Law Student: December 2010

12 Dec 2010

The purposive approach

This approach has emerged in more recent times. Here the court is not just looking to see what the gap was in the old law, it is making a decision as to what they felt Parliament meant to achieve. Lord Denning in the Court of Appeal stated in Magor and St. Mellons Rural District Council v Newport Corporation (1950), ‘we sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment by opening it up to destructive analysis’.
This attitude was criticised on appeal by the House of Lords. Lord Simmons called this approach ‘a naked usurpation of the legislative function under the thin disguise of interpretation’. He went on to say that ‘if a gap is disclosed, the remedy lies in an amending Act’.
These comments highlight one issue with the purposive approach. How Parliament's intentions can be determined and whether judges should really be refusing to follow the clear words of Parliament. The purposive approach is one used by most continental European countries when interpreting their own legislation. It is also the approach which is taken by the European Court of Justice in interpreting EU law.
Since the United Kingdom became a member of the European Economic Community in 1973, the influence of the European preference for the purposive approach has affected the English courts in a number of ways. First, the courts have been required to accept that, from 1973, the purposive approach has to be used when deciding on EU matters. Second, as they use the purposive approach for EU law they are becoming accustomed to using it and more likely to use it to interpret domestic law. One example is Pickstone v Freemans plc (1998). Here, women warehouse operatives were paid the same as male warehouse operatives. However, Miss Pickstone claimed that the work of the warehouse operatives was of equal value to that done by male warehouse checkers who were paid £1.22 per week more than they were. The employers argued that a woman warehouse operative was employed on like work to the male warehouse operatives, so she could not bring a claim under section 1(2) (c) of the 1970 statute for work of equal value. This was a literal interpretation of the 1970 statute. The House of Lords decided that the literal approach would have left the United Kingdom in breach of its treaty obligations to give effect to an EU directive. It therefore used the purposive approach and stated that Miss Pickstone was entitled to claim on the basis of work of equal value even though there was a male employee doing the same work as her.
When using one of the rules of statutory interpretation the courts may rely on a presumption or secondary aids to assist them in making their decision.

Presumptions

When determining the meaning of particular words the courts will make certain presumptions about the law. If the statute clearly states the opposite, then a presumption will not apply and it is said that the presumption is rebutted. The main presumptions are:

A presumption against change in the common law.
It is assumed that the common law will apply unless Parliament has made it plain in the Act that the common law has been altered.

A presumption that mens rea (‘guilty mind’) is required in criminal cases.

Mens rea is one of the elements that has to be proved for a successful criminal prosecution. There is a common law rule that no one can be convicted of a crime unless it is shown they had the required intention to commit it.

A presumption that the Crown is not bound by any statute unless the statute expressly says so.

A presumption that a statute does not apply retrospectively. No statute will apply to past happenings. Each statute will normally only apply from the date it comes into effect. This is, however, only a presumption and Parliament can choose to pass a statute with retrospective effect. This must, however, be expressly stated in the statutes, for example, the 1965 War Damage Act, the 1991 War Crimes Act and the 1976 Adoption Act.

The secondary aids are rules of language, intrinsic and extrinsic aids.

http://labspace.open.ac.uk/mod/resource/view.php?id=432676

10 Dec 2010

Before continuing with how laws are made, I am – for the sake of avoiding confusion – explain a little how laws are interpreted. By explaining this now, I hope readers get a clearer idea on what happens when laws are unclear. This way, if I use examples later on, and some thought comes to the reader’s mind that the law ‘doesn’t make sense’, s/he would remember this explanation and hopefully clarify the situation.

The mischief rule

When it is not clear whether an act falls within what is prohibited by a particular piece of legislation, the judges can apply the mischief rule. This means that the courts can take into account the reasons why the legislation was passed; what ‘mischief’ the legislation was designed to cure, and whether the act in question fell within the ‘mischief’. For example, the Street Offences Act 1959 made it an offence for a prostitute to solicit men ‘in a street or public place’. In Smith v. Hughes the question was whether a woman who had tapped on a balcony and hissed at men passing by was guilty of an offence under the Act. Parker, L.C.J., found her guilty: ‘I approach the matter by considering what is the mischief aimed at by this Act. Everybody (sic) knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or standing in a doorway or on a balcony’.

In the case mentioned, it was comparatively easy to apply the mischief rule as the circumstances which caused the passing of the Act were well known. The rule does, however, have limitations as it is by no means always easy to discover the ‘mischief’ at which particular Act was aimed.

The rules of interpretation discussed above do not apply to the interpretation of EEC legislation. The European Communities Act 1972 provides that questions of interpretation of EEC law must be decided in accordance with the principles laid down by any relevant decision of the European Court. Therefore, although EEC legislation has the force of law in England and thus becomes part of English law, the courts cannot interpret it by the methods which they apply to the main body of English law.

In interpreting statutes, the courts make certain presumptions:

(a) that the statute is not intended to have retrospective effect;

(b) that it applies only to the United Kingdom;

(c) that it is not intended to interfere with existing vested rights;

(d) that the property of any person will not be confiscated without compensation;

(e) that there is no intention to interfere with existing contractual rights;

(f) that there is no intention to interfere with personal liberty;

(g) that any person to whom judicial or quasi-judicial power is given will exercise such power in accordance with the rules of natural justice;

(h) that the statute is not intended to derogate from the requirements of international law.

Any of these presumptions may be overruled by the precise words of the statute.

Private Acts (but not public Acts) always have a preamble which sets out the objects of the legislation. Preambles can on occasion be of considerable assistance to the courts in interpreting the Acts.

http://legal-directory.net/english-law/interpretation-mischief-rule.htm

The golden rule

Where the meaning of words in a statute, if strictly applied, would lead to an absurdity, the golden rule is that the courts are entitled to assume that Parliament did not intend such absurdity, and they will construe the Act to give it the meaning which Parliament intended.

So, for example, the Offences Against the Person Act 1861 provided that ‘whosoever being married shall marry another person during the life of the former husband or wife’ is guilty of bigamy.

Interpreted literally, this definition is absurd on two counts.

First, the phrase ‘shall marry another person’ is meaningless in the context, as the essence of bigamy is that a married person cannot marry again while his first marriage subsists.

Secondly, the reference to a ‘former’ husband or wife is quite inappropriate.

The word ‘former’ suggests that the original marriage no longer exists, but if that were the case the person marrying again would not be guilty of bigamy.

Despite the slipshod draftsmanship of the Act, however, the intention was clear, and the courts have interpreted the relevant section as meaning that a person who purports to marry another while his or wife or husband is still alive is guilty of bigamy.

http://legal-directory.net/english-law/interpretation-golden-rule.htm

The Literal Rule

The literal rule

The literal rule is the primary rule which takes precedence over the others.

Words and phrases should be construed by the courts in their ordinary sense, and the ordinary rules of grammar and punctuation should be applied.

If, applying this rule, a clear meaning appears, then this must be applied, and the courts will not inquire whether what the statute says represents the intention of the legislature: ‘The intention of Parliament is not to be judged by what is in its mind, but by the expression of that mind in the statute itself’.

The literal rule is strongly criticised by many lawyers. It has been said to be ‘….a rule against using intelligence in understanding language. Anyone who in ordinary life interpreted words literally, being indifferent to what the speaker or writer meant, would be regarded as a pedant, a mischief-maker or an idiot’. Such criticism, it is submitted, is misguided. For example, the Hotel Proprietors Act 1956 provides that in certain circumstances an hotel proprietor is liable for loss of or damage to guests’ property, but that this liability does not usually extend to guests’ motor vehicles or property left ‘therein’. The question arises – is the hotel proprietor liable for property left on, rather than in, a vehicle, for example, on a roof rack. On a literal interpretation, the hotel proprietor is liable, because if Parliament had intended to exclude property left on a vehicle, the Act would have said ‘therein or thereon’. The ‘common-sense’ school would say that it is ridiculous to make a distinction between property left in or on a vehicle. That may be so in the admittedly trivial example given, but if this line of argument is accepted, it means that the courts would have power to rewrite Acts of Parliament, which many people would consider to be highly dangerous, particularly where it takes the form of assuming that Parliament ‘intended’ something, when in truth it is more than likely that Parliament never gave that matter a moments’ thought.

It is better that the courts interpret statutes strictly, and if this leads to unsatisfactory or inequitable results, then Parliament should pass amending legislation to indicate clearly what its intention was.

The full force of the literal rule was demonstrated in the case of Whitely v, Chappell (1869). The defendant had voted in the name of a person who had died, but was found not guilty of the offence of personating ‘any person entitled to vote’: a dead person is not entitled to vote.

The literal rule involves two subsidiary rules. The first is the noscitur a sociis rule, a high-sounding rule which simply means that the meaning of a word must be determined by its context. For example, the word ‘ring’ has no specific meaning in isolation, but its meaning becomes clear in a context such as ‘ring the bell’, or ‘he bought her an engagement ring’.

The second subsidiary rule is the ejusdem generis rule, which is that the meaning of any general term is dependent on any specific terms which precede it. A good example is the Betting Act 1853, which prohibited the keeping of a ‘house, office, room or other place’ for the purposes of betting. How wide is the term ‘or other place’ in this context? The term is so vague that it is impossible to say, but in Powell v. Kempton Park Racecourse Co. (1899) it was held that it did not include Tattersall’s ring at a racecourse; the specific places mentioned in the Act – house, office, room – are all indoors, whereas Tattersall’s ring is not.

http://legal-directory.net/english-law/interpretation-literal-rule.htm

6 Dec 2010

W100 - Rules

Today I am going to discuss rules, in brief. Why?

Rules are the foundation of laws, and as stated earlier, allow us to live harmoniously in society. More on that later.

Let’s start by examining what is a rule. If you give yourself a few minutes, can you say/write/explain what is a rule?

To define a rule, let’s look closer at a simple scenario:

Imagine you go to the library. There is a sign posted on a wall, easily seen as you enter. The sign says “Do not disturb other users.”

Is this a rule? Of course, we all may agree it is. but what makes this a rule?

First, we know that people use a library to study/concentrate, so that we are aware that disturbing others will break a social tradition/habit.

Secondly, the sign posted has a definite descriptive aspect; that is, it tells us something we may not do. Descriptive rules also state things we may do (often written as ‘ought/not, may/not, can/not’).

Prescriptive rules on the other hand, are rules that give some sort of guidance,e g, “A police officer may use reasonable force in affecting an arrest.”

But here is a catch. Suppose you saw someone putting up the sign as you walk in. Would you be as clear that the sign is to be obeyed? Suppose the sign was put up by a person who is not working in/associated with the library… would the sign have the same impact? Likely not.

One aspect of a rule is that it is backed by authority, by someone/some body in a position to enforce that rule. For example, the librarian may well be able to sanction you in some way.

One of the key problems in writing rules is the need to be precise. You need to say what you want to mean. However, there is a bit of a blowback from this. Can you see any problems? Let’s examine another situation and see if we can clarify. I shall use a similar situation as the OU does.

If I open my garden to visitors, and don’t want them to ruin it, I can put up a sign that says ‘Do not pick flowers.’ Someone then decides to take fruit from my trees by breaking the branches. Okay, now I put up a sign that says ‘Do not pick fruits or flowers.’ Next I see someone cutting branches from the plants that grow by cuttings, claiming that they are not violating the rules I posted.

The way this is going is that I can be adding rules to cover every scenario as they occur. In the meantime, the damage (mischief) is constantly being done, leaving me with an increasingly damaged garden. My list of rules is also growing longer and longer, and takes much time and effort to read.

The solution to this is then to make the rule general enough to cover every scenario while stating my intention. So something like ‘Do not interfere with the plants; leave garden as you find it.’ may be general enough but still make my intention clear: that I want my garden to remain undamaged.

A course on how to write rules, or laws (legislative drafting) is taught at the University of London. The course price is £11,000. I understand there is a similar course in Barbados.