Question:
The principles of statutory interpretation applied by judges in the republic of Convenia are the same as those which apply in English law. According to Convenia’s Electoral Integrity Act 2010, s 15(1):
“If a political party accepts a donation from a donor who is not registered on the electoral register at the time when the donation is made, the party must return the donation within 30 days of receiving it.”
According to s 15(2):
“If the party fails to return the donation within 30 days, the court may order the party to forfeit an amount corresponding to the value of the donation.”
Since 2011, Max has made over forty donations, amounting to 200 million Convenian dollars, to the Convenian Radical Reform Party (RRP). Until January 2019, Max was unaware that he was not registered on the electoral register (although he is a Convenian citizen, he remains unregistered to this day). As soon as Max learnt that he was not on the register, he notified the RRP. The RRP has never returned any of Max’s donations, and in July 2019 it accepted a donation from Max amounting to C$30,000.
In December 2019, the Convenian Electoral Commission sought a forfeiture order under s 15(2). At first instance, the judge ordered the RRP to forfeit C$200m. But in November 2020, Convenia’s Court of Appeal overruled the judge’s decision and held that the RRP was obliged to forfeit only C$30k. The RRP, a minority party which has been very effective in holding governments to account on environmental and human rights issues, will fold if it is ordered to forfeit the higher amount. The case is now before Convenia’s five-member Supreme Court.
Four of the five judges are divided. Emin and Saville JJ are of the view that s 15(2) confers a wide discretion on the Court, and that the Court of Appeal was therefore right to confine the forfeiture order to the one donation which the RRP had accepted from Max after having become aware that he was not on the electoral register. This wide discretion should be applied to the benefit of the RRP, they observe in their joint opinion, “because the legislative history confirms – indeed, it is common knowledge – that the point of enacting s 15 was to ban foreign donations to political parties. Parliament never intended to outlaw donations from persons who are entitled to be, but who happen not to be, on the electoral register.” For Kapoor and Banksy JJ, by contrast, the RRP must forfeit C$200m because “the language of s 15 could not be clearer: political parties must not accept donations from any individual not registered on the electoral register.”
The fifth Supreme Court judge, Hockney J, is about to write the tie-breaking opinion. Imagine you’re Hockney. What would your opinion say about how to interpret s 15?
Answer:
Should the plain meaning rule be used to interpret s 15 (1) of Covenia’s Electoral Integrity Act 2010?
Judge Kapoor and Judge Banksy believe that the RRP must forfeit C$200m due to how clear the language of s 15 is. In Black-Clawson v Papierwerke Waldhof-Aschaffenburg [1975], Lord Reid states that “We are seeking the meaning of the words which Parliament used.”.[1] Hence, the plain meaning rule was utilised to determine the ordinary meaning of s 15.
Under Nottinghamshire County Council v Secretary of State for the Environment [1986], the House of Lords established that the phrase “applicable” meant “to be applied” rather than “capable of being applied” so that the statute would be enforceable.[2] In the same way with the case against the RRP, ‘at the time when the donation is made’ in s 15 (1) can be interpreted as just that so that the statute can be enforced. This establishes that the court can order the RRP to forfeit C$200m in donations made by Max from 2011 to July 2019.
Although the literal rule can be used to interpret this act, there is still the question about whether it should be used. If the court is faithful to the language of the statute, it may lead to an unfair ruling, resulting in a hard case. As seen in London and North Eastern Railway v Berriman [1946],[3] the application of the literal rule might lead to injustice. Under the current case, requiring the RRP to forfeit C$200m will cause the party to fold which is a harsh sentence that may not be in the public interest. Therefore, due to the above reason, the plain meaning rule should not be used to interpret s 15(1) and it cannot be said that the party should forfeit C$200m.
Should the golden rule of statutory interpretation be used to interpret s 15 (1)?
An alternative to the plain meaning rule would be the golden rule utilised in R v Allen [1872] to add words into the statute so that the act is not interpreted to make the law absurd.[4] The main question in the case against the RRP is: is it absurd to expect the party to return the donation without knowledge of Max’s unregistered status?
According to Adler v George [1964],[5] it is acceptable to modify a statute to ensure that it is not unreasonable. In applying it to the current case, it can be deduced that it is absurd to expect a return of donation within 30 days if the party did not know about Max’s unregistered status. Moreover, the court may include the addition of a clause stating that a donation must be returned ‘at the time when the party is notified of the unregistered status of the donor’. This indicates that because the RRP was notified of Max’s status in January 2019, they are liable for the forfeit of the donation of C$30k made in July 2019, but not the other donations made from 2011 to 2019.
Can the mischief rule be applied to interpret s 15 (2)?
As established in Heydon’s case [1584],[6] the mischief rule highlights that statutory language can be ambiguous. S 15 (2) states that the court ‘may’ order the party to forfeit the donation. According to Gibson v Manchester CC [1979],[7] the use of the word ‘may’ is unclear, illustrating no obligation for the court to order a forfeit. Hence, allowing them the discretion of doing so.
Examining Quintavalle [2003] using imaginative reconstruction,[8] it is suggested that the legislature that established the statute would not want the statutory language to be updated. The legislature could not have intended for an exception to the law to be made due to the political issue of the RRP folding. Concurrently, in Royal College of Nursing v DHSS [1981],[9] it was established that statutes should be interpreted to reflect the changing needs of society. The RRP’s involvement in holding governments to account on environmental and human rights issues displays their participation in current affairs. Therefore, in applying the rationale of the above case, it can be determined that the court should use its discretion in making the RRP an exception to the statute.
Furthermore, Emin and Saville JJ stated that ‘the point of enacting s 15 was to ban foreign donations’, following Article 16 of the ECHR.[10] Using purposive interpretation, as depicted in Elliot v Grey [1960],[11]the aim of the act is important in deciphering ambiguity. Under Pepper v Hart [1992],[12] it was recognised that legislative history should be considered when deciphering mischief and the judges should turn to Hansard to fully understand the purpose of enacting this statute at the time.[13] As a result, it can be reasonably deduced that the purpose of this act was not to illegalise unregistered persons like Max from donating. Therefore, the RRP should only have to forfeit C$30k if the court requires them to do so.
Should s 15 be ‘read down’?
Per s 3 of the HRA,[14] judges should ‘read down’ a statute as much as possible so as to not violate the rights established in the ECHR.[15] Max is exercising his right to join associations as written in Article 11 of the ECHR.[16] The purpose of the statute is not to prohibit citizens of Covenia to donate, therefore, in requiring the RRP to forfeit C$200m it may seem as if there is a violation against Max of Article 11 of the ECHR.[17] Therefore, the court can read words into the statute, so that ‘at the time when the donation is made’ becomes ‘at the time when the donation is made and the party is notified of the unregistered donor’s donation’. As seen in Ghaidan v Godin-Mendoza [2004],[18] this reading is justified as it does not go against the intent of the act.
The fact that Max remains unregistered in July 2019 and still donates to the RRP then violates the ‘read down’ version of the statute. Therefore, the RRP is liable for a forfeiture of C$30k.
Feedback:
Grade: 68
Feedback:
This is a good answer-you have supported your answer with appropriate authority. Really impressive discussion around Articles 11 -could have also discussed Article 14 (Prohibition from Discrimination) of the ECHR.
When discussing the problems with the application of the literal rule, you could have also discussed the case of Fisher v Bell. Could have also discussed that there can potentially be disagreements on what constitutes the ordinary/natural meaning in light of R v Maginnis [1987]. The problems with applying the literal rule could derive from the fact that the word ‘may’ in s.15(2).
Could have discussed the HRA in the end.
Could have also discussed the case of Re Sigsworth [1935] when discussing the golden rule.
Where is your judgement?
References: [1] Black-Clawson v Papierwerke Waldhof-Aschaffenburg [1975] AC 591 [2] Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240 [3] London and North Eastern Railway v Berriman [1946] AC 278 [4] R v Allen [1872] LR 1 CCR 367 [5] Adler v George [1964] 2 QB 7 [6] Heydon’s Case [1584] EWHC Exch J36 [7] Gibson v Manchester City Council [1979] 1 WLR 294 [8] R v SoS for Health es parte Quintavalle [2003] 2 WLR 692 (HL) [9] Royal College of Nursing v DHSS [1981] 2 WLR 279 [10] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 16 [11] Elliot v Grey [1960] 1 QB 367 [12] Pepper v Hart [1992] 3 WLR 1032 [13] UK Parliament, ‘Hansard’ <https://hansard.parliament.uk> accessed 10 November 2021 [14] Human Rights Act 1998, s 3 [15] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) [16] Ibid. art 11 [17] Ibid. [18] Ghaidan v Godin-Mendoza [2004] UKHL 30
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