W101 Skills – 1: How to read legislation

© The Open University

Remember that legislation is also known as statute or written law or Acts of Parliament. There is a standard format used in presenting Acts of Parliament, as shown in the picture above. Most statutes show:

• parts – each part deals with a different aspect. Each part is divided into:
  • sections – abbreviated as s (singular) and ss (plural). Sections lay out the actual provisions of the Act and are further sub-divided into:
    • sub-sections – abbreviated as sub-s (singular) and sub-ss (plural) and further sub-divided into:
      • paragraphs – abbreviated as para (singular) or paras (plural) and further sub-divided into:
        • subparagraphs – abbreviated as sub-para (singular) or sub-paras (plural).

At the end of the statute there will often be schedules and these are numerically divided. They relate to the sections of the Act and usually deal with the detail referred to from the sections. They cannot create anything new that is not contained in the main body of the Act.

© The Open University

A great resource for lawyers and law students is the Parliament webpage (upcoming and new legislation) and the Government’s official legislation webpage, where one can find most of the statutes that are in effect (and all from 1988).

Here is a PDF file with more details on how to read statutes, from the Georgetown University Law Centre. You can also view a video here from Oxford University Press which explains Acts of Parliament and also how to read them.

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.

© The Open University

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)

© The Open University

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.”

© The Open University

“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.”

© The Open University

Primary and Secondary Legislation

Primary legislation is also known as enabling legislation. You may also hear such legislation being referred to as ‘parent’ Acts or ‘parent’ legislation. This is not a complex idea. It really means that Parliament has created an Act of Parliament that devolves (pass on or delegate to another) some power to a subordinate person or body, who is allowed, usually in limited circumstances, to make rules or subsidiary law (delegated or secondary legislation). The important point to note is that the delegated or secondary legislation is given powers only by the parent legislation. If the delegated or secondary legislation is within the scope of the parent or enabling Act, it are said to be intra vires (a Latin term meaning ‘within the powers’). If the delegated or secondary legislation lie outside the scope of the parent or enabling Act, it is said to be ultra vires (or ‘outside the powers’). The process of investigating whether the delegated or secondary legislation lies within or outside the scope of the primary legislation is known as judicial review.

There are two types of secondary legislation (some universities may mention 3).  Dr Stephanie Pywell, writing in the New Law Journal (2013, p. 231) explains why there are 2 and not 3 types of secondary legislation:

The nature and classification of delegated legislation features in most introductory level law courses. For many years, most students have been taught that they are three types of delegated legislation: statutory instruments (SI), byelaws and Orders in Council. Research using Parliamentary papers indicates, however, that this method of classification is misleading, and that it is appropriate to identify two distinct types of delegated legislation: statutory instruments, of which there can be considered to be five forms, and byelaws.

Forms of statutory instrument:

SIs were created by the Statutory Instruments Act 1946. Section 1(1) is entitled "Definition of' Statutory Instrument'" and provides that there are two ways in which delegated legislation ("orders, rules, regulations or other subordinate legislation") may be made. If the law-making power is conferred on the Crown it is exercisable by Order in Council; if it is conferred on a minister, it is exercisable by SI. In either case, the resulting document "shall be known as a 'statutory instrument'". By definition therefore, Orders in Council are a form of SI, rather than a separate type of delegated legislation.

Additionally, the standard reference document used in the drafting of SI's (Statutory Instrument Practice: a manual for those concerned with the preparation of statutory instruments and the Parliamentary procedures relating to them [Fourth edition]) identifies at paragraph 1.5.3 another UK-wide SI called Order of Council.

So what are these 5 types of Statutory Instruments (SIs)? They are Orders in Council, Orders of Council, orders, rules, and regulations. I’ll discuss each below:

Orders in Council:

Orders in Council require the personal consent of the Queen but are issued by and with the advice of the Queen’s Privy Council. They are used when ordinary ministerial transfer of powers would not suffice. For example, an Order in Council was made to appoint Theresa May as the First Lord of the Treasury when she became Prime Minister on 19th May 2016.

Orders of Council:

Orders of Council are made by the Privy Council and have the force of law, but do not require the personal consent of the Queen. “Again these can be statutory or Prerogative. Whether statutory Orders are also Statutory Instruments depends on the wording of the particular Act under which they are made. Examples of statutory Orders of Council include approval of regulations made by the General Medical Council and other regulatory bodies. Examples of prerogative Orders of Council include approval of amendments to the By-laws of Chartered bodies.”

Orders:

"Orders are usually made by government ministers, and serve a specific, closely defined purpose. They should be used for executive powers and judicial and quasi-judicial decisions. Four specific types of order – Commencement Orders, Legislative Reform Orders, Remedial Orders and Public Body Orders – are worthy of particular mention because of the important purposes that they serve." [Pywell, 2013]

Commencement Orders

Commencement Orders (COs) bring into effect one or more sections of an Act of Parliament. They are widely used because it is often the case that not all of an Act comes into force on the date on which it receives the Royal Assent. It is common for an Act to include wording such as: "The provisions of this Act come into force on such day as the Secretary of State may by order appoint". [Pywell, 2013]

Legislative Reform Orders

Legislative Reform Orders are made under the Legislative and Regulatory Reform Act 2006 (LRRA 2006) and enable ministers to effect changes to primary legislation. You may recall that these are known as “Henry VIII clauses” and are often controversial. "A minister proposing an LRO must demonstrate that the proposed legislation is needed, is proportionate, represents a fair balance of interests, does not remove any necessary protection, does not unreasonably interfere with rights and freedoms, and has no constitutional significance." [Pywell, 2013]

Remedial Orders

Remedial Orders are used to correct shortcomings in existing legislation such as when a court declares legislative provisions to be incompatible with the European Convention on Human Rights, or when the European Court of Human Rights has determined that an individual's Convention rights have been infringed. Remedial Orders can have retrospective effect and must normally be laid before Parliament before they become law. An example of a Remedial Order is the Terrorism Act 2000 (Remedial) Order 2011, which repealed the extensive stop and search powers and replace them with powers that could be only exercised in much more limited circumstances. [Pywell, 2013]

Public Bodies Orders

The Public Bodies Act 2011 permits ministers to abolish, merge or modify the constitutional and funding arrangements of public bodies.

Rules:

Rules set out procedural laws, that is, they set out how things should be done rather than what should be done. The best-known example of rules are probably the Civil Procedure Rules 1998 (SI 1998/3132) which govern the running of the civil court system.

Regulations:

"Regulations are used to make substantive law – often amendments to existing primary or secondary legislation – and are frequently technical in nature. Regulations enable the law to be maintained and kept up-to-date and students should think of them when they learn that the advantages of delegated legislation include the use of expert advice to create detailed provisions and the result in saving of Parliamentary time. " Think of building regulations. [Pywell, 2013]

All of the above are forms of statutory instruments. The other remaining type of secondary legislation is byelaws.

Byelaws

Byelaws are made under the limited law-making powers conferred on local authorities and statutory bodies. They must be authorised by a Secretary of State (byelaws can create criminal offences and therefore must be duly authorised) and can deal only with matters within the jurisdiction of the maker. They usually reflect concerns within a local area.