Podcast: the Fair
‘It is well accepted that it is the role of the legislature to make law whilst it is the role of the judiciary to apply it.’
Critically consider how the judiciary ensure that this principle is maintained in situations where a court is required to interpret statute.
Podcast: the Fair
As is made clear in the quote, in the UK it is the function of parliament to make law and the function of the courts to apply it. However, the law expressed in legislation is not always as clear as perhaps it should be and because of this the courts may be required to interpret legislation before they can apply it to the facts before them. Words are often an imperfect means of communication; they may be ambiguous or insufficiently precise. A statute may use archaic language, be out-of-date or simply poorly drafted, thereby giving rise to confusion and the need to construe its precise meaning. In such circumstances, how do the courts ensure that they apply the law as was intended by parliament and make certain that they don’t inadvertently substitute their own views for those of parliament, thereby subverting the will of the legislature? (1) The introduction provides evidence of analysis of the specific question set but, unlike the 'good' answer, the quote provided in the question has been taken at face value with no attempt at evaluation, explanation or support by the provision of appropriate authority.
When judges are faced with such a situation a number of rules, aids and presumptions have been developed in order to assist them. Initially a number of ‘presumptions’ with regard to the legislation can be made, such as the presumption that mens rea is required for a criminal act (Sweet v Parsley (1970), where a school teacher was convicted under the Dangerous Drugs Act 1965 that the statute will not change any common law rules on which it may be based (Leach v R (1912), where the Criminal Evidence Act 1898 was subject to interpretation), that an act will not have retrospective effect, that the Crown is not bound by the legislation, that no deprivation of liberty is intended and that parliament does not intend to exclude the jurisdiction of the courts (Anisminic V Foreign Compensation Commission (1969)). These presumptions are, however, subject to any express words contained within an Act (for example, the War Crimes Act 1991 expressly provides that the Act should have retrospective effect.)
A number of rules have also been developed in order to assist with the task of interpretation, namely the literal rule, the golden rule and the mischief rule. The literal rule provides that the ordinary, literal or everyday meaning of the words should be used. An example of this rule can be found in the case of Whitefly v Chapell (1868), where a statute provided that it was an offence to impersonate any person ‘entitled to vote’. The defendant had impersonated someone who was deceased but, as a deceased person cannot be entitled to vote, he was acquitted. A further example is London v North Eastern Railway (1946), where legislation provided that a ‘lookout’ must be provided by a railway company where rail track was being relayed or replaced. A railway worker was killed when maintaining the track and the court, using the literal interpretation, held that as he was neither involved in relaying nor replacing track, no ‘lookout’ was required.
However, where the literal rule creates an ‘absurd’ result, the golden rule may be applied, under which words may be ‘modified’. For example, in R v Allen (1872) the word ‘marry’ was modified to mean ‘go through a marriage ceremony’ in order to avoid the statute becoming unenforceable. Similarly, in Re Sigworth (1935) the golden rule was applied to the words of the Administration of Justice Act 1925 in order to ensure that a convicted murderer was not allowed to benefit as a result of his crime. This rule has also been applied where legislation contains words or phrases which may be open to more than one interpretation, as in Jones v DPP (1962).
A further rule, know as the mischief rule, requires the courts to consider what ‘mischief’ the legislation was enacted to overcome, rather than merely relying on its literal meaning. For example, in Smith v Hughes (1960) the court decided that the words ‘street or public place’ as found in the Street Offences Act 1959, should be interpreted to include such places as balconies and behind windows. Other examples of this approach can be found in cases such as Elliott v Grey (1959) and Royal College of Nursing v DHSS (1981).The purposive approach also encourages the courts to look beyond the words of a statute and interpret it in the light of the purpose of the legislation. For example, in Bulmer (HP) v Bollinger SA (1974), Lord Denning made it clear that the court needed to look at the ‘purpose or intent’ behind the legislation. (2) Unlike the 'good' answer, there is no mention of the impact of EU membership and the approach that must now be taken where domestic courts are called upon to apply EU law.
Since the enactment of the Human Rights Act 1998 the courts have also been provided with a duty to interpret legislation in accordance with the Act. Section 3 HRA provides that, ‘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’. (3) While the writer demonstrates knowledge of the duty placed on courts to interpret in line with the Human Rights Act, again unlike the 'good' answer, no attempt has been made to evaluate its impact on legislative interpretation
In addition, it is accepted that there are a number of aids to statutory interpretation that may be utilised by the judiciary. These include both those intrinsic and extrinsic to the legislation. Intrinsic (or internal) aids include assistance that can be found within the statute itself, such as both the short and long titles of an Act (The Black-Clawson Case (1975)), the preamble (in older acts), sections that provide definitions of the words used within the statute (for example, those found in the Theft Act 1968 and the Consumer Credit Act 1974), schedules, headings and other explanatory notes (R v A (2001)). In addition, the manner in which punctuation is used may also be taken into account when interpreting legislation (Hanlon v Law Society (1981)).
Extrinsic (or external) aids include dictionaries, textbooks and reports, such as those produced by the Law Commission (The Black-Clawson Case), academic writing ( R v Shivpuri (1987)) and past case law (Re: A Children). In addition, since the decision in Pepper v Hart (1993), Hansard (which is the official record of parliamentary debates) has been available to the courts where legislation is obscure. Only clear statements made by the promoter of a bill may, however, be referred to. In addition, Parliament has given the judiciary some additional assistance by enacting the Interpretation Act 1978, which provides definitions of certain words, such as where masculine words are used they should be read to also include the feminine, and singular words read to include plurals.
Finally, the courts may also follow rules of language in order to assist them in their task. Such rules include ejusdem generic where, if specific words are followed by general words, those words should be limited to things of the same kind (Powell v Kempton Park Race Course (1899)), expressio unius est exclusio alterius, which provides that, where a list is not followed by general terms, then only those words found in the list will apply (R v Sedgley Inhabitants (1831)) and noscitur sociis, which provides that words should be read in context (Inland Revenue Commissioners v Frere (1964)). (4) Paragraphs 2 to 9 clearly demonstrate a sound level of knowledge of the various presumptions, rules and aids available to the courts in order to aid them with the task of statutory interpretation. Again, unlike the 'good' essay, there is less attempt at evaluation of each, with emphasis instead being given to more examples of the same.
In 1967 the Law Commission proposed that a more liberal approach be taken in regard to the use of the ‘aids’, whilst also supporting the contextual approach. In 1975 the Renton Committee on the Preparation of Legislation recommended that the solution lay with the drafters and it was recommended that acts should be simpler in style and detail. However, in a 1992 report, the Hansard Society concluded that little had changed as a result of such recommendations and emphasised once more that clarity should be a priority. (5) This paragraph demonstrates some attempt at broader reading, as it provides some consideration of the up-to-date position in regard to both the need to interpret legislation and the means by which that function should be executed but it is descriptive rather than critical.
In conclusion, I would agree that it is indeed ‘well accepted that it is the role of the legislature to make law whilst it is the role of the judiciary to apply it’ and that the courts must ensure that they do not make law. However, due to the problems associated with statutory interpretation, the distinction between roles has been difficult to ensure. The various rules and aids utilised by the judiciary have, however, gone some way to assist them in their function. (6) The final paragraph demonstrates the writer has recognised the need to provide a concluding paragraph that attempts to bring together the various threads found in the main body of the answer and to use the fact and arguments provided to answer, briefly, the specific question set. As is appropriate in a conclusion, it doesn't attempt to introduce any new information but this conclusion is very brief and lacks any reference to the future.
Bibliography
It is assumed that a bibliography, appropriately structured and referenced, has been provided.
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