How statute is interpreted and applied

Unit 5 of W101 deals with how statute is interpreted and applied, and readers may want to go back to the 4 rules of interpretation prior to continuing:

• The Literal Rule
• The Golden Rule
• The Mischief Rule
• The Purposive Approach to interpretation

Learning outcomes

After studying this unit you should be able to:

• understand the need for statutory interpretation
• understand the role of judges in applying the law
• understand the rules of statutory interpretation
• be aware of the internal and external aids to interpretation
• understand how the judges apply the different rules of interpretation.

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Statutes are drafted by specialist government lawyers called Parliamentary Counsels. They have to choose words with care when drafting legislation, for a number of reasons. Let’s consider some ways statutes may have some problems in interpretation:

• While passing through Parliament, the statute may have been subject to changes, and as a result, some of the wording has changed so that original clarity was lost.
• Due to the number of Bills passing through Parliament (greatly increased in recent years), Parliamentary scrutiny may be less than rigorous due to lack of time. Errors may slip through.
• All languages have ‘an inbuilt imprecision’, leaving words open to ambiguity:
• Words can have different meanings, depending on the context in which they are used.
• The meaning of a word can change over time.
• Unforeseen events or developments (such as in technology) may occur.
• Statutes are drafted in a general way that cannot cover every circumstance, but might need a court to resolve a specific situation.

The relationship of the rules of interpretation

There is no hierarchy in the use of the rules of interpretation. The position has been aptly explained by Lord Reid:

They are not rules in the ordinary sense of having some binding force. They are our servants, not our masters. They are aids to construction, presumptions or pointers. Not infrequently one ‘rule’ points in one direction, another in a different direction. In each case we must look at all relevant circumstances and decide as a matter of judgment what weight to attach to any particular ‘rule’. (Maunsell v Olins [1975] AC 373)

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Aside from the rules of interpretation, judges may use a number of different internal and external aids to help them.

Internal aids are found within the statute, such as explanatory notes, presumptions and rules of language.

Explanatory Notes:

“A judge may look for guidance on the meaning of the Act itself in any definitions sections, headings, side or margin notes etc. Older statutes usually have a ‘Preamble’ at the beginning which sets out Parliament’s purpose in enacting the Act.” Keep in mind that this is for guidance only, as these are not actually part of the statute.

Presumptions:

“The courts have developed certain presumptions when interpreting statutes. The courts assume that certain points are implied in the legislation unless they are rebutted by the words in the statute which indicate something to the contrary.”

Some common presumptions are:

• Statutes do not apply retrospectively. It’s presumed that it is unfair to punish someone for  something that was not a crime when it happened, but later became a crime. It is important for people to know the legal implications of their actions. However, there are some cases where statute will apply retrospectively, but in cases like these, it will be stated in the statute itself. An example is the Adoption Act 1976 was brought into force on 1 January 1988 but replaces an earlier Act retrospectively from 1 January 1976.
• There is a presumption that a mental element (blameworthiness or intention – the mens rea) is required for criminal offences. For crimes that do not require intention (strict liability), the statute will reflect this.

• Statutes do not alter the common law – unless a statute expressly states that the common law has been changed it will remain as it is.

• Statutes do not affect the Crown – unless the statute contains a clear statement to the contrary it is presumed not to apply to the Crown.

• Statutes do not intend to deprive a person of their liberty – unless it explicitly makes provision for this form of punishment.

• Statutes do not intend to conflict with the country’s international law obligations, and so where possible statutes should be interpreted to give effect to existing international legal obligations.

• Statutes are ‘always speaking’ – this means that they need to be interpreted in the modern legal context rather than being fixed with the meaning that they had when they were created.

Rules of Language:

Rules of language are expressed in Latin terms, so students should familiarise themselves in recognising the expressions.

• “Ejusdem generis – this means the same type. If there is a list of specific words followed by general words then the general words are limited to the same kind of items as the specific words. So, for instance, if an Act stated that it applied to ‘dogs, cats, guinea pigs, hamsters and other animals’, then the words ‘other animals’ would be taken to mean animals of a similar type to the preceding list, so it would not include wild animals such as badgers.”
• “Noscitur a sociis – a word is known by the company it keeps. This means that the words in the statute must be looked at in context and interpreted accordingly. The other words in the same section or sections of the Act should be considered. It is wider than ejusdem generis, which only applies to general words at the end of a list of specific words.”
• “Expressio unius est exclusion alterius – this means that the mention of one thing excludes the others. Where specific words are used and not followed by any general words then the Act applies only to the specific words.”

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“Some external aids have long been used to provide helpful guidance on the meaning of the words in a statute – these include:

• Other Acts of Parliament on the same topic have been used when applying the mischief rule.
• Dictionaries may be consulted to find the meaning of a word.

• The Interpretation Act 1978 – this Act sounds more promising than it is, but it does provide a number of standard meanings which can be applied to Acts of Parliament. For instance, the word ‘land’ includes land, buildings and other structures. Section 6 is particularly well-used:

  Section 6 of the Interpretation Act 1978 provides:

  In any Act, unless the contrary intention appears, —

  • (a) words importing the masculine gender include the feminine;
  • (b) words importing the feminine gender include the masculine;
  • (c) words in the singular include the plural and words in the plural include the singular.
• Textbooks/academic commentary on the relevant legal issue may be consulted.
• International treaties and conventions can be given national effect and are incorporated into an Act of Parliament. The courts may consult the wording of the original treaty or convention to ensure that they give effect to its true meaning.

Other external aids have been more controversial in their use by the courts. The courts have traditionally taken a restricted approach to what can be considered when interpreting a statute. However, this attitude has been considerably relaxed with the increased use of the purposive approach and judges will now consider the following:

• Reports – legislation is often preceded by a report highlighting issues of concern. These reports may be the work of ad hoc committees or commissions set up to consider a particular issue. Alternatively, they may be the work of one of the permanent law reform bodies such as the Law Commission. Its reports do on occasion lead to legislation. For instance, the Law Commission consultation paper Reforming Bribery (2008) formed the basis for the Bribery Act 2010 which updated the laws on bribery and corruption.
• Pre-parliamentary materials – Green and White Papers are prepared by government departments in preparation for new legislation.

• Hansard – contains the official daily ad verbatim report of parliamentary debates in the House of Commons and the House of Lords. It provides a record of what was said as the legislation was in the process of being approved by Parliament.”

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