Podcast: the Good
‘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 Good
The fundamental constitutional principle of the separation of powers, as asserted by the French philosopher Montesquieu, provides that the powers of the state, that is executive, legislative and judicial functions, should not be concentrated in the same hands. The English constitutional principle known as parliamentary supremacy (or the sovereignty of Parliament) provides that Parliament alone has the authority to legislate. As explained by the legal philosopher A. V. Dicey, no person or body has the right to override or set aside statute enacted by Parliament and so the constitutional role of the judiciary must be to apply the law and not to make it.(1) This paragraph, albeit brief, places the quote into context. Reference to legal commentators such as Montesquieu, Blackstone and Dicey adds the necessary authority in support of what is asserted.
However, on further examination, it can be seen that the courts enjoy a degree of discretion in regard to their judicial role, in respect of their ability to apply common law (unwritten laws based originally on common custom) and also in situations where they are called upon to interpret legislation before applying it to the facts of a case before them (known as statutory interpretation). It can be argued that such discretion provides the courts with the opportunity to usurp the role of parliament and create law, a position maintained by Lord Radcliff, who provided that ‘There was never a more sterile controversy than that upon the question whether a judge makes law. Of course he does. How can he help it?’ On the other hand, according to William Blackstone's declaratory theory, judges do not make law, but merely discover and declare the law that has always been. If then it is accepted that a court should not in fact make law but rather only declare the law before applying it to the facts if a case, how does the court ensure that it does not slip into the role of legislator and in particular, how do the courts ensure that this principle is maintained in situations where a court is required to interpret statute? (2) This paragraph goes on to further demonstrate that the student has taken time to analyse the specific requirements of the question, given the topic sufficient thought and has clearly understood the issues needing discussion. Once more reference to appropriate authorities is provided.
It is necessary first to understand why the courts may be required to interpret legislation. 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? (3) This paragraph clearly demonstrates both knowledge and understanding of the problems faced by the judiciary, together with an appreciation of how such problems arise.
The courts have developed a number of devices to help them in their task. The courts will normally follow a number of ‘presumptions’ with regard to the legislation, such as the presumption that mens rea is required for a criminal act (Sweet v Parsley (1970)), that the act will not have retrospective effect and that the statute will not change any common law rules on which it may be based. 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).
The courts have also developed a number of rules – or principles – in order to assist them with their task of interpretation, namely the literal rule, the golden rule and the mischief rule. The literal rule provides that the ordinary, liberal 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. While this rule has the advantage of supporting the constitutional principle that it is not the job of the courts to make law but to apply what has been made by Parliament, the disadvantages include creating an absurd result – which is unlikely to be the intention of Parliament. In order to remedy this potential problem, 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 a statute becoming unenforceable. The golden rule was however, in this respect, criticised by a Law Commission Report (1969) for failing to provide a meaning as to what an ‘absurd result’ may include. It is also relevant to note that this rule has also been applied where legislation contains words or phrases that may be open to more than one interpretation, as in Jones v DPP (1962), where Lord Reid provided that the court could ‘choose between the meanings’.
A further principle, known as the mischief rule (and sometimes referred to as the ‘Rule in Heydon’s Case, 1584’), requires the courts to consider what ‘mischief’ the legislation was enacted to overcome, rather than merely relying on its literal meaning. This rule has developed into what is known as the ‘purposive approach’, where a court will look beyond the words contained within the statute and interpret it in the light of the purpose of the legislation. This is the approach favoured by the European Union, where it is also known as the contextual or teleological approach. As the Court of Justice explained in Case 283/81, CILFIT, EU law should be ‘placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being given to the objectives thereof’. This approach has been accepted and put into effect by UK courts, as can be evidenced by the dicta of Lord Griffiths in Pepper v Hart (1993), which provided that ‘The days have long passed when the court adopted a strict construction . . . the courts now adopt a purposive approach . . .’.
Since the enactment of the Human Rights Act 1998, the courts have also, however, been provided with a positive 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.’ This has the impact of providing the presumption that parliament intended legislation to be compatible with the European Convention on Human Rights and also of excluding the principles of interpretation set out above.
In addition, it is accepted that there are a number of aids to statutory interpretation, which may be utilised by the judiciary. These include both those intrinsic and extrinsic to the legislation. Intrinsic (or internal) aids include assistance, which 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 (normally found in older acts), sections which provide definitions of the words used within the statute (for example, those found in the Theft Act 1968), 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 and textbooks (for example, The Institutes of the Laws of England by Sir Edward Coke and Commentaries on the Laws of England by William Blackstone have been cited), 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), in which the House of Lords overturned previous decisions, Hansard (which is the official record of parliamentary debates) may be made available to the courts where legislation is obscure. Only clear statements made by the promoter of a bill may, however, be referred to. Parliament has also given the judiciary some additional assistance by enacting the Interpretation Act 1978, which provides definitions of certain words and instruction such that ‘he’ should be interpreted to include ‘she’.
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 4 to 10 demonstrate particularly sound knowledge of the various devices employed by the judiciary to ensure that the will of parliament, rather than their own view, is applied. The use of examples is helpful, and appropriate authority in support of what is asserted gives the essay weight and provides the reader with confidence in the discussion provided by the writer. In addition, thoughtful and logical structure, together with clarity of expression, leads the reader progressively through the issues.
Before considering the impact of such rules, aids and presumptions, in particular whether they succeed in ensuring that the judiciary do not usurp the role of the legislature, it firstly needs to be recognised that there is unlikely to be one absolutely certain or correct interpretation. It should be understood that the courts often have a choice of approaches and the manner in which the judiciary perceive their role within UK constitution can also influence the manner in which the various devices are employed. This has caused a certain amount of academic debate, with the earlier viewpoint being summed up by John Willis (1938) who argued that the judiciary should use the means of interpretation that they believe to be just. The more modern consensus would appear to be that where two or more different interpretations are possible, the court should adopt the approach that fits in with the purpose of the law (Ronald Dworkin (1986)), with Sir Rupert Cross (1995) also supporting the contextual approach. J. A. G. Griffith (1997), however, argues that where the courts have two equally valid means of interpretation, they will have to base their final interpretation on something other than law, which may require the judiciary to make a policy-based decision and this may unavoidably take them into the realms of law-making. (5) This paragraph considers the realities of the situation, demonstrating the writer's evaluative skills and recognition of the academic debate surrounding the area. Again, what is put forward is well supported by appropriate authority.
There have been a number of attempts to resolve the problems associated with statutory interpretation. In 1967 the Law Commission proposed that a more permissive 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 that acts should include a statement of purpose and examples providing guidance on how the statute is intended to work. In addition, 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 (of drafting) should be a priority. Following this, the government has increased slightly the number of draftspersons and explanatory notes have become a feature of bills put before parliament from 1999 onwards. (6) This paragraph further demonstrates the writer's broad reading and perspective. It provides additional evidence of clear understanding by emphasising that this area of law is far from clear cut. It also provides the up-to-date position, again demonstrating the writer's breadth of knowledge.
In conclusion, while it is a well supported concept that the legislative role of parliament and the adjudicative role of the judiciary should not overlap, due to the problems associated with statutory interpretation, as set out above, maintenance of the distinction between roles has sometimes been difficult for the courts to ensure. While the various rules and aids utilised by the judiciary have gone some way to assist, it must be recognised that statute at times still, unavoidably, needs to be interpreted and that when this is the case, the courts still enjoy a certain degree of discretion when employing the various devices developed to assist. It would appear there is still scope for further improvement both in regard to standards of statutory drafting and also in terms of the development of the devices presently being employed by the judiciary. (7) The final paragraph demonstrates the writer's skill of synthesis. It brings together the various threads found in the main body of the answer and attempts to use the discussion provided to answer, briefly, the specific question set. As is appropriate in a conclusion, it doesn't attempt to introduce any new information.
Bibliography
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