10 Dec 2010

The mischief rule

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.



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