As Parliament is the one that makes the law, the role of judges is to interpret Parliament’s words, while maintaining neutrality and having no bias towards the outcome of the case. They get specific creative power in the manner in which they interpret legislation and like in any other situation, the legislation can have multiple meanings dependent on the context. Parliament can create legislation that is obscure or vague, has multiple meanings, or some events of the case may be unforeseen at the time so in this circumstance judges need to provide legislation with meaning. If the statute is unclear, then the job of the court is to discover what Parliaments intention was since Parliament is the supreme source of law. This normally leads to two contrasting views on how the judges should interpret the legislation before them – either through a literal or a purposive approach.
Rules of Interpretation
Where there is no interpretation section and a general interpretation act does not apply, then a number of rules may be applied. The three traditional rules of statutory interpretation are the literal, golden, and mischief rule.
Under the literal rule, the judge considers what the legislation actually says, rather than what it might mean. To get to this point, the judge will give the words in the act a literal meaning, even if the effect of this is to produce what might be considered an unjust or undesirable outcome. Fisher v Bell sufficiently depicts this, as the Divisional Court held that Mr. Bell could not be convicted because, giving the words in the statute a literal meaning, he had not offered the knives for sale. Placing something in a shop window is not technically an offer for sale, rather it is merely an invitation to treat, and it is the customer who makes an offer to the shop when he offers money for an item on sale.
In the case of Whitely v Chappell , the defendant pretended to be someone who was on the voters list but had died. He was charged with impersonating a ‘person entitled to vote’ but was not found guilty since the statute relating to voting rights required a person to be living in order to get a vote.
The advantages of the literal approach are that in this way Parliament is respected while restricting Judicial Activism. However, this can lead to absurdity, and can be useless if the case refers to an idea or technology not invented at the time of legislation.
The golden rule, defined by Lord Wensleydale in Grey v Pearson , states that if the literal rule produces an absurdity, then the court should look for another meaning of the words to avoid getting that absurd result.
Adler v George was an example of how the golden rule was applied, extending the literal wording of the statute to cover the action committed by the defendant. Under the Official Secrets Act 1920 (section 3), it was an offence to obstruct HM Forces in the vicinity of a prohibited place, which Mr. Adler had been arrested for. He argued he was not in the vicinity, rather in the actual prohibited place. The court applied the golden rule, because if the literal rule had been applied, it would have produced absurdity because someone protesting near the base would be committing an offence, whilst someone protesting in it would not.
Overall, the golden rule is applied to prevent absurdity, so that courts can implement Parliaments will, and it allows electorate to decide who makes laws. However, it also has its drawbacks as it does not give a fixed meaning of absurdity and is a less explicit form of the mischief rule.
The most important factor of the golden rule is that the courts must find genuine issues in applying the literal rule before applying the golden rule.
The mischief rule
The mischief rule gives a judge more discretion than the previous rules. It requires the court to look at the law before the legislation was passed in order to discover what gap, or mischief, the legislation was intended to cover. Then, the court needs to interpret the legislation in such a way to ensure that the gap is covered.
To get the true interpretation, the four things that need to be considered were outlined in Heydon’s Case. An example of the use of the mischief rule is found in the case of Corkery v Carpenter . Mr. Corkery was caught being drunk in charge of a bicycle in public and was charged under the Licensing Act 1872 (section 12) by being drunk in charge of a carriage. The act never specifically mentioned bicycles, however the carriage was used on a public highway and therefore the defendant was charged correctly.
As times went on, the approach slightly changed to a more European approach aiming to give effect to the purpose of the legislation. The court is making a decision as to what they felt Parliament meant to achieve, not just looking to see what the gap was in the old law, as explained by Lord Denning in the Court of Appeal stated in Magor and St. Mellons Rural District Council v Newport Corporation . In addition, European Community (EC) legislation can only be determined on the basis of a purposive approach, even though the dominant approach in relation to community legislation and some domestic legislation is the literal approach. A prime example can be seen in Pickstone v Freemans , as Ms. Pickstone alleged that the defendants were in breach of the Equal Pay Act 1970 . Had they used the literal meaning, Freemans would not have been breaching equal pay rights due to the different job descriptions. The House of Lords adopted a purposive approach to allow her claim about being payed less for equal work. In turn, this allowed more focus on meaning behind statutes, allowed more background information and context of legislation to be considered, and it brought the UK in line with European Courts.
Secondary Aids to Interpretation
The most prominent internal secondary aids to interpretation include Title of Act and subheadings of sections, explanatory notes, and language aids. The judges will use the full statute just to understand a particular part of it. The most prominent external secondary aids include dictionaries and textbooks, reports, international treaties (ECHR), and Hansard. This all comes after many years of restricted use by the English courts of other sources.
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