SS.3 & 4 in the Courts

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S.3 interpretive requirement: primary legislation must be read in line with Convention rights

S.4 incompatibility declarations

Ordinary Domestic Statutory Interpretation

Look at existing statutory interpretation tools

• F. A. R Bennion: acknowledges the grey areas of statutory interpretation – it evinces a flexible, creative power in the courts

Interpretation Act 1978: Parliament’s guidance to courts about interpretation & since 1999 all bills have been accompanied by explanatory explanations

• The literal rule: all words given literal or natural meaning

  • Respectful of parliamentary sovereignty

    • Lord Esher, R v City of London Court Judge 1892: “If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity.”

  • Clouding of their intention

    • Fisher v Bell: finding of invitation to treat where knives on display - literal rule precluding purposive interpretationoweHowelkjh

  • No room for human error

    • Law Commission 1969 - literal rule “assumes unattainable perfection in draftsmanship”

• The golden rule: if the literal rule gives an absurd result and the outcome is clearly not what parliament intended, only then can the judge substitute a reasonable meaning

  • Respectful of parliamentary sovereignty

    • R (on the application of Haw) v Secretary of State for the Home Department interpreted the literal meaning of ‘starts’ to give effect to PI

  • Reduces the injustice/absurdity of the literal rule

    • Lord Wensleydale in Grey v Pearson 1857, “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…”

    • Applied in R v Allen 1872: bigamy wording of ‘marry’ to mean ‘go through a marriage ceremony’

  • Law Commission points out no definition of ‘absurdity’

• The mischief rule: judge must ask what problem or 'mischief' the statute was trying to remedy & interpret in such a way that carries out parliament's wishes

  • Reduces the injustice/absurdity of literal rule

    • Royal College of Nursing v DHSS 1981 interpretation of ‘registered medical practitioner’ to include nurses for abortions because the mischief the Act was trying to remedy was the use of backstreet abortionists

  • Enables too much freedom to the courts?

    • Heydon’s Case was decided when statute was a minor source of law & parliamentary supremacy were not yet secure

• Purposive approach: relatively new trend influenced by European approach - opposite of literal rule; focus on giving effect to the purpose of the legislation

  • Heralds the intention of legislation

    • Lord Denning at forefront of enacting 'spirit of the law' rather than literal words. In Magor and St Mellons Rural District Council v Newport Corporation 1952, “we sit here to find out the intention of Parliament and carry it out”

• Rectification: words can be added to a statute by a judge to give effect to Parliament's intention where an obvious error has been made

  • Restricted to plain cases of drafting mistake

    • Inco Europe Ltd v First Choice Distribution 2000

ECHR & HRA 1998

• S.3 & S.4 HRA

• ECHR has not been included as a Bill of Rights, like in other European countries, so it does not overrule domestic laws

• However wide interpretative powers may give it practical ascendency

EU law:

• S.2(4) European Communities Act 1972: source of EU supremacy over the laws of member states

  • Factortame: directly enforceable EU rights must overrule any element of national law

  • Marleasing principle: interpretation of domestic law which is to any degree open to interpretation ‘as far as possible’ in accordance with EU directives

Aids to interpretation:

• Internal aids:

  • Other provisions in the statute

  • Explanatory notes (post-1999)

  • Rules of language developed by lawyers:

    • Ejusdem generis: general words which follow specific ones include only things of that kind eg 'dogs, cats and other animals', 'other animals' means domestic animals

    • Expressio unius est exclusio alterius - mention of one thing implies exclusion of another

    • Noscitur a sociis - a word draws meaning from the other words around it eg 'cat baskets, cat flap and food', 'food' means cat food

  • Presumptions (though Parliament can go against these if they are explicit in the statute):

    • Statutes do not change the common law

    • Legislature does not intend to remove any matters from the jurisdiction of the courts

    • Existing rights are not to be interfered with

    • Laws which create crimes should be interpreted in favour of the citizen where there is ambiguity

    • Statutes are not retroactive

      • European Communities Act 1972 is an example of a statute in which some provisions were explicitly made retroactive

    • Statutes do not affect the monarch

    • Statutes are ‘always speaking’ i.e. fluid modern legal context – they are not fixed in their point of time

• External aids (mischief rule directs judges to use external aids)

  • Historical setting

  • Dictionaries & textbooks

  • Reports

  • Treaties

  • Previous practice i.e. general practice/commercial usage in the relevant field

  • Hansard (daily report of parliamentary debates – includes the intro to legislation only)

    • Wilson v Secretary of State for Trade and Industry: restrictive use

• HRA 1998

• Dworkin: statute should be interpreted according to the most consistent possible reading within the law as a unified whole

• John Willis: premise that the three rules are conflicting as they each produce a different interpretation; he would give the court discretion to apply the rule which ensures the just result

• Griffith: the subjectivity of statutory interpretation leaves it open for judges to input political bias, which is not the place for the judicial arm of powers

Rule of Construction

S.3 HRA – duty to interpret legislation in a compatible way with Convention rights

Meaning of ‘possible’ – what is the intensity of the duty?

• ‘Possible’ means after having...

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