Statutes vs Common Law:
Statutes are enacted through the legislative process, while the common law develops through this and case law.
Statutory Law-making: Bill > Read, Debated and Amended in Lower Chamber (HC) > Voted on by HC > Read, Debated and Amended in Upper Chamber (HL) > Voted on by HL > Royal Assent
While in case law, court judgements do not enact every word as law, every word of a statute is the law once it becomes an act. It can be said, therefore, that statutes are interpreted and cases are read.
Parliamentary Supremacy vs Judicial Supremacy:
Statute law is supreme over judge-made case law in the UK. This is because the legislative process gives statutes democratic legitimacy. This means that the validity of the statute derives from the fact that representatives (MPs) can be voted out of power by the electorate.
While judges may review the actions of members of the government, they cannot review statute law to determine its validity. This is somewhat of an oddity in comparison to many other nations. When the courts undergo judicial review, there declarations (such as a Declaration of Incompatibility under the Human Rights Act 1998) usually aren't legally binding.
Justification of Parliamentary Supremacy without a Written Constitution:
The legislature is better at creating law that the judiciary.
The courts are confined to dealing with issues relevant to the specific case in which judgement is being given on.
The legislature is not limited in this sense and can use statutes to address the issues relating to their constituents.
The legislature has more resources to obtain further information about matters requiring address (for example, through committees).
The judiciary are unelected and mostly comprise of largely non-diverse judges. The legislature is formed of a much larger and diverse group, which therefore make them more representative.
Statutory Interpretation by the Courts:
Historically, judges were members of the king’s council. They would be involved in the drafting of statutes, so they had great power in the legislative process. Statutes were their own work, so statutory interpretation was not an issue.
After the Glorious Revolution of 1688, the judicial and legislative branches began to separate, so there was more of an issue when interpreting what statutes meant.
(1) Literal / Plain Meaning Rule (Language vs Intention):
Courts now have to interpret statutes to determine their meaning as the language of the statute can deviate from Parliament’s actual intention.
The plain, ordinary meaning of the language of the statute should be interpreted first, before the intention of the act is applied. First, the courts should look to how an ordinary person would reasonably interpret the statute in its context.
As Lord Hoffman notes, it would be irrational and unjust if lawyers interpreted language differently from ordinary people. [1]
‘We often say that we are looking for the intention of parliament, but that is not quite accurate. We are seeking the meaning of the words which parliament used.’ [2]
EG: ‘applicable’ would be said to mean ‘to be applied’ rather than ‘capable of being applied’. [3]
Some argue that groups cannot have an intention, while others say that they can. Burrows argues that it is an ‘unhelpful fiction or mask’ to make reference to Parliamentary intention as the courts are essentially taking on legislative powers. [4]
(2) Golden Rule (Legislating against Absurdities):
Sometimes words used in statute intentionally have 2 meanings to aid it in getting passed through Parliament (by appeasing both sides of the political spectrum).
It is assumed that Parliament would not legislate in a manner that would make the law absurd, so the courts can interpret statutory language with its secondary meaning to avoid absurd rulings that the legislature did not intend. As this is essentially judicial legislation, the court can only do this when it is certain of Parliament’s intention, and this is obvious.
The court will never interpret a law in a way that makes it absurd as Parliament did not intend to create an absurd law. A meaning that is plain but plainly absurd will be modified by the courts to represent what the law intended to be.
In Alder v George, G was caught on military base obstructing an officer, but not in the ‘vicinity’ of the military base. G argued that he cannot be prosecuted due to his reading of the Official Secrets Act. The court read in ‘on or in the vicinity’ as the intention of the Act was still the same.
In ex parte Quintavalle, a new technique for the creation of human embryos had been developed that did not require fertilized eggs. The Human Fertilization and Embryology Act 1990 allowed the creation of human embryos using fertilized eggs. Parliament’s intention was not to allow one means of creation and prevent another. The House of Lords ignored the statutes reference to ‘fertilized eggs’ to apply the statute.
(3) Mischief Rule:
Statutory language can have more than one credible meaning, making it ambiguous. The application of the statute then must rely on the problem in the law that Parliament was intending to remedy by enacting the statute.
These ambiguities can be deliberately introduced by the legislative. E.g. the two parties agree to disagree.
In Heydon’s Case, it was established that the court would ask ‘what was the “mischief” that the statute was designed to remedy?’ An interpretation of the statute was based on the answer.
Imaginative Reconstruction:
Determining what the legislature that enacted the statute would say about the issue if they were reconvened today. How would they apply the statute to the current problem?
Problems:
Might not allow the law to develop and update with time.
This can allow judges to add in their own intentions, potentially creating bias.
Legislative History:
Discover the mischief by looking at the debate as it happened in parliament.
Problems:
Statements made by ministers do not represent the intent of Parliament.
Court cannot refuse looking at legislative history, even though it is costly.
Citizens act according to statute law, not statements made in Parliament.
Lawyers look too deeply for statement to prove their point and win case.
In Pepper v Hart, H teaching at private school. H’s son educated there with staff concession for reduce fees.
Inland Revenue argued H had to pay tax on the “cash equivalent” of the benefit provided in the staff concession. It was interpreted by IR and the Court of Appeal to mean that the tax had to be paid on the difference between the staff reduced tuition fee and the standard tuition fee. H argued that he only had to pay it on the tuition he did pay.
The House of Lords ruled that IR and the Court of Appeal were correct. The case was later re-heard and ruled in favour of H as the legislative history was looked over (using Hansard) to show that the intention of parliament was to tax H on the lower amount.
(4) Ensuring Convention Compliance (‘Reading Down’):
The judicial have a duty to interpret statutory language as far as possible to meet the European Convention rights [5]. This attempts to ensure that the law is as convention compliant as possible.
There is a difference between interpretation and interpolation of the law. Arguably, reading down statutes is an example of interpolation rather than statutory interpretation.
In Ghaidan v Godin-Mendoza, the Rent Act provided tenancy survivorship for widows / widowers. The statute extends to unmarried heterosexual relationships, but not homosexual ones.
To make the statute ECHR compatible, the House of Lords read in words ‘as if they were… wife or husband’. The House of Lords justified this as it didn’t run against the main intent of the statute, and Parliament would’ve accepted the amended words. This allows the judiciary to keep the law updated.
Millet LJ (dissent): States that the court was making law and was therefore unconstitutional. The alternative to the court’s majority ruling was to declare an incompatibility with ECHR. Millet LJ agreed that the majority argument was fairer to the widow.
The law has generally shifted from literal interpretation to purposive, contextual interpretation. [6]
Resources:
References:
[1] Leonard Hoffmann, "Language and Lawyers" (2018) 134 Law Q. Rev. 553-573 [2] Black-Clawson v Papierwerke Waldhof-Aschaddenburg [1975] AC 591, 613 (Lord Reid) [3] Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240 [4] Andrew Burrows, Thinking about Statutes: Interpretation, Interaction, Improvement (Cambridge University Press 2018) 1-44 [5] Human Rights Act 1998, s3; Duxbury (2017) 220 Green Bag 155 [6] Johan Steyn, “The Intractable Problem of the Interpretation of Legal Texts” (2003) 25 Sydney L. Rev. 5-19 at 11-16
Cases Mentioned:
Alder v George [1964] 2 QB 7
R (on the application of Quintavalle) v Secretary of State for Health [2003] UKHL 13
Heydon’s Case (1584) 3 Co. Rep. 7a.
Pepper v Hart [1993] AC 593
Ghaidan v Godin-Mendoza [2004] UKHL 30
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