Anisminic Ltd. v. Foreign Compensation Commission 1969, where a statute said that "decisions" of the Commission should "not be called in question in any court". Despite this clear and unambiguous provision they contrived, in order to preserve their jurisdiction and to show Parliament who really was in charge, that the decision was ultra vires, and hence void and no "decision" at all.

That decision demonstrated two things: firstly that Parliament's power and supremacy depend on the enforcement of its statutes; and that sovereignty depends on the acquiescence of the courts to the power of Parliament.
6. Since parliamentary sovereignty is now almost meaningless with the greater powers of the EU, it might seem rather pointless to curtail the judges' powers (i.e. by literalism) when the EU's powers far exceed our judges own (and the European Union are more remote, and thus arguably less accountable).
7. Generally, the European Union has led to a greater willingness to accept purposive constructions, since all interpretation of European legislation must be purposive because it exists in several languages.
8. If there is a casus omissus (where Parliament did not foresee the circumstance) judges must be legislators in interpreting statutes if they are to enforce Parliament's intent.
9. The style of legislation encourages judicial interpretation - because it is meant to be specific about every circumstance, any inadvertent slip or omission attracts much greater significance by reason of the legislative style - clauses that would be seen as inconsequential and meaningless slips or as linguistic flourishes under the natural use of language are often afforded significance that their drafters' did not intend.
10. Laski in the Report on the Committee on Ministers' Powers said that statutes should have "an authoritative explanation of intention".

There are explanatory notes issued by the Lord Chancellor's department with many Bills but these are not approved by Parliament, and are merely intended to show MPs the effect of the legislation.

Csanad Kormos, London Metropolitan University, United Kingdom, 2005