Doctrine of precedent, rules of interpretation & separation of powers

Question 1 Judges are set by the Doctrine of Precedent to decide the outcome of cases. Stare Decisis states that like cases should be treated so. For two separate cases of assault with similar circumstances, the Judge should follow the Doctrine of Precedent giving both cases the same sentence by following the decision made by … Read more

Delegated legislation, statutory interpretation & the common law system

Question 1) (A) What Is Delegated Legislation? Delegated legislation is written in an Act of Parliament, but is not made in Parliament itself. The Act of Parliament (also known as the enabling Act) delegates limited law-making powers to an individual or organisation. Delegated legislation is regarded as having the authority of Parliament as it is … Read more

‘Judges do every day make law, though it is almost heresy to say so.’ Discuss.

By getting a chance to discuss with reference to the rules of statutory interpretation, I will indicate whether I agree or disagree with the statement and if there is a need of statutory interpretation. Laws in United Kingdom are suggested by us, and it gets passed to the House of Parliament where it turns out … Read more

Critically analyse the literal and purposive approaches to statutory interpretation

Introduction Statutes consist of written rules or regulations, agreed by Parliament or other legislators. In order for statutes to be enacted, the words of the statute have to be understood, interpreted and applied. Statutes can be valid for many years despite changing social, political, technological, linguistic and economic landscapes. For example, certain sections of the … Read more

Do judges act as deputy legislators?

“In fact,…, judges neither should be nor are deputy legislators, and the familiar assumption, that when they go beyond political decisions already made by someone else they are legislating, is misleading.” (Ronald Dworkin) Discuss by reference to ONE judgement in Fuller, ‘The Case of the Speluncean Explorers’ (1949) and by reference to Lloyds Bank v … Read more

About Statutory Interpretation

Judges have often said that the aim of statutory interpretation is to ascertain and give effect to the intention of Parliament (source).

To do this, a number of rules may be applied when interpreting a piece of legislation.

These include:

  • The literal rule
  • The golden rule
  • The mischief rule
  • The purposive approach

The literal rule is the starting point for any interpretation – it requires courts pay respect to the literal language of the statutory provision. They must interpret the legislation using the ordinary and natural meaning of the words used.

Where the meaning of the statutory words is plain and unambiguous it is not then for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they consider the consequences for doing so would be inexpedient, or even unjust or immoral.

Duport Steel v Sirs (1980)

The oft-quoted case illustrating this rule is Fisher v Bell (1960).

  • Under the Restriction of Offensive Weapons Act 1959 it was an offence to offer for sale certain offensive weapons including flick knives.
  • Bristol shopkeeper James Bell displayed a weapon of this type in his shop window in the arcade at Broadmead.
  • The Divisional Court held that he could not be convicted because, giving the words in the statute a tight literal meaning, Mr Bell had not offered the knives for sale.
  • Under contract law, placing something in a shop window is an ‘invitation to treat’, rather than an offer for sale. The customer makes the offer when he puts up money in payment for the item.
  • Parliament subsequently changed the law.

The use of this rule can sometimes lead to absurdities and loopholes which can be exploited by an unmeritorious litigant (source).

Where using the literal rule would lead to such absurdity, judges may instead look to the golden rule which requires them to look for another meaning of the words to avoid that absurd result.

As set out by Lord Wensleydale in Grey v Pearson (1857) HL Cas 61:

The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no farther.

An example of the court applying the Golden rule can be found in Re Sigsworth (1935) concerning a case where a son had murdered his mother.

Since the mother had not made a Will, the son stood, as her next of kin, to inherit her estate under the Administration of Justice Act 1925.

Whilst there was no ambiguity in the legislation, applying it literally would produce an absurd result – and the courts were not prepared to allow someone to benefit from their crime in such a manner. The golden rule was therefore used and the son did not inherit.

Sometimes neither rule is of use to a court. Enter the mischief rule. This rule allows the court to look behind the making of the legislation. It is set out in Heydon’s Case (1584) and four things must be considered:

  1. What was the common law before the making of the Act?
  2. What was the mischief and defect for which the common law did not provide?
  3. What remedy Parliament hath resolved and appointed to cure the disease of the Commonwealth?
  4. The true reason of the remedy; and then the office of the Judges is to make such construction as shall suppress the mischief and advance the remedy.

Perhaps the most famous case illustrating the mischief rule was Corkery v Carpenter (1951).

The facts of the case involved the defendant who was drunk and was pushing his pedal bicycle along the street. He was subsequently charged under section 12 of the Licensing Act 1872 with being drunk in charge of a “carriage”.

The 1872 Act made no reference to “bicycles”. The court, applying the mischief rule, found that the purpose of the Act was to prevent people from using any form of transport on a public highway whilst in a state of intoxication. Since the bicycle was clearly a form of transport, the defendant had been correctly charged.

A fourth means of statutory interpretation has emerged in more recent times. Rather than simply look at what the law was previously, the courts have begun to examine what Parliament was trying to achieve. The approach was always used when interpreting European Law, although Britain has of course now left the EU.

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.

An example of how the courts have taken this approach can be found in Pickstone v Freemans plc (1998).

  • Women warehouse operatives were paid the same as male warehouse operatives.
  • The work of the warehouse operatives was of equal value to that done by male warehouse checkers who were paid £1.22 per week.
  • The employers argued that a woman warehouse operative was employed to do the same work as the male warehouse operatives, so she could not bring a claim under the Equal Pay Act 1970 section 1(2) (c) 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 (source).

In short, her work as a warehouse operative was seen as equal in value to the work that the male warehouse checkers were doing. The fact that there were male warehouse operatives who were also receiving the same lower sum as Miss Pickstone was not a bar to her claim.