Foundations Slides Week 8 PDF

Week 9: Statutory Interpretation & Legal Language. Week 9 Lecture Outline: Statutory Interpretation & Legal Language: Introduction Recap - Overview of Legislation Role of the Oireachtas Define Primary & Secondary legislation Explore the role of the judge in interpreting l...

Week 9: Statutory Interpretation & Legal Language. Week 9 Lecture Outline: Statutory Interpretation & Legal Language: Introduction Recap - Overview of Legislation Role of the Oireachtas Define Primary & Secondary legislation Explore the role of the judge in interpreting legislation; Discuss the main statutory interpretation techniques used by judges Consider why issues with interpretation arise. Focus on Literal Approach.  The role of our judges and the common law: “To reach a conclusion on this matter involved the court in wading through a monstrous legislative morass, staggering from stone to stone and ignoring the marsh gas exhaling from the forest of schedules lining the way on each side. I regarded it at one time, I must confess, as a slough of despond through which the court would never drag its feet, but I have, by leaping from tussock to tussock as best I might, eventually, pale and exhausted, reached the other side ….” Davy v Leeds Corporation 1 W.L.R. 1218 at 1224–1225 per Harman L.J Recap - Overview of Legislation Legislation = written law that has gone through the legislative process. 2ND highest domestic source of law in Ireland. Art 15.4.2 Constitution states that legislation is of lesser authority than the Constitution, any piece of legislation that is contrary to the Constitution is invalid. The Oireachtas = Dáil, Seanad, President. Under Art.15.2.1 the Oireachtas have exclusive law making power. Separation of powers Legislative branch: power to make law, as opposed to enforcing it (executive) or applying it (judiciary) Legislation Purpose of legislation: reduce rules to a written and fixed form Rule of law: consistency, stability Characteristics of legislation Stated in inflexible manner, no linguistic variations can be substituted Precise rather than general form Covering all conceivable loopholes Limit judicial discretion Prospective and abstract Creation of rules for future events, rather than resolution of specific disputes (law-making vs law- application) Reminder - Types of Legislation - Primary & Secondary Legislation: Secondary legislation can only exist if primary act has a section or sections identifying a person or body to whom power is delegated and specifying what powers s/he has. If statute does not contain such a provision or provisions, then there can be no delegated legislation attached to that particular statute. primary piece of legislation is often called the parent act i.e. there can be no child (secondary legislation) without a parent (primary legislation).  Primary and Secondary Legislation Types of Legislation: Primary legislation and secondary Legislation. Primary Legislation (statutes of the Oireachtas) Acts to Amend the Constitution Public General Acts Private Acts e.g. the MacSwiney (Pension) Act 1950  Secondary Legislation (delegated to a lower body; power tightly constrained by statute) Greater focus on details as opposed to general principles of Acts Orders, Rules & Regulations, Bye- Laws, Schemes etc. There are also forms of quasi-legislation such as codes of practice, circulars and administrative rules Govern areas of government business, but usually lack legal status or imposition of obligations Concerned with interpretation and implementation Statutory Interpretation: “Courts are frequently called upon to resolve disputes concerning the meaning to be given to a contested word or phrase in a domestically produced piece of legislation, primary or secondary. Indeed, it has been noted by the former Chief Justice, Murray C.J., that questions of statutory interpretation constitute “a high proportion of the decisions on law which the Courts routinely make”. When the dispute concerning the meaning is resolved, the interpretation of the word or phrase given by the court becomes part of the body of law governing that particular area. In other words, the legislation is now no longer to be read in isolation but has taken on the meaning ascribed to it by the judge or judges who heard the case. Accordingly, the judicial role in interpreting legislation is an important one." O’Sullivan et all at 4-30. Why is interpretation important? Byrne and McCutcheon: written communication can be a flawed mode of communication as it is an “imprecise instrument of communication.” “Words do not have settled, definite and uniform meanings – they are surrounded by uncertainty and doubt and usage adapts and evolves over time” By way of example – think of the various meanings which some legal terms can have depending on the context? Civil Law? Common Law? Jurisprudence?  Shannon Regional Fisheries Board and An Bord Pleanála 3 IR 449. “statutory interpretation is solely a matter for the Corts, and no other body has authority to usurp the power of the Court in performing that function.” Barr J. at 456.  The Role of the Courts: Courts are frequently called upon to resolve disputes concerning the meaning to be given to a contested word or phrase in a domestically produced piece of legislation, primary or secondary. Former Chief Justice, Murray C.J., “a high Statutory proportion of the decisions on law which the Courts routinely make”. Interpretation: Interpretation of the word or phrase given by the court becomes part of the body of law governing that particular area. Judges use a number of interpretive techniques to deduce the meaning of statutory provisions, they are in principle constrained by Art.15.2 of the Constitution, whereby “sole legislative power is vested with the Oireachtas.”  “it is for the legislature to make the (general) law, and the courts must, unless it is otherwise unconstitutional, enforce it.” “On the judicial side of the border, it is usually for the court to settle matters in each particular case. This may have to be done depending on how the legislation is framed, for instance: by interpreting “The borderline the legislation; by determining what factual issues are relevant; or by ascertaining the most likely between the version of the factual issues. But - and here is the important point - it is for the legislature, in legislative and the making statute law, to determine how far the legislation goes and, therefore, which area is left judicial function.” to the province of the court. In short, the location of this break between the province of the judge and that of the legislator is settled by statutory law D Gwynn Morgan - "Judicial-o-centric" Separation of Powers on the Wane? Irish Jurist, New Series, Vol. 39 (2004), pp. 142-160 The Role of the Judiciary - The Legislature passes the law, the Executive puts it into operation and the Judiciary interprets it. And so, the sole legislative power is vested in the Oireachtas. This means that the court is not permitted to interpret legislation in a way that changes the meaning of that legislation. Instead, it must interpret the contested word or phrase in a way that best gives effect to what the legislature intended when they enacted the legislation in question. As Byrne and McCutcheon note “the stated objective of the Courts is to discover “the intention of the legislature.” This exercise is one of unravelling the meaning which the Oireachtas expected the words to bear.” Byrne & McCutcheon p.468 14.11 Legislative Intent: The interpretation of the Courts cannot alter legislation in any way Maher v A.G. IR 140: “The usurpation by the judiciary of an exclusively legislative function is no less unconstitutional than the usurpation by the legislature of an exclusively judicial function.” must interpret the contested word or phrase in a way that best gives effect to what the legislature intended when they enacted the legislation in question. This is known as seeking to give effect to legislative intent. The problem with the concept of “legislative intent” is that it is, in reality, a legal fiction.  Legal Fiction It is often impossible to speak of a single legislative intent behind the passing of these pieces of legislation. The concept of legislative intent is therefore: “nebulous and can best be regarded as a linguistic formula which reveals the nature of the exercise of legislative interpretation. It points to a constitutional arrangement based on the relationship between the legislature and the judiciary. It recognises that the function of legislating is given to the Oireachtas and that that function should not be undermined by the Courts. The intention of the Oireachtas is expressed in legislation and the Courts are required to given effect to that duly expressed intention. It conveys the idea that the principle constraint on statutory interpretation is that the Courts are required to act in a manner which does not usurp the legislative function.” B&M 14:12 p468 Nonetheless, this is what judges are expected to find.  the Court may not add to the text of a statute even where this would lead to a more equitable result as this would result in the court make law rather than interpreting the law. Barr J PJ v. JJ: “A court is entitled to interpret legislation so as to resolved any ambiguity or obvious error therein. However, where the statute is clear in terms, the court has no power to extends its provisions to make good what is perceived to be a significant omission. If the Court took that course it would entail going beyond statutory interpretation and into the realm of law making, a function which under the constitution is reserved to the Oireachtas.” ILRM 273 at 276. McGrath v. McDermott IR 258 “The function of the courts in interpreting a stature of the Oirechtas is, however strictly confined to ascertaining the true meaning of each statutory provision, resorting in cases of doubt or ambiguity to a consideration of the purpose and intention f the legislature to be inferred from other provisions of the statute…the Courts have not got a function to add to or delete the from express statutory provisions so as to achieve objectives which to the courts appear desirable…In rare and limited circumstances words or phrases may be implied into statutory provisions solely for the purpose of making them effective to achieve their expressly avowed objectives…” Finlay C.J at 275-277. Statutory Interpretation: Issues Specific problems that arise that require judicial interpretation: Wording that is difficult to understand Poor drafting – lack of definition of particular terms Uncertainty as to the legislative intent or purpose of the Act Literal application of statutory meaning is sometimes impossible, ambiguous or absurd Unforeseen events  Statutory Interpretation: Issues Bulk of legislation is implemented with little difficulty and without need to use courts to undertake interpretation But some ambiguous/problematic situations are inevitable Why interpretation is needed: Language is indeterminate – it can have multiple meanings Statutes use complex or archaic language (remember the ‘Plain Language’ Initiative from last week) Legislatures are enacting laws for the future Impossible to know about every possible contingency or development Cases involve parties in conflict  The stated objective of the courts is to discover the intention of the legislature, this means that the courts must unravel the text to discern the meaning which the Oireachtas expected the piece of legislation to have. Nb: The Oireachtas makes law, courts apply law. Article 34: judicial power vested in the Courts, this includes ‘interpretative prerogative’ – which vests the final and authoritative say on interpretation to the Courts. The interpretation of the Courts cannot alter legislation in any way. Maher v A.G. IR 140: “The usurpation by the judiciary of an exclusively legislative function is no less unconstitutional than the usurpation by the legislature of an exclusively judicial function.” “judicial à-la- cartism” Discrepancies between how these ‘rules’ of statutory interpretation. Think of these various statutory interpretation techniques as tools rather than as rules. As Holland and Webb put it, using the word “rule” “gives the impression that if you follow a particular pattern you will not go wrong. [The word ‘rule’ also conveys a false] aura of scientific authenticity … when the reality is … that interpreting any document is more of an art than a science”.  “a remarkable disparity between the courts’ description of statutory interpretation as a mechanical, uncreative process centred around the retrieval of legislative intent, and the far-reaching judicial power inherent in the use of constitutional principles (as well as other public values) as supplementary sources of statutory meaning”. C. Curran and E. Daly, “Reappraising the Constitutional Justification for Intentionalism and Literalism in Statutory Interpretation” (2013) 36 D.U.L.J. 155 at 181. Approaches to Interpretation The Canons of Interpretation: Historically, there were three main approaches to interpretation: The literal rule, the golden rule and the mischief rule Mischief Rule – emergence of statute law in Britain in 15th century Attempt to maintain dominance of common law over statute law Rule: Determine the defect or mischief which the statute was designed to remedy An early form of the teleological approach (discussed later)  The Literal Approach provides that words in a statute should be given their “literal” or ordinary and natural meaning. Considered to be the primary canon of interpretation it was defined succinctly in the Sussex Peerage case as: “If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natura and ordinary sense. The words themselves alone do, in such cases, best declare the intention of the lawgiver, but if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention to call in aid the ground and cause of making the statute ad to have recourse to the preamble.” 11 Cl and Fin 85 at 143. The Literal Rule:  A more recent definition can be found by Budd J in Rahill v Brady: “In the absence of some special technical or acquired meaning, the language of the statute should be construed according to its ordinary meaning…the ordinary meaning of words should not be departed from unless adequate grounds can be found in the context in which words are used to indicate that a literal interpretation would not give the real intention of the legislature.” IR 69 at 86. The Golden Rule: The Golden Rule formerly operated when the Literal Rule led to a contrary or absurd result. Judges permitted to look for an alternative meaning. An alternative/secondary meaning is chosen. The Four Corners Rule - Court must rely on the written instrument solely and cannot consider extraneous evidence. This Photo by Unknown Author is licensed under CC BY- SA The Mischief Rule developed in the 16th century and was outlined in Heydon’s case: (1584) “And it was resolved that … four things are to be discerned and considered: 1st What was the common law before the making of the Act, 2nd What was the mischief and defect for which the common law did not provide, 3rd What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth, and 4th The true reason of the remedy ….” Modern Approaches The modern approach to interpretation mirrors these historical approaches: Two approaches now used – the literal approach and the teleological or schematic approach (i.e. purpose-based)  The aim of the Literal Approach is to give effect to legislative intent. The literal approach requires the judge to give the word or words in a statute their literal, ordinary and natural meaning. It works from the presumption that the legislature chose the word or words at issue for a reason and, in making that choice, the legislature understood them to have their ordinary meaning. If the legislature had wanted an ordinary word to have a special meaning, then they could have said so, typically by defining it in the interpretation/definition section of the statute. The Literal Approach  The literal approach is promoted as the primary principle of statutory construction in Ireland: O’Flaherty J noted in Cork County Council v. Whillock 1 IR 231. “it is clear to me that the first rule of construction requires that a literal construction must be applied. If there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words.” It holds this position because it is thought to be the best means of deciphering legislative intent. The prioritising of legislative intent by the courts has its basis in Art.15.2.1°, whereby the Constitution has vested the legislative function in the Oireachtas, and Art.6 which enshrines the separation of powers. This approach concentrates on the rule of law principle that it is the legislatures who make the law and therefore the law as applied should be the law the legislature  Interpretative duty of the Courts Courts are obliged to give effect to the intention of the legislature as revealed by the literal meaning of the legislative text Where the literal meaning of the text is clear or “plain”, the task of interpretation is done and the court should not worry about legislative purpose or look to other aids to interpretation This meaning governs regardless of the consequences Places importance of clarity/precision upon legislature Constitutionally prescribed interpretative guide limits discretion Respects intention of legislature How to measure intent? If one is divining the meaning of the legislation directly from the text, then one must assume that the text says what it means, and means what it says: Howard v Minister for Public Works – Blayney J: “the intention of the legislature is first and foremost found in the text of the statute, and in the words used to convey that intention” The reason why this approach is so important in Irish law was clearly stated by Denham J. in Lawlor v. Flood, : “[i]n applying the ordinary meaning of the words, the Court is enforcing the clear intention of the legislature. This aspect of statutory construction is an essential part of the separation of powers. Further, it is an illustration of appropriate respect by one organ of government to another.”  Inspector of Taxes v. Kiernan, I.R. 117 Issue: was Kiernan a “dealer in cattle” pursuant to section 78 of the Income Tax Act 1967? Law: “When the legislature used the word ‘cattle’ … without … giving it a definition, was it intended that the word should comprehend pigs? That the word has, or has been held to have, that breadth of meaning in other statutes is not to the point. A word or expression in a given statute must be given meaning and scope according to its immediate context, in line with the scheme and purpose of the particular statutory pattern as a whole, and to an extent that will truly effectuate the particular legislation or a particular definition therein.” (Henchy J. at 121)  Contd. Inspector of Taxes v Kiernan Henchy J declared three basic rules of interpretation concerning this case: “if the statutory provision is one directed to the public at large, rather than to a particular class who may be expected to use the word or expression in question in either a narrowed or an extended connotation, or as a term of art, then, in the absence of internal evidence suggesting the contrary, the word or expression should be given its ordinary or colloquial meaning.” The Act in question was a general act concerning taxation, so the Court found that it was “plainly addressed to the public generally…word ‘cattle’ should be given the meaning which can ordinary member of the public would intend it to have”  “when the word which requires to be given its natural and ordinary meaning is a simple word which has a widespread and unambiguous currency, the judge construing it should draw primarily on his own experience of its use” “To the ordinary person, cattle, sheep and pigs are distinct forms of livestock” Therefore Kiernan should not be taxed as a cattle dealer “if a word of expression is used in a statute creating a penal or taxation liability, and there is looseness or ambiguity attaching to it, the word should be constructed strictly as to prevent a fresh imposition of liability from being created unfairly”  The literal approach, can sometimes lead to a result that could not have been the legislature’s intention. Courts justify giving the word/phrase such an interpretation on the basis that they cannot amend the clearly written text of a piece of legislation because it would amount to a usurpation of the legislative function. This is so even if the judicial amendment would lead to a more equitable result or to a result which better gives effect to the known or presumed legislative purpose.  On a strict application of this rule, the court may not add to the text even if this leads to a more equitable result or a result which better gives effect to the known or presumed legislative intent. PJ v JJ – Barr J at 276: “A court is entitled to interpret legislation so as to resolve any ambiguity or obvious error therein. However, when the statute is clear in its terms, the Court has no power to extend its provisions to make good what is perceived to be a significant omission. If the court took that course it would entail going beyond statutory interpretation and into the realm of law making, a function which under the Constitution is reserved to the Oireachtas. Occasionally, circumstances arise where the court is powerless to avoid  Thus, where an unanticipated event arises or where an obvious oversight on the part of the legislature is identified, the Court is powerless to fix this, supplying the omission and filling the gaps through their interpretation: McGrath v McDermott “The function of the courts is strictly confined to ascertaining the true meaning of each statutory provision… The courts have not got a function to add or delete from express statutory provisions so as to achieve objectives which to the courts appear desirable”  Courts instead attempt to discern the intent by focusing on the text only; it is not an attempt to guess what the TD or Minister had in mind Crilly v T&J Farrington Ltd - parliamentary debates cannot be used to discern intention “The phrase ‘intent of the legislature’ is, on a casual view, ambiguous because it does not expressly convey whether it is the subjective intent or the objective intent of the legislature which is to be ascertained. Manifestly, however, what the courts in this country have always sought to ascertain is the objective intent or will of the legislature. This is evident for example from the rule of construction, according to which, when the meaning of the statute is clear and definite and open to one interpretation only in the context of the statute as a whole, that is the meaning to be attributed to it.” This approach also aligns with the rule of law – the text governs, not the writers The reason why this approach is so important in Irish law was clearly stated by Denham J. in Lawlor v. Flood, 3 I.R. 107 at 136: “[i]n applying the ordinary meaning of the words, the Court is enforcing the clear intention of the legislature. This aspect of statutory construction is an essential part of the separation of powers. Further, it is an illustration of appropriate respect by one organ of government to another.” Exceptions to the Literal Approach: The literal approach although the preferred means of interpretation, has never been the sole method applied by judges resolving issues with statutory interpretation. In some instances, another approach may be more suitable. There are three well established exceptions to the operation of the literal rule: The Purposive/Teleological Approach; Where the literal approach would be inappropriate due to technical or legal language; Where the legislation is directed at a particular class of people rather than at the general population.  There are three well established exceptions to the operation of the literal rule: Where the literal approach would be inappropriate due to technical or legal language; Minister for Industry and Commerce v Pim Brothers Ltd I.R. 154. Burke v. Aer Lingus plc 1 ILRM 148 at 159 Where the legislation is directed at a particular class of people rather than at the general population Minister for Industry and Commerce v Hammond Lane Metal Co Ltd Ir Jur Rep 59 The Purposive/Teleological Approach; Next Lecture: Purposive/Teleological Interpretation Discovering the purpose Interpreting national law in line with EU law Aids to interpretation Internal and External Presumptions Presumption of constitutionality Presumption of compatibility with international law