Ryburn Statutory Interpretation

What is the four stage test to consider the mischief in a Statute?

(a) What was the law before the statute was passed (i.e. the common law)? (b) What was the 'mischief and defect' which was not remedied by the existing law? (c) What remedy did Parliament propose to put it right? (d) What is the true reason for the remedy?

Explain the narrow use of the golden rule?

Imagine you see a sign saying 'Do not use lifts in case of fire'. If you interpret this sign literally you will never use the lifts just in case there is a fire. R v. Allen (1872) LR 1 CCR 367 required an interpretation of s. 57 of the Offences against the Person Act 1861. This section provided that: 'Whosoever being married, shall marry any other person during the lifetime of his spouse . . .' shall commit the offence of bigamy. If the word 'marry' had been given a literal interpretation it would be impossible for anyone ever to commit this offence as one cannot marry if one is already married! The court therefore interpreted the word as meaning 'going through the ceremony' of marriage.

Explain the wider use of the golden rule?

In Re Sigsworth [1935] Ch 89, the court had to consider the meaning of s. 46 of the Administration of Estates Act 1925, in a case where the son had murdered his mother. As there was no will, under the intestacy rules as set out in the Act, the son would have inherited his mother's residuary estate as her 'issue' (child). There was no ambiguity in the Act, but the court held that the son, as issue, could not inherit because this would produce an obnoxious result, contrary to the general principle of public policy, that a murderer should not reap the fruits of his crime. As a consequence, the judges effectively wrote into the Act that the 'issue' would not be entitled to inherit where they had killed the deceased.

What is the effect of the Human Rights Act 1998 on statutory Interpretation?

Section 3 of the Human Rights Act 1998 provides that, 'so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights'. If the court cannot achieve this then it may make a declaration of incompatibility in respect of the relevant piece of legislation (under s. 4 of the 1998 Act).

What is a "rule of construction"?

The expression 'rules of construction' is a term used to distinguish the 'rules' of statutory interpretation from any other rules or aids. Note the use of the word 'construction' which in a legal context means the same as 'interpretation'. It is important to realise that these 'rules' are not binding and in fact they are really different methods of approaching the interpretation of statutes and are therefore not rules in the strict sense of the word.

What is the "the golden rule"?

The golden rule is an adaptation of the literal rule. It provides that words should be given their ordinary meaning as far as possible, but only to the extent that they do not produce an absurd or totally obnoxious result: '. . . the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity 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 that absurdity or inconsistency, but not farther. (Lord Wensleydale in Grey v. Pearson (1857) 6 HL Cas 61)'

What are the two ways the golden rule may be used?

The golden rule is applied most frequently in a narrow sense where there is some ambiguity or absurdity in the words themselves. The second use of the golden rule is in a wider sense; to avoid a result which is obnoxious to principles of public policy, even where words have only one meaning.

What is "the mischief rule"?

The mischief rule requires the interpreter of the statute to ascertain the legislator's intention. This is sometimes called the rule in Heydon's Case ((1584) 3 Co Rep 7a), because this was the case which set down the four principles below, for the interpretation of a statute where there is an ambiguity.

What is "the purposive approach"?

The purposive approach is a more modern style of interpreting statutes and it has largely overtaken the mischief rule in relevance. Judges look at the reasons why the statute was passed and its purpose, even if it means distorting the ordinary meaning of the words. This approach has been influenced by our membership of the European Union as it is widely used in European law, which is drafted with the expectation that judges will consider the policy behind the words. However, the principle is not confined to EU law and judges frequently adopt a purposive approach when considering all types of statute.

What problems are there with the literal rule?

There is always the danger that a particular interpretation may be the equivalent of making law, and therefore some judges prefer to stick to the literal rule so as to avoid this danger. For instance, in the case of Whiteley v. Chappell (1868) LR 4 QB 147 the defendant pretended to be someone who was on the voters' list, but who had died. He was charged with impersonating 'a person entitled to vote', but was found not guilty. The reluctant conclusion drawn by the court was that the defendant could not be convicted of the statutory offence because the person he impersonated was dead, and on a literal construction of the relevant statutory provision, a dead person was not 'a person entitled to vote'.

What problems are there with the literal rule?(cont)

These decisions surely cannot have been the intention of Parliament and the cases might well be decided differently today due to the increasing use of the 'purposive approach', discussed below. However, the literal rule does not take into account the consequences of a literal interpretation, only whether words have a clear meaning which makes sense in that context. If Parliament does not like the literal interpretation, then it can always amend the legislation.

What rule of construction does EU Law use?

Under the European Communities Act 1972, the court must adopt a purposive approach in construing legislation which implements EU law. EU legislation is drafted in a very different way from English statutes. It follows the civil law tradition, which favours simplicity of drafting and a high degree of abstraction, rather than the exhaustive approach adopted in the UK. This means that a purposive approach is vital when interpreting legislation, so that questions of wide economic or social aims are often considered by the courts.

How does the mischief rule differ from the purposive approach?

Use the mischief rule to look backwards at the root of the problem. Use purposive apprach to look forwards at the aim of the legislation.

What problems are there with the literal rule?(cont)

Using the literal rule can also lead to injustice. For example, in the case of London & North Eastern Railway Co. v. Berriman [1946] AC 278, a railway worker's widow claimed damages from her husband's employer after her husband was killed when oiling points. Under the relevant statutes, she would have been entitled to compensation if her husband had been 'relaying or repairing' the points. Unfortunately for her, the House of Lords held he had merely been 'maintaining' them, so she was denied compensation.

What is the literal rule?

Words must be given their plain, ordinary and literal meaning. If the words are clear, they must be applied, even though the intention of the legislator may have been different or the result is harsh or undesirable. An explanation of the rule was given in the Sussex Peerage Case (1844) 1 Cl & Fin 85: 'The only rule for construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the Statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in that natural and ordinary sense. The words themselves alone do, in such a case, best declare the intention of the law giver.'