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Rules of Construction and Statutory Interpretation - Unit 3

Coverage:

·        Why need for statutory interpretation?

·        Literal rule     

·        Golden rule    

·        Mischief rule  

·        Rules of language     

·        Aids to interpretation

Question:

Discuss why are the rules of statutory construction and the purposive approach needed, and explain these rules and approach.

Suggested answer:

Judges interpret the meaning of a statute by using rules of construction. However these rules are not binding on judges but are methods of interpreting legislation. They are aids/guidelines. Nor are judges obligated to state which rule was used to interpret a particular statute.  In fact it is possible for legislation’s to be interpreted without using any rule at all.

Still because words can have different meanings and the meaning of the word can change depending on its context, it is important to have established and understood rules of interpretation. Therefore need for interpretation is obvious. In many instances the wording in a statue can be ambiguous, obscure and meaningless.  In order for Judges to determine the meaning of legislation they approach it through the rules of construction.

A further problem is that legislation often must be written, or drafted in such a way so as to ensure it can be applied in the variety of circumstances of modern and changing society, without the need to detail each and every of those situations individually.  Clear this generality can only be achieved at the expense of clarity and precision of language. Hence the need for rules of interpretation. Rules if construction should not be confused with other aids to interpretation (e.g. internal and external aids and language aids or even the Interpretation Act 1978).

In English law there are three rules of construction; they are the Literal rule, golden rule and mischief rule. The rules examine the wording of the particular statute and are the most common approach of interpretation of the English legal system.

1.                  The Literal Rule

The literal rule simply states that words in the statute must be in their plain, and ordinary meaning. So that if the words of a statute are clear, they must be interpreted accordance with that ordinary meaning – however absurd or’ unfair’ the conclusion. The basis of this rule is that according to the doctrine of parliamentary supremacy, judges are not allowed to ‘make’ law. However, this position is regarded as untenable as interpretation could be construed as being the equivalent as making laws; particularly the interpretation of vague and generally written legislation. 

Notwithstanding, to avoid allegations of lawmaking, many judges stick to the literal meaning of words.  But the too rigid use of this rule has the inherent danger of defeating the ‘intention’ of Parliament, and may lead to absurd, obnoxious conclusions.

A good example of the literal meaning defeating the intent of parliament is Whiteley v. Chappell (1986) LR4 QB 147.  In that case the court held that on a literal interpretation of the words of the particular legislation, Whiteley could not be convicted of impersonating “any person entitled to vote’ at an election”, as the person he had impersonated was dead.  On a plain, or literal interpretation the ‘deceased are not entitled to vote’ so, Whiteley did not commit that crime.  No doubt this was probably not the intent of Parliament in passing the piece of legislation, but is was the logical conclusion if one used the literal.

In Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd [1983] 1 ALL ER 101, Securicor were contracted to provide security for two fishing boats which happened to sink in Aberdeen Harbour.  A clause was written in Securicors’ contract limiting liability for ‘failure in the provision of services’ to £1000.  The House of Lords held that the clause applied even though Securicor failed to provide any security on that occasion.

2.                  The Golden Rule

The Golden Rule is really an elaboration, extension or moderation of the literal rule.  It states that words should be used in their literal meaning only to the extent that it those not produce an absurd or intolerable conclusion, or result.  The rule can be applied in two ways.

Firstly by the narrow meaning whereby if there is ambiguity in the words of the legislation, preference will be given to the meaning of the word, which does not result in absurdity. In Adler v George [1964] 2 QB 7, the defendant had been charged under s.3 of the Official Secrets Act 1920, under which it is an offence to obstruct HM forces ‘in the vicinity of any prohibited place’.  The defendant carried out the obstruction inside the area.  The defendant was found guilty of the charge - the court did not limit itself to the literal wording of the Act. 

The second use is the wider or broad approach. It is used to avoid an outcome, which is absurd or obnoxious to principles of public policy even if the word(s) only have one meaning.  In the case of Re Sigsworth [1935] Ch 89. This was a case of murder and inheritance.  Under s.46 of the Administration of Estates Act 1925, a person, could not inherit the estate of the decease if they had murdered that other person, otherwise the murderer would benefit from his/her crime.

To avoid this absurdity the court held that under s.46 of the Administration of Estates Act 1925, a son who had murdered his mother could not profit from that crime even though there was only one literal meaning to the word ‘issue’ (i.e. blood offspring) in the Act. However, in this case, having killed his mother, the son then committed suicide, thus prevent the son’s relatives benefiting on his death for an offence they had nothing to do with. It’s debateable that this was Parliament’s intention.

3.                  The Mischief Rule

The Mischief Rule is a somewhat older rule, and is sometimes referred to as the rule in Heydon’s case ((1584) 3 Co Rep 7a).  It can be by the court used to interpret a statue that was passed to remedy a common law (case law) defect, lacuna or loophole.  A look at the dictionary would reveal that the word ‘mischief’ has numerous meanings, such as harm or wrong.  The judges use this rule to decide what ‘mischief’, or loophole the statute was intended to correct or close. In so doing the judges go beyond the words of the statute to ascertain what ‘mischief’ or harm the statute was intended to remedy. 

In applying this rule the court will consider four principles:

1.                  What was the (common) law before the rule was passed?

2.                  What solution was offered by parliament?

3.                  What is the true reason for the solution?

4.                  What was the ‘mischief’ the law did not solve?

Take for example Corkery v Carpenter [1951] 1 KB 102, [1956] 2 ALL ER 745. Under s.12 of the Licensing Act 1872, a person found under the influence of alcohol whilst in charge of a ‘carriage’ could be arrested without a warrant.  In that case the court interpreted ‘carriage’ to include a bicycle.  The court obviously felt that the intention of Parliament in passing the legislation was to protect the public from drunken people in driving vehicles on the roads or public places. A bicycle is clearly a form of carriage or transportation. It would have produced an absurd result had a literal interpretation been used. 

THE PURPOSIVE APPROACH

An alternative method is the purposive approach, which looks outside the wording of the statute. The rule is used in the interpretation of statutes involving European Community Law, as their legislation is drafted in favour of simplicity whilst setting out the general principles with a high element of abstraction.  European Communities legislation is drafted in a very different way to English Legislation. The EC favours a civil law approach and is a simpler drafting. 

The purposive approach is required for all EC law under s.2 (4) of the European Communities Act 1972. Where there is a conflict between EC law and UK law, UK courts must choose an approach that interprets legislation implementing EC law. The courts must consider wide economic and social aims of the EC/EU. 

In Lister v. Forth Dry Dock and Engineering Co Ltd [1989] 1 ALL ER 1134 a business was sold or transferred to new ownership. One hour before transfer of ownership the employees were dismissed.  Employees claimed to have been unfairly dismissed.  Under regulation 5 of the transfer of undertakings (a statutory instrument implemented in the UK to give effect to an EC directive), it was provided that a transfer does not terminate employment ‘immediately before a transfer’ took place.  Using a Purposive approach the House of Lords implied these additional words into the statutory instrument: “or would have been so employed if he had not been unfairly dismissed before the transfer” for a reason connected with the transfer.  Since the aim of the statutory instrument was to protect employees’ rights it was necessary to import these additional words using the purposive approach to ensure proper implementation of the EC Directive.

Generally speaking therefore it can be said that there are two contrasting views as to how judges should interpret a statute. Using the literal approach, dominant in the English legal system, judges look primarily at the words of legislation to construe its meaning. Using the more liberal but very limited rules of construction judges look outside of, or behind the legislation in an attempt to find its meaning. It is evident that there are several ways for statutes to be interpreted.  The literal and, to a lesser extent the, golden rules look to the actual wording of the statutes. The mischief and purposive approach go beyond that. Judges cannot make law, that is the role of Parliament, but they can and do try to give effect to Parliament’s intentions by using the later three rules/approach to statutory interpretation. This many would say, allows judges to create law, by assuming to know Parliament’s true intention in a given piece of legislation or provision of it. It can be seen as the courts interfering in areas outside their remit, as per the doctrine of Separation of Powers.

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