Legal Skills - Using Legislation PDF

4. Using legislation Legal Skills (9th edn) Emily Finch and Stefan Fafinski p. 64 4. Using legislation Emily Finch, and Stefan Fafinski https://doi.org/10.1093/he/9780192873088.003.0004 Published in print: 14 July 2023 Published online: August 2023 Abstract This chapter discusses how to use legislation. It first looks at the ‘anatomy’ of an Act of Parliament and describes each of its composite parts. It then considers the various means by which the courts can interpret the wording of statutory provisions, including a discussion of the impact of the Human Rights Act 1998 and the European Communities Act 1972. Keywords: Keywords, statutory interpretation, literal rule, golden rule, mischief rule, purposive approach, teleological approach, Human Rights Act 1998, European Communities Act 1972 Introduction The place of legislation within the range of sources of law was covered in chapter 2 whilst various means of finding legislation were considered in chapter 3. Having learnt where legislation fits into the structure of the legal system and how it can be found, this chapter will discuss how to use legislation. It will firstly look at the ‘anatomy’ of an Act of Parliament and describe each of its composite parts. It will then move on to consider the various means by which the courts can interpret the wording of statutory provisions, including a discussion of the Human Rights Act 1998 and the influence that EU law has had on statutory interpretation. Using legislation is an important legal skill. Legislation is a primary source of law and represents the will of Parliament as the legislature. Therefore it is essential that you are able to negotiate your way around a piece of legislation and understand how it all fits together. You will also need to be able to interpret potentially ambiguous legislative provisions to determine whether they will support your argument or whether an interpretation could be found that might go against your argument. Most importantly, using and understanding legislation is vital to the study of every area of law. Page 1 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation Learning outcomes After studying this chapter, you will be able to: Navigate an Act of Parliament and a statutory instrument and distinguish its component parts Interpret the possible meanings of a legislative provision in the case of ambiguity Describe the impact that the Human Rights Act 1998 and the European Union (Withdrawal) Act 2018 have had on the interpretation of legislation, and appreciate the likely impact should the Retained EU Law (Revocation and Reform) Bill come into force. 4.1 Anatomy of an Act of Parliament In order to make any sense at all of a statute, you will need first to understand the way in which it is structured. We will use the Police, Crime, Sentencing and Courts Act 2022 as an example. Look at the p. 65 extracts from the statute provided. You will see that a number of areas of ↵ the statute have been highlighted which we will cover in turn as we go through this section (see Figure 4.1). Page 2 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation Figure 4.1 Police, Crime, Sentencing and Courts Act 2022 Contains public sector information licensed under the Open Government Licence v3.0 Page 3 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation p. 66 4.1.1 Short title ① The short title of this Act is the ‘Police, Crime, Sentencing and Courts Act 2022’. The short title is the normal way in which to refer to a statute. In this example the Act provides its own short title in s 209 (Figure 4.2). Figure 4.2 Police, Crime, Sentencing and Courts Act 2022, s 209 Contains public sector information licensed under the Open Government Licence v3.0 Although the short title for this particular Act is indeed quite short, other Acts may have a long short title, in which case the short title may be informally abbreviated further. Some common examples of informal short-title abbreviations are used for the Police and Criminal Evidence Act 1984 and the Trusts of Land and Appointment of Trustees Act 1996 which for reasons of manageability are almost universally referred to as PACE and TOLATA, respectively. You must remember though that these are not the official short titles. 4.1.2 Citation ② The official citation for this statute is ‘2022 Chapter 32’. Each Act passed in any calendar year is given its own number, known as the chapter number. The official citations—comprising year and chapter number —are therefore unique. In our example, the Police, Crime, Sentencing and Courts Act 2022 was the 32nd statute passed in 2022. The word ‘chapter’ is abbreviated to ‘c.’—an example of this can be seen in the top right-hand corner of the page. As you will see in chapter 13, the official citation is not usually used in referencing, although you may see some international journals (particularly American journals) which do use the chapter number, often in connection with the short title (so they would refer to this as the Police, Crime, Sentencing and Courts Act 2022 (c. 32)). This system of calendar year and chapter number has been used for Acts passed since 1 January 1963 when the Acts of Parliament Numbering and Citation Act 1962 came into force. Prior to that a much more complex system involving ‘regnal years’ was used. This was derived from the year of the sovereign’s reign (the ‘regnal year’) corresponding to the Parliamentary session in which the Act was passed. It was common for Parliamentary sessions to span more than one year, in which case all years are shown. Look at the example in Figure 4.3. Page 4 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation Figure 4.3 Regnal year citation This is the citation for the 100th Act that was passed in the Parliamentary session beginning in the 24th p. 67 year of Queen Victoria’s reign and ending in the 25th year. Like the official citation, it ↵ tells us absolutely nothing about the purpose of the Act itself. This Victorian example is more commonly (and conveniently) known as the Offences against the Person Act 1861. There is a very useful calendar year to regnal year conversion table covering 1235–1962 (when regnal year citations were abandoned as a citation format) available on the JustCite website. 4.1.3 Long title ③ The long title of this statute is ‘An Act to make provision about the police and other emergency workers; to make provision about collaboration between authorities to prevent and reduce serious violence; to make provision about offensive weapons homicide reviews; to make provision for new offences and for the modification of existing offences; to make provision about the powers of the police and other authorities for the purposes of preventing, detecting, investigating or prosecuting crime or investigating other matters; to make provision about the maintenance of public order; to make provision about the removal, storage and disposal of vehicles; to make provision in connection with driving offences; to make provision about cautions; to make provision about bail and remand; to make provision about sentencing, detention, release, management and rehabilitation of offenders; to make provision about secure 16 to 19 Academies; to make provision for and in connection with procedures before courts and tribunals; and for connected purposes’. Generally speaking, the long title of an Act gives an indication as to its purpose and content. Many recent long titles end with the phrase ‘and for connected purposes’ as a catch-all for matters that are not specifically mentioned in the long title itself. As this long title is 150 words long, compared with the seven-word length of the short title, it should be obvious why long titles are never used to refer to statutes! 4.1.4 Date of Royal Assent ④ This Act received Royal Assent on 28 April 2022. This is the date upon which the preceding Bill became law. The provisions of the Act come into force at the beginning of the day on which the Act receives Royal 1 Assent unless the Act itself states otherwise in a commencement provision (see section 4.1.7). The year of Page 5 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation the Act in its short title can sometimes be misleading if it differs from the year in which its provisions came into force. For example, the European Communities Act 1972 received Royal Assent on 17 October 1972 but did not actually come into force until 1 January 1973. 4.1.5 Enacting formula ⑤ The enacting formula introduces the main provisions of the statute. It declares that the law derives its authority from having been properly passed by the legislature. The enacting formula is generally the same, namely: 2 BE IT ENACTED by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: p. 68 ↵ However, if the Parliament Acts 1911 and 1949 have been used to force legislation through Parliament against the wishes of the House of Lords, the enacting formula used is different: BE IT ENACTED by the King’s most Excellent Majesty, by and with the advice and consent of the Commons in this present Parliament assembled, in accordance with the provisions of the Parliament Acts 1911 and 1949, and by the authority of the same, as follows: This formula removes references to the ‘advice and consent of the Lords Spiritual and Temporal’. See section 2.1.1.6 for more information on the use of the Parliament Acts. 4.1.6 Main body ⑥ The main body of this Act begins with section 1 which sets out the requirements for the Secretary of State to produce a police covenant report and lay it before Parliament each financial year. The main body of an Act is divided into sections, subsections, paragraphs, and subparagraphs. You will see from Figure 4.1 that the section number is shown in bold next to a bold heading which gives an indication of the section’s contents; in this instance ‘Police covenant report’. All sections of modern statutes begin in this way. Figure 4.4 shows an extract from section 13 of the Act which defines various terms relating to preventing and reducing serious violence: as before the section starts with a bold numbered heading. Page 6 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation Figure 4.4 Police, Crime, Sentencing and Courts Act 2022, s 13(3)(a)(ii) Contains public sector information licensed under the Open Government Licence v3.0 p. 69 ↵ Underneath this you will see four subsections, each numbered in round brackets. So, for example, you could say that the definition of ‘violence’ was found in ‘section 13, subsection 3’ of the Act. This is a bit cumbersome, so you could write ‘section 13(3)’ instead, which most people would say as ‘section thirteen- three’. More complicated sections are broken down further beyond the subsection level into paragraphs and subparagraphs, in order to aid clarity. So going back to section 13(3), you can see that it is first divided into subsections. Subsection 13(3)(a) defines things that are particularly included in the definition of ‘violence’. These are further broken down into four subparagraphs, numbered (i) to (iv). Particular paragraphs and subparagraphs can be precisely referenced in the same way as sections and subsections, by adding the extra levels of numbering; for example s 13(3)(a)(ii) provides that ‘violence’ includes ‘sexual offences’ (which, in fact, are defined in further details on s 13(4)). Page 7 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation 4.1.6.1 Marginal notes As you have already seen, the headings for each section give some indication of its content. Many older statutes have marginal notes instead of headings. Look at the extract from the Misrepresentation Act 1967 in Figure 4.5. You will see an example of a marginal note highlighted. Figure 4.5 Misrepresentation Act 1967, marginal note Contains public sector information licensed under the Open Government Licence v3.0 p. 70 ↵ There is one key difference between marginal notes and section headings. The section headings are part of the Act (they are debated during the passage of the legislation) and marginal notes are not. This means that marginal notes have no direct legal effect. Both marginal notes and headings are a useful means of navigating around the Act, but (despite their legal differences) are not useful for much else. Page 8 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation Self-test questions 1. When did the Misrepresentation Act 1967 receive Royal Assent? 2. What is its long title? 3. What is its citation? 4. What does ‘1967 Chapter 7’ signify? Review the answers to the self-test questions (4.1.6). 4.1.7 Commencement and expiry ⑦ As we have already seen in section 4.1.4, the provisions of the Act come into force on the date of Royal Assent unless the Act itself states otherwise in a ‘commencement provision’. The commencement provisions are normally found towards the end of the Act. Look at Figure 4.6 which shows extracts from the commencement provisions found in s 208 of the Police, Crime, Sentencing and Courts Act 2022. Page 9 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation Figure 4.6 Police, Crime, Sentencing and Courts Act 2022, s 208 (extracts) p. 71 ↵ You will see that s 208(1) sets out the default position that most sections of the Act (apart from those set out in ss 208(4) and 208(5)) will only come into force as appointed by regulations made by statutory instrument by the Secretary of State. Therefore, the Secretary of State has the power to decide when certain parts of the Act become law. Those parts of the Act will be brought into effect by a statutory instrument known as a commencement order. Commencement provisions can also specify that certain sections come into force on a fixed date (as in s 208(4) which refers to the date on which the Act was passed), or a date relative to the Act receiving Royal Assent (as in s 208(5) which brings in ss 2, 3, 47, and 50 two months after the Act was passed). Making certain sections subject to a commencement order might mean that they never come into force at all. For example, the Family Law Act 1996 was intended to revolutionize the divorce process. It received Royal Assent on 4 July 1996 but at the time it was not expected to be brought into effect until 2000. Section 67 of the Act gave the Lord Chancellor the power to bring parts of it into force by a commencement order. Unfortunately, the results from a pilot study established that the amendments that it proposed to bring into the divorce process were ineffective. This led to the Government abandoning the reforms altogether and consequently parts of the Act were never brought into force. Page 10 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation Acts do not take effect retrospectively unless expressly provided for within the Act. Examples of retrospective legislation are rare, but one example can be found in s 1 of the War Crimes Act 1991; an Act which confers jurisdiction on UK courts in respect of certain grave violations of the laws and customs of war committed in German-held territory during the Second World War. Self-test questions 5. When did the Misrepresentation Act 1967 come into force? Review the answers to the self-test questions (4.1.7). Acts of Parliament normally remain in force until they are repealed by a later Act of Parliament. However, some Acts contain expiry provisions (sometimes referred to as ‘sunset clauses’) as well. In Figure 4.7, you will see that s 89 of the Coronavirus Act 2020 provided that the Act would expire two years from the date that it was passed (subject to various conditions which it goes on to set out). Many sections (but not all) of the Act are now no longer in force. Figure 4.7 Coronavirus Act 2020, s 89 4.1.8 Extent ⑧ An ‘extent’ provision in the Act (or in a later commencement order made under the Act) might specify that certain provisions only come into force in particular areas. In the example shown in Figure 4.8, s 207 sets out provisions of the Police, Crime, Sentencing and Courts Act 2022 which show which sections apply to p. 72 which territory. ↵ Page 11 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation Figure 4.8 Police, Crime, Sentencing and Courts Act 2022, s 207. Be careful to check the extent provision in any Act that you are considering to make sure it covers the location in which you are studying (or thinking about using part of the Act). 4.1.9 Schedules ⑨ Some statutes have one or more schedules at the end (see Figure 4.9). Page 12 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation Figure 4.9 Schedule 17—Youth Rehabilitation Orders Contains public sector information licensed under the Open Government Licence v3.0 p. 73 ↵ These may contain a number of different things, such as: Definitions of terms used in the Act (e.g. Schedule 1, Interpretation Act 1978) Detailed provisions which are referred to in the main Act (e.g. Schedule 1, Football (Disorder) Act 2000) Details of minor and consequential amendments to other legislation (e.g. Schedule 2, Football (Disorder) Act 2000) Repeals of pre-existing legislation (e.g. Schedule 3, Football (Disorder) Act 2000). The Police, Crime, Sentencing and Courts Act 2022 contains no fewer than twenty-one schedules. These contain more detailed provisions that have been put at the end to enable easier navigation around the main body of the Act. In this example, the Schedule gives a helpful reference to the main body of the Act: you will see that Schedule 17 is referred to in s 161. Schedules are divided into paragraphs and subparagraphs (not sections and subsections). Page 13 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation 4.1.10 Preambles Older statutes contain preambles, which describe the purpose of the Act in more detail than the long title. For example, the preamble to the Statute of Charitable Uses 1601 sets out a list of charitable purposes or activities. The Statute of Charitable Uses (1601), 43 Elizabeth I c. 4 An Acte to redresse the Misemployment of Landes Goodes and Stockes of Money heretofore given to Charitable Uses Whereas Landes Tenementes Rentes Annuities Profittes Hereditamentes, Goodes Chattels Money and Stockes of Money, have bene heretofore given limitted appointed and assigned, as well by the Queenes most excellent Majestie and her moste noble Progenitors, as by sondrie other well disposed persons, some for Releife of aged impotent and poore people, some for Maintenance of sicke and maymed Souldiers and Marriners, Schooles of Learninge, Free Schooles and Schollers in Universities, some for Repaire of Bridges Portes Havens Causwaies Churches Seabankes and Highwaies, some for Educacion and prefermente of Orp hans, some for or towardes Reliefe Stocke or Maintenance of Howses of Correccion, some for Mariages of poore Maides, some for Supportacion Ayde and Helpe of younge tradesmen Handicraftesmen and persons decayed, and others for reliefe or redemption of Prisoners or Captives, and for aide or ease of any poore Inhabitantes concerninge paymente of Fifteenes, setting out of Souldiers and other Taxes; Whiche Landes Tenementes Rents Annuities Profitts Hereditaments Goodes Chattells Money and Stockes of Money nevertheles have not byn imployed accordinge to the charitable intente of the givers and founders thereof, by reason of Fraudes breaches of Truste and Negligence in those that shoulde pay delyver and imploy the same … However, since the list was in the preamble, rather than in the main body of the Act, it did not form part of the statute. However, the list in the preamble to the 1601 statute has nevertheless formed the foundation of the modern definition of charitable purposes which can be found in s 2(1) of the Charities Act 2011: this requires a purpose which falls within the list of charitable purposes set out in s 3(1) and which is for the public benefit (s 4). Preambles in older statutes are also useful if you need to evaluate whether an old piece of legislation actually achieved what it set out to achieve. The purposes set out in the preamble can then be compared to the effect of the Act’s application by the courts. p. 74 4.1.11 Explanatory Notes Most recent Acts will carry accompanying Explanatory Notes. These are useful information but are not legally binding. The Office of Public Sector Information describes Explanatory Notes as follows: Page 14 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation The purpose of these Explanatory Notes is to make the Act of Parliament accessible to readers who are not legally qualified and who have no specialised knowledge of the matters dealt with. They are intended to allow the reader to grasp what the Act sets out to achieve and place its effect in context. They can be extensive: the Explanatory Notes to the Police, Crime, Sentencing and Courts Act 2022 run to well over a hundred pages. The Explanatory Notes can give an indication of the purpose of a particular statute which might be useful background when trying to establish the meaning behind any seemingly ambiguous provision. See section 4.3 for a discussion of statutory interpretation. 4.2 Anatomy of a Statutory Instrument Chapter 2 describes statutory instruments as sources of law. Like Acts, statutory instruments are also built up from a number of standard components. In this section, we will examine parts of a statutory instrument (see Figure 4.10). Page 15 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation Figure 4.10 The Police, Crime, Sentencing and Courts Act 2022 (Consequential Provision) Regulations 2022 Contains public sector information licensed under the Open Government Licence v3.0 Page 16 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation 4.2.1 Citation ① The citation for this example is ‘2022 No 746’. This means that it is the 746th statutory instrument of 2022. Some statutory instruments also have a letter and a number in brackets after the sequence number: C stands for commencement order L relates to fees and procedures in courts S relates to Scotland only The number that follows is a sequence number relating to the type of statutory instrument in question: for example, the Pension Schemes Act 2021 (Commencement No 7 and Transitory Provision) Regulations 2022 have the citation ‘2022 No 1044 (C. 83)’ which translates to it being the 1044th statutory instrument of 2022 and the 83rd Commencement Order of 2022. 4.2.2 Subject matter ② The subject matter of the statutory instrument in this case is the prevention and suppression of terrorism. 4.2.3 Title ③ The title of the statutory instrument is ‘The Police, Crime, Sentencing and Courts Act 2022 (Consequential Provision) Regulations 2022’. This refers to its parent Act and to its purpose for making various necessary p. 75 amendments to other legislation. ↵ p. 76 4.2.4 Key dates ④ The dates shown in this statutory instrument are those when it was made (30 June 2022) and when it came into force (the following day, 1 July 2022). In the case of instruments that are required to be laid before Parliament, then the date on which it was laid before Parliament will be shown here. 4.2.5 Authority ⑤ This section of the statutory instrument shows the authority by which it is made. In this case, the order was made under the power delegated to the Secretary of State by ss 205(1) and (2) of the Police, Crime, Sentencing and Courts Act 2022. There is also a footnote reference (a) to the official citation (see section 4.1.2) of the parent Act—2022 c.32—which you should remember means that the Police, Crime, Sentencing and Courts Act 2022 was the 32nd Act passed in 2022. Page 17 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation 4.2.6 Main body ⑥ The main body of the statutory instrument contains paragraphs or articles if it is an order, regulations if it is a regulation, or rules if it is a set of rules. Regulations are often abbreviated to ‘reg’ and rules to ‘r’. In this case, reg 2 makes various changes to the Terrorism Act 2000 (which you will see is also referred to in footnote (b) by its official citation of 2000 c.11 as well as details of a later Act which amended it—the Protection of Freedoms Act 2012 c.9). 4.2.7 Minister ⑦ This is the name of the Minister signing the order. In this case, Damian Hinds. 4.2.8 Explanatory Note ⑧ As with statutes, the Explanatory Note is not part of the statutory instrument. It generally explains the purpose of the statutory instrument as well as detailing amendments or revocations of previous statutory instruments. 4.3 Statutory Interpretation Statutory provisions are, of course, made up of words and you will need to interpret those words to find the meaning of any particular piece of legislation. You will appreciate from everyday life that, no matter how clearly you try to express something, other people can get the ‘wrong end of the stick’: although language is the only tool that lawyers have, it is nonetheless an imperfect tool so problems can arise when attempting to discern the meaning of and purpose behind the form of words used in the statute, particularly when provisions are phrased in highly technical language. A single form of words can often be interpreted in more than one way and competing interpretations are often the source of legal dispute, particularly in the appeal courts. Whilst the words of an Act of Parliament are authoritative, it is the constitutional role of the judiciary in common law jurisdictions (such as ours) to apply the law: put simply, Parliament makes (and writes) the law and judges work out disputes about what it means and how it applies. Words and phrases are selected and debated to capture the concept that the law wants to cover based upon Parliament’s understanding of p. 77 the problem at the time. However, if the law ↵ is drafted too broadly, then it will have unintended consequences because it will cover more than Parliament intended it to cover. If, on the other hand, it is drafted too narrowly, there will be gaps in the law as not everything Parliament intended will be covered. So the Government of the day sets legislative priorities, Parliament creates the law, and the courts apply the law. Because Parliament is supreme, the courts have to apply the law even if they do not agree with it. Therefore, historically, the courts were supposed to apply the law in the way that was meant by Parliament, rather than trying to find a way of interpreting Parliament’s words which gave the outcome the court wanted (and, as you will see later) altering the operation of the law in later cases. Judges will seek the fairest outcome, even if that means they end up going against the will of Parliament. It is often said Page 18 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation that the role of the courts in statutory interpretation is to discern Parliament’s intention from the words of the statute. However, it may be that the set of circumstances before the court was never actually foreseen or considered by Parliament (or had been considered and consciously left out), and therefore Parliament’s intention could never be ascertained. In this case, the courts are trying to guess what Parliament would 3 have meant had it thought about the circumstances in question. Put simply, when put to the test, the words in a statute mean what a court says that they mean. Whatever the reasons for interpretation, the situation is straightforward. If the wording of the legislation is ambiguous or unclear, then that wording will need to be interpreted to find its meaning. This can prove to be a great source of argument when courts have to decide between everyday (non-technical) meanings of words and legal meanings. Two examples of the courts wresting with this involved very ordinary foods: Jaffa Cakes and the bread used in a Subway sandwich. Both these items came before the courts in matters relating to taxation. In the UK, value added tax (VAT) is payable on chocolate biscuits but not chocolate cakes. United Biscuits, the manufacturer, argued that Jaffa Cakes were cakes for the purposes of VAT regulation, but Her Majesty’s Customs and Excise argued that they were biscuits. The VAT Tribunal ruled 4 that Jaffa Cakes are cakes for VAT purposes. Whilst this might seem to be an obvious conclusion, the Irish 5 Supreme Court ruled that the bread used in Subway sandwiches had too high a sugar content to be categorized as bread for VAT purposes in Ireland. So, in the particular legal context of taxation, Jaffa Cakes are cakes, but Subway bread is not bread. For that reason, an understanding of the approaches that can be used to interpret a statutory provision is vital. As Lord Steyn commented: ‘The preponderance of enacted law over common law is increasing year 6 by year … and the subject of interpretation has moved to the centre of the legal stage’. In other words, the sheer volume of legislation and the pace with which it is introduced provides more opportunities for creative arguments before the courts. Knowledge of how to interpret a statutory provision in your favour— or knowing how it might be used against you—is therefore an extremely important practical legal p. 78 skill. ↵ Skills beyond study: Statutory interpretation Non-law: At first glance, the rules of interpretation might seem as if they are only useful in a legal setting but the basic skill here involves the ability to make arguments about the meaning of words and that is something that will be useful in any professional setting that involves a set of rules that need to be followed, as you will have the skills and knowledge to argue for an interpretation that is favourable to your employer. Moreover, the law impacts upon a great many non-law working environments and so there might be a need to be able to interpret the words in a contract between your employer and another organization, for example, or where it is important to argue for a particular interpretation of words in an insurance document or a set of health and safety regulations. Words are relevant in almost everything we do and you have the skills to interpret them. Page 19 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation Law: All legal practice, whatever the area of specialism, involves the ability to understand the contested nature of the language and the ability to use words effectively to achieve a desired outcome. A significant number of legal disputes will focus on what words mean and so a firm understanding of the rules of statutory interpretation will equip you for any area of legal practice. 4.3.1 How to interpret a statutory provision Judges use a variety of different approaches when faced with an issue of statutory interpretation. These are 7 generally referred to as the ‘rules’ (or ‘canons’) of interpretation or the ‘rules of construction’. However, it is very important to remember that these are not hard-and-fast rules set out by law and it is perhaps better to think of them as approaches to interpretation. Judges are not bound to follow one, or any, of them and do not have to state which ‘rule’ they have used in reaching their decision (in practice they almost never actually do either). In fact, they may not consider the ‘rules’ at all, and it is left to us to try and work out how they went about making their decision by working backwards and looking at their reasoning. So you should be careful not to place too much emphasis on the rules in and of themselves, but you must simply appreciate that there are a number of ways in which courts can go about working out a particular meaning that best serves the interests of justice and fairness in the case before them. Traditionally there were three ‘rules’ of interpretation: The literal rule The golden rule The mischief rule. In addition to these ‘classic’ rules, there are two additional approaches: the purposive approach which considers the wider purpose of the legislation and the teleological approach which looks even more broadly at the spirit of the law. There are also various rules of language, presumptions, and extrinsic aids that can be used to help discover the meaning of a statute. 4.3.1.1 The literal rule The literal rule says that words must be given their plain, ordinary, and literal meaning. The rationale behind the use of the literal rule is that if the words of the statute are clear they must be applied because they represent the intention of Parliament as expressed in the words used. This should be done even if the outcome of using the literal words is harsh or seems unfair, unjust, or undesirable. 8 p. 79 ↵ The rule was set out clearly in the Sussex Peerage Case: Page 20 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation 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 … are themselves precise and unambiguous, then no more can be necessary than to expound those words in that natural and ordinary sense. 9 An example of the use of the literal rule can be found in Cutter v Eagle Star Insurance Co Ltd. The claimant was sitting in his friend’s car in a car park and was injured when a can of lighter fuel exploded. The driver was insured, as required by the Road Traffic Act 1988, for injury caused whilst on a ‘road’. Here the House of Lords ruled that a car park is not a ‘road’ for the purposes of the Road Traffic Act 1988, since the purpose of a road is a means for cars to move along it to a destination and the purpose of a car park is for cars to stand still. Parking a car on a road does not make it a car park. Driving a car across a car park does not make it a road as it is incidental to its main function. 10 In another road traffic case, Pinner v Everett, the House of Lords had to decide whether or not a person was ‘driving or attempting to drive’ a motor vehicle when he had been stopped by the police because his rear number plate was not lit, and when the driver got out of the car and started to talk to the police they smelled alcohol and required him to take a blood test which he refused to do. The court held that specimen of breath could be required if the suspicion did not arise when the person was driving or attempting to drive. Lord Reid said: In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word of phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature, that it is proper to look for some other possible meaning of the word or phrase. We have been warned again and again that it is wrong and dangerous to proceed 11 by substituting some other words for the words of the statute. 12 In Whiteley v Chappell, the defendant had impersonated a dead person and voted in an election in his name. The relevant statute provided that it was an offence to impersonate ‘any person entitled to vote’ at an election. Since the person impersonated was dead he was not entitled to vote, and thus Whiteley could not be convicted. Of course, this application of the literal rule went against Parliament’s intention, which was to ensure that only those entitled to vote were able to do so, and then only to do so once at each election. Although use of the literal rule gives utmost primacy to the precise words used by Parliament, emphasizing the literal meaning of statutory provisions can lead to ‘unthinking’ decisions where the meaning in the wider context is ignored or lost. It assumes perfection in drafting and ignores the natural limitations of language. However, there is still scope for judicial intervention: in deciding on the literal meaning of a word, the court may still refer to its own interpretation of the meaning of that word, or look to an extrinsic aid such as a dictionary to assist it in suggesting what the literal meaning of the particular word actually is. Page 21 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation p. 80 4.3.1.2 The golden rule The golden rule says that words must be given their plain, ordinary, and literal meaning as far as possible but not if the result is absurd (the ‘narrow golden rule’ approach) or against public policy (the ‘wide golden rule’ approach). The golden rule is a modification of the literal rule. In terms of the relationship between the Parliament and the courts, the golden rule may be used by the courts where the literal rule would produce a result that was actually contrary to the intention of Parliament. There is, however, a presumption that the literal rule should be used—in other words, that Parliament would not normally intend to legislate to produce absurdity or a result contrary to public policy. The failure of Parliament to consider a particular situation does not permit the courts to depart from the literal rule if the words of the statute are clear and there is no absurdity created. In such an event, the court is limited to drawing the matter to Parliament’s attention and urging the enactment of remedial legislation to fix the problem. The rationale behind the golden rule is that it takes away some of the potential harshness arising from use 13 of the literal rule. An early reference to it can be found in Grey v Pearson: 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. In practice, the golden rule is not used that frequently. Absurdity 14 R v Allen concerned the application of s 57 of the Offences against the Person Act 1861. Allen had been charged with bigamy. The Act that set out the offence stated that ‘whosoever being married shall marry any other person during the lifetime of his spouse’ shall commit bigamy. If ‘marry’ had been interpreted literally the offence could never have been committed, since no one married could ever marry another. The court interpreted the words ‘shall marry’ as if they said ‘shall go through the ceremony of marriage’ and Allen was convicted. Affront to public policy 15 A more unpleasant example of the golden rule can be found in Re Sigsworth. Under the Administration of Estates Act 1925 the estate of a person dying without leaving a will was to be divided amongst the ‘issue’. Mrs Sigsworth was murdered by her son who stood to inherit her estate. Even though there was only one Page 22 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation possible interpretation of the word ‘issue’ (meaning ‘children’ in this context) the court held that the son could not inherit the estate as it would be contrary to public policy for a murderer to benefit from his crime. Here the golden rule was applied in preference to the literal rule and the son did not inherit. p. 81 4.3.1.3 The mischief rule 16 The mischief rule (or the rule in Heydon’s Case) involves an examination of the former law in an attempt to deduce Parliament’s intention (‘mischief’ here means ‘wrong’ or ‘harm’). The mischief rule applies only if the words used in the statute are ambiguous and the literal rule cannot be applied with certainty. It differs from the literal rule and the golden rule in that it places less emphasis on the words of the statute themselves, but instead looks to the reason for Parliament legislating in the first place. Once this is known, then it allows the courts to adopt an interpretation that fills the gap in the law that Parliament failed to address. The mischief rule asks four questions, the answers to which provide some sort of structured evaluation of Parliament’s intention in passing the Act in question: 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 was the remedy proposed by Parliament to rectify the situation? 4. What was the true reason for that remedy? In other words: 1. What did case law say before Parliament stepped in? 2. What was wrong with the case law? What situation did it not cover well enough that meant that Parliament decided to step in? 3. What did Parliament say should be done? 4. Why did they think that was what should be done? The rule itself dates from a time when the law was primarily common law (i.e. based on decided cases) and there were relatively few statutes. Statutes were historically only enacted when Parliament wished to remedy what it considered to be a defect in the common law. 17 The rule was considered by Lord Diplock in Jones v Wrotham Park Settled Estates where he identified three necessary conditions: It must be possible to determine precisely the mischief that the Act was drafted to remedy. It must be apparent that Parliament had failed to deal with the mischief. Page 23 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation It must be possible to state the additional words that would have been inserted had the omission been drawn to Parliament’s attention. 18 Corkery v Carpenter concerned the interpretation of s 12 of the Licensing Act 1872. This provided that a person drunk in charge of a ‘carriage’ on the highway could be arrested without a warrant. The defendant was found drunk in charge of a bicycle. Although it was argued that a bicycle is not a carriage in the normal meaning of the word (the term generally refers to a vehicle of some kind), the Divisional Court held that a bicycle was a carriage for the purposes of the Act. The mischief that the Act was trying to prevent was p. 82 drunk people being on the ↵ highway in charge of some form of transportation and it was addressed by the Act for the purposes of public order and safety. 19 Royal College of Nursing v DHSS involved the wording of the Abortion Act 1963. This allowed abortions by ‘a registered medical practitioner’. The first part of the procedure was carried out by a doctor. The second part was performed by nurses but without a doctor being present. The House of Lords held by a 3–2 majority that this procedure was lawful because the mischief Parliament was trying to remedy was back street abortions performed by unqualified people (and that it was acceptable for an apportion to be performed by a team of doctors and nurses). 20 In Manchester City Council v McCann, the defendant had threatened a witness who had given evidence against his wife on his return home from court. Section 118(1)(a) of the County Courts Act 1984 provided that county courts may deal with anyone who ‘wilfully insults the judge … or any juror or witness, or any officer of the court’. The Court of Appeal held that a threat was an insult for the purposes of the Act. The mischief here was protection of various participants in the civil process. Even though a threat is not necessarily an insult using the normal meanings of the words, the ability for the court to deal with insults but not threats was contrary to Parliament’s intention. 4.3.1.4 The purposive approach The purposive approach involves seeking an interpretation of the law which gives effect to its general purpose. It is based upon the mischief rule. The purposive approach is based upon the mischief rule. In this approach, the courts look beyond the wording of the legislation to find an interpretation which furthers its general purpose. In Bulmer v 21 Bollinger, Lord Denning stated: What are the English Courts to do when they are faced with a problem of interpretation? … No longer must they examine the words in meticulous detail. No longer must they argue about the precise grammatical sense. They must look to the purpose or intent … They must not confine themselves to the English text. … If they find a gap, they must fill it as best they can. They must do what the framers of the instrument would have done if they had thought about it. So we must do the same. Page 24 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation In that sense it is similar to the mischief rule, which attempts to deduce Parliament’s intention (or purpose) in enacting a particular provision. It assumes that Parliament legislated intending to remedy some defect in the law and therefore that the courts should seek an interpretation of the legislation which gives effect to the purpose of legislating (which was to correct the defect). The shift towards the use of the purposive approach was recognized by the House of Lords in R 22 p. 83 (Quintavalle) v Secretary of State for Health. Here, the House of Lords endorsed the decision ↵ of the Court of Appeal who adopted a purposive approach to the interpretation of s 1(1) of the Human Fertilisation and Embryology Act 1990. Lord Steyn explained that: … the adoption of a purposive approach to construction of statutes generally, and the 1990 Act in particular, is amply justified on wider grounds. In Cabell v Markham (1945) 148 F 2d 737 Justice Learned Hand explained the merits of purposive interpretation, at 739: Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning. The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas … In any event, nowadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context, e.g. social welfare legislation and tax statutes may have to be approached somewhat differently. 23 A further example can be found in Jones v Tower Boot Co Ltd which concerned a 16-year-old of dual ethnic heritage who worked at a shoe factory. During his employment he was subjected to physical and verbal racial abuse from his work colleagues (including burning his arm with a hot screwdriver, throwing metal bolts at his head, and calling him racially abusive names). Jones sued the company for damages under s 32 of the Race Relations Act 1976 which said the employer shall be held liable for racial discrimination of its employees ‘in the course of employment’. The company argued that the racial harassment was not done ‘in the course of employment’ because, according to the case law at the time, employees’ conduct was only considered to be in the course of employment if it was directly authorized by the employer or closely connected to the job they were hired to do. The Court of Appeal held that interpretation of the terms should not be restricted by the principles set out in the case law and that a broad interpretation had to be adopted. The court then looked at the purpose of the Act and held that the company was liable even though it had never authorized the racial abuse and the abuse had nothing to do with the abusers’ job: Page 25 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation A purposive construction accordingly requires section 32 of the Race Relations Act 1976 and the corresponding section 41 of the Sex Discrimination Act 1975 to be given a broad interpretation. It would be inconsistent with that requirement to allow the notion of the ‘course of employment’ to be construed in any sense more limited than the natural meaning of those everyday words would allow. p. 84 4.3.1.5 The teleological approach The teleological approach requires that the spirit of the legislation, rather than merely its purpose, is considered. It is therefore much broader than the purposive approach. The teleological approach was particularly important when considering EU law, since EU law is often drafted in terms of wide general principles and not in the detailed manner found in UK legislation. It is the predominant approach used in civil law systems which tend to favour simplified drafting which is less detailed and more abstract. This approach is also used by the Court of Justice of the European Union and was used by the UK courts when interpreting EU law. You may wish to refer back to chapter 2 which considered the various types of EU legislation. Before the UK left the EU, courts were required to interpret all legislation in accordance with s 2(4) of the European Communities Act 1972 which provided that: … any enactment passed or to be passed … shall be construed and have effect subject to the foregoing provisions of this section. The primary foregoing provision was s 2(1) of the Act which effectively incorporated all directly applicable EU law into the legal system: … all rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly. In other words, when interpreting legislation which implemented EU law, the courts had to give preference to an interpretation which gave effect to the general spirit of the underlying EU law. This necessarily means that questions of wide economic or social policy were often considered by the courts. Page 26 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation In some circumstances this approach involved the courts reading certain words into legislation as an obvious and clear departure from using the literal words as chosen by Parliament. In Pickstone v Freemans 24 plc, the House of Lords held that it was proper to give a broad construction to the Equal Pay Act 1970, as amended by the Sex Discrimination Act 1975, so as to arrive at a result consistent with the UK’s obligations under European law at that time. 25 A further example is provided by Litster v Forth Dry Dock and Engineering Co Ltd. Here, employees were dismissed one hour before a business was transferred to a new owner. The employees claimed they were 26 unfairly dismissed. The Transfer of Undertakings (Protection of Employment) Regulations 1981 (‘TUPE’) implemented a European directive designed to protect employees who were employed during the transfer p. 85 of a business. However, taking a ↵ literal approach, the employees here were not actually employed at the moment of transfer, having been dismissed an hour previously, and therefore their situation seemed to fall outside the protection offered by TUPE. However, the House of Lords read in additional words such that the Regulations covered an individual who was employed ‘or would have been so employed if he had not been unfairly dismissed as a reason connected with the transfer before the transfer’. In doing so, the spirit of the Directive, to protect the employees on the transfer of a business, was upheld. You should now be able to see that there is an overlap, depicted in Figure 4.11 between the mischief rule, the purposive approach, and the teleological approach. All are concerned with determining the reason for the particular law’s existence, but the range of considerations broadens as we move between approaches: from defect, to purpose, to spirit. Figure 4.11 Overlapping approaches to interpretation Page 27 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation 4.3.1.6 Rules of language In addition to the rules of construction, there are also rules of language which the courts may use. They are known by the following Latin terms: Ejusdem generis Noscitur a sociis Expressio unius est exclusio alterius Ejusdem generis Ejusdem generis means ‘of the same type’. p. 86 ↵ In other words, if a word with general meaning follows a list of specific words, then the general word only applies to things of the same type as the specific words. The general words are interpreted as a continuation of the list of specific words. All the words must constitute the same ‘type’ of thing and that type must be interpreted as narrowly as possible. For example, a list stating ‘hats, coats, scarves, gloves, and other articles’ would imply that the ‘other articles’ would be items of outdoor clothing, but not all clothing, and certainly not all articles. 27 In Powell v Kempton Park Racecourse, the defendant was operating an outdoor betting ring. It was an offence to use a ‘house, office, room or other place for betting’. The court held that since the specific places listed were all indoors, an outdoor betting ring was not covered within the statute and the defendant was found not guilty. 28 Wood v Commissioner of Police of the Metropolis considered whether a piece of (accidentally broken) glass was covered by ‘any gun, pistol, hangar, cutlass, bludgeon or other offensive weapon’. It was held that the list contains items made or adapted for the purpose of causing harm. Therefore a piece of glass that had been broken accidentally was not included (although it might well have been if it had been smashed so it could be used as a weapon). 29 In Allen v Emmerson, the court held that a single specific example followed by a general word or phrase would not trigger the ejusdem generis rule because there were insufficient examples to demonstrate the nature of the class. The issue here was whether s 33 of the Barrow-in-Furness Corporation Act 1872 (which provided that ‘no theatre or other place of public entertainment’ could be opened or operate without a licence) applied to a funfair. Page 28 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation Noscitur a sociis Noscitur a sociis means that a word is ‘known by the company it keeps’. The general principle here is that words in a list take their meaning from the other words in the list. It is 30 based on two presumptions: first, that words have the same meaning throughout an Act and second that words in a list have related meanings and are to be interpreted in relation to each other. 31 In Pengelley v Bell Punch Co Ltd, it was held that the word ‘floors’ in a statute requiring ‘floors, steps, stairs, passages and gangways’ to be kept clear did not include part of a factory floor used for storage, since the words listed related to passageways and not areas for static storage. 32 Muir v Keay concerned a café owner. All houses kept open at night for ‘public refreshment, resort and entertainment’ had to be licensed. The defendant argued that his café did not need a licence because he did not provide (musical) entertainment. The court held that ‘entertainment’ did not mean musical entertainment but the reception and accommodation of people. Therefore the owner was required to have a licence by law. p. 87 Expressio unius est exclusio alterius Expressio unius est exclusio alterius means that to ‘express one thing is to exclude others’. In other words, a list of specific things (or a specific word or phrase) may be interpreted as excluding others of the same type. If there are no general words, then the list, word or phrase is considered to be 33 exhaustive (covering every desired eventuality). For example, in R v Inhabitants of Sedgley, it was held that the tax levied on owners of ‘lands, houses, tithes and coal mines’ could not be levied on owners of limestone mines, as these were impliedly excluded by the specific mention of coal mines. You should be able to see that the outcome would probably have been different if the Act had just said ‘lands, houses, tithes and mines’. 4.3.1.7 Presumptions A legal presumption is a concept or idea that is taken to be true by the law and always applying to certain circumstances or situations. Page 29 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation In addition to the rules of construction and rules of language, there are also several presumptions which are made when interpreting legislation. These are generally expected to be taken ‘as read’ without the need for Parliament specifically to address them in the wording of a statute, since they deal with traditional ideas of natural justice and fairness or matters so uncontroversial that they would almost certainly represent the intention of Parliament. A number of these presumptions are as follows: Against alteration of the common law Although Parliament can change the existing common law, such an intention cannot be implied (e.g. 34 Beswick v Beswick). Against retrospective operation of statute It is presumed that statutes do not operate retrospectively—they cannot usually be ‘backdated’. This is particularly important in Acts which create criminal offences, since backdating them could lead to criminal liability arising for things done before the Act was passed and which were lawful when they were committed. This presumption can, however, be rebutted by express words by Parliament. For example, the War Crimes Act 1991 allows proceedings for murder, manslaughter, or culpable homicide to be brought if the offence was committed during the time of the Second World War in Germany (or a place occupied by Germany) and violated the ‘laws and customs’ of war. p. 88 Against deprivation of liberty Parliament is presumed not to intend to deprive anyone of their liberty; if it does, clear words must be used and will be construed so as to interfere with the person’s liberty as little as possible (e.g. R (H) v London 35 North and East Region Mental Health Review Tribunal). Against deprivation of property and against interference with private rights Parliament is presumed not to wish to interfere with a person’s private rights or deprive anyone of their 36 37 property without compensation (e.g. Glassbrook Bros v Leyson; Bowles v Bank of England). Against binding the Crown Parliament is presumed not to bind the Crown except expressly or by necessary implication of the statute (e.g. Equal Pay Act 1970; Sex Discrimination Act 1975). Page 30 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation Against ousting the jurisdiction of the courts Even if clear words are used which try to stop the courts reviewing a decision made under an Act, the courts will nevertheless allow a review of that decision by a court. In Anisminic Ltd v Foreign Compensation 38 Commission, the Court of Appeal decided that a statute which said ‘the determination by the commission of any application made to them under this Act shall not be called into question in any court of law’ had no effect. Against criminal liability without mens rea (a guilty mind) There is a presumption that, for statutory criminal offences, Parliament intended no liability without proof 39 of mens rea—broadly speaking, criminal intent or state of mind (e.g. R v K). This can be rebutted by express words or by implication in offences of strict liability (offences such as speeding for instance, when intention or otherwise makes no difference to criminal liability; just being over the speed limit is enough). 4.3.1.8 Intrinsic aids to interpretation Intrinsic aids to interpretation are found within the statute itself. Every statute must be read as a whole. That is to say that before looking outside the statute to find things that help determine its meaning, every word within the statute should be considered first. There are several areas within the statute which could potentially be used as an intrinsic aid to construction. Look back at section 4.1, which describes the anatomy of an Act of Parliament. p. 89 Short title This is usually descriptive only and therefore of limited value. Long title The long title may be considered but only where there is ambiguity within the body of the Act. In Black 40 Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG, Lord Reid considered the long title of the Foreign Judgments (Reciprocal Enforcement) Act 1933 to help determine the meaning of s 8 which, it had been argued, was ambiguous: I think that s.8 is ambiguous, so this is a case where it is permissible to look at the long title. It states that the Act makes provision for the enforcement here of certain foreign judgments, for facilitating the enforcement abroad of judgments given here and ‘for other purposes in connection’ with ‘the matters aforesaid’. The matters aforesaid all refer to plaintiffs’ judgments which are enforceable. I do not see here any indication of an intention to deal with judgments 41 which are not enforceable. Page 31 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation Preamble Preambles tend not to be found in recent statutes. Where preambles do exist, they may be considered for guidance purposes in cases of ambiguity. Marginal notes These are found in older Acts (pre-2001)—they are not debated in Parliament and are not normally used in determining the precise scope of a provision, although they can give some general indication of the 42 provision’s purpose. In DPP v Johnson, Schiemann J noted: While the marginal note to a section cannot control the language used in the section, it is at least permissible to approach a consideration of its general purpose and the mischief at which it is aimed with the note in mind. They were, however, used relatively recently in R v Montilla: The question then is whether headings and sidenotes, although unamendable, can be considered in construing a provision in an Act of Parliament. Account must, of course, be taken of the fact that these components were included in the Bill not for debate but for ease of reference. This indicates that less weight can be attached to them than to the parts of the Act that are open for consideration and debate in Parliament. But it is another matter to be required by a rule of law to disregard them altogether. One cannot ignore the fact that the headings and sidenotes are included on the face of the Bill throughout its passage through the legislature. They are there for guidance. They provide the context for an examination of those parts of the Bill that are open for debate. Subject, of course, to the fact that they are unamendable, they ought to be open to 43 consideration as part of the enactment when it reaches the statute book. p. 90 Punctuation Old statutes did not use punctuation at all. Punctuation may be used as an aid to interpretation where there is ambiguity In Hanlon v Law Society Lord Lowry noted: … not to take account of punctuation disregards the reality that literate people, such as Parliamentary draftsmen, punctuate what they write, if not identically, at least in accordance with grammatical principles. Why should not other literate people, such as judges, look at the 44 punctuation in order to interpret the meaning of the legislation as accepted by Parliament? See chapter 11 for more information on punctuation. Page 32 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation Examples Statutes may provide examples to illustrate how the Act might work or how terminology within it might be used. These are part of the statute and carry great persuasive authority (see, e.g., s 44(6) of the Criminal Justice Act 2003 which gives three examples of situations which may show that there is a real and present danger that jury tampering had taken place). Schedules Some statutes may contain a schedule which includes an interpretation and definition section of terms used in the Act (e.g. Schedule 1, Interpretation Act 1978). These definitions are part of the statute and can strongly persuade courts as to intended meanings. 4.3.1.9 Extrinsic aids to interpretation Extrinsic aids to interpretation are found outside the statute. The Interpretation Act 1978 defines words that are commonly used within legislation. For example: ‘Land’ includes buildings and other structures, land covered with water, and any estate, interest, easement, servitude, or right in or over land (sch 1). ‘Writing’ includes typing, printing, lithography, photography, and other modes of representing or reproducing words in a visible form, and expressions referring to writing are construed accordingly (sch 1). 45 Where a word has no specific legal meaning, dictionaries may be used, although courts do not have to follow dictionary definitions of words. Courts may also consider the interpretation of the same words used in earlier or related statutes. p. 91 ↵ Historically, since the court was only allowed to interpret the words used, reference to preparatory works (known then as travaux préparatoires) was not permitted. Article 9 of the Bill of Rights 1689 provides: 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. Therefore, members of the Houses of Parliament had the right to say whatever they wished and to discuss whatever they wished, free of the interference of the courts. Until 1993, the protection given by Article 9 was held to prevent the courts from using statements made in Parliament concerning the purpose of Bills as a guide to the interpretation of ambiguous statutory provisions. This meant that courts could not refer to records of Parliamentary debate on the statute in the official recorded transcript of the debate, known as Hansard (see section 8.3.4). Page 33 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation 46 However, this rule was relaxed in 1993 following the House of Lords decision in Pepper v Hart. Here the House of Lords held that the rule against the use of Hansard as an extrinsic aid to interpretation would be relaxed to permit reference to Parliamentary materials where: The legislation is ambiguous or obscure, or its literal meaning leads to an absurdity The material relied on consists of statements by a Minister or other promoter of the Bill together with such other Parliamentary material as is necessary to understand such statements and their effect, and The statements relied upon are clear. The House of Lords held such use of statements did not infringe Article 9 because it did not amount to questioning a proceeding in Parliament. Indeed, they considered that far from questioning the independence of Parliament and its debates, the use of Hansard would actually allow the courts to give effect to what was said and done there, so reinforcing rather than undermining the role of Parliament. Note that the use of Hansard is only permitted under the circumstances outlined in Pepper v Hart. It is a common mistake to state that reference to Hansard may always be made. Although Pepper v Hart concerned the use of Hansard, its principles extend to the reports of recommendations made by the Law Commission and Government departmental committees. For example, 47 in R v Allen, the House of Lords considered the report of the Criminal Law Revision Committee when considering the meaning of s 3 of the Theft Act 1978. The Act was silent on the point in question— specifically, whether intent never to pay had to be proved as an element of the offence of making off without payment—but the committee report made it clear that such intention did have to be proved. 48 In practice, however, courts have demonstrated some reluctance to allow reference to Hansard. In Wilson 49 v First County Trust Limited (No 2), the House of Lords commented that: What is important is to recognise there are occasions when courts may properly have regard to ministerial and other statements made in Parliament without in any way ‘questioning’ what has been said in Parliament, without giving rise to difficulties inherent in treating such statements as p. 92 indicative of the will ↵ of Parliament, and without in any other way encroaching upon parliamentary privilege by interfering in matters properly for consideration and regulation by Parliament alone. The use by courts of ministerial and other promoters’ statements as part of the 50 background of legislation, pursuant to Pepper v Hart, is one instance. In other words, the statement of a single Minister does not necessarily reflect the intentions of Parliament as a whole (who may of course disagree with the view or reasoning that a Minister is putting forward in debate). More recently, the House of Lords considered the use of Pepper v Hart in R (Jackson) v Attorney 51 General, in which Lord Nicholls of Birkenhead stated that it would be ‘unfortunate’ if the rule were sidelined. Lord Steyn, however, considered that ‘trying to discover the intentions of the Government from 52 Ministerial statements in Parliament is unacceptable’. The use of Pepper v Hart therefore remains the subject of judicial debate. Page 34 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation The courts may also refer to the Explanatory Notes which have accompanied all Acts since 1999. They do not form part of the Act and have not been debated by Parliament. They are there to assist in discerning 53 Parliament’s intention and have been referred to by the courts, although it could be argued that the courts are giving them a status that they should not carry particularly since they have been drafted by the Government department supporting the original Bill and not Parliament. In R (S and Marper) v Chief Constable of South Yorkshire, Lord Steyn noted: Explanatory notes are not endorsed by Parliament. On the other hand, in so far as they cast light on the setting of the statute, and the mischief at which it is aimed, they are admissible in aid of construction of the statute. After all, they may potentially contain much more immediate and valuable material than other aids regularly used by the courts, such as Law Commission Reports, 54 Government Committee reports, Green Papers and so forth. 55 The courts may also sometimes refer to academic writing. For example, the court in R v Dooley referred to Smith and Hogan’s Criminal Law. 4.3.2 Interpretation and the Human Rights Act 1998 The Human Rights Act 1998 has had an effect on the traditional role of the courts in the interpretation of statutes. Section 3 of the Act provides that: (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2) This section— (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and p. 93 (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility. Section 3(1) imposes a duty upon the courts to try and discern a meaning so far as it is possible to do so with Convention rights. If the courts are unable to find a Convention-compatible interpretation, then they may make a ‘declaration of incompatibility’ under s 4. The effect of such a declaration is that the law must then be changed to remove the incompatibility. Section 10(2) provides a fast-track route by which this may be done: If a Minister of the Crown considers that there are compelling reasons … he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility. Page 35 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation Here, ‘by order’, means by statutory instrument. The s 3 power has been considered in a number of cases since the provision came into force on 2 October 2000. 56 RvA concerned the interpretation of s 41 of the Youth Justice and Criminal Evidence Act 1999 which placed the court under a restriction that seriously limited the evidence that could be raised in cross- examination of a sexual relationship between an alleged rape victim and the accused. Section 41(1) provided that: If, at a trial, a person is charged with a sexual offence, then, except with the leave of the court— (a) no evidence may be adduced, and (b) no question may be asked in cross-examination, by or on behalf of any accused at the trial, about any sexual behaviour of the complainant. This remained so even in a case where the defendant claimed that the complainant had consented. A argued that s 41 of the Act was incompatible with Article 6 of the Convention to the extent that it prevented him from putting forward a full and complete defence. The House of Lords held that s 3 required them to consider Article 6 and its concomitant right to a fair trial. This allowed them to read s 41 as permitting the admission of evidence or questioning relating to a relevant issue in the case where it was considered necessary by the trial judge to make the trial fair. In reaching its decision, the House of Lords was well aware that its interpretation of s 41 went against its actual meaning, but it nonetheless (by a majority) felt it within its power to do so. As Lord Steyn stated: In my view s 3 of the 1998 Act requires the court to subordinate the niceties of the language of s 41(3)(c) of the 1999 Act, and in particular the touchstone of coincidence, to broader considerations of relevance judged by logical and commonsense criteria of time and circumstances. After all, it is realistic to proceed on the basis that the legislature would not, if alerted to the problem, have wished to deny the right to an accused to put forward a full and complete defence by advancing truly probative material. It is therefore possible under s 3 of the p. 94 1998 Act to read s 41 of the 1999 Act, and in particular s 41(3)(c), as subject to ↵ the implied provision that evidence or questioning which is required to ensure a fair trial under Art 6 of the 57 convention should not be treated as inadmissible. Lord Hope (dissenting) felt that the courts were going too far towards legislating: The rule of construction which s 3 lays down is quite unlike any previous rule of statutory interpretation. There is no need to identify an ambiguity or absurdity. Compatibility with convention rights is the sole guiding principle. That is the paramount object which the rule seeks to achieve. But the rule is only a rule of interpretation. It does not entitle the judges to act as 58 legislators. Page 36 of 42 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 4. Using legislation However, Parliament did seek to limit the rights of the defence to question alleged victims of rape. R v A could therefore be considered to be an act of quasi-legislation by the House of Lords. 59 In Re S (Care Order: Implementation of Care Plan) Lord Nicholls explained the operation of s 3 as follows: The Human Rights Act reserves the amendment of primary legislation to Parliament. By this means the Act seeks to preserve parliamentary sovereignty. The Act maintains the constitutional boundary. Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes, are matters for Parliament. 60 In Ghaidan v Godin-Mendoza the House of Lords significantly clarified the force to be given when construing legislation under s 3. Lord Nicholls stressed that the intention of Parliament in enacting s 3 was, to the extent bounded only by what is ‘possible’, to allow the court to modify the meaning and hence 61 the effect of primary and secondary legislation, pointing out that s 3 is the principal remedial measure 62 and that declarations of incompatibility were a measure of last resort. He also rejected the literal approach to interpretation, emphasizing a broad approach, concentrating, 63 amongst other things, in a purposive way on the importance of the fundamental right involved. The practical effect of Mendoza is to establish a strong, but rebuttable, presumption in favour of an 64 interpretation consistent with Convention rights. 4.3.3 Interpretation, the European Communities Act 1972, and Brexit Whilst the UK was part of the EU, the approach to be taken to the interpretation of statutes which legislated in areas also governed by EU law was set out in s 2(4) of the European Communities Act 1972. This said that: Any enactment passed or to be passed … shall be construed and have effect subject to the foregoing provisions of this section. p. 95 ↵ In other words, any legislation passed or to be passed (so all present and future legislation) in the United Kingdom had to be interpreted with applicable EU law in mind. There was therefore a strong presumption (indicated by the word ‘

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