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Statutory Interpretation - introduction

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‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone, ‘it means just what I choose it to mean - neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master - that’s all.

‘Humpty Dumpty’ in Lewis Carroll, Through the Looking Glass.

The courts must uphold the will of Parliament and not try to usurp its powers, but sometimes it necessary to try and understand what the words used by the parliamentary draftsman mean.

Bill of Rights 1689

An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown.

"That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament"

Lord Nicholls in Spath Holme

"Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament. This gives rise to a tension between the need for legal certainty, which is one of the fundamental elements of the rule of law, and the need to give effect to the intention of Parliament, from whatever source that (objectively assessed) intention can be gleaned."

Fothergill v Monarch Airlines Ltd [1981]

Lord Diplock drew attention to the importance of this aspect of the rule of law;

"The source to which Parliament must have intended the citizen to refer is the language of the Act itself. These are the words which Parliament has itself approved as accurately expressing its intentions. If the meaning of those words is clear and unambiguous and does not lead to a result that is manifestly absurd or unreasonable, it would be a confidence trick by Parliament and destructive of all legal certainty if the private citizen could not rely upon that meaning but was required to search through all that had happened before and in the course of the legislative process in order to see whether there was anything to be found from which it could be inferred that Parliament's real intention had not been accurately expressed by the actual words that Parliament had adopted to communicate it to those affected by the legislation."

Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] HL

Lord Reid said:

'We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said. ...I have more than once drawn attention to the practical difficulties... but the difficulty goes deeper. Questions which give rise to debate are rarely those which later have to be decided by the courts. One might take the views of the promoters of a Bill as an indication of the intention of Parliament but any view the promoters may have about the questions which later come before the court will not often appear in Hansard and often those questions have never occurred to the promoters. At best we might get material from which a more or less dubious inference might be drawn as to what the promoters intended or would have intended if they had thought about the matter, and it would, I think, generally be dangerous to attach weight to what some other members of either House may have said... in my view, our best course is to adhere to present practice.'

Problems with language – ambiguous, uncertain, meaning and scope

Obscurity of language that changes over time.

Offences Against the Person Act 1861

Drafted over a century ago uses 'grievous' and 'malicious' which have had to be interpreted as language changes.


"Gay" [contemporary] as in homosexual v "Ernest" [Oscar Wilde’s Victorian] as in homosexual

Telegraph Act 1869

When passed the telephone had not been invented, but judges included telephones when dealing with cases under this Act.

Savage, R v (1991)

‘Malicious’ in s20 interpreted to mean D intended harm or at least saw a risk of it (subjective recklessness)

Imprecise drafting

Hypothetical question

Are roller skates vehicles and therefore banned from parks?

 

Decided question

Is a jet-ski a ship? this was considered in R v Goodwin where at trial it had been held to be a ship, but the Court of Appeal disagreed.

 

"Casement was Hanged on a comma" (sometimes "hanged by a comma")

 

 

"During the First World War, Sir Roger Casement was charged with treason. Casement's defence argued that the Treason Act of 1351 was unpunctuated and that his guilt was therefore not clear-cut.

 

The words of that Act, which was originally written in Norman French, said that, "If a man be adherent to the king's enemies in his realm giving to them aid and comfort in the realm or elsewhere ...", he was guilty of treason.

 

His defence suggested that, since Casement had carefully done all his plotting "elsewhere" (and not "in the realm"), he was technically innocent.

 

The judges went down to the Public Record Office to look at the original statute. They found under a microscope a faint virgule (early version of the comma). It was this comma, inserted by a 14th century scribe (whose only qualification for the job was perhaps neat handwriting) that Casement was sensationally hanged on, 565 years later.

 

Perhaps, the moral of the story is: do not neglect punctuation."

(Referred to in Australian Human Resources Institute Pty Ltd and National Tertiary Education Industry Union (2003).

 

Hurried drafting

Dangerous Dogs Act 1991

This Act has been frequently criticised for causing confusion over which dogs were included and those that are not.

More detail here.

 

Situations not envisaged

Preddy, R v (1996)

D committed a fraud in a way that could never have been anticipated by the legislators. Lead to the Theft Amendment Act 1996.

 

Royal College of Nursing v DHSS (1981) HL

Use of nurses to carry out abortions who used drugs and procedures not thought of when the Act was passed in 1967.

 

Legislation is a linguistic dialogue between Parliament and the courts

No opportunity to ask what Parliament they meant

Because of policy

Because of practicalities.

Statutory Interpretation in any event is an objective view of what Parliament meant. 

At the same time, it creates a tension between Judges and Parliament.

 

Individuality of interpretations

Pre-conceptions

All parties to an action will have different experiences and therefore interpret meanings differently, this is particularly relevant in a multi-cultural society.

 

To have a too wide judicial interpretation would compromise certainty and result in the effect of redrafting of laws by judges

Parliamentary draftsmen, in certain circumstances, deliberately draft legislation ambiguously, if they are unsure as to the effects of the Act, or to allow for future developments, for example, 'dishonesty' is left to the ordinary men and women of the jury

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