UNDERSTANDING STATUTES

by

V.C.R.A.C. CRABBE
First published in Great Britain 1994 by Cavendish Publishing Limited,
The Glass House, Wharton Street, London WC1X 9PX.
Telephone: 071-278 8000 Facsimile: 071-278 8080

© Crabbe, V 1994

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British Library Cataloguing in Publication Data

Crabbe, Vincent
Understanding Statutes
I Title
344.20822

ISBN 1 85941 138 X

Printed and bound in Great Britain
 DEDICATION

To all those who try to understand an Act of Parliament...

 Preface

Lord Denning complained that, of the many books that have been written on
the subject of the interpretation of statutes, ‘all [are] for the old hand. Not one
[is] for the beginner.’1 It is the intention of this little book to make good that
challenge, to attempt to explain to the beginner how to understand statutes.
The interpretation of an Act of Parliament demands an understanding of the
Act, which should be based upon a number of factors.
Perhaps the starting point would be a command of the language in which
the Act is drafted. Yet a mere command of the language would not be enough.
Acts of Parliament are not enacted for the fun of it – they are intended to solve
the problems of governments and of societies. That background knowledge –
of the problems and the solutions for the problems – is an essential pre-
requisite to an understanding of an Act of Parliament. The ‘four things … to
be discerned and considered’ as stated by the Barons of the Exchequer in
Heydon’s Case2 are still germane to an understanding of an Act of Parliament.
The processes through which a Bill passes on its way to the Statute Book
are also important. A Bill is drafted with the debates in Parliament in mind.
Parliamentary procedure thus influences the language of the Bill and
ultimately the language of the Act, which may require interpretation.
It should also be borne in mind that the language used in an Act of
Parliament is intended to express in law a policy or a set of ideas or values
thought necessary for the achievement of certain goals. Yet the idea that the
‘reasonable man of the law’ will easily understand an Act of Parliament is an
illusion – not because the Act is badly drafted, nor that the language used is
frightfully complicated, but because a knowledge of the subject-matter of the
Act may be woefully lacking.
In all walks of life to understand anything demands more than a mere
knowledge of what a thing is or is supposed to be. Cricket is a game. Football
is a game. The rules applicable to cricket are not the same as those which
apply in football. To understand the game of cricket or of football an
understanding of the nature of the two games, as well as how the game is
played, is essential. So it is with an Act of Parliament.
In addition, it is as well to note that an Act of Parliament is a form of
communication, a communication which tells its audience what to do or what
not to do. Herein lies the importance of the language in which the command
or the prohibition is stated.
The basic rules of the language must be understood. So must the nuances
of that language. And since the basic unit of any language is a word, words
and their meanings constitute an important factor in the use of language. That

__________________________________________________________________________________________________________________________________________
.
1 The Discipline of Law, p.9.
2 (1854) 3 Co. Rep. 7a; 76 ER 637.
ii Preface

is why an Act of Parliament is construed so as to give a meaning to the words

used in the Act. For, as stated by the Judicial Committee of the Privy Council
in Ditcher v Denison,3
It is a good general rule in jurisprudence that one who reads a legal
document whether public or private, should not be prompt to ascribe –
should not, without necessity or some sound reason, impute – to its
language tautology or superfluity, and should be rather at the outset
inclined to suppose every word intended to have some effect or be of some
use.
Case law has played – and will continue to play – a very important part in
the interpretation or construction of an Act of Parliament. Though
Interpretation Acts have helped in the process, case law is still the dominant
sphere wherein lie all the rules the courts have evolved for the interpretation or
construction of an Act of Parliament. An Interpretation Act is indeed in most
cases, a codification of the rules of interpretation or of construction, but it
only applies where there is no contrary intention. That contrary intention will
be discerned, when necessary, by the courts. When that is done, an
Interpretation Act ceases in its function to aid in the process – the decisions of
the courts will hold sway.
For this reason the words of the Judges have been relied upon, in some
cases extensively, to tell their own story. No better knowledge can be gained
than by reading what Judges have said -and continue to say – sometimes out
of court. This is primarily a student’s book and reading the judgments is in
itself part of the educative process that equips the student with the requisite
knowledge and is the one sure way to learn the law. Students should not find –
nor should they consider – reading judgments tiresome. To understand an Act
of Parliament one needs to understand what the Judges say about the language
of legislation. Those who draft legislation bear in mind what the courts have
said or are likely to say. The courts and the Judges are the audience of last
resort.
In a way this book is an attempt to answer at least some of the questions
which students in legislative drafting ask. It is thus linked to legislative
drafting, and certain areas which may be considered more appropriate to a
book on legislative drafting are, nonetheless, reproduced here in an attempt to
give the student a complete picture. This should obviate the necessity of
having to go to another source for a required information. One avoids, if one
can help it, anything in the nature of referential legislation.
My thanks go to my former students, who still communicate with me and
make valuable suggestions. Each set of students brings its own set of new
knowledge, new problems, new answers. Without reservation or equivocation
I acknowledge the debt I owe all of them. I must thank Miss Novellette Kidd
__________________________________________________________________________________________________________________________________________
.
3 (1857) 11 Moore PC 325 at p.337.
 Preface iii

who read some of the proofs and made valuable suggestions. Mr Sampson
Owusu of the Faculty of Law, as usual, has been very helpful with the
computer. So also must I acknowledge with gratitude the criticism of my
colleagues. It is a help not a hindrance.
I am very grateful to the Oxford University Press for allowing me access to
articles published in the Statute Law Review; to the Incorporated Council of
Law Reporting for England and Wales for permission to quote from the
judgments published in the Law Reports, King’s Bench, Queen’s Bench,
Appeal Cases, Chancery and Family Divisions, the Weekly Law Reports and
the Industrial Cases Reports; to Butterworths & Co. Publishers, for
permission to quote from the judgments published in the All England Law
Reports and to Juta and Company for permission to quote from the South
African Law Reports. Their readiness to grant permission has been a source of
inspiration.
I remember with sincere gratitude all my mentors – past and present.
I thank sincerely the many authors from whose works I have gained
knowledge, some of whom are mentioned in the Bibliography.
I am also grateful to Ms Jo Reddy and Mr Sonny Leong of Cavendish
Publishing Ltd. for their assistance in many ways. My special thanks go to Kim
Harris who compiled the Index.
Yet again my secretary, Mrs Iris Hinds, has been an angel. She has brought
to the work her usual patience, skill and dedication which made my task
easier.
To members of my family and to all friends, seen and unseen, I give
special thanks.
And to those whom I have overlooked, or could not get in touch with, my
very sincere apologies and my very warm thanks.

V.C.R.A.C. Crabbe
Faculty of Law
Cave Hill
June 1994
 CONTENTS

Page

Preface..................................................................................................................i
Table of Cases....................................................................................................vii
Table of Statutes.................................................................................................xv

CHAPTER 1............................................................................................................1
INTRODUCTION.........................................................................................1
What is a statute?.........................................................................................1
The Genesis – the formulation of policy ....................................................2
The Process – the drafting of legislation ....................................................5
The language – legal language....................................................................6
The progress – the stages in Parliament ...................................................14
Words – meaning, ambiguity, vagueness, etc...........................................25
The purpose – communication..................................................................44

CHAPTER 2..........................................................................................................19
THE FUNCTION OF THE COURTS .....................................................19
Interpretation and construction less legislation ........................................49
The validity of an Act of Parliament.........................................................52
Obsolete Acts of Parliament .....................................................................58
The whole Act ...........................................................................................59
The problems of the binding authority of precedent ................................62

CHAPTER 3..........................................................................................................67
INTERPRETATION BY PARLIAMENT ...............................................67
The interpretation section..........................................................................67
The Interpretation Act...............................................................................68
The dictionary ...........................................................................................73
Subsequent Acts of Parliament .................................................................74
Parliament as a court .................................................................................78

CHAPTER 4..........................................................................................................81
THE GENERAL RULES OF INTERPRETATION ....................81
General ......................................................................................................81
vi Contents

The mischief rule.......................................................................................82

The literal rule ...........................................................................................85
The golden rule .........................................................................................86
The intention of Parliament ......................................................................89
The modern approach ...............................................................................96
Extrinsic aids to interpretation ..................................................................97

CHAPTER 5........................................................................................................119
PRESUMPTIONS...........................................................................119
Consistency .............................................................................................119
Consolidation Acts..................................................................................120
Reasonableness of an Act – avoidance of injustice ...............................121
Alteration of the existing law. .................................................................129
Retroactive and retrospective operation of statutes ................................166
Conformity with the rules of international law ......................................172
Action or conduct lawful ........................................................................174
Application to Crown or Republic..........................................................175
Words to have the same meaning............................................................176
Territorial operation ................................................................................176
Surplusage ...............................................................................................177

APPENDICES ......................................................................................................189
APPENDIX A ..................................................................................189
Classification of Statutes.........................................................................189
APPENDIX B ..................................................................................195
A Bill for an Interpretation Act...............................................................195
APPENDIX C ..................................................................................223
Bibliography............................................................................................223
INDEX ...............................................................................................................227
 Table of Cases

Alder v. Deegan 167 N E 705 ...................................................................................40

Allen v. Whitehead [1930] 1 KB 211 .....................................................................127
Allgood v. Blake (1873) LR 8 Ex 160 ......................................................................87
Anisminic Ltd. v. Foreign Compensation
Commission [1969] 2 AC 147................................................37, 145, 151-154, 165
Armstrong v. Clark [1957] 2 QB 391 .........................................................................8
Ash v. Abdy (1678) 3 Swan 644.............................................................................100
Assam Railways & Trading Co. Ltd. v. Inland Revenue
Commissioners [1935] AC 445 .....................................................................51, 105
Assessor for Aberdeen v. Collie 1932 SC 304..........................................................78
Attorney-General for Canada v. Hallett & Carey Ltd. [1952] AC 427...................122
Attorney-General for Northern Ireland v. Gallagher [1963] AC 349 .......................86
Attorney-General v. Bradlaugh (1885) 14 QBD 667..............................................124
Attorney-General v. Carlton Bank [1989] 1 KB 64................................................123
Attorney-General v. Duke of Richmond and Gordon [1909] AC 466......................12
Attorney-General v. Ernest Augustus (Prince) of
Hanover [1957] AC 436 .......................................................................73, 182, 187
Attorney-General v. Maksimovich (1985) 4 NWLR 300 .......................................105
Attorney-General v. Ryan [1980] AC 178......................................................152, 165
Attorney-General v. Antigua Times [1976] AC 16 ..................................................35
Attorney-General v. GE Ry (1879) 11 Ch D 522 .....................................................20
Attorney-General v. Lamplough (1878) 3 Ex D 214 ................................................24
Auchterarder Presbytery v. Lord Kinnoull (1839) 6 Cl & F 646............................177
Baker v. Jones [1954] 1 WLR 1005........................................................................147
Barber v. Pigden [1937] 1 KB 664..........................................................................138
Barraclough v. Brown [1897] AC 615.............................................................160-161
Bayliss v. Roberts (1989) Simmon’s Tax Cases 693................................................35
Beswick v. Beswick [1968] AC 88 ...................................................................89, 120
Black-Clawson International Ltd. v. Papierwerke
Waldhof-Aschaffenberg AG [1975] 1 All ER 810.........................84, 98, 105, 108
Blackburn v. Flavelle (1886) 6 App. Cas. 628........................................................183
Blake v. Attersoll (1824) 2 B & C 875 ..................................................................185
Bloxham v. Favre (1883) 8 P D 101 ...............................................................172, 177
Bourne v. Keane [1919] AC 815...............................................................................62
Bourne v. Norwich Crematorium Ltd [1976] 2 All ER 576 .............................40, 182
Brown v. Board of Education (1954) 347 US
483, 74 S Ct 689, 98 L Ed. 873 ...............................................................................9
Burchell v. Thompson [1920] 2 KB 80.....................................................................25
Bywater v. Brandling (1828) 7 B & C 643 ..............................................................60
C & J Clark v. Inland Revenue Commissioners [1973] 2 All ER 513....................134
Caledonian Railway v. North British Railway (1881) 6 App. Cas. 114 ...................86
Callady v. Pilkinton (1707) 12 Mod. 573. ................................................................91
Campbell’s Trustees v. Police Commissioners of Leith
(1870) LR 2 HL (Sc) 11........................................................................................43
Canada Southern Railway v. International Bridge
Co. (1883) 8 App. Cas. 723 ................................................................................185
Carter v. Bradbeer [1975] 1 WLR 1204....................................................................27
Case of Proclamations (1611) 13. 12 Co. Rep. 74 ....................................................92
viii Table of Cases

Casement v. Fulton (1845) 5 Moore PC 130 ............................................................76

Chandler v. DPP [1964] AC 763...............................................................................21
Chapman v. Chapman [1954] AC 429......................................................................80
Chemicals Reference [1943] SCR 1 .......................................................................159
Chisholm v. Doulton [1899] 1 QB 20.....................................................................127
Chitambazam v. King Emperor [1947] AC 200 .....................................................158
Christie, Manson & Woods v. Cooper [1900] 2 QB 522........................................127
City of London v. Wood (1701) 12 Mod. 669 ..................................................53, 130
Coleshill and District Investment Co. Ltd. v. Minister
of Housing and Local Government [1968] 1 All ER 62 ....................................186
Colonial Bank of Australia & Other v. William (1874) LR 5 PC 417....................150
Commber v. Berks JJ (1882) 9 QBD 17 ...................................................................19
Commissioner for the Special Purposes of Income
Tax v. Pemsel [1891] AC 531 ...............................................................................72
Cooke v. New River Co. (1888) 38 Ch D 56 ...........................................................65
Cooney v. Covell (1901) 21 NZLR 106..................................................................186
Corkery v. Carpenter [1951] 1 KB 102...............................................................8, 183
Corporation of Glasgow v. Glasgow Tramway and
Omnibus Co. Ltd. [1898] AC 631 . .....................................................................186
Czarnikov v. Roth, Schmidt & Co [1922] 2 KB 478 ..............................................147
Davis v. Johnson [1979] AC 264...............................................................97, 102-103
Day v. Savadge (1614) Hob. 85 at 87 .......................................................................53
Dean v. Green (1882) 8 PD 79..................................................................................25
Dickson v. R (1864-65) 11 HL Cas 175 .................................................................181
Director of Public Prosecutions v. Schildkamp [1971] AC 1 ..................91, 120, 187
Dixon v. Caledonian Ry Co. (1882) 5 App. Cas. 820 ............................................181
Donoghue v. Stevenson [1932] AC 562 ...................................................................45
DPP v. Nasralla [1967] 2 AC 238...........................................................................138
Duke v. GER Reliance Ltd. [1988] 1 All ER 626.....................................................94
Duport Steel Ltd. & Ors v. Sir & Others [1980] 1 All ER 529...........................53, 88
Dyson Holdings Ltd. v. Fox [1976] 3 All ER 1030 ..................................................39
Ealing LBC v. Race Relations Board [1972] AC 342 ..............................................96
Earl of Mexborough v. Whitwood U D Co. [1897] 2 QB 111................................125
Eastman Photographic Materials Co. Ltd. v. Comptroller
of General Patents [1898] AC 571.......................................................................105
Edinburgh & Dalkeith Railway Co. v. Wauchope
(1842) 8 Cl & F 710......................................................................................53, 130
Edinburgh and Glasgow Ry v. Linlithgow Magistrates
(1859) 3 Macq, H.L., (SC) 691 ............................................................................19
Edwards v. Porter [1925] AC..................................................................................186
Ellerman Lines v. Murray [1931] AC 126 ................................................................86
Equitable Life Assurance Society of USA v. Reed [1914] AC 587 ......................122
Escoigne Properties Ltd. v. IRC [1958] AC 549 (HL) .............................................94
Esso Petroleum Co. Ltd. v. Ministry of Defence [1990] All ER 1 ...........................21
Evelyn Viscountess De Vesci v. O’Connell [1908] AC 298 ...................................13
Everard v. Poppleton (1884) 5 QB 181 ..................................................................183
Ex p. Copeland (1852) 22 LJ Bank 17.................................................................74-75
Ex p. Cox (1887) 20 QBD 1 .....................................................................................65
 Table of Cases ix

Ex p. Davis (1857) 5 WR 522 ..................................................................................29

Ex p. St. Sepulchre’s (1864) 33 L J Ch.372 .............................................................60
Eyston v. Studd (1574) 2 Plowden 459 ....................................................................83
Fairmount Investments Ltd. v. Secretary of State for
the Environment [1976] 1 WLR 1255 ................................................................165
Farrell v. Attorney-General of Antigua (1979) 27 WIR 377 ..................................163
Fielden v. Morley Corporation [1899] 1 Ch 1 ..........................................................19
Floor v. Davis [1979] 2 All ER 677..........................................................................25
Fordyce v. Bridges 1 HL Cas. 1..............................................................................187
Fothergill v. Monarch Airlines [1891] AC 251 ..........................................84, 98, 106
Fraser v. City of Fraserville [1917] 34 DLR 211....................................................148
Fry v. Inland Revenue commissioners [1959] 1 Ch 86 ............................................88
Funning v. Board of Governors of the United Liverpool
Hospitals [1933] All ER 454 .............................................................................105
Gartside v. Inland Revenue Commissioners [1968] AC 553 ..............................87-88
Giffels & Vallet v. The King [1952] 1 DLR 620............................................119, 176
Gilchrist v. Interborough Rapid Transit Co.
279 US 159, 49 S Ct 282, 73 L Ed. .......................................................................40
Girdlestone v. Brighton Aquarium Co. (1878) 3 Ex D 137 ....................................125
Great Western Railway Co. v. Swindon and
Cheltenham Extension Railway Co (1884) 9 App. Cas. 787 ..............................186
Green v. R (1876) 1 App. Cas. 573.........................................................................180
Greenwood v. Whelan [1967] 1 All ER 296.............................................................39
Grey v. Pearson (1857) 6 H.LC 61; 10 ER .........................................................82, 86
Griffith v. Barbados Cricket Association (1989) 41 WIR 48 .................................149
Hadmor Productions v. Hamilton [1982] 2 WLR 322............................................102
Hammersmith Ry v. Brand (1869) 4 HL 171 .........................................................139
Handley v. Handley [1891] P 124...........................................................................138
Hanlon v. The Law Society [1980] 2 All ER 199.....................................................25
Harcourt v. Fox (1693) 1 Show 506........................................................................177
Harrikissoon v. Attorney-General of Trinidad
and Tobago [1981] AC 265 .................................................................................161
Hartnell v. Minister of Housing and Local
Government [1965] AC 1134 7 .............................................................................88
Healey v. Minister of Health [1954] 2 QB 221.......................................................160
Helby v. Rafferty [1978] 3 All ER 1016...................................................................39
Helvering v. Gregory 69 F 2d 809 ............................................................................29
Heydon’s Case (1584) 3 Co. Rep. 7a; 76 ER 637 ...................5, 49, 51, 81-83, 93, 97
Hill v. Grange (1557), 1 Plowden 164 .....................................................................83
Hill v. William Hill (Park Lane) Ltd [1949] AC 530 .............................................177
Hobbs v. Winchester Corporation [1910] 2 KB 471...............................................127
Holmes v. Bradfield Rural District Council [1949] 2 KB 1 ...................................121
Houston v. Burns [1918] AC 337 .............................................................................25
Howard v. Bodington (1877) 2 PD 203 ..................................................................184
Ibralebe v. R [1964] AC 900.............................................................................57, 129
Income Tax Commissioners for City of London v.
Gibbs [1942] AC 402...........................................................................................120
Inland Revenue Commissioners & or v. Rossminster Ltd.
& Others [1980] AC 952 ......................................................................................53
x Table of Cases

Inland Revenue Commissioners v. Hinchy [1960] AC 748......................25, 182, 185

Inland Revenue Commissioners v. Saunders [1958] AC 285.................................124
Institute of Patent Agents v. Lockwood [1804] AC 347 .................................156-157
James v. Commonwealth of Australia [1936]
AC 578.............................................................................................73, 85, 137, 182
Johnson v. Chief Constable of the Royal
Ulster Constabulary [1987] QB 129 ....................................................................155
Joiner v. State Supreme Court of Georgia,
1969 223 Ga. 367, 155 SE 208 ..............................................................................57
Jones v. Department of Employment [1988] WLR 493; [1989] 1 QB 1 ................148
Jones v. Robson [1901] 1 QB 673 ..........................................................................158
Jones v. Soloman (1981) 32 WIR (PC) 375............................................................163
Jones v. Wrotham Park Settled Estates [1979] 2 WLR 132 .....................................80
Kantor v. MacIntyre [1958] (1) SA 45......................................................................77
Kensington Income Tax Commissioners v. Aramayo [1916] 1 AC 215 ................120
Kesavananda v. State of Kerala ALR (1973) SC 1461 ...........................................162
Labrador v. R [1893] AC 104 ...................................................................................19
Le Neve v. Le Neve (1747) Amb 436.................................................................45, 79
Leach v. R [1912] AC 305 ......................................................................................138
Letang v. Cooper [1964] 1 QB 53.............................................................................94
Lincoln College Case (1595) 3 Co. Rep. 586 ...........................................................60
Liverpool Borough Bank v. Turner (1861) 30 LJ Ch 379 ......................................184
Liversidge v. Anderson [1942] AC 206 ..............................................63-64, 157-158
Liyanage v. R [1967] 1 AC 259 P C .................................................................57, 129
London and India Docks Co. v. Thames Steam Tug and
Lighterage Co. Ltd. [1909] AC .............................................................................61
London County Council v. Ayelsbury Dairy Co [1898] 1 QB 106 ........................125
London School Board v. Jackson (1881) 7 QBD 502 ..............................................23
Lord Howard de Walden v. Inland Revenue
Commissioners [1948] 2 All ER 825...................................................................185
Lowden v. Northwestern National Bank & Trust
Co. [1936] 298 US 160 at 165 ...............................................................................43
Lower v. Sorrell [1963] 1 QB Omerod LJ ...............................................................94
Lyons v. Tucker (1881) 6 QBD 660 .........................................................................12
MacCharles v. Jones.(1939) 1 WLR 133 ................................................................156
Maclean v. Trembath [1956] 1 WLR 437...................................................................8
Macmillan v. Dent [1907] 1 Ch 107 .......................................................................140
Magor and St. Mellon’s Rural District Council v. Newport
Corporation [1952] AC 189......................................................................50, 61, 94
Magor and St. Mellons Rural District Council v. Newport
Corporation [1950] 2 All ER 1226 ..................................................................50, 94
Marbury v. Madison 1 Cranch 137, 2 Ed. 60 ....................................56, 129-130, 142
Mearing v. Hellings (1845) 14 M. & W. 711 ...........................................................65
Merttens v. Hill [1901] 1 Ch 842 ..............................................................................18
Middlesex Justices v. R (1884) 9 App. Cas. 757 ......................................................20
Millar v. Taylor (1769) 4 Burr. 2303, 2332 ..............................................................89
Miller v. Salomans (1852) 7 Exch. 475 ..................................................................180
Minerva Mills Ltd. v. Union of India AIR (1980) SC 1789 ...................................162
 Table of Cases xi

Minet v. Leman (1855) 20 Beav 269 ......................................................................139

Minister of Health v. ex p. Yaffe [1931] AC 494 ...................................................156
Minister of Home Affairs & another v. Collins MacDonald
Fisher & Another [1980] AC 319 ...............................................................134, 136
Minister of Home Affairs & others v. Dabengwa 1982 (4) SA 301 .......................136
Minister of Home Affairs v. Bickle & others 1984 (2) SA 439 (ZSC)...................137
Mitchell v. Simpson (1890) 25 QBD 183 .........................................................75, 120
Nairn v. University of St. Andrews [1909] AC 147 ...............................................176
Nakkuda Ali v. Jayaratne [1951] AC 66...................................................................64
Nasralla Case [1967] 2 AC 238 ..............................................................................138
National Association of Local Government Officers v. Bolton
Corporation [1943] AC 166................................................................................186
National Society v. Scottish National Society [1915] AC 207 .................................27
New Windsor Corporation v. Taylor [1899] AC 41 .......................................139, 181
Nokes v. Doncaster Amalgamated Collieries [1940] AC 1014 ......................119, 139
Northern Securities Co. v. United States, 193 US 197 (1904).................................63
Oriental Bank v. Wright (1880) 5 App. Cas. 842 ...................................................123
Partridge v. Strange (1552/3) 1 Plowd. 83................................................................26
Pearlman v. Keepers and Governors of Harrow School [1979] QB 56 ..................148
Pemsel Case [1891] AC 531 .....................................................................................72
Pepper v. Hart [1993] 1 All ER 42 ....................................................14, 89-90, 96-97,
116, 121
Phillips v. Eyre (1870) LR 6 QB.............................................................166, 168, 180
Pickstone v. Freemans plc [1988] 2 All ER 803.......................................................94
Plessy v. Ferguson 163 US 537, 16 S Ct 1138, 42 L Ed 873......................................9
Point of Ayr Collieries v. Lloyd George [1943] 2 All ER 546 ...............................159
Prager v. Blatspiel, Stamp & Heacock Ltd. [1924] 1 KB 566 ....................................2
Pyx Granite Co. Ltd. v. Minister of Housing [1970] AC 260.................................160
Quazi v. Quazi [1980] AC 744 ...............................................................................106
R. v. Lewes JJ., Home Secretary [1973] AC 388 (HL) ............................................92
R v. Barrington 1969 (4) SA 179 (RAD)................................................................183
R v. Bertrand (1867) LR 1 PC ................................................................................122
R v. Brown [1890] 24 QBD 357 .............................................................................127
R v. Buttle (1870) LR 1 CCR 248 ....................................................................76, 185
R v. Coldham ex p. Australian Union (1983) 49 ALR 259 ....................................149
R v. Comptroller General of Patents ex p. Bayer
Products Ltd [1941] 2 KB 306.............................................................................158
R v. Cornwall County Council, ex p. Huntington
[1922] 3 All ER 566 ....................................................................................154-155
R v. Eldershaw 3 C & P 396 ...................................................................................127
R v. Electricity Commissioners ex p. London Electricity
Joint Committee Co. (1920) Ltd. [1924] 1 KB 171............................................144
R v. Greater London Council ex p. Blackburn [1967] 1 WLR 550 ........................145
R v. Halliday [1917] AC 260 ............................................................................64, 122
R v. Hare [1934]1 K. B. 354 .....................................................................................21
R v. Inland Revenue Commissioners ex p. Rossminter [1980] AC 952.................158
R v. Kopsch (1925) 19 Cr App R 50.......................................................................127
R v. Local Commission for Administration [1979] QB 287...................................103
xii Table of Cases

R v. Loxdale (1758) 1 Burr. 445 .......................................................................75, 184

R v. Males (1962) 2 QB 500 .....................................................................................94
R v. Marsland 7 Cr App 77 .....................................................................................127
R v. Meade [1909] 1 KB 895 ..................................................................................127
R v. Medical Appeal Tribunal ex p. Gilmore [1957] 1 QB 574 .....................148, 150
R v. Miall [1992] 3 All ER 153...............................................................................152
R v. Morely (1760) 2 Burr. 1040 .....................................................................146-147
R v. Morris [1867] LR 1 CCR 90 ...........................................................................138
R v. Owen 4 C & P 236...........................................................................................127
R v. Pearce (1880) 5 QBD 306 ................................................................................23
R v. Plowright (1686) 3 Mod. 94.....................................................................145-146
R v. Price (1871) L.R. 6 QB 411 ...... ...............................................................76, 185
R v. Prince (1875) LR CCR 154 .............................................................................126
R v. Registrar of Companies, ex p. Central Bank
of India [1986] 1 QB 1114...................................................................................155
R v. Secretary of State for the Environment, ex p.
Ostler [1977] QB 122 ...................................................................................154-155
R v. Smith (1670) 1 Mod. 44 ..................................................................................145
R v. Tatam (1921) 15 Cr App R 122.......................................................................127
R v. Tolson (1889) 23 QBD 164.....................................................................126, 128
R v. Vasey & Lally [1905] 2 KB 748 ...............................................................72, 121
R v. Vine (1875) LR 10 QB 195..............................................................167, 169-171
R v. Waite [1892] 2 QB 600 ...................................................................................127
R v. Warwickshire County Council, ex p. Johnson [1993] 2 WLR........................116
R v. Williams [1893] 1 QB 320 ..............................................................................127
R v. Wimbledon Justices ex p. Derwent [1953] 1 QB 380 .......................................61
R v. Wood (1855) 5 E & B 49; 119 ER 400 ...........................................................149
R v. Haughton (Inhabitants) (1853) 6 Cox c.c. 101; 1 E & B, 501...........................18
R v. Liverpool Justices, ex p Crown Prosecution
Service (1990) 90 Cr. App. R. 261 ........................................................................31
R v. Southwark Crown Court, ex p. Commissioners of
Customs and Excise (1989) 3 WLR 1054 .............................................................32
R v. Tower Hamlets London Borough Council ex p.
Chetnik Developments (1988) 2 WLR 654 ...........................................................34
Rahimtoola v. Nizam of Hyderabad [1958] AC 359 ................................................79
Re A Solicitor’s Clerk [1957] 1 WLR 1219 ....................................................168-169
Re Baines (1840) 12 A & E 227 ...............................................................................24
Re Bidie [1948] 2 All ER 995.............................................................................73, 85
Re Castioni [1891] 1 QB 149....................................................................................12
Re Clarke 17 WIR 49 (1971) Barbados ..................................................................132
Re Ludmore (1884) 13 QBD 415............................................................................139
Re Pulborough Parish School Board Election [1894] 1 QB 725 ....................170, 172
Re Sarran (1891) 32 WIR (PC) 375........................................................................163
Re Williams (1887) 36 Ch D 573 ...........................................................................139
Re Woking Urban District Council (Bassingstoke Canal)
Act, 1911 [1914] 1 Ch 300 ....................................................................................20
Rein v. Lane (1867) LR 2 QB 144 ...........................................................................60
Richards v. McBride (1881) 8 QBD 119 ..................................................................88
River Wear Commissioners v. Anderson (1877) 2 AC 743......................................87
 Table of Cases xiii

Robinson v. Barton Eccles Local Board (1833) 8 App. Cas. 798.............................22

Ross-Clunis v. Papadopoullos & Others [1958] 2 All ER 23 .................................159
Rowe v. Law [1978] IR 55......................................................................................100
Rylands v. Fletcher (1868) LR 3 HL 330 .................................................................45
S v. Marwane 1981 (3) SA 588...............................................................................133
Sachs v. Minister of Justice 1934 SA (AD) 11 .......................................................165
Sagnata Investments Ltd. v. Norwich Corporation [1971] 2 All ER 1441 .............100
Salmon v. Duncombe (1886) 11 AC 627..........................................................72, 121
Salomon v. Customs and Excise Commissioners [1967] 2 QB 116 .......................173
Saunders v. White [1902] 1 KB 472 .........................................................................25
Scruttons v. Midland Silicones Ltd [1962] AC 466..................................................55
SE Railway v. Railway Commissioners (1880) 2 QBD 217 ....................................89
Seaford Court Estates Ltd. v. Asher [1949] 2 KB 481 ........................................49-51
Secretary of State for Employment v. Associated Society of Locomotive
Engineers and Firemen and Others (No. 2) [1970] 2 QB 55 ..............................159
Secretary of State for Trade and Industry v.
Langridge (1991) 2 WLR 1343 .............................................................................31
Seluka v. Suskin & Salkow 1912 TPD 258 ..............................................................49
Sharpe v. Goodhew [1990] 96 ALR 251 ................................................................155
Sillery v. R (1981) 35 ALR 227..............................................................................100
Smith’s Case (In re London Marine Insurance
Association) (1869) LR 4 Ch. App. 611 ...............................................................60
Smith v. East Elloe Rural District Council [1956] AC 736.............................153-155
Smith v. Hughes [1960] 1 WLR 830 ........................................................................94
Smt. Indira Gandhi v. Raj Narain AIR (1975) SC 2299..................................162-163
Soil Fertility Ltd. v. Breed [1968] 3 All ER 193 ......................................................41
South East Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral
Products Manufacturing Employees Union & Others [1981] AC 363...............148
Spillers Ltd. v. Cardiff Assessment Committee [1931] 2 KB 21............................176
State e rel Gouge v. Burrow, City Recorder Supreme Court of
Tennessee, 1907 119 Ten. 376, 104 SW 526 ........................................................57
Stevens v. Chown [1921] 1 Ch 894 ........................................................................180
Stowell v. Lord Zouch (1569) 1 Plowden 353; 75 ER 536.......................................84
Stradling v. Morgan (1560), 1 Plowden 201 ............................................................83
Sussex Peerage Case (1844) 11 Cl & F. 85; 8 ER 1034..........................81, 85-86, 89
Taylor v. National Assistance Board [1957] AC 101 .............................................146
Thomas v. Kelly (1880) 13 App. Cas. 506 ...............................................................25
Thornloe & Clarkson Ltd. v. Board of Trade [1950] 2 All ER 245........................158
Tillmans & Co. v. S.S. Knutsford [1908] 2 KB 385; [1908] AC 207.....................186
Tolson Case (1889) 23 QBD 164............................................................................126
Tomalin v. J Pearson & Son Ltd [1909] 2 KB 61...................................................176
Tomas v. A-G (1989) 41 WIR 299 .........................................................................163
Towne v. Eisner [1918] 245 US 418 at 425..............................................................39
Trendtex Trading Corporation v. Central Bank of
Nigeria [1972] QB 529 (CA) ...............................................................................173
Tuck & Sons v. Priester (1877) 19 QBD 629 .........................................................124
Tuck v. National Freight Corporation [1979] 1 WLR 37 .......................................102
United States v. Bass 404 US 336 (1971) 339 ..........................................................99
xiv Table of Cases

United States v. Klinger 199 F. 2d 645.....................................................................50

United States v. Raynor 302 US 540, 58 C 353, 82L Ed. 413................................101
Vacher and Sons Ltd. v. London Society of Compositors [1913] AC 107...............20
Venour v. Sellon (1876) 2 Ch D 522 20
Wacal Developments Pty Ltd. v. Realty Development Pty
Ltd. (1978) 14 CLR 503 .....................................................................................104
Warburton v. Loveland (1832) 2 Dow & C1 480 ...............................................60, 89
Warley Caravans v. Wakelin [1968] 66 LGR, 534 ...................................................38
West Ham Union v. Edmonton Union [1908] AC 1.................................................63
West v. Gwynne [1911] 2 Ch 1 .......................................................................167-168
Westminster Bank Ltd. v. Zang [1965] AC 182 .......................................................88
Whiteman v. Sadler [1910] AC 514........................................................................183
Wing v. Epsom Urban District Council [1904] 1 KB 798........................................25
Woodward v. Sarsons (1875) LR 10 CP 733 .........................................................184
Wray v. Ellis (1859) 1 E & E 276.............................................................................75
Yorkshire Dale Steamship Company v. Minister of
Transport [1942] 1 KB 35......................................................................................12
Zimbabwe Township Developers (Pvt) Ltd. v. Lou’s
Shoes (Pvt) Ltd. 1984 (2) SA 778 (ZSC) ............................................................136
 TABLE OF STATUTES

Act of Settlement 1700....................................................................................141

Administration of Estates Act 1925..................................................................46
Administration of Justice (Miscellaneous Provisions) Act 1938...................144
Australia Act 1916 ..........................................................................................155
Aviation Security Act 1982...............................................................................44

Bankruptcy Act 1883 ..............................................................................170, 172

Carriage by Air Act 1961................................................................................106

Charitable Uses Act 1601 ...........................................................................71, 72
Charities Act 1960.......................................................................................71, 72
Company Directors Disqualification Act 1986 ................................................31
Constitution Act 1961 .......................................................................................77
Constitution Act of Bophuthatswana 1977.....................................................133
Constitution Acts of Canada 1867-1982...........................................................18
Constitution Act of Nigeria 1979......................................................................17
Constitution (Thirty-Ninth Amendment) Act 1975 .......................................162
Consumer Protection Act 1987.......................................................................117
Copyright Act 1842.........................................................................................140
Copyright Act 1868.........................................................................................124
Corporation Taxes Act 1970 .............................................................................35
Corrupt Practices and Elections Act 1852 ........................................................76
Corrupt Practices and Elections Act 1863 ........................................................76
Criminal Justice Act 1988...............................................................................152
Criminal Law (Special Provisions) Act 1962...................................................57
Crown Proceedings Act 1947 .........................................................................175

Defence (General) Regulations 1939................................................................63

Drug Trafficking Offences Act 1986 ................................................................33

Ecclesiastical Lease Act 1571.........................................................................145

European Communities Act 1972...................................................................157

Factories Act 1961 ..........................................................................................157

Family Law Act of Barbados 1987.....................................................................3
Finance Act 1894 ..............................................................................................12
xvi Table of Statutes

Finance Act 1926 ..............................................................................................35

Finance Act 1976 ....................................................................108, 109, 110, 111
Foreign Compensation Act 1950 ............................................................145, 151

General Rules Act 1967 ....................................................................................34

Housing Act 1974..............................................................................................80

Independence Act of Barbados 1966...............................................................???

Industrial Court Act 1976 .......................................................................163, 164
Industrial Relations Act 1976 .........................................................................149
Interception of Communications Act 1985 ....................................................164
Internal Security Act 1982 ................................................................................71
Internal Security and Intimidation Amendment Act 1991 .................................1
Interpretation Act 1850 ...................................................................24, 67, 68, 69
Interpretation Act 1889 .......................................................................24, 69, 129
Interpretation Act 1978 .............................................................................69, 129
Interpretation Act of Canada 1967-1968 ..................................................19, 185
Interpretation Act of Ghana 1960.....................................................94, 101, 102

Land Charges Act 1925.....................................................................................46

Land Registration Act 1925 ..............................................................................46
Land Transfer Act 1897 ....................................................................................15
Law of Property Act 1892...............................................................................167
Law of Property Act 1925...........................................................................46, 79
Law of Property (Miscellaneous Provisions) Act 1989 .....................................9
Leasehold Reform Act 1967............................................................................80-
Licensing Act 1964 ...........................................................................................27
Local Government Revenue Act 1988..............................................................95

Magistrates’ Courts Act 1980 ...........................................................................31

Mortmain and Charitable Uses Act 1891 .........................................................71

National Insurance Act 1911 ..........................................................................157

National Insurance (Industrial Injuries) Act 1946..........................................148
Newspaper Surety Ordinance (Amendment) Act 1971....................................35
 Table of Statutes xvii

Official Secrets Act 1911 ..................................................................................21

Public Health Act 1848 ...................................................................................150

Public Order Act 1970 ....................................................................................132

Regulation of Customs Act 1825......................................................................67

Republic of South Africa (Second Amendment) Act 1981 .............................77

Settled Land Act 1925.......................................................................................46

Sex Discrimination Act 1975..........................................................................157
Sheriffs Act 1887.............................................................................................120
Social Security and Housing Benefits Act 1982 ..............................................31
South Africa Act 1909 ................................................................................58, 59
State Immunity Act 1978 ..................................................................................80
Street Offences Act 1959 ..................................................................................94

Terrorism Act of South Africa 1967.............................................69, 70, 71, 133

Tribunal and Inquiries Act 1958 .....................................................................164
Tribunal and Inquiries Act 1971 .....................................................................164
Trustees Act 1925..............................................................................................46

Vexatious Actions Act 1896............................................................................146

Video Recordings Act 1984 ..............................................................................44

West India Docks Act 1831 ..............................................................................61

Yorkshire Registries Act 1884 ..........................................................................79

 Chapter 1

Introduction

What is a statute?
A statute is a formal act of the Legislature in written form. It declares the will
of the Legislature. It may be declaratory of the law, or a command which must
be obeyed, or a prohibition forbidding a course of conduct or a particular act.
We normally refer to the whole body of law as enacted by Parliament as the
Statute Book. For a single enactment, the term Act of Parliament is usually
used. In a federal state, the enactment of the legislature of each of the States or
Provinces is also a statute.
The term Act of Parliament is thus reserved for the law as enacted by the
supreme legislature. An Act of the Congress of the United States of America
is an Act of Parliament – the difference is that in the United States of America
Parliament is referred to as the Congress. From about 1689, when the Bill of
Rights was passed, Statute Law has become the most important source of law.
At Appendix A is a classification of Statutes.
The term Statute Law is used to distinguish the law passed by Parliament
from Common Law or Equity. Common Law is almost, but not quite, ‘judge-
made’ law. It derives its authority from the usages and customs of time
immemorial, affirmed and enforced in the judgments and decrees of the courts
of law. William the Conqueror sent out his justices in eyre to collect and
collate the customs of England. Some of the customs were made universal as
being common to the whole of the country. The Conqueror also accepted the
Doons of the Saxon Kings. This process of adaptation and modification has
continued to this day.
Common Law thus developed through case law. It comprises the body of
those rules and principles which inform government, security of the person and
property, and is therefore part of the positive law. It is as effective as an Act of
Parliament – until it is ousted by statute. Like yeast, Common Law rises from
below, rather than being imposed from above like an Act of Parliament.
The rules of law known as the doctrines of Equity grew out of the
harshness of the Common Law. Equity started with petitions to the Sovereign
to redress the grievances perpetrated and perpetuated by the rigid application
of the Common Law. It thus began life as the attempt to administer justice
with fairness – from the quasi-religious status of the Lord Chancellor as the
keeper of the King’s conscience. The term Equity is often equated with the
spirit and enforcement of fairness and right dealing which should animate the
behaviour of individuals.
2 Understanding Statutes

The object of the Common Law, said McCardie J in Prager v. Blatspiel,

Stamp & Heacock Ltd.,1
is to solve difficulties and adjust relations in social and commercial life. It
must meet, so far as it can, sets of facts abnormal as well as usual. It must
grow with the development of the nation. It must face and deal with changing
or novel circumstances. Unless it can do that, it fails in its function and
declines in its dignity and value. An expanding society demands an expanding
Common Law.
This statement applies equally well to Equity. It was the harshness of the
Common Law, its failure to achieve fairness instead of rigidity that led to the
rise of Equity. In the end, if both Common Law and Equity fail to deal with
the ‘changing and novel circumstances’, legislation – that is, statute law – will
hold the day.

The Genesis – The Formulation of Policy

A statute is the crystallisation of an objective. That objective may be political,
social, economic or even personal, but there will be a motive that lurks behind
it. A group of persons may be interested in a particular measure which may
call for the exercise of the legislative power of the state. Legislation then
becomes the means to attain an end. These groups could be:
• political parties
• pressure groups
• departmental officials
• Commissions of Inquiry
• Parliamentary committees
• public and private organisations
Although some groups have a greater or more direct influence on the
legislature than others, they are all united in the same conviction that a
situation exists which calls for legislation.
This leads to the investigation of the social devices which would suggest
the remedies for the problems that call for legislation. In this investigation,
recourse may be had to legislative committees, lobbyists, a person or persons
directly or indirectly interested. At each stage of the investigation there will be
studies commissioned, conferences and consultations constituted and conflicts
of competing concepts contained. There may be public debate generated by a
Government White Paper.2
__________________________________________________________________________________________________________________________________________

1 [1924] 1 KB 566 at p.570.

2 A White Paper is a report issued by the Government to give information. There are also Green Papers,
which are tentative reports of Government Proposals without commitment.
 Introduction 3

When ideas have crystallised, a decision will be taken that there is need for
legislation. A summary of the various proposals will be submitted to, say, the
Minister under whose portfolio the subject-matter of the proposals falls. When
what is involved is a major piece of legislation, in some cases the public may
not be aware of all these happenings until a hint is given in the ‘Speech from
the Throne’.
The proposals will be submitted to the Cabinet in the form of a Cabinet
Memorandum. After Cabinet approval has been obtained, instructions are sent
to Parliamentary Counsel to draft the required Bill. After the draft is
completed, it is sent to the sponsoring Ministry for comments. Others, in
special circumstances, may also be asked for their comments and there may be
a few revised drafts. Finally, the Bill as settled between Parliamentary Counsel
and the sponsoring Ministry is sent to the Cabinet Committee on Legislation,
and then to the Cabinet as a whole to be approved for introduction in
Parliament.3

Background knowledge

Law does not operate in a vacuum, and this is especially true of statute law. A
statute is intended to guide, and regulate, the conduct and affairs of those to
whom it is addressed. Its content thus takes cognisance of the cultural,
economic, political and social conditions of the society within which it is
intended to operate. A sound knowledge of these conditions is very necessary
to a complete understanding of the statute.
Any of those conditions, or a combination of any of them, could constitute
the facts upon which a Bill is drafted. In the drafting of a piece of legislation
on marriage, for example, the question would obviously be asked whether age
is all that matters. Are there other incidents that go to make a valid marriage,
such as the form of the celebration of the marriage, and the issue of dowry?
If the dowry is seen as an essential part of the marriage, then the mere fact
that one has attained the age of majority does not mean that one can contract a
valid marriage. Since marriage is an issue of social fact rather than of law,
legislation would thus seek to regulate behaviour in the ‘real world’.4 In doing
so, it must of necessity look at society and at the institutions which society has
established for its guidance. Legislation would not seek to uproot society. If it
did, the law would be a dead duck.
Spouses take lovers in monogamous societies. Legislation against that
system ‘would obliterate public life’.5 It is very difficult to prosecute for

__________________________________________________________________________________________________________________________________________

3 The process does not exclude what is normally referred to as the Private Member’s Bill.
4 The Family Law Act 1987 of Barbados, for example.
5 The Guardian Weekly, Vol 146 No. 4 week ending 26 January 1992.
4 Understanding Statutes

bigamy in a predominantly polygynous society. Each piece of legislation has a

background and a policy. A sufficient knowledge of that background and of
that policy is essential to the understanding of an Act of Parliament.

Drafting instructions

An Act of Parliament subsumes government policy effectively into legislative

language. The policy considerations for the drafting of a Bill are put down in
the form of Drafting Instructions. These Instructions normally state precisely
what the problem is, at least to the administrator. What has given rise to the
problem? What attempts have been made to solve the problem without the
assistance of legislation? How and why have the attempts failed? What are the
solutions devised administratively to solve the problem that calls for
legislation?
Unless ideas have crystallised it is a sheer waste of time to embark upon
the drafting of a piece of legislation. However, those who instruct
Parliamentary Counsel should not attempt to be lawyers. Least of all should
they attempt to be Parliamentary Counsel and send draft Bills to Counsel.
They help in the process by remaining as laymen, leaving it to the drafting
experts to appreciate the decisions based on the policy and their implications.
Legislative drafting does not consist in copying precedents nor in polishing
what others have drafted.
Furthermore, from Westminster6 comes the stern warning that,
Nothing is more hampering to Parliamentary Counsel, when the drafting stage
is reached, than to be obliged to build what is usually a complex structure
round “sacred phrases” or forms of words which have become sacrosanct by
reason of their having been agreed upon in Cabinet or in one of its
committees. A still more serious objection to agreed form of words of this
kind is that they often turn out to represent agreement upon words only,
concealing the fact that no real compromise or decision has been reached
between conflicting views upon some important question.
Parliamentary Counsel fill in the details of the broad policy statements.
They raise questions – legal questions which may lead to a reconsideration of
the policy. However, they do not presume to rearrange or alter the will of the
legislature, just as an architect does not dictate to a client what the architect
thinks the client needs. The architect would advise the client that with the
financial resources available and having regard to the area of the land for the
building, the contours of the land, the orbit of the sun and the wind direction
during the day and during the night, a north-facing building would suit the
purposes of the client. And bearing these matters in mind the architect would
advise the client how the bedrooms would be situated in relation to the study,
__________________________________________________________________________________________________________________________________________

6 The Preparation of Bills (1948) p.8.

 Introduction 5

the lounge, the dining room, the kitchen and all the other facilities that go with
them. Those who draft Bills for Parliament bear a similar responsibility.

The Process – The Drafting of Legislation

Research

An Act of Parliament is usually an attempt to find a solution to the problems

faced by governments, and by society as a whole. An understanding of the
problems is essential in the search for the solutions, and that depends upon
adequate knowledge of the conditions that have given rise to the problems.
Those who read an Act of Parliament must thus have some basic knowledge
of the subject-matter upon which the Act is based and must be prepared to
supplement their basic knowledge with research. A sound knowledge of the
existing law is vital since an Act of Parliament is drafted to become part of the
body of the law as a whole.
Added to that will be a sound knowledge, and understanding, of the issues
that have created the problem. That is what is referred to in Heydon’s Case7 as
the ‘purpose approach’ or the ‘mischief rule’. Parliamentary Counsel who
draft a Bill must know what they are looking for. Their industry and discipline
helps them to ask the right questions and thus save themselves valuable time,
as well as the time of all others who may have to read an Act of Parliament.

The Legislative Scheme

After Parliamentary Counsel has mastered the subject matter of the proposed
legislation and read the Drafting Instructions, the next important step in the
drafting process is the preparation of the Legislative Scheme. Upon that
scheme hangs the quality of the Bill and ultimately of the Act of Parliament.
The Legislative Scheme represents Counsel’s mental picture of how well the
Act of Parliament would look in structure and quality, in substance and in
form. Here Parliamentary Counsel deals with the logical sequence of the
various matters that bear upon the Bill and organises the symmetrical
arrangement of the sections. Here the symmetrical arrangement of sections is
organised. Form and substance take their proper places. The law and its
administration are equally balanced.
Without the Legislative Scheme the resultant Act will look like a patchy,
sketchy work, ill-conceived and ill-prepared. This is the area where the policy
of the law is put in an outline for the achievement of the objectives of the
proposed legislation. It is in the Legislative Scheme that Parliamentary
Counsel perceives whether the Act will be a workable piece of legislation,
__________________________________________________________________________________________________________________________________________

7 (1584) 3 Co. Rep. 7a; 76 ER 637.

6 Understanding Statutes

whether the task of the courts will be made easier in the construction of the
Act as a whole. The Legislative Scheme is in effect the architectural plan of
the building that is called an Act of Parliament.

Criticism

Those who criticise Parliamentary Counsel regarding the language of an Act

of Parliament often do not realise the constant criticism to which Counsel
themselves subject their drafts of a Bill. ‘Animals are such agreeable friends –
they ask no questions, they pass no criticism.’ said George Eliot. 8
Parliamentary Counsel heed that warning. They do not shun or avoid criticism.
It is to their advantage that there are people who would question how well a
Bill has been drafted. Legislation is enacted for a variety of people, for a
variety of reasons. It is a serious business. The happiness of a people depend
on it, the progress of a people may be hindered by it. Those who are
responsible for drafting legislation bear this in mind.
Criticism, whether in good faith or in bad faith, is an asset to
Parliamentary Counsel and is accepted as having been made in good faith,
whatever the source. It is considered as an attempt to improve the quality of
the Bill.
Lord Thring warned Parliamentary Counsel that for them
virtue will, for the most part, be its own reward, and that after all the pains that
have been bestowed on the preparation of a Bill, every Lycurgus and Solon
sitting on the back benches will denounce it as a crude and undigested
measure, a monument of ignorance and stupidity. Moreover, when the Bill has
become law, it will have to run the gauntlet of the judicial bench, whose
ermined dignitaries delight in pointing out the shortcomings of the legislature
in approving such an imperfect performance.9
There are two aspects to be dealt with here: the quality of the drafting and
the soundness of the proposed law. To this may be added a third aspect: how
well will the resultant Act work in practice. Criticism helps Parliamentary
Counsel to recognise where there is an ambiguity, where the wording has
deviated from the substance, where clarity has been sacrificed to simplicity,
where verbosity has detracted from the beauty of expression.

The Language – Legal Language

The importance of language in any given situation cannot be over-emphasised.
It is the chief medium of communication and thought. Because lawyers
__________________________________________________________________________________________________________________________________________

8 George Eliot, Scenes of Clerical Life, Ch.7.

9 Practical Legislation, p.8.
 Introduction 7

operate in the field of social control, language is of even greater significance

to them. Words are, in a very special way, the tools of the lawyers’ trade.
Words are to lawyers ‘what the scalpel and insulin are to the doctor, or a
theodolite and slide rule to the civil engineer’.10
Words occupy the lawyer’s attention in the construction, drafting and the
interpretation of contracts, statutes, wills, and other legal documents. They are
the effective force in the legal world. In statutes they result in heavy fines,
long imprisonments and even death. In contracts, deeds or wills, they transfer
large amounts of property. Hence the persistent feeling in our profession that
the right words must be used.11
Parliamentary Counsel communicate policy decisions having legal
consequences to members of society in the form of legislation. Legislation in
these circumstances has, as its sole medium of communication, the written
word. In ordinary speech we see and hear the person we are talking to.
Gestures, intonation, the inflection of the voice, all aid in an understanding of
what is said. In the face of Othello’s horrible fancy, Desdemona queried:
Upon my knees, what doth your speech import?
I understand a fury in your words
But not the words.12
In cold print language is a different matter. The words stand on their own.
There is an air of permanence, of finality about them. Compared with speech,
that permanence, that finality give language another dimension. An error or
ambiguity in ordinary speech can be corrected and immediately resolved by
the Socratic method. In a statute, an amending legislation or a decision of the
courts is the cure. Said Driedger:
Statutes are laws. They are supposed to settle the rights and liabilities of the
people, and they are enforced by the courts. They must be, so far as we can
make them, precise. They are serious documents. They are not, like the
morning newspaper, to be read today and forgotten tomorrow. Like all other
serious works of literature, they must be read and studied with care and
concentration. Every word in a statute is intended to have a definite purpose
and no unnecessary words are intentionally used. All the provisions in it are
intended to constitute a unified whole.13

__________________________________________________________________________________________________________________________________________

10 Z. Chafee, ‘The Disorderly Conduct of Words’, 41 Col LR 381 at p.382.

11 Z. Chafee, ‘The Disorderly Conduct of Words’, 41 Col LR 384.
12 Othello, Act 4 Scene 2.
13 The Composition of Legislation, p.xxiii.
8 Understanding Statutes

It is, however, the very nature of language that presents the greatest
problem to successful communication. Language is considered as ‘perhaps the
greatest human invention’,14 yet it is a most imperfect instrument for the
expression of human thought. It has tremendous potential for vagueness,
ambiguity, nonsense, imprecision, inaccuracy and indeed all the other horrors
recognised by Parliamentary Counsel.15 As John Austin stated,
it is far easier to conceive justly what would be useful law, than so to
construct that same law that it may accomplish the design of the law giver.16
In the famous words of Mr Justice Oliver Wendell Holmes, ‘Ideas are not
often hard, but words are the devil’. 17 The imperfections of language
notwithstanding, it still must be used in any society, if only because it is the
chief medium of expression.
It should now be obvious that a good command of language is vital, not
only for those who draft legislation, but also for those who try to understand it.
Firstly, the reader of an Act must understand the nature of language and its
various functions. Secondly, the reader must grasp the theory of words as
symbols for the communication of meaning and their myriad imperfections.
Lastly, the reader must understand that time, circumstances, and social
forces influence the meaning and the usage of words. Thus legislation must be
understood and interpreted to keep pace with social needs arising from the
progress of time. That is why in Corkery v. Carpenter,18 the conviction of a
defendant was upheld on the ground that a bicycle fell within the words
‘drunk while in charge on any highway … of any carriage’. In Maclean v.
Trembath,19 a Judge thought that the word horse should include an aeroplane:
‘it is much the same thing’. And in Armstrong v. Clark,20 Lord Goddard LCJ
would not even consider
whether a non-alcoholic beverage is drink within the meaning of the [Road
Traffic Act, 1930]. If that were so, I should be inclined to apply the dictum of
Martin B., where the bailiff was sworn to keep the jury without meat or drink,
or any light but candlelight, and a juryman asked if he might have a glass of
water. Martin B. said: “Well, it is certainly not meat and I should not call it
drink. He can have it.” I think “drink” means alcoholic drink.

__________________________________________________________________________________________________________________________________________

14 Glanvill Williams, ‘Language and the Law’, 61 LQR p.71.

15 G.C. Thornton, Legislative Drafting, p.2.
16 Jurisprudence, quoted by Ilbert, The Mechanics of Law Making, p.98.
17 Quoted by R.E. Megarry, A Second Miscellany-at-Law, p.152.
18 [1951] 1 KB 102 at p.103.
19 [1956] 1 WLR 437.
20 [1957] 2 QB 391 at p.394.
 Introduction 9

Plessy v. Ferguson 21 and Brown v. Board of Education 22 have also

demonstrated how time, circumstances and the need to keep pace with
advancement in social conditions influenced the construction and
interpretation of the same words in the Constitution of the United States.
Modern linguists consider language as ‘a system of vocal symbols with
arbitrary conventionalised references accepted by a group of humans and
understood within it, and having the social function of carrying information
from speaker to hearer’.23 This definition places emphasis on the structural
and functional aspects of language. It constitutes a system of symbols, the
function of which is to carry information from person to person within a given
speech community. It indicates that the described function of the system is
performed by virtue of individual symbols having definite referential values,
such as to individual items, units and elements in the culture of a given
society.
Language as such goes beyond that. It is, essentially, a social institution. It
was John Locke who said that,
God having designed man for a reasonable creature, made him not only with
an inclination and under a necessity to have fellowship with those of his own
kind but furnished him also with language, which has to be the great
instrument and tie of society.24
If the verbal images stored away in the minds of the individual members of
society are not substantially the same, there would be no effective
communication. And as St. Paul25 said,
if the trumpet give an uncertain sound, who shall prepare himself to the battle?
So likewise ye, except ye utter by the tongue words easy to be understood, how
shall it be known what is spoken? For ye shall speak into the air.
The symbols, then, are arbitrary: there would be no recognisable direct
link between the sound structure of a given symbol and its referential value.
Yet they are conventional in the sense that they are accepted by members of
the speech community.26
The written word may be contrasted with speech, which is the actual use
of vocal symbols by an individual to convey information. Speech, though, is

__________________________________________________________________________________________________________________________________________

21 163 US 537, 16 S.Ct 1138, 42 L.Ed 256 (1896).

22 347 US 483, 74 S.Ct 689, 98 L.Ed 873 (1954).
23 Stephen Ullman, Semantics: An Introduction to the Science of Meaning, p.11.
24 The Second Treatise of Government, Chapter VII.
25 1 Corinthians, 14: 8-9.
26 S.A.Wurm, ‘Aboriginal Language and the Law’, 6 Annual Law Review, University of Western
Australia, p.2.
10 Understanding Statutes

the act of the moment, the instantaneous response to stimuli acting upon the
individual. The written word is a system that changes, but changes slowly.27
The relationship between language and thought is of particular interest in
semantics. There are those who argue that all thinking above a very primitive
level is in words, and those who hold the view that language is merely a
medium for the expression of thought and no more.28 Examples of thought
without words that are normally given are of the chess player pondering the
next move, or of the architect. Exactly how far there can be thought without
words is controversial. Nonetheless, it can be confidently asserted that
language and thought are inextricably bound together. Most, though not all,
thought involves the use of verbal images or symbols.29
Again this relationship between thought and language is of significance to
an understanding of legislation. Words are much more than the tools of the
lawyers’ trade. Words are the raw materials with which we all work. They are
bound up with our thought processes and quite lacking in the passivity,
stability and fixity of purpose recognised in a chisel or a hammer. Francis
Bacon has said that,
Men imagine that their minds have command over language but it often
happens that language bears rule over their minds.30
A consequence of this close relationship between language and thought is
that the language of a given community to a large extent reflects and depends
upon its cultural environment. It is said31 that the individual’s cultural
environment exercises a moulding influence on, and fixes the limits of, that
individual’s thoughts and language habits.
This means that language as a system of symbols can only exist if there is
a culture complex with which it is connected through conventionally-
established and generally-accepted referential ties of the people who share that
language. In other words, a language-like system of vocal symbols in which
the individual symbols lack references to elements, items and concepts of a
culture is meaningless. The sentence, ‘I will see you after lunch’, is only
meaningful in a culture in which lunch is an established institution.
This language-culture nexus is of great practical importance to an
understanding of the language of legislation. An Act of Parliament is part of
the language of the society for which the law is enacted. It does not operate in
a vacuum. It has a policy all its own, which may be cultural, economic or
__________________________________________________________________________________________________________________________________________

27 G.C. Thornton, Legislative Drafting, p.3.

28 Glanville Williams, ‘Language and the Law’, 61 LQR p.71.
29 Glanville Williams, ibid, p.72.
30 Quoted by Simeon Potter at p.19, Language In The Modern World.
31 S.A.Wurm, ‘Aboriginal Language and the Law’, 6 Annual Law Review, University of Western
Australia, p.2.
 Introduction 11

social, and an appreciation of the cultural, economic and social values is

essential to a successful understanding of the statute.
The law may contain, and indeed may rely, on concepts or mental images
which are not known to the society concerned as a whole. However, where
these concepts or mental images are not adequately translated into concepts
and images readily understood by the society for which the law is enacted, the
law becomes an imperfect instrument as a means of communication.
Language has yet another function – an emotive function. It is argued that
language is not used solely for the communication of thought, but frequently
employed to evoke emotional responses. A good illustration is a Counsel’s
address to a jury, which does much more than merely sum up the evidence.
Counsel seeks to evoke emotion, action and reaction, i.e. a favourable verdict.
In an Act of Parliament, even in the absence of the emotive use of language, it
is the effect the Act has on society as a whole or a part of that society that
raises an emotive response.32 It is the essence of language that it reflects,
expresses and affects the patterns of established ideas and the values that help
shape the culture within which the language grows.
The language used in our courts provided the vital material upon which the
doctrine of judicial precedent was based, and thus the body of our judge-made
law. The Normans conquered Britain in 1066. In time Norman French became
the language of the educated classes and thus of the law. Before that, Latin had
held the day because of the Roman conquest. But Norman French became a
mixture of English and French.33
The earliest statutes were written in Latin. By 1275 some of the statutes
were in Norman French, others in Latin. By 1309 Norman French had taken
over as the more usual language of statutes. Reaction set in. In 1362 a statute34
required pleadings to be in English rather than ‘in the French tongue, which is
much unknown in the realm.’
The recording of statutes in Latin or Norman French ceased after the death
of Richard III. By 148835 the Statute Roll had ceased to be made up in the
ancient form and statutes have since continued to be published in English. Yet,
to this day, the Lords Commissioners proclaim the Royal Assent in Norman
French: la Reyne le veult.

__________________________________________________________________________________________________________________________________________

32 Consider the reaction of the people of the United Kingdom to Margaret Thatcher’s Poll Tax.
33 Megarry’s Miscellany-at-Law contains many examples of the mixture. A well known one is where a
report mentions an incident in Court in which the defendant ‘jette un brickbat at le judge, que
narrowly missed’.
34 36 Edward 111 c.15, which provided that ‘... all pleas ... shall be pleaded, shewed, defended, answered,
debated, and judged in the English tongue, and that they be entered and inrolled in Latin ....’.
35 4 Hen. 7.
12 Understanding Statutes

By the nineteenth century, it was said that ‘the language of statutes is

peculiar … and not always that which a rigid grammarian would use’.36 The
courts had started to be frightened by the language of Acts of Parliament.
Another reaction had set in. Of the Finance Act, 1894,37 Lord Macnaghten
remarked that,
the only question remaining is a question of construction, a question perhaps
of some difficulty, arising as it does on one of the least intelligible sections in
an Act of Parliament not remarkable for perspicuity.38
In Yorkshire Dale Steamship Company v. Minister of Transport 39
MacKinnon LJ stated:
This case raises the problem of the proper construction and effect of ten
infamously obscure words – “warranted free… from the consequences of
hostilities or warlike operations.” It is to me, personally, a melancholy
reflection that during my last ten years at the Bar I was compelled, as
advocate or arbitrator, to spend more time on the consideration of the effect of
these ten words than on any other problem. They come back now to me a
crambe repetitia, and the cabbage is of the stalest.
The criticism of the language of legislation has continued to this day. It is
no longer confined to the courts. There are now calls that the language of
statutes should be in Plain English. The Law Reform Commission of Victoria,
Australia, 40 makes the point that Plain English concentrates on those
grammatical structures and words which are readily understood. That is
admirable. Yet the problem lies at the root of the English language itself – it is
not an instrument of mathematical precision – and the intellect and
intelligence of advocates will always dispute the meaning of a particular
provision of an Act of Parliament.
That is why Stephen J warned, in Re Castioni,41 that a
degree of precision … is essential to [the drafting of] Acts of Parliament,
which, although they may be easy to understand, people continually try to
misunderstand, and in which, therefore, it is not enough to attain to a degree
of precision which a person reading in good faith can understand, but it is
necessary to attain if possible to a degree of precision which a person reading
in bad faith cannot misunderstand.

__________________________________________________________________________________________________________________________________________

36 Lyons v. Tucker (1881) 6 QBD 660 at p.664.

37 57 & 58 Vict. Ch.. 30.
38 Attorney-General v. Duke of Richmond and Gordon, [1909] AC 466.
39 [1942] 1 KB 35 at p.43.
40 ‘Legislation and Legal Rights and Plain English’, discussed in (1986) 12 CLB 1018 et seq.
41 [1891] 1 QB 149 at p.167.
 Introduction 13

It is perhaps instructive at this stage to quote at length the observations of

Lord Oliver of Aylmerton, a Lord of Appeal in Ordinary:
The English language, as has been observed on more than one occasion, is
frequently susceptible of ambiguity. Whenever anyone finds a provision
difficult to understand with certainty, his first and instantaneous reaction is to
blame the draftsman. It is, of course, very easy to make fun of the
parliamentary draftsmen. I confess to having myself once described a
particularly abstruse provision as “something of a minor masterpiece of
opacity”, but I regret it because I think that such shafts are frequently not
aimed at the right target. The draftsman doesn’t draft in a vacuum and straight
out of his head. It is his job as well as his misfortune to seek to reduce to
writing concepts and ideas fashioned and implanted by somebody else. The
parliamentary draftsmen do an immensely important task and do it under
almost intolerable pressure; but in the end they merely put into words what
their political masters state as their desired object. If the object is itself bizarre
or ambiguous, one can hardly be surprised that the result is bizarre or
ambiguous. I like to remind myself, from time to time, of Lord Macnaghten’s
remark that he did not think that the framers of the Irish Land Act were to
blame for not assuming that a judge would go out of his way to derogate from
the rights of a third person who had nothing whatever to do with the matter in
hand. “The process vulgarly described as robbing Peter to pay Paul”, he said,
“is not a principle of equity, nor is it, I think, lightly to be attributed to the
Legislature even in an Irish Land Act.”42
If one finds, as one sometimes does, that an Act contains a provision that does
not make sense, it is only too easy to assume that it is the draftsman who has
made an error. What sometimes fails to strike the judicial mind is that the
draftsman was in fact doing exactly what he was instructed to do and that his
drafting does indeed truly reflect that elusive “parliamentary intention”. It is
precisely this that makes me very suspicious of searching for some supposed
rational parliamentary intention outside the language in which a draftsman
who is known to be rational has chosen to express it. It is the statute that
marks out the field and dictates to the citizen the rules by which he is to play
and the goal at which he is to aim. Too often, I think, the referee is tempted to
shift the goal-posts in reliance upon his own speculation about what it would
have been sensible for Parliament to do if Parliament had thought of doing it.
This, and also the danger which, as it seems to me, lurks in the encouragement
of judicial excursions into the parliamentary preserve of legislative policy,
may be illustrated by reference to two cases. One of the cases also incidentally
raises the question of whether, and to what extent, it may be desirable to have
regard to what was said in Parliament at the time when the legislation was
under discussion.43
__________________________________________________________________________________________________________________________________________

42 Evelyn Viscountess De Vesci v. O’Connell [1908] AC 298 at p.310.

43 [1993] Stat LR, Vol. 14 No. 1, pp.4-5.
14 Understanding Statutes

The Progress – The Stages in Parliament

When a Bill is introduced in Parliament,44 it receives its first reading. This
means that the Clerk announces the title of the Bill, and the Minister
responsible for it rises in his place at the front Bench and bows. That is all. It
is a reminder of the days when Bills were actually read out in Parliament as
most members then could not read nor write. There is no debate on the Bill at
this stage.
The next stage is Second Reading. At this stage the principles of the Bill
are fully debated, but no amendments are permitted. In the course of a
member’s speech, however, an indication may be given of the intention to
move an amendment at the appropriate stage. In recent years, the Second
Reading of a Bill may be referred to a special Second Reading committee. The
committee reports to the whole House, which then formally resolves that the
Bill be read a second time.
The Committee Stage follows the Second Reading and is the most
important part of the procedure, as Pepper v. Hart45 has shown. At this stage
the Bill is debated clause by clause. Explanations are sought from the Minister
responsible for the Bill as to the meaning of some, at least, of the provisions.
Clarification may be called for as to the effect of the law. The principles of the
Bill cannot be debated. A motion is moved in respect of each clause to ‘stand
part of the Bill’. There is usually an informal atmosphere. A member may
speak more than once to the same question.
Long set speeches are out of place and remarks are normally brief. Details
of a Bill are being dealt with. They do not justify a lot of laboured arguments.
Amendments put down usually come from the Minister promoting the Bill,
departmental officials, even Parliamentary Counsel. Where amendments are
accepted, Parliamentary Counsel drafts the required amendments.
At the next stage – the Report Stage – the Bill as amended in Committee is
reported to the House. Where the House is not satisfied the Bill may be sent
back to the Committee. Occasionally, but not usually, amendments may be
made at the Report Stage.
Finally, the Bill is read a third time. At Third Reading debate is brief –
general comments on the Bill as a whole may be dealt with. The Bill is then
passed by Parliament and is submitted for the Assent. When the Assent is
given, the Bill becomes an Act of Parliament.

__________________________________________________________________________________________________________________________________________

44 Where there are two Chambers the procedure is repeated. When the Upper and the Lower Chambers
do not agree on amendments, usually a committee of both Chambers is constituted to resolve the
differences.
45 [1993] All ER 42.
 Introduction 15

Due to its importance, a little more needs to be said about the Committee
stage. Normally, Bills are dealt with at this stage by a Committee of the Whole
House. Increasingly, Standing Committees are chosen by the Committee of
Selection. A Standing Committee reflects the strength of the political party
structure in the House itself – it is a miniature Parliament. Amendments are
put down for the Committee’s consideration, drafted by the Parliamentary
Counsel who drafted the Bill before the Committee. The language used is that
of Parliamentary Counsel. Each amendment is fully debated. At the end of
each debate there is a motion that the clause as originally presented or as
amended stand as part of the Bill.
Amendments moved by the Opposition or the Government’s own
backbenchers are sometimes accepted, but usually the amendments are
withdrawn when the Minister in charge of a Bill gives an undertaking to
reconsider the substance of the provision to meet a point raised on the
particular clause. The Government will frequently refuse any amendments,
however controversial the Bill may be.46
Mistakes are likely to occur at the Committee Stage of a Bill. A well
known example concerns s.22(6)(h) of the Land Transfer Act, 1897. The Bill
used the words ‘For inserting in the register …’. An amendment was moved in
Committee for substituting for the word ‘For’ the words ‘For allowing the
insertion’. The resulting provision thus read ‘For allowing the insertion,
inserting in the register …’.
Gerald Kaufman47 gives us a very graphic idea of how the committee
system works in the House of Commons. He states that once a Member goes
into the committee room, the member is encapsulated in a private world; life is
governed by the hours the Committee sits and the party to which the member
belongs. If the member is a government backbencher, the sole expectation is
that the member sits silently, except when votes take place and the member is
required to call out Aye or No, as instructed by the harassed but unrelenting
whip. Apart from this, the supporters of the administration sit at their desks,
studying their constituency correspondence, looking up from time to time in
case something interesting might be happening.
Ministers in charge of a Bill are well briefed by the departmental officials.
The Ministers are issued with one set of folders marked Notes on Clauses,
which explain to them what each clause of their Bill is supposed to mean. As
Opposition members rise to move amendments, the Minister due to reply
consults another folder, entitled Notes on Amendments.
Some of these notes are headed Resist. This means that at the end of the
debate the backbenchers will have to be on hand to call out ‘No’. Another
__________________________________________________________________________________________________________________________________________

46 An example is the European Community’s Bill. See de Smith Constitutional and Administrative Law,
5th ed. p.291.
47 The Listener 29 March 1984.
16 Understanding Statutes

folder may have the heading Accept. The third heading is Consider. This
requires the Minister to decide personally on the merits of the arguments.
When Opposition members ask awkward questions, answers to which are
contained neither in Notes on Clauses nor in Notes on Amendments, the
departmental officials (some of whom sit on the chairman’s dais, others in a
corner) pass notes to the Minister in order to make it easier for the Minister to
make a suitable reply.
In general, the amendments that are actually made in a Government Bill
are those proposed by the Government and those which are agreed to by the
Minister in charge of the Bill. The Government amendments are always
drafted by the Parliamentary Counsel who was responsible for drafting the
Bill. As regards amendments proposed by other members, the advice of
Parliamentary Counsel is always taken and acted on.
Where a proposed amendment is acceptable to the Minister as a matter of
policy but is defective in form, then either the amendment will be made and
sorted out at a later stage by further Government amendments, or it will be
withdrawn on a promise by the Minister to promote a Government
amendment at a later stage. The latter practice in turn leads to the accusation
that Parliamentary Counsel, sheltering behind the Minister, exercise far too
much control over the language and structure of legislation, thus making a
mockery of the true democratic process.48

The Parts – Short Title etc

A part of an Act of Parliament has effect upon the other parts of the Act, hence
the rule that an Act of Parliament should be read as a whole in order to be
understood. The main parts of an Act are:
• Assent
• Titles
• Marginal Notes
• Preamble
• Headings
• Interpretation Section
• Enacting Sections
• Schedules

The Assent

The Assent is the final act in the process of turning a Bill into an Act of
Parliament. A Bill passed by Parliament in all its stages is, normally, still a
__________________________________________________________________________________________________________________________________________

48 Professionalizing Legislative Drafting Ed. Reed Dickerson, p.118.

 Introduction 17

Bill, not law. Only the Assent can give it the character of a law. It is thus a
genuinely important part of an Act of Parliament.
It is generally said that the courts in the United Kingdom do not question
the validity of an Act of Parliament – certainly they cannot declare an Act of
Parliament as being illegal or unconstitutional. This is based on the argument
that there is no constitution as such by which to measure the legality of an Act
of Parliament. (In jurisdictions with written constitutions, the constitution is
the supreme law, so any law which is inconsistent with, or in contravention of,
a provision of the constitution is void to the extent of the inconsistency or the
contravention.) The Royal Assent also gives force to the theory of the
sovereignty of Parliament.
However, even in the United Kingdom the Royal Assent may be queried. It
is a question of fact, not of law: the statute Quia Emptores (1289)49 provided
that an Act of Parliament
is a general law whereof the judges may take knowledge, and therefore it is to
be determined by them whether it is a statute or not.
Thus, whether an Act of Parliament has been assented to can be
challenged in a court of law in the United Kingdom. The Royal Assent gives
force to the enacting formula (that the Act is enacted by the Sovereign, the
Lords Spiritual and Temporal and the Commons). The Royal Assent is often
given by the Royal Commission, to which are attached as a Schedule the Short
Titles of the Bills to be assented to.
In Commonwealth countries with written constitutions it is possible for a
Bill to become an Act of Parliament without the Assent. Under the
Constitution of Nigeria, 1979, s 54 provided that,
(4) Where a Bill is presented to the President for assent, he shall within 30
days thereof signify that he assents or that he withholds assent.
(5) Where the President withholds his assent and the Bill is again passed by
each House by two-thirds majority, the Bill shall become law and the
assent of the President shall not be required.
There was a similar provision under s.55 in respect of Money Bills:
(4) Where the President within 30 days after the presentation of the Bill to him
fails to signify his assent or where he withholds assent, then the Bill shall
again be presented to the National Assembly sitting at a joint meeting and
if passed by two-thirds majority of members of both Houses at such joint
meeting, the Bill shall become law and the assent of the President shall not
be required.

__________________________________________________________________________________________________________________________________________

49 18 Edw. 1, Stat. 1, c.1.

18 Understanding Statutes

The importance of the Assent can also be gleaned from ss 55, 56 and 57 of
the Constitution Acts 1867 to 1982 of Canada:
55. Where a Bill passed by the Houses of the Parliament is presented to the
Governor General for the Queen’s Assent, he shall declare, according
to his Discretion, but subject to the Provisions of this Act and to Her
Majesty’s Instructions, either that he assents thereto in the Queen’s
name, or that he withholds the Queen’s Assent, or that he reserves the
Bill for the Signification of the Queen’s Pleasure.
56. Where the Governor General assents to a Bill in the Queen’s name, he
shall by the first convenient Opportunity send an authentic Copy of the
Act to one of Her Majesty’s Principal Secretaries of State, and if the
Queen in Council within Two Years after Receipt thereof by the
Secretary of State thinks fit to disallow the Act, such Disallowance
(with a Certificate of the Secretary of State of the Day on which the
Act was received by him) being signified by the Governor General, by
Speech or Message to each of the Houses of the Parliament or by
Proclamation, shall annul the Act from and after the Day of such
Signification.
57. A Bill reserved for the Signification of the Queen’s Pleasure shall not
have any Force unless and until, within Two Years from the Day on
which it was presented to the Governor General for the Queen’s
Assent, the Governor General signifies, by Speech or Message to each
of the Houses of the Parliament or by Proclamation, that it has received
the Assent of the Queen in Council.

The Preamble

The Preamble to an Act of Parliament is a recital of the facts that led to the
enactment of the Act, and gives an idea of its main object. It provides an
historical conspectus – ‘a key to open the minds of the makers of the Act, and
the mischiefs which they intended to redress’. However, although the
Preamble is intended to recite the facts upon which the Act is based, the facts
so recited cannot be accepted by the courts without challenge or accepted as
conclusive evidence. In R v. Haughton (Inhabitants)50 Lord Campbell said that
A mere recital of an Act of Parliament, either of fact or law, is not conclusive,
and we are at liberty to consider the fact or the law to be different to the
statement in the recital.51
In Edinburgh and Glasgow Ry v. Linlithgow Magistrates,52 Lord Campbell

__________________________________________________________________________________________________________________________________________

50 (1853) 6 Cox c.c.101; 1E&B, 501 at p.506.

51 See also Merttens v. Hill [1901] 1 Ch. 842 at p.852.
 Introduction 19

added that,
The recitals in a statute cannot bind those who are not within the enacting
part.
It should be noted, however, that the Preamble precedes the enacting part
of an Act of Parliament. The onus is on those who challenge the recital to
establish its falsity. But no court now would impugn the validity of an Act of
Parliament on the ground that it is based on an erroneous set of facts. In
Labrador v. R53 Lord Hanner said that,
Even if it could be proved that the legislature was deceived, it would not be
competent for a court of law to disregard its enactments. If a mistake has been
made, the legislature alone can correct it… The courts of law cannot sit in
judgment on the legislature, but must obey and give effect to its
determination.
Acts of Parliament promoted by private, sectional or local interests are
normally introduced in Parliament as a petition. This is a requirement of
parliamentary procedure. Invariably, there is a Preamble which sets out (in
detail, at times) the reasons for the introduction of the measure. The proper
function of a Preamble is thus to explain certain facts which need to be
grasped before the enactment contained in the Act can be understood.54
Section 12 of the Interpretation Act of Canada55 provides that,
The preamble of an enactment shall be read as a part thereof intended to assist
in explaining its purport and object.

The Titles

There are now two titles to an Act of Parliament: the Short Title and the Long
Title. The Long Title is an important part of the Act – it can be looked at in
order to remove an ambiguity in the words of the Act.56 In Fielden v. Morley
Corporation,57 Lindley MR referred to the Long Title and said:
I read the title advisedly because now and for some years past the title of an
Act of Parliament has been part of the Act. In old days it used not to be so,
and in the old law books we were told not to regard it; but now the title is an

__________________________________________________________________________________________________________________________________________

52 (1859) 3 Macq, HL, (Sc) 691 at p.704.

53 [1893] AC 104 at p.123.
54 Lord Thring, Practical Legislation p.92.
55 1967-1968 c.7.
56 Commber v. Berks JJ (1882) 9 QBD 17 at p.33.
57 [1899] 1 Ch. 1 at p.4, See also [1900] AC 133.
20 Understanding Statutes

important part of the Act, and is so treated in both Houses of Parliament.

The Long Title indicates the nature of the legislative measure. It contains
the main theme or themes of the Act, and can thus be used in order to
determine the scope of the Act and the proper construction to be adopted in
order to resolve a doubt or an ambiguity. It is a device to tell the reader what
the Act is about in the absence of the Memorandum to the Bill or the
Preamble, but it cannot be used in construing a provision of an Act where the
words are clear. The meaning of the clear words of an Act cannot be narrowed
or restricted by reference to the Long Title. In Vacher v. London Society of
Compositors,58 Lord Moulton said:
The title is part of the Act itself and it is legitimate to use it for the purpose of
interpreting the Act as a whole and ascertaining its scope.
The Short Title is the name used for an Act of Parliament for reference
purposes. It is used to obviate the necessity of having to refer to the full and
descriptive title of the Act. It is a good general description of all that is done
by the Act. 59 The object of the Short Title ‘is identification and not
description’,60 but it could be used to assist in the interpretation of the Act.61

Marginal Notes

A section of an Act of Parliament has a marginal note, which is intended to

indicate the general contents of the section. It describes, but does not
necessarily summarise, the provisions of the section to which it relates. The
general rule is that it is not an aid to the interpretation or construction of an
Act. In Venour v. Sellon,62 the marginal note was relied on to support a view
‘that the marginal notes of Acts of Parliament now appear on the Rolls of
Parliament, [and] consequently form part of the Acts.’ But in Attorney-
General v. GE Ry63 it was noted that the House of Commons never has
anything to do with a marginal note.
In relation to a local Act, Phillimore LJ said:64
I am aware of the general rule of law as to marginal notes, at any rate in public
general Acts of Parliament; but that rule is formed, as will be seen in reference
to the cases, upon the principle that those notes are inserted not by Parliament
__________________________________________________________________________________________________________________________________________

58 [1913] AC 107, at p.128.

59 Middlesex Justices v. R (1884) 9 App. Cas. 757 at p.772.
60 Vacher and Sons Ltd. v. London Society of Compositors [1913] AC 107 at p.128.
61 Lonhro Ltd. v. Shell Petroleum Co. Ltd (No. 2) [1981] 2 All ER 456.
62 (1876) 2 Ch. D. 522.
63 (1879) 11 Ch. D. 449.
64 Re Woking Urban District Council (Basingstoke Canal) Act, 1911 [1914] 1 Ch. 300 at p.322.
 Introduction 21

nor under the authority of Parliament, but by irresponsible persons.65

It is now quite settled that a marginal note in an Act of Parliament does not
constitute a legitimate aid to the construction of the section to which it relates.
Chandler v. DPP66 appears to have set the seal on the issue. Lord Reid stated
quite categorically that
side notes cannot be used as an aid to construction. They are mere catchwords
and [no] amendment to alter a sidenote could be proposed in either House….
So sidenotes cannot be said to be enacted in the same sense as the long title or
any part of the body of the Act.
The House of Lords thus held that the marginal note to s.1 of the Official
Secrets Act 1911,67 ‘Penalties for spying’, did not restrict the actual words of
s.1 of the Act. The section made it an offence for a person who, for purposes
prejudicial to the safety or interests of the state, approaches, or is in the
neighbourhood of, or enters, a prohibited place. The offence was not
committed by a person taking part in a political demonstration who had no
intention of spying.
Section 13 of the Interpretation Act of Canada68 provides that,
Marginal notes and references to former enactments in an enactment after the
end of a section or other division thereof form no part of the enactment, but
shall be deemed to have been inserted for convenience of reference only.

Headings and Parts

Headings and Parts are used in legislation as a guide to the subject matter of
an Act.69 A Heading does not form part of the Act and is not voted on in
Parliament.70 Headings are unamendable descriptive components and are in
that sense, like anything else in an Act, part of the Act as passed by
Parliament. They may be considered in construing a provision of the Act,
provided due account is taken of the fact that their function is merely to serve
as a brief, and therefore necessarily inaccurate, guide to the material to which
they are attached.71

__________________________________________________________________________________________________________________________________________

65 Is that so? One may ask whether those who draft the Bills which are introduced into Parliament are
irresponsible persons! But then the word ‘irresponsible’ used here means not responsible to Parliament
in the sense in which, say, a Minister is responsible to Parliament.
66 [1964] AC 763.
67 1 & 2 Geo. Vict. c.28.
68 1967-1968 c.7.
69 Driedger, The Composition of Legislation.
70 R v. Hare [1934]1 K. B. 354. See also Esso Petroleum Co. Ltd. v. Ministry of Defence [1990] All ER 1.
71 Bennion, Statutory Interpretation, 1st ed. p.590.
22 Understanding Statutes

Only Acts of considerable size are divided into Parts. There is no sense in
dividing an Act of, say, 10 sections into Parts. Headings would do. An Act is
divided into Parts to improve readability, as a book is broken up into chapters.
Sir Courtenay Ilbert recommended that a complex statute might be divided
into Parts, ‘each Part being treated as a simple Act and containing its principle
or leading motive in concise form at the outset of the Act’.72 The division of
an Act into Parts is generally frowned upon unless the subjects are such that
they could appropriately be embodied in separate Acts.
Parts are more frequently used now as an aid to the better arrangement of
lengthy Acts or to permit segments of an Act to be referred to more easily. An
Act may also be divided further into Divisions or other subdivisions of a Part.
No such arrangement of an Act should be undertaken unless the context of the
Parts or other subdivisions relate to a single or related subject:
The framework of a Bill may be made more intelligible by dividing it into
parts and by grouping clauses under italic headings.73
Excessive subdivision should be avoided. The division of an Act into Parts
may affect its construction by indicating the scheme of arrangement.74

The Interpretation Section

An Interpretation Section is used to define certain words or sets of words used

in the Act. These definitions determine the extent of the meaning to be given
to the word or words so defined. There are two forms of definitions: the
restrictive form where ‘means’ is used, and the extensive form where
‘includes’ is used. When ‘means’ is used the definition is explanatory – and
therefore restrictive. When ‘includes’ is used the definition is extensive, in the
sense that the ordinary dictionary meaning is intended – that is to say, the
‘ordinary, popular and natural sense’. However, the meaning is also extended
‘to some things to which it would not ordinarily be applicable’. Thus ‘street’
would be enlarged to include a highway. But it would be wrong to define
‘animal’ as including ‘man’, whatever the scientists say.
In Robinson v. Barton Eccles Local Board,75 Lord Selborne said that,
An interpretation clause of this kind is not meant to prevent the word
receiving its ordinary, popular, and natural sense whenever that would be
properly applicable, but to enable the word as used in the Act, when there is
nothing in the context or the subject-matter to the contrary, to be applied to

__________________________________________________________________________________________________________________________________________

72 Mechanics of Law Making, p.17.

73 Ilbert, Legislative Methods and Forms, p.245.
74 Ilbert, Legislative Methods and Forms, pp.245-246.
75 (1883) 8 App. Cas. 798 at p.801.
 Introduction 23

some things to which it would not ordinarily be applicable. I look upon this
portion of the interpretation clause as meaning neither more nor less than this,
that the provisions contained in the Act as to streets, whether new streets or
old streets, shall, unless there be something in the subject-matter or the
context to the contrary, be read as applicable to these different things. It is
perfectly consistent with that, that they should be read applicable, and should
be applied, to those things to which they in their natural sense apply, and
which do not require any interpretation clause to bring them in.
In other words, an interpretation section is used for the purpose of
interpreting words which are ambiguous or equivocal, and not to disturb the
meaning of such as are plain,76 nor is it used to prevent the operation of the
word in its primary and obvious sense.77
There may be cases where a word is defined in an Interpretation Section
out of the abundance of caution. It is as well, therefore, to bear in mind that
the Interpretation Section of an Act applies only where there is no contrary
intention. A definition in an Interpretation Section does not seek to substitute a
word or one set of words for another word or another set of words. It does not
strictly define the meaning to be given to the word or words in every
conceivable case, but rather declares the ambit within which the word or
words defined may be understood.

The Enacting Sections

An Act of Parliament is divided into sections, which may be divided into

subsections or paragraphs. The division into paragraphs is to help readability
and reduce ambiguity to a minimum. It ensures precision and helps in the
understanding of the legislative sentence. A section is intended to contain one
idea and therefore one enactment, but where the composition of the legislative
sentence turns out to be a long one, the sentence is broken up into subsections
or paragraphs. The subsections or the paragraphs read together must form a
coherent and a consistent whole. The sections, numbered consecutively and
taken as a whole constitute the Act of Parliament.
The earliest statutes were written in Latin. The Provisions of Merton
(1235)78 used the words Provisum est – It is provided. The words introduced
each enactment since in the earliest days the statutes were in one piece. There
were no sections, subsections or paragraphs. Thus each provisum est, or
purveu est, or est acorde ordine establi79 provided the clue to each enactment,

__________________________________________________________________________________________________________________________________________

76 R v. Pearce (1880) 5 QBD 306 at p.389.

77 London School Board v. Jackson (1881) 7 QBD 502 at p.504.
78 20 Hen. 3.
79 Statute of Westminster, 1275, for example.
24 Understanding Statutes

that is to say, to each section. Today, the Enacting Formula has replaced the
repetition of It is provided before each enactment.80
Section 2 of the Interpretation Act, 1850,81 provided that,
All Acts shall be divided into sections if there be more enactments than one
which sections shall be deemed to be substantive enactments without any
introductory words.
The Interpretation Act 1889,82 by s.8, briefly provided that,
Every section of an Act shall have effect as a substantive enactment without
introductory words.83
The sections of an Act of Parliament are thus the operative parts of the
Act. They declare the law. Lord Thring considered an Act of Parliament ‘… as
a series of declarations of the Legislature’.84

The Schedules

A Schedule may be attached at the end of an Act of Parliament. It is an

operative part of the Act, and is part of the section which induces it. Its
provisions may be as important as a section’s. It may:
• incorporate part of the operative provisions of the Act;
• contain provisions of a transitional nature;
• contain a number of amendments which are better dealt with in the
Schedule than in the main body of the Act.
In Attorney-General v. Lamplough85 it was stated that,
A schedule in an Act is a mere question of drafting, a mere question of words.
The schedule is as much a part of the statute, and is as much an enactment as
any other part.
But in Re Baines86 Lord Cottenham stated that,
If the enacting part of the statute cannot be made to correspond with the
schedule, the latter must yield to the former.

__________________________________________________________________________________________________________________________________________

80 It also seems to be the origin of the use of the expression Provided that which is used to introduce a
proviso.
81 13 & 14 Vict. c.21, usually referred to as Lord Brougham’s Act, 1850.
82 52 & 53 Vict. c.63.
83 Now replaced by section 1 of the Interpretation Act, 1978 c.30, where the wording is, ‘Every section
of an Act takes effect as a substantive enactment without introductory words.’
84 Practical Legislation, p.26.
85 (1878) 3 Ex D 214 at p.229.
86 (1840) 12 A & E 227.
 Introduction 25

And in the words of Lord Penzance in Dean v. Green,87

It would be contrary to the principles on which courts of law construe Acts of
Parliament to enlarge the conditions of an enactment by reference to words
given in a schedule.
In more modern times, Lord Wilberforce said in Floor v. Davis88 that:
Using a modern technique, Parliament has placed most of the wording and
detailed provisions in lengthy schedules.
Forms provided for in a Schedule to an Act of Parliament are meant to be
strictly followed. However, deviations from a Form would not invalidate the
Form used provided the essentials of the Form as provided for are adhered to.
But Saunders v. White89 is authority for the proposition that if the Form is
imperative then it must be strictly followed.90

Punctuation

The notion that punctuation forms no part of an Act of Parliament is no longer

tenable. It may be that the old statutes as engrossed on the Parliament Roll did
not have punctuation,91 but the modern view seems to have been expressed by
Lord Lowry:
I consider that not to take account of punctuation disregards the reality that
literate people, such as parliamentary draftsmen, punctuate what they write, if
not identically, at least in accordance with grammatical principles. Why
should not other literate people, such as judges, look at the punctuation in
order to interpret the meaning of the legislation as accepted by Parliament?92

Words – Meaning, Ambiguity, Vagueness, etc

Aristotle defined words as ‘the smallest significant units of speech’. To
modern linguists words are semantic units and morphemes as ‘the minimum
meaningful unit of speech’.93 For example, the word ‘stonehouses’ consists of
__________________________________________________________________________________________________________________________________________

87 (1882) 8 PD 79.
88 [1979] 2 All ER 677 at p.679.
89 [1902] 1 KB 472.
90 See also Thomas v. Kelly (1880) 13 App. Cas. 506, Wing v. Epsom Urban District Council [1904] 1
KB 798 and Burchell v. Thompson [1920] 2 KB 80.
91 See Craies on Statute Law 12th ed. 13, Lord Reid in IRC v. Hinchy [1960] AC 748 at p.765, Bennion,
Statute Law 2nd ed. p.57 and Crabbe, Legislative Drafting, pp.84-103.
92 Hanlon v. The Law Society [1980] 2 All ER 199 at p.221. See also Houston v. Burns [1918] AC 337 at
p.348.
93 Stephen Ullman, Semantics: An Introduction to the Science of Meaning, p.26.
26 Understanding Statutes

three morphemes – ‘stone’, ‘house’ and ‘s’. The morphemes ‘stone’ and
‘house’ are known as free morphemes. They are capable of standing
independently, while ‘s’ is a bound morpheme which cannot. Other examples
of bound morphemes are ‘ly’ in ‘lately’ and ‘ed’ in ‘accepted’.
Our usual concept of a word is that it is a unit of meaning, a distinct unit in
the pattern of language. Although words usually perform their communicative
function jointly, they enjoy a measure of independence on the printed page
and in the dictionary. Stephen Ullman94 observes that vocabulary ‘gives the
impression of a vast filing system in which all items of our experience are
docketed and classified’. Each word stored in the mind has a meaning or
meanings attached to it. Words are symbols used to express a thing or an idea.
The theory of words as symbols is well explained by Ogden and
Richards.95 The core of their theory is that words in themselves are nothing –
‘the verberation of air’.96 Their importance lies in the fact that they are
symbols – signs that are consciously designed to stand for particular objects,
things or situations.
Words are a special class of symbols – the most important in ordinary
thinking and communication. When used, a word stimulates a mental
reference to an object or situation in the real world. The relationship between a
word and the object or situation it symbolizes is always indirect; between
them there always intervenes the thought of a person. Thus, the object or
situation causes a thought in the mind of a speaker or writer and that person
uses a word to express thought.
In listening or reading, the process is reversed: the word brings about the
thought which refers to the object or situation. Although we usually refer to
words as symbolizing objects, it is important to bear in mind the scenario:
object to thought to word, or word to thought to object.
In the field of understanding statutes the lessons are obvious. Firstly, it
helps to avoid two common errors in the use of words pointed out by Glanville
Williams. 97 There is the idea that words are important in themselves,
irrespective of their symbolic meaning. There is the notion that real distinctions
exist where in fact the only distinction is between two forms of words.
The idea that words have existence and power, that they are equivalent to
the things and persons they denote or nearly so is common amongst lawyers.
Chafee98 writes:

__________________________________________________________________________________________________________________________________________

94 Stephen Ullman, ibid, p.39.

95 C. K. Ogden and I. A. Richards, The Meaning of Meaning (1936).
96 Partridge v. Strange (1552/3) 1 Plowd. 83. Quoted by Glanville Williams, ibid, p.73.
97 Glanville Williams, ibid, p.74.
98 Z. Chafee, ‘The Disorderly Conduct of Words’, 41 Col LR p.384.
 Introduction 27

Lawyers and judges are highly susceptible to the notion of an indissoluble link
between the word and the thing.
The first useful lesson from the Ogden and Richard theory is that since the
relationship between a word and what it symbolises is always indirect, it
follows that a word can never be the same as what it points to. A word is no
more and no less than a symbol and must do what it is told. Lord Diplock
observed in Carter v. Bradbeer,99 with respect to the word ‘bar’ under
ss 76(5) and 201 of the Licensing Act of 1964, that,
if a case which turns entirely upon the meaning to be ascribed to words used
in a statute gets as far as your Lordships’ House … on that question your
Lordships constitute the court of last resort. So the words mean whatever they
are said to mean by a majority of the members of the Appellate Committee
dealing with the case, even though a minority may think otherwise.
This echoes Humpty Dumpty’s100 famous boast:
When I use a word … it means just what I choose it to mean, neither more nor
less.
However, words as symbols must be interpreted as all symbols eventually
are interpreted. Where we fail in that, we fail to communicate. In normal
usage, words are conventionalised symbols and communicate only when so
used. Thus, the definition of a word should not stipulate a matter which does
not ordinarily come within its scope or which is substantially different from
the conventional usage.101 For example, the word ‘horse’ should not be
defined to include ‘cow’, nor should ‘land’ be defined to include ‘ship’.
The notion that a word inevitably and unalterably belongs to a particular
thing or person is a common error. This is the tendency to believe that a word
points to a particular object and only that object, and that no other word can
point to it. In law this takes the form of making legal results depend entirely
on verbal distinctions. In National Society v. Scottish National Society,102 a
testator who had spent all his life in Scotland bequeathed 500 pounds sterling
to ‘The National Society for the Prevention of Cruelty to Children’. These
words corresponded to the charter name of a London Society which did no
work in Scotland. The testator had never heard of the London Society. Nearer
home there was a branch office of the Scottish National Society for the
Prevention of Cruelty to Children, whose activities the testator knew. The
question was, which charity should get the bequest?

__________________________________________________________________________________________________________________________________________

99 [1975] 1 WLR 1204 at 1205.

100 Lewis Carroll, Through the Looking Glass.
101 Namasivayan, The Drafting of Legislation, p.73.
102 [1915] AC 207.
28 Understanding Statutes

The Scottish Courts awarded the bequest to the Scottish Society as the
testator clearly intended. Yet to the House of Lords, the testator ‘had by name
designated the London Society’, and that Society was ‘the possessor of the
name mentioned in the will’. The House of Lords clung to the notion that the
Scottish Society had only one name which the testator should have used to
reach it. They failed to consider the fact that the Scottish Society may have
had other names.
That a corporation should use its corporate name in formal documents is
not in doubt. But, surely, it is not unusual for a corporation to be referred to by
an abbreviation or by another name in ordinary conversation. We refer to the
University of Oxford as ‘Oxford’. But ‘Oxford’ is also the name of a city. We
refer to the Honourable Society of the Inner Temple as the ‘Inner Temple’.
The latter expression has nothing to do with sanctum sanctorum. It is possible
that, at that time, the name used by the testator was commonly used by Scots
people for the Scottish Society, a fact which the Scottish courts no doubt
recognised.
The House of Lords, however, insisted that they were following ‘the
meaning of the words used’. But then what did ‘meaning’ mean? Obviously
not the intention of the testator, not common usage, not the opinion of the
average reasonable Scot under the circumstances.
We thus turn to the theory of Ogden and Richards. Since the relationship
between the word and the object involves two steps, that is to say, word to
thought to object, two different mistakes may occur. First, the thought may not
adequately represent the object, as when parties buy and sell a racehorse that
is, in fact, dead. Chafee103 classifies this kind of mistake as Error. Secondly,
the word may not correctly express the thought, as where a deed describes the
east half of Blackacre when the parties intended the west half. This latter
mistake Chafee classifies as Mistake of Expression. The distinction between
the two is important. The remedy for Error is to rescind the bargain. The
remedy for Mistake of Expression is to remould the writing to the actual
intention.
This little excursus bears direct relevance to an understanding of an Act of
Parliament. Lord Denning104 writes that the courts stuck to the ‘golden rule’
by which statutes were interpreted according to the grammatical and ordinary
sense of the words, even if this gave rise to unjust results which Parliament
never intended. The trend now is that the courts tend to look at ‘the intention’
of the legislature, that is, the spirit and purpose of legislation.
Where the words are clear and cover the situation at hand, the courts need
not go further. It is only where the intention is not clear or there is doubt that

__________________________________________________________________________________________________________________________________________

103 Z. Chafee, ‘The Disorderly Conduct of Words’, 41 Col LR p.386.

104 Lord Denning, The Closing Chapter, p.95.
 Introduction 29

the courts resort to their own interpretation of the words used. Worse still,
where there is a gap in a statute, where something not foreseen by
Parliamentary Counsel or by Parliament itself has taken place, the courts are
sometimes reluctant to ‘legislate’ to fill the gap even though they may
ultimately be forced to.
Although in the last resort, the words of a statute will mean what the
judges say they mean, in practice judges are unlikely to produce strained
interpretations of a statute. It would cost them the respect and approval of
society. Charles Lewis105 has pointed out that the judges themselves have too
much respect for language and semantics generally and for the conventions of
the constitution to want to replace them with a scheme of their own making.
Responsible judges will therefore do no violence to the language of a statute if
it is clear. They are ‘philologists of the highest order.’106 Clear words are not
likely to be litigated.
The practical application of this to an understanding of statutes is simple.
An Act of Parliament represents what the promoters of the original Bill
intended to convey. It is, in reality, intended to represent the contingencies for
which it was conceived. The words and phrases used express the stated
intentions and no more. This demands a considerable degree of clarity and
precision in the use of words, and demands the utmost in simplicity of
expression. Lord Denning107 has stated that all statutes passed by Parliament
should be expressed in such words that all those affected by the statutes should
understand them without recourse to lawyers. And those who draft Acts of
Parliament must be experts in the use of words.
From the theory of words as symbols, there are two useful lessons. Firstly,
words exist only as symbols to do our bidding; they mean what they are
intended to mean in a given context. Secondly, words are not inevitably and
unalterably chained to the objects they symbolise. Different words may be
used to mean different things and they may be used to mean the same thing. It
follows that words have no absolute and no proper meaning.
This leads to the last and most important lesson: words are a most
imperfect means of communication. Amongst their imperfections are
vagueness, ambiguity, and instability. In Helvering v. Gregory,108 Justice
Learned Hand said that,
the meaning of a sentence may be more than that of the separate words, as a
melody is more than the notes, and no degree of particularity can ever obviate
recourse to the setting in which all appear, and which all collectively create.
__________________________________________________________________________________________________________________________________________

105 ‘The Truth About Statutory Interpretation’ (culled from Guardian Gazette No. 27 Vol. 24 of 27.7.77).

106 Ex p. Davis (1857) 5 WR 522 at p.523.

107 Lord Denning, The Closing Chapter, p.92.
108 69 F 2d 809, at p.810 (1934).
30 Understanding Statutes

Shall and may

In the structure of the legislative sentence shall and may play a very important
part. They are the legislative auxiliaries, expressing the legal action in a
provision of an Act of Parliament. They are the enacting verbs in the
legislative sentence; its copulae. They have different functions in the
legislative sentence, and are not interchangeable.
In legislation, the auxiliary verb shall invariably denotes an imperative
rather than futurity. It usually implies futurity in a will, when phrases like shall
be born or shall predecease me are used. In these instances shall is used to
refer to events occurring after or before the death of the testator. An Act of
Parliament may provide that the Act shall have effect, or the Act shall apply,
or a person shall be entitled. In these circumstances it is best to use the present
indicative: it takes effect, it applies, a person is entitled. In other words, shall
should not be used where there is no command.
This brings us to a consideration of the principles governing the use of
shall in a legislative sentence. Here the word is generally imperative or
mandatory. In its ordinary signification, shall is a word of command. It is a
word which should normally be given a compulsory meaning, because it is
intended to denote an obligation. The auxiliary verb shall should be used only
where a person is commanded to do something.109
It is thus not appropriate, for example, to provide that a person shall
receive a pension on retirement. Is that person bound to take whatever amount
is given as pension? What is intended is an entitlement, that is to say, a right to
a pension on retirement. There is no obligation placed on any person to give
the pension.
The use of shall, therefore, in those circumstances is inconsistent with the
concept of discretion or the exercise of discretionary power. Shall has the
ability to exclude the idea of discretion and gain the significance of imposing a
duty, an obligation which would be enforced, particularly if it is in the public
interest to do so. Shall, however, is sometimes intended to be directory only. In
that case, it is the equivalent of may, and will be construed as being merely
permissive in order to carry out the legislative intention. This usually applies
in cases where no right or benefit accrues to anyone, or where no public or
private right is impaired by its interpretation as being directory.
Thus where an Act of Parliament confers a right of appeal and provides
that notice of appeal shall be filed within thirty days, the shall here is not used
in the mandatory sense. It is used as a procedural direction, stating the time
within which the right of appeal may be exercised.
A few cases will illustrate the approach of the courts to the use of shall in
the mandatory or the directory sense. In R v. Secretary of State for Social
__________________________________________________________________________________________________________________________________________

109 Driedger, The Composition of Legislation, pp.9-12.

 Introduction 31

Services ex p. Association of Metropolitan Authorities,110 the Secretary of

State was empowered by the Social Security and Housing Benefits Act
1982111 to make Regulations setting up a housing benefits scheme. Under the
scheme, eligible persons were entitled to receive housing benefits in the form
of rent allowance, rent rebate or rebate. The administration of the scheme was
in the hands of the local authorities, which bore 10% of the cost of the
scheme. Section 36(1) of the Act stated:
The Secretary of State shall consult with organisations appearing to him to be
representative of the authorities concerned.
The Minister wrote to the applicant organisation, an association of local
authorities, requesting their views on a proposed amendment. The time given
for the consideration of the proposed amendment was not sufficient. When the
amendment was passed, the organisation applied for judicial review, claiming,
inter alia, that the obligation to consult contained in s.36(1) was mandatory and
not directory and therefore the Minister had failed to comply with the duty.
The court held that the obligation imposed on the Secretary of State was
mandatory rather than directory because the day-to-day administration of the
scheme fell on the authorities.
Similarly, shall, in s.21 of the Magistrates’ Courts Act 1980,112 was held
to be mandatory in the case of R v. Liverpool Justices, ex p Crown Prosecution
Service.113 The section reads:
If, where the court has considered as required by section 19(1) above, it
appears to the court that the offence is more suitable for trial on indictment,
the court shall tell the accused that the court has decided that it is more
suitable for him to be tried for the offence by a jury, and shall proceed to
enquire into the information as examining justices.
The court held that shall was mandatory, for once a trial on indictment is
ordered under that section, there is no power to vary the decision save as
provided for in s.25 of the Act.
However, the words shall give not less than ten days’ notice in s.16(1) of
the Company Directors Disqualification Act 1986114 held to be merely
directory and not mandatory. Therefore, failure to give the ten days’ notice did
not render the application for a disqualification order either void or voidable:
Secretary of State for Trade and Industry v. Langridge.115
__________________________________________________________________________________________________________________________________________

110 [1986] 1 All ER 164.

111 C.24.
112 C.43.
113 (1990) 90 Cr. App. R. 261.
114 C.46.
115 (1991) 2 WLR 1343.
32 Understanding Statutes

In arriving at that decision, the court engaged in what it called a

‘balancing exercise’. It looked at the general object of the Act: for the
protection of the public. It looked at the object of the ten days’ notice: it is for
the protection of the person against whom an application for a
disqualification is made. The court then felt that the ten days’ notice period
only allowed a recipient to produce clear evidence of mistaken identity, or
seek to challenge, by way of judicial review, the lawfulness of a
disqualification order against the recipient.
Beyond that the period only served to limit the shock the recipient might
otherwise sustain if the first intimation of the application is when the
proceedings are served on the recipient. The notice was seen as a mere
‘unparticularised letter before action,’ conferring only a limited benefit on the
recipient. Further, even if the failure to give the ten days’ notice rendered the
order void, all the Secretary of State had to do was to recommence
proceedings. The court found it difficult to conceive that Parliament intended
so pointless and wasteful a result.
The above case illustrates an instance where the court felt obliged to
construe shall as directory – perhaps a judicial amelioration of a drafting error.
Yet the moral is that a duty should not be disguised as a discretion nor should
a discretionary power be disguised as a duty. That accounts for the provision
in the Interpretation Act of some jurisdictions that shall should be construed
as mandatory and may as permissive.
The word may is an auxiliary verb which is normally used in a legislative
sentence to confer a power, a privilege or a right. Its use implies the
permissive, the optional or a discretionary power or conduct. As a general
rule, may is not a word of command. It would be construed as implying a
command where there is something in the context or subject matter of the
legislative sentence to indicate that it is intended to do so. There are thus
occasions when the courts not infrequently have construed may as shall, to the
end that justice may not be the slave of grammar.
May, therefore, in its ordinary meaning, gives an enabling, a discretionary
power. Case law shows that it scarcely needs an adventitious aid. It is only
where, for example, may is found in a section which for other purposes
employs imperative words that problems arise.
In R v. Southwark Crown Court, ex p. Commissioners of Customs and
Excise,116 there was an application by the Customs and Excise Commissioners
for a judicial review of a judge’s order. The order had placed restrictions on
the removal of bank documents from the jurisdiction of the Court and the
showing or reading of those documents to any representative of a foreign law
agency. One of the grounds of relief was that on a true construction of s.27 of

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116 (1989) 3 WLR 1054.

 Introduction 33

the Drug Trafficking Offences Act 1986,117 the judge, on being satisfied that
the conditions in s.27(4) were fulfilled, was obliged to make the order sought
and had no discretion with regard to the making of the order for the imposition
of conditions.
Section 27 provides that,
(1) A constable … may, for the purpose of an investigation into drug
trafficking, apply to a Circuit judge … for an order under subsection
(2) below in relation to particular material or material of a particular
description.
(2) If on such application the judge … is satisfied that the conditions in
subsection (4) below are fulfilled, he may make an order that the
person who appears to him to be in possession of the material to which
the application relates shall -
(a) produce it to a constable for him to take away, or
(b) give a constable access to it,
within such period as the order may specify.
This subsection is subject to section 30(11) of the Act.
(3) The period to be specified in an order under subsection (2) above shall
be given seven days unless it appears to the judge … that a longer or
shorter period would be appropriate in the particular circumstances of
the application.
(4) The conditions referred to in subsection (2) above are -
(a) that there are reasonable grounds for suspecting that a specified
person has carried on or has benefited from drug trafficking,
(b) that there are reasonable grounds for suspecting that the material to
which the application relates
(i) is likely to be of substantial value (whether by itself or together
with other material) to the investigation for the purpose of
which the application is made, and
(ii) does not consist of or include items subject to legal privilege or
excluded material, and
(c) that there are reasonable grounds for believing that it is in the
public interest, having regard -
(i) to the benefit likely to accrue to the investigation if the material
is obtained, and

__________________________________________________________________________________________________________________________________________

117 C.32.
34 Understanding Statutes

(ii) to the circumstances under which the person in possession of

the material holds it,
that the material should be produced or that access to it should be
given.
(5) Where the judge … makes an order under subsection (2)(b) above in
relation to material on any premises he may, on the application of a
constable …. order any person who appears to him to be entitled to
grant entry to the premises to allow a constable to enter the premises to
obtain access to the material.
(6)…(9).
The court saw nothing in the words of s.27(2) to suggest that Parliament
did not intend to confer a discretionary power on the Circuit judge to grant or
refuse to grant an order even if the judge is persuaded that the conditions
contained in subsection (4) are satisfied. Said Watkins LJ:
Whilst we acknowledge that it is not easy to identify circumstances in which a
judge might properly refuse to make an order when those conditions are
satisfied, we are not persuaded that this is a subsection in which “may” can be
construed as meaning “must” or “shall”… If Parliament had intended the
judge to have no discretion at all, having been persuaded that subsection (4)
conditions had been satisfied, it would readily have used the word “shall” as it
did in s.27(3).
Thus, reading the section as a whole, the use of may in subsections (1) and
(2), and the use of shall in subsection (3) clearly demonstrate that appropriate
meanings were intended for may and for shall respectively.
On the other hand, a contrary view was taken in R v. Tower Hamlets
London Borough Council ex p. Chetnik Developments.118 The Borough
Council refused to refund rates paid to it by the applicants in respect of
premises which were not occupied at the time of the payments. Section 9(1)(c)
of the General Rates Act 1967119 provided that the rating authority may refund
any amount which has been paid by a person not liable to make the payment.
The House of Lords held that while the use of the word may gave the
authority some discretion in determining whether to make a repayment, it did
not relieve the authority of its duty to take into consideration the object of s.9,
which is to remedy an injustice. Said Lord Bridge of Harwich:
If the rating authority…is not to be guided by the justice of making a refund,
having regard to the circumstances in which the overpayment was made, I
find it impossible to articulate any intelligible alternative principle to which
the exercise of the discretion can sensibly be related. If there is no guiding

__________________________________________________________________________________________________________________________________________

118 (1988) 2 WLR 654.

119 C.9.
 Introduction 35

principle, the practical consequences must be that the decision whether or not
to make a refund in any particular case may be purely arbitrary. I cannot
believe that this is what Parliament intended.
Equally, in Bayliss v. Roberts,120 the court held that the words, he may be
charged instead, imposed a mandatory duty on the tax inspector to raise
additional Schedule D assessments under s.118(1)(b) of the Income and
Corporation Taxes Act 1970.121 In this case, the Court looked at the legislative
history of the Act, noting that its predecessor, the Finance Act 1926,122 did not
have the effect of conferring a general discretion on inspectors and none of the
subsequent statutory amendments had changed the law in that respect. Thus a
contextual ambiguity was resolved by reference to external consistency, that
is, to Acts in pari materia.
The conclusion is that may never means shall in the ordinary meaning of
the two words. May confers a power. It is a question whether in a particular
case may can be construed as not conferring a power to impose a duty to
exercise the power so conferred. Thus if the power conferred is to facilitate a
legal right, the courts will construe may as shall. A public officer in the
exercise of a public duty will be compelled by those for whose benefit the
power was so conferred to exercise that power.
In Attorney-General v. Antigua Times,123 the proviso to s.3(2) of the
Newspaper Surety Ordinance (Amendment) Act 1971 provided that the
Minister may waive the requirement of a deposit of $10, 000 if the Minister is
satisfied with the sufficiency of the security in the form of a policy of
insurance or a bank guarantee. The Judicial Committee of the Privy Council
held that the proviso did not confer an unfettered discretion on the Minister.
Said the Privy Council:
The Minister is not given an unregulated and unfettered discretion without
guidelines. His discretion is limited to determination of the sufficiency of the
security offered.

And and or

The use of the words and and or has given rise to not a few difficult problems
of interpretation. The use of either of those words calls for a high degree of
precision.124 An appreciation of the legal effect of the use of and or or would
help in minimising the difficulty in the choice of which word to use. The
__________________________________________________________________________________________________________________________________________

120 (1989) Simmon’s Tax Cases 693.

121 C.10.
122 16 & 17 Geo V, c.22.
123 [1976] AC 16.
124 Reed Dickerson, ‘The Difficulty of Choice Between And and Or’, ABA Journal 1960, p.310.
36 Understanding Statutes

difference in meaning lies in this: or is disjunctive, and is conjunctive. And

connotes togetherness. Or tells you to take your pick.125
The basic rule, therefore, is that and is used when the intention is to refer
to one thing, such as a husband and father. Here the reference is to a person
who is both a father and a husband. Where the reference is to two different
persons but and is used, the expression would be a father and a husband.
Even then the and is still conjunctive since both a father as one entity, and
a husband as another entity, would be required to act – as in the sentence, A
father and a husband shall file a statement. (The meaning becomes clearer
when another word is substituted for husband: A father and a teacher shall
sign the declaration form of a student.)
Where or is substituted for and, the expression becomes a father or a
husband shall file a statement – the reference here is to two separate
categories of persons: one, those who are fathers; two, those who are
husbands. Three situations are thus involved:
1. A husband and father, that is, one person who is a husband and at the same
time a father. (Obviously there are fathers who are not husbands, and
husbands who are not fathers.
2. A father and a husband: two separate people are referred to here, both of
whom are commanded to act, or refrain from acting, in concert:
(a) a father who is not necessarily, but could be, a husband, and a husband
who is not necessarily, but could be, a father;
(b) a father who is a husband and a husband who is a father; and
(c) a father who is not a husband and a husband who is not a father.
3. A father or a husband, that is, either one, independently of the other,
would act or refrain from acting, whether or not the father is also a
husband and the husband is also a father.
Where there is an enumeration of subject-matters coupled with the
exercise of a discretionary power, it is immaterial whether or or and is used,
since in that case the discretion implies that the authority which has the
discretion can – and would – act as that authority thinks fit in exercising the
discretionary powers. Thus where it is provided that,
The Minister may make Regulations providing for
(a)…………
(b)…………
(c)…………
(d)…………
__________________________________________________________________________________________________________________________________________

125 Ibid 310.

 Introduction 37

the Minister could issue a set of Regulations providing for (a), (b), (c) and (d).
He could also issue, as he wishes, Regulations providing for only (a) at one
time and another set of Regulations providing for (b) at another time, and so
on. In this example the use of may governs what follows, so the use of and or
or after each paragraph would not make much of a difference.
A difficult situation arises when and and or are both used in the same
legislative sentence.
A father and husband or wife shall ...
The problem here is that there is an ambiguity. The expression could mean
1. a father and husband, as one person, or a wife;
2. a father who is not a husband or a wife;
3. a husband who is not a father or a wife;
4. a father who is not a husband or a husband who is not a father or a wife.
In other words is the reference here to:
1. two persons, that is,
(a) a person who is both a father and a husband, or
(b) a person who is a wife (but not necessarily the wife of that husband);
2. three persons, that is,
(a) a person who is a father but is not a husband, or
(b) a person, who is a wife, and
(c) a husband who may or may not be the husband of that wife;
3. two persons, that is
(a) a person who is a husband but is not a father, or
(b) a person who is a wife;
4. three persons, that is,
(a) a person who is a father, or
(b) a person who is a husband, or
(c) a person who is a wife.
In the last example, 4, the and becomes an or. It is thus desirable to note
the words of Lord Wilberforce in Anisminic v. Foreign Compensation
Commission126:

__________________________________________________________________________________________________________________________________________

126 [1969] 2 AC 147 at p.214 (HL).

38 Understanding Statutes

There remains, of course, the drafting of article 4(1)(b)(ii) “that the person
referred to and any person who became successor in title,” which does not
appear to suggest that a situation may exist where a successor in title is
relevant even if the claim is made by the original owner. But I think that this
is not decisive: it is merely the result of unfortunate telescopic drafting. The
draftsman ought to have dealt separately with the two cases saying (i) if a
claim is made by the person referred to as aforesaid that he was a British
national ... (ii) if a claim is made by the successor in title of such person and
such person succeeded before February 28, 1959, that both he and the person
referred to as aforesaid were British nationals. We are well used to doing, by
interpretation, this kind of work on the draftsman’s behalf, and I think we can
do so here.

Vagueness

A few words, like numbers, chemical formulæ and certain technical terms,
have a distinctive meaning, constancy and exactness. Most other words do not
have that constancy and exactness. Of this, Stephen Ullman127 wrote:
The sense is visualised by modern thought as a series of concentric circles or
zones, of varying determinateness: their inner core is more or less definite,
whereas their outer fringes are vague, unstable and essentially “open”
awaiting supplementary clarification from the context.
The three major sources of vagueness in words are:
• their generic character;
• their readiness to derive colour from the surrounding context;
• their capacity to evoke emotional responses.

Generic character

Words commonly denote classes of things or events bound together by

distinctive features common to all the objects in that class. The identification
of these features, however, is often the source of heated court debates. This is
so even in the case of common, familiar words which bring to mind mental
pictures so clear that vagueness seems unlikely.
The word shop brings to mind a structure containing goods for sale. But
this image is not supported by two cases. In Warley Caravans v. Wakelin,128 an
open site used for the business of selling caravans was held to be a shop. In

__________________________________________________________________________________________________________________________________________

127 Words and Their Use, p.41.

128 [1968] 66 LGR 534.
 Introduction 39

Greenwood v. Whelan,129 a market stall constructed of tubular steel upright

supports and horizontal bearers bolted together, with a permanent awning,
electrical light and illuminated sign, was held not to be a shop.
The word family normally brings to mind a married couple and their
children. Yet it was held in Dyson Holdings Ltd. v. Fox130 that a relationship
between an unmarried man and an unmarried woman living together over a
long period, but having no children, constituted a family relationship. It was
said that family should not be construed in a technical or legal sense, but in the
sense that would be attributed to it by the ordinary man in the street in view of
the ‘permanence and stability of their relationship’. In Helby v. Rafferty,131
however, a similar relationship was held not to constitute a family in that it
lacked ‘a sufficient degree of permanence and stability to justify the view that
they were members of the same family’.
The classification of abstract words is especially difficult. Unlike concrete
nouns, where the intended reference is real or solid, the intended reference in
the case of abstract words exists as a quality or concept with no physical
existence. It has been said that although all words are symbols, some are
closer to the five senses than others.132 Thus, at the bottom level we have John
Kennedy, 195, Olive Drive, Cave Shepherd, Broad Street. On a higher level we
have generalised words like judge, bank, ship, shop. Above these we have
men, chattels, real estate. Still higher we have abstractions like mankind,
property, democracy, freedom. Stuart Chase132 warns of the dangers we run as
we go higher up the hierarchy:
The more abstract the word, the greater the risk that any proposition in which
it is used will not be true of all the persons and things within the class denoted
by the word, and the more we are liable to forget that at the bottom we are
talking about persons and things.
The generic nature of words is seen in words that perform an adjectival or
adverbial function just as much as in nouns. Examples are reasonable, tall,
short, neighbour, good, bad. These are relative terms, and the context in which
they are used must set the yardstick for determining, for instance, what
constitutes reasonable behaviour.

Colour and context

The readiness of words to derive colour from their context is another source of
vagueness. Mr Justice Oliver Wendell Holmes133 once observed that,
__________________________________________________________________________________________________________________________________________
129 [1967] 1 All ER 296.
130 [1976] 3 All ER 1030.
131 [1978] 3 All ER 1016.
132 Quoted by Z. Chafee, ibid, p.390.
133 Towne v. Eisner [1918] 245 US 418 at p 425.
40 Understanding Statutes

A word is not a crystal, transparent and unchanged, it is the skin of a living

thought and may very greatly in colour and content according to the
circumstances and the time in which it is used.
The colour varies according to the circumstances of their use, the context,
the personality of the speaker or writer and the audience that is addressed. The
word line, for example, will evoke a different image in the mind of the railway
stationmaster, the printer, the palmist, the telephonist, the shopkeeper, the
tennis player. The one meaning possesses various aspects.
The context in which a word is used is crucial and vital to the meaning of
that word. In dealing with the words, ‘property, affairs or government of
cities’, Crane J asked:
What do these words mean? Their colloquial significance would indicate that
anything touching or pertaining to the affairs of a city or of the people thereof
was within the breadth and scope of their intent. If we are satisfied with first
impressions, if we do not look beneath the surface of the matter, if we ignore
the past use of these words, then we may very well say that the statute under
review, known as the Multiple Dwelling Law, is unconstitutional. If, however,
we pause to consider whether these words had a special, legal significance, we
find that there is another side to the question, and it is that which I desire to
present as the basis for my conclusion.
Words, like men, grow an individuality; their character changes with years
and with use. It is common knowledge that many words have a meaning at
law different from that of common speech – carelessness, negligence, fraud,
theft, and the like – have a limitation not always given to them by the
dictionary. Thus we expect that, if the words, “property, affairs or government
of cities” have been previously used in statutes and in decisions with a limited
meaning, this limited meaning was carried in article 12 of the Constitution.
What subject more vitally touches the affairs of the city than rapid transport?
The recent litigation in the federal courts, and the decision of the United States
Supreme Court, show how necessary rapid transit is to urban life. (279 US
159, 49 S Ct 282, 73 L Ed Gilchrist v. Interborough Rapid Transit Co.). Stop
the railroads, surface, subways, or elevated, in the city of New York, and the
calamity, almost immediate, would be too direful for contemplation. An affair
of the city! Any man in the street, or in the ordinary walks of life, conversant
with New York City would say that the railroads, already half municipally
owned, were a very important and vital affair of the city of New York.134
The effect of context on the meaning of a word may be compared to the
effect of the environment on the social conduct of a people. Thus, where a
word is used in legislation, the scope and purpose of that legislation is of great
importance. Said Stamp J in Bourne v. Norwich Crematorium Ltd.135:
__________________________________________________________________________________________________________________________________________

134 Alder v. Deegan, 167 N E 705 at p.706.

135 [1976] 2 All ER 576.
 Introduction 41

English words derive colour from those which surround them. Sentences are
not mere collections of words to be taken out of the sentence, defined
separately … and then put back again … with the same meaning you would
have assigned to them as separate words, so as to give the sentence or phrase a
meaning … it cannot bear without distortion of the English language.

Emotional responses

The ability of words to evoke emotional responses is yet another source of

vagueness. An Act of Parliament which evokes little or no emotional response
has a very different effect when considered as it affects people in a real-life
situation.136 Abstract words, which are by nature inexact are especially
emotional. The emotions are stirred into frenzy by words such as democracy,
colonialism, racial discrimination, apartheid. They are best avoided in
legislation.137
One consequence of the vagueness of words is that although meanings
generally overlap, complete synonymity does not exist. So in legislation words
or phrases are used that most exactly convey the intended meaning in the
intended context – second best is not good enough. Secondly, one word is
used for one intended meaning, otherwise an inference will arise that a change
of meaning is intended.
It should, however, be noted that sometimes the nature of the work of
Parliamentary Counsel forces them to use vague words in legislation. Where,
for instance, all possible contingencies cannot be foreseen, Parliamentary
Counsel may deliberately resort to vague terms. The usefulness of this was
acknowledged by Lord Parker, LCJ, in Soil Fertility Ltd. v. Breed,138 when he
said that,
it may be that the legislation is deliberately vague in the matter in order that
common sense should prevail according to the circumstances of each case.
Deliberate vagueness may also be useful where legislation deals with an
explosive political issue and the resolution of the inherent difficulties is left to
the courts. When the use of vague words is justifiable is a matter for careful
judgment, but the general purpose and intended scope of the legislation must
be clear from the context. The criteria to be applied should be determinable
from the context, otherwise uncertainty in the law and to poor administration
may result.139

__________________________________________________________________________________________________________________________________________

136 G.C. Thornton, Legislative Drafting, p.10.

137 But see Race Relations Act 1976, c.74.
138 [1968] 3 All ER 193 at p 196.
139 G.C. Thornton, ibid, p.13.
42 Understanding Statutes

Ambiguity
Ambiguity in the use of words is of three kinds:
• syntactic;
• semantic;
• contextual.

Syntactic ambiguity

Syntactic (or grammatic) ambiguity results from combining words which are
unambiguous when taken separately in such a way that they become
ambiguous when read together. It often arises where
• the modifier in a sentence is misplaced;
• it is not easy to determine which of the words in the sentence the modifier
qualifies;
• there is an uncertainty of reference.
In the sentence, ‘Mabel saw Janne strolling down the lane’ there is an
ambiguity as to whether Mabel was strolling down the lane when she saw
Janne, or whether it was Janne who was strolling down the lane when Mabel
saw her. It may also not be possible to ascertain whether one or all items in a
series are modified by an antecedent or subsequent modifier.
In the sentence, ‘An owner, a lessee or a person operating an industrial
plant shall pay a tax of three thousand dollars’ there is an ambiguity whether
the words operating an industrial plant qualify only person or each of the
other words, owner or lessee. Also in an enumeration such as orange, white
and blue flowers, is the reference to multicoloured flowers or to orange
flowers, white flowers, or blue flowers?
A syntactic ambiguity may also arise where there is uncertainty as to
whether a given word is part of the thing being modified. The expression, ‘a
clear water container’ may mean a water container that is clear in colour, or a
water container (whatever its colour) which is holding clear water. These
examples provide ample illustration of the basic nature of the problem of
syntactic ambiguity.

Semantic ambiguity

Many words in the English language have more than one meaning. The
ambiguity here results from the word itself. Thus we pay dues to a golf club
and use a golf club to hit a golf ball. The expression ‘a person who was
divorced on the first day of January, 1894’ is open to two interpretations,
depending on whether divorced is a past participle and the word was is part of
the verb to be. Thus the provision would apply to a person who was already
 Introduction 43

divorced on the first day of January, 1894, or to a person who acquired the
status of a divorced person on the first day of January, 1894.
When the objects for which a word stands are widely separated, no harm
results: We invite our friends to a ball at a club house; a giant uses a club.
However, when the same word signifies two or more ideas which are close
together or overlap, confusion and obscurity are probable. The speaker or
writer may end up using the word in more than one sense in the same context.
For example, the word knowledge may be used for both the content of what is
known and the process of knowing. Mr Justice Cardozo140 once observed that,
when things are called by the same name, it is easy for the mind to slide into
an assumption that the verbal identity is accompanied in all its sequences by
identity of meaning.
Ambiguity also occurs where a word has both a general and a specialised
meaning. Examples are the words action, suit, right, assignment.

Contextual ambiguity

This type of ambiguity arises where a pronoun is used in a situation where

there are two or more persons referred to and it is not clear to which person
the pronoun refers. This is what is known as the pronomial uncertainty. An
example is: ‘The employer shall ascertain from the employee whether he is a
graduate’. The pronoun he may refer to the employer or the employee.
In legislation, therefore, the context should nullify the multiple meaning.
Where this is not possible, a definition is normally provided. Also, where a
word has both a general and a technical meaning, the context should always
make clear which meaning the word is intended to have.

Instability
Words owe their instability to the nature of language itself. It is a system that
changes slowly with time. New words come into use and old ones change
their meaning or fall into disuse. In this way, language keeps up with the
progress of civilisation. It has been said that,
the English language absorbs, rejects and adopts elements of vocabulary as it
goes along.141
To keep up with social needs arising from this progress, legislation should
happily employ new words when necessary. Examples of new words

__________________________________________________________________________________________________________________________________________

140 Lowden v. Northwestern National Bank & Trust Co. [1936] 298 US 160 at p.165.
141 Robert Burchfield, The English Language, Oxford, 1985 p.113.
44 Understanding Statutes

introduced into legislation in the last ten years are video142 and hijack.143 Such
words are used only when they have attained a respectable stability of
meaning. A word that appears to be in a fluid state is best avoided.
We have thus far demonstrated the importance of the correct use of words
in legislation. An understanding of the nature, function and imperfections of
words can assist in an understanding of statutes, but it is not an easy task.

The Purpose – Communication

The purpose of a statute is to communicate to its audience, be they all the
people or some of the people, information that is intended to regulate its
conduct or affairs. It could be for all the people, such as in the sphere of
criminal law, or for the regulation of the affairs of a class of the people, such
as an Act of Parliament to regulate the legal profession. It demands obedience.
Disobedience leads to the imposition of sanctions – that is the punishment
stipulated by the statute.
It thus expresses legal relationships. Its language is part of the language of
a people, and will be understood as language is understood. An Act of
Parliament would be construed or interpreted in accordance with the
principles that govern language as a means of communication.
The ability to communicate, however, depends upon the ability to think. A
sentence expresses a thought or an idea. Where the sentence follows the
principles by which language is expressed, the meaning is made clear. Where
the words are not arranged in a logical and the appropriate grammatical
sequence, ambiguity or vagueness – even confusion – might ensue.
In the words of James Carter,144 the purpose for which legislation is
employed is political rather than juristic. It is intended to remove political evils
and perfect the organisation and government of the state. Legislation aids the
unwritten law of custom and thereby makes custom more effective. Yet
nothing is more attractive to the benevolent vanity of men than the notion that
they can effect great improvements in society by the simple process of
forbidding a wrong conduct, or conduct which they think is wrong by law,
and enjoining all good conduct by the same means; as if men could not find
out how to live until a book were placed in the hands of every individual, in
which the things to be done and those not to be done were clearly set down.
Until the dominance of Acts of Parliament emphasised their importance as
a source of law, the law was largely made up of the decisions of the courts – in

__________________________________________________________________________________________________________________________________________

142 The Video Recordings Act 1984 c.39.

143 The Aviation Security Act 1982 c.36.
144 Law: Its Origin, Growth and Function, Lecture IX, p.221.
 Introduction 45

essence, the decisions of the appellate courts. Legislation is perhaps more

important than the judge-made law, because judge-made law can be altered or
abolished by an Act of Parliament. Where, as it has been shown,145 the courts
by interpretation deviate from the path laid down by Parliament, Parliament
can deal with the matter by a further or corrective Act of Parliament.
Yet where an Act of Parliament purports to oust the Common Law, but
does not go the whole distance, the Common Law can be called in aid.
Equally, where an Act of Parliament is silent on a matter already governed by
judge-made law, the absence of legislation tends to strengthen the relevant
rules of the Common Law or of the doctrines of Equity.
Therefore legislation by its true nature must carry the development of the
law beyond the confines of the judge-made law, as Equity developed to correct
the injustices of the Common Law, and deal with the Common Law and
Equity. In the last resort, judge-made law cannot formulate all the adequate
rules for dealing with the affairs of individuals and of governments. The
principles of the Common Law and the doctrines of Equity in the end are not
sufficient to deal with the practical adjustments required in our daily
relationships with those who govern us. Lord Atkin said in Donoghue v.
Stevenson146 that,
The rule that you are to love your neighbour becomes, in law, you must not
injure your neighbour; and the lawyer’s question, who is my neighbour?
receives a restricted reply… Who, then, in law, is my neighbour? The answer
seems to be – persons who are so closely and directly affected by my act that I
ought reasonably to have them in contemplation as being so affected when I
am directing my mind to the acts or omissions which are called in question.
Clearly, Lord Atkin’s definition of neighbour is not precise. So many
questions arise out of that definition: the duty to take care, the problems of
moral blameworthiness, of foreseeability, of remoteness of damage. In the
Donoghue case it was held that a manufacturer of chattels was under a duty to
the ultimate user or consumer even though there was no contractual
relationship between the two. The ultimate user or the consumer was held to
be a neighbour of the manufacturer. And one wonders whether the neighbours
in that case and in Rylands v. Fletcher147 ever loved their neighbours as
themselves.
But the reply to the question will find adequate expression in legislation
which will lay down who is one’s neighbour. When that is done, a person who
does not fall within the scope of neighbour as determined by legislation, or

__________________________________________________________________________________________________________________________________________

145 See Le Neve v. Le Neve, fn 55 on p.79 (Chapter 3).

146 [1932] AC 562 at p.580.
147 (1868) LR 3 HL 330.
46 Understanding Statutes

within any of the categories of neighbour as defined, is not a neighbour for the
purposes of the law. Equally,
equity never solved the problem of priorities between successive purchasers
or mortgagees, because the only effective means of publicity, the public
record of instruments, was entirely incapable of being established or required
by the exercise of judicial power.148
It was left to the Settled Land Act 1925,149 the Trustees Act 1925,150 the
Law of Property Act 1925,151 the Land Registration Act 1925,152 the Land
Charges Act 1925,153 the Administration of Estates Act 1925,154 and their
sequels, in the form of amendments and other relevant legislation, to deal with
those matters which were ‘incapable of being established or required by the
exercise of judicial power’.
Measured quantity, conventional form, administrative arrangements, and (it
should be added), compromise and concession, constitute the exclusive
province of statute law.155
Judges, by adhering to the doctrine of stare decisis, find it difficult to break
with the past. Legislation is not so hidebound. It avoids the waste in cost and
in time attendant upon litigation and finds solutions to the crazy quilt of
conflicting judge-made law. More importantly, legislation can and does take
the initiative in solving urgent problems in a manner that the inertia of judges
and random litigation cannot accomplish. Litigation is never conducted by
reference to the orderly development of the law: consequently judge-made law
also never proceeds on that basis.
Litigation presents a motley parade of humanity in its various
manifestations – the three divisions of the High Court of Justice in England
attest to that. Judge-made law is a reaction to these present problems which
relies on the past; as Maitland said, ‘the forms of action we have buried, they
still rule us from their graves’.156 This is not so with an Act of Parliament –
legislation considers the past, deals with the present, and speaks to the future.
It can always clean the slate, transcend case and controversy, write and re-
write the law in consonance with the demands of society.
__________________________________________________________________________________________________________________________________________

148 Ernest Freund, ‘Prolegomena To A Science of Legislation’, 13 Illinois Law Review 254, 269 (1918).
149 15 & 16 Geo Vict. c.18.
150 15 & 16 Geo Vict. c.19.
151 15 & 16 Geo Vict. c.21.
152 15 & 16 Geo Vict. c.22.
153 15 & 16 Geo Vict. c.22.
154 15 & 16 Geo Vict. c.23.
155 E. Freund, ‘Prolegomena To A Science of Legislation’, 13 Illinois Law Review, p.269.
156 Forms of Action at Common Law (1936), p.2.
 Introduction 47

Legislation thus deals with measures designed to meet the cultural,

economic and social problems of a given jurisdiction. It is therefore important
to ponder a while on the famous words of Oliver Wendell Holmes,157 apposite
to legislation as it is to the Common Law:
The life of the law has not been logic: it has been experience. The felt
necessities of the time, the prevalent moral or political theories, institutions of
public policy, avowed or unconscious, even the prejudices which judges share
with their fellow men, have had a good deal more to do than the syllogism in
determining the rules by which men should be governed. The law embodies
the story of a nation’s development through many centuries, and it cannot be
dealt with as if it contained only axioms and corollaries of a book of
mathematics. In order to know what it is, we must know what it has been and
what it tends to become. We must alternately consult history and existing
theories of legislation.

__________________________________________________________________________________________________________________________________________

157 The Common Law, p.1.

 Chapter 2

The Function of the Courts

Interpretation and Construction less Legislation

When Parliament enacts a statute, the courts interpret it, leading to the creation
of Case Law. This is often called ‘judge-made’ law. Yet some, at least, of the
judges claim that they do not make the law – they only interpret it. ‘My
function’, said Wessels J in Seluka v. Suskin & Salkow1 ‘is jus dicere not jus
facere’. Yet the great American judge Oliver Wendell Holmes, in a dissenting
opinion, recognised ‘without hesitation that judges do and must legislate, but
they do so interstitially; they are confined from molar to molecular motions.’2
It is instructive to contrast Holmes’ view with the debate between Lord
Denning and Lord Simonds. In Seaford Court Estates Ltd. v. Asher,3 Lord
Denning stated that,
Whenever a statute comes up for consideration it must be remembered that it
is not within human powers to foresee the manifold set of facts which may
arise, and even if it were, it is not possible to provide for them in terms free
from all ambiguity…. A judge, believing himself to be fettered by the
supposed rule that he must look to the language and nothing else, laments that
the draftsmen have not provided for this or that, or have been guilty of some
or other ambiguity. It would certainly save the judges trouble if Acts of
Parliament were drafted with divine prescience and perfect clarity. In the
absence of it, when a defect appears a judge cannot simply fold his hands and
blame the draftsman. He must set to work on the constructive task of finding
the intention of Parliament, and he must do this not only from the language of
the statute, but also from a consideration of the social conditions which gave
rise to it, and of the mischief which it was passed to remedy, and then he must
supplement the written word so as to give “force and life” to the intention of
the legislature. That was clearly laid down by the resolution of the judges in
Heydon’s Case, and it is the safest guide today…. Put into homely metaphor it
is this: A judge should ask himself the question: If the makers of the Act had
themselves come across this ruck in the texture of it, how would they have
straightened it out? He must then do as they would have done. A judge must
not alter the material of which it is woven, but he can and should iron out the
creases.

__________________________________________________________________________________________________________________________________________

1 1912 TPD 258 at p.270.

2 Southern Pacific Co. v. Jensen (1917) 244 US 205 at p.221.
3 [1949] 2 KB 481 at p.499.
50 Understanding Statutes

Lord Denning’s view of the function of the courts in the construction of an

Act of Parliament appears to have been supported in the United States of
America by Learned Hand J in United States v. Klinger4:
The issue involves the baffling question which comes up so often in the
interpretation of all kinds of writings: how far it is proper to read the words
out of their literal meaning in order to realise their overriding purpose? It is
idle to add to the acres of paper and streams of ink that have been devoted to
the discussion? When we ask what Congress “intended”, usually there can be
no answer, if what we mean is what any person or group of persons actually
had in mind. Flinch as we may, what we do, and must do, is to project
ourselves, as best we can, into the position of those who uttered the words,
and to impute to them how they would have dealt with the concrete occasion.
He who supposes that he can be certain of the result is the least fitted for the
attempt.
Seaford Court Estates Ltd. v. Asher5 went to the House of Lords. The
decision was upheld, ‘but it was there put by the majority of the House on
traditional grounds’.6 Lord Denning thus took the opportunity in Magor and
St. Mellon’s Rural District Council v. Newport Corporation7 to repeat what he
had stated in the Seaford case:
We do not sit here to pull the language of Parliament and of Ministers to
pieces and make nonsense of it. That is an easy thing to do, and it is a thing to
which lawyers are often prone. We sit here to find out the intention of
Parliament and of Ministers and carry it out, and we do this better by filling in
the gaps and making sense of the enactment than by opening it up to
destructive analysis.
This approach was ‘roundly condemned’ by the House of Lords.8
Lord Simonds dealt with the matter in this way:
My Lords, the criticism which I venture to make of the judgment of the
learned Lord Justice is not directed at the conclusion that he reached …. I am
content to say that I agree with my noble and learned friend. But it is on the
approach of the Lord Justice to what is a question of construction and nothing
else that I think it desirable to make some comment; for at a time when so
large a proportion of the cases that are brought before the courts depend on the
construction of modern statutes it would not be right for this House to pass
unnoticed the propositions which the learned Lord Justice lays down for the
guidance of himself and, presumably, of others.

__________________________________________________________________________________________________________________________________________

4 199 F. 2d 645 at 648 (1952).

5 [1949] 2 KB 481.
6 Lord Denning, The Discipline of Law, p.13.
7 [1950] 2 All ER 1226 at p.1236.
8 Magor and St. Mellons Rural District Council v. Newport Corporation [1952] AC 189 at p.191.
 The Function of the Courts 51

“We sit here”, he says,9 “to find out the intention of Parliament and of
ministers and carry it out, and we do this better by filling in the gaps and
making sense of the enactment than by opening it up to destructive analysis.”
The first part of this passage appears to be an echo of what was said in
Heydon’s Case10 300 years ago, and, so regarded, is not objectionable. But
the way in which the Learned Lord Justice summarises the broad rules laid
down by Sir Edward Coke in that case may well induce grave misconception
of the function of the court. The part which is played in the judicial
interpretation of a statute by reference to the circumstances of its passing is
too well known to need restatement; it is sufficient to say that the general
proposition that it is the duty of the court to find out the intention of
Parliament – and not only of Parliament but of ministers also – cannot by any
means be supported. The duty of the court is to interpret the words that the
legislature has used; those words may be ambiguous, but, even if they are, the
power and duty of the court to travel outside them on a voyage of discovery
are strictly limited: see, for instance, Assam Railways & Trading Co. Ltd. v.
Inland Revenue Commissioners,11 and particularly the observations of Lord
Wright.12
The part of the passage that I have cited from the judgment of the learned
Lord Justice is no doubt the logical sequel of the first. The court, having
discovered the intention of Parliament and of ministers too, must proceed to
fill in the gaps. What the legislature has not written, the court must write. This
proposition, which restates in a new form the view expressed by the Lord
Justice in the earlier case of Seaford Court Estates Ltd. v. Asher,13 (to which
the Lord Justice himself refers), cannot be supported. It appears to me to be a
naked usurpation of the legislative function under the thin disguise of
interpretation. And it is the less justifiable when it is guesswork with what
material the legislature would, if it had discovered the gap, have filled it in. If
a gap is disclosed, the remedy lies in an amending Act.
However, the Renton Report (1975)14 supported Lord Denning:
We see no reason why the courts should not respond in the way indicated by
Lord Denning. The courts should … approach legislation determined, above
all, to give effect to the intention of Parliament. We see promising signs that
the consideration is uppermost in the minds of the members of the highest
tribunal in the country.

__________________________________________________________________________________________________________________________________________

9 [1950] 2 All ER 1226 at p.1236.

10 (1584) 3 Co. Rep. 7a.
11 [1935] AC 445.
12 Ibid 458.
13 [1949] 2 KB 481 at pp.498-9.
14 Cmnd 6053, para. 19.2.
52 Understanding Statutes

Interpretation

Interpretation, then, is a journey of discovery. It is the art of ascertaining the

meaning of the words used in an Act of Parliament or other written document.
Interpretation is authentic where the meaning is expressly provided for, as in
the example:
“child” means a person under the age of twenty-one years and who was born
after the first day of January, 1962.
Two elements are involved here, that is to say, the age limit of twenty-one
years and the fact of birth after the first day of January, 1962. Therefore, a
person under the age of twenty-one years who was born before the first day of
January, 1962, is not a child for the purposes of the law.
Interpretation is usual or customary when it is based upon acceptance of
the usage of the word or expression. A baker’s dozen is not twelve, it is
thirteen – that is the accepted meaning in the baking trade. To a Barrister-at-
Law, a guinea is not twenty-one shillings. It is twenty-three shillings and
sixpence.
An interpretation is considered doctrinal where the meaning of the words
or expression used turns on the grammatical arrangement of the words of the
sentence. Where the interpretation is based upon what is termed the intention
of Parliament, the interpretation can be described as logical. Logical
interpretation may be extensive, that is liberal interpretation, or restrictive, that
is strict interpretation.

Construction

Construction is wider in scope than interpretation. It is directed at the legal

effect or consequences of the provision called in question (and thus comes
after interpretation). Having ascertained the meaning of the words, how do
they fit into the scheme of the Act as a whole? We are in the realm of
construction when the courts are dealing with such matters as casus omissus
and time and circumstances of an Act of Parliament.

The Validity of an Act of Parliament

In the United Kingdom, no court could or would declare an Act of Parliament
as being illegal or unconstitutional.15 The courts do not sit as a court of appeal
from Parliament. In the words of Lord Campbell,
all that a Court of Justice can do is to look at the Parliament roll: if from that it
should appear that a Bill has passed both Houses and received the Royal
__________________________________________________________________________________________________________________________________________

15 But see p.16 et seq, on the Assent.

 The Function of the Courts 53

Assent, no Court of Justice can inquire into the mode in which it was
introduced into Parliament, nor into what was done previous to its
introduction, or what passed in Parliament during its progress in its various
stages through both Houses.16
In more modern times, Lord Wilberforce in Inland Revenue
Commissioners & or v. Rossminster Ltd. & Others17 is of the opinion that
while the courts may look critically at legislation which impairs the rights of
citizens and should resolve any doubt in interpretation in their favour, it is no
part of their duty, or power, to restrict or impede the working of legislation,
even of unpopular legislation.
To this Lord Diplock added that,
Judges, in performing their constitutional function of expounding what words
used by Parliament in legislation mean, must not be over-zealous to reach for
ambiguities or obscurities in words which on the face of them are plain,
simply because the members of the court are out of sympathy with the policy
to which the Act appears to give effect.18
Duport Steel Ltd. & Ors v. Sir & Others19 gave the House of Lords the
opportunity to enlarge upon what it has stated in this regard in the Rossminster
Case. In the Duport case, the Court of Appeal attempted to restrict the
statutory immunity granted to trade unions by the Trade Union and Labour
Relations(Amendment) Act 1976.20 That Act gave partial immunity to acts
‘done by a person in ... furtherance of a trade dispute’.21 However, Lord
Diplock stated that,
given the existence of a trade dispute, it involves granting to trade unions a
power, which has no other limits than their own self-restraint, to inflict, by
means which are contrary to the general law, untold harm to industrial
enterprises unconcerned with the particular dispute, to the employees of such
enterprises, to members of the public and to the nation itself, so long as those

__________________________________________________________________________________________________________________________________________

16 Edinburgh & Dalkeith Railway Co. v. Wauchope (1842) 8 Cl & F. 710 at 725. But see City of
London v. Wood (1701) 12 Mod 669 at 687, where Holt CJ said that ‘if an Act of Parliament should
ordain that the same person should be party and Judge, or, which is the same thing, Judge in his own
cause, it would be a void Act of Parliament; for it is impossible that one should be Judge and party,
for the Judge is to determine between party and party, or between Government and the party; and an
Act of Parliament can do no wrong, though it may do several things that look pretty odd.’ And see
also Day v. Savadge (1614) Hob. 85 at 87: ‘Even an Act of Parliament, made against natural equity,
as to make a man a Judge in his own case, is void in itself.’ Quoted by Megarry, A Second
Miscellany-at-Law pp.18-19.
17 [1980] AC 952 at p.998.
18 At p.1008.
19 [1980] 1 All ER 529.
20 c.7.
21 Section 13(1) as amended by the 1976 Act.
54 Understanding Statutes

in whom the control of the trade union is vested honestly believe that to do so
may assist it, albeit in a minor way, in achieving its objectives in the dispute.
My Lords, at a time when more and more cases involve the application of
legislation which gives effect to policies that are the subject of bitter public
and parliamentary controversy, it cannot be too strongly emphasised that the
British Constitution, though largely unwritten, is firmly based on the
separation of powers: Parliament makes the laws, the judiciary interpret them
…. The role of the judiciary is confined to ascertaining from the words that
Parliament has approved as expressing its intention what that intention was,
and to giving effect to it. Where the meaning of the statutory words is plain
and unambiguous, it is not for the judges to invent fancied ambiguities as an
excuse for failing to give effect to its plain meaning because they themselves
consider that the consequences of doing so would be inexpedient, or even
unjust or immoral. In controversial matters such as are involved in industrial
relations, there is room for differences of opinion as to what is expedient,
what is just and what is morally justifiable. Under our Constitution it is
Parliament’s opinion on these matters that is paramount …. It is at least
possible that Parliament when the [present] … Act was passed, did not
anticipate that so widespread and crippling use as has in fact occurred would
be made of sympathetic withdrawals of labour and of secondary blacking and
picketing in support of sectional interests able to exercise ‘industrial muscle’.
But if this be the case it is for Parliament, not for the judiciary, to decide
whether any changes should be made to the law as stated in the Act.
Lord Keith of Kinkel said22 that,
Perusal of the judgments in the Court of Appeal makes it clear that their
conclusion was strongly influenced by consideration of the injustice involved,
in their view, in subjecting to serious economic loss, inconvenience and
distress, employers and workers in the private sector of the steel industry who
had no concern at all with the dispute … and also of the disastrous economic
consequences to the country as a whole of the action taken by the defendants.
Such considerations cannot properly distract the Court from its duty of
faithfully interpreting a statutory provision according to its true intent,
notwithstanding that events have shown the provision to be capable of being
relied on to enable privileged persons to bring about disastrous consequences
with legal impunity. There is nothing in the apparent policy of the Act …
which might warrant a restrictive interpretation. … Indeed, that policy seems
to have been to enlarge, not abridge, the privileges by way of immunity
conferred on trade unions .… If these privileges should prove to have been
exercised with insufficient sense of responsibility, to the serious detriment of
the national interest, then it is for the force of public opinion to seek their
curtailment through the democratic processes available to it. The
considerations for and against such curtailment can be properly and definitely

__________________________________________________________________________________________________________________________________________

22 At p.550.
 The Function of the Courts 55

debated only in Parliament. It is no part of the function of a Court of law to

form conclusions about the merits of the issue. The one public interest which
courts of law are properly entitled to treat as their concern is the standing of
and the degree of respect commanded by the judicial system. Involvement in
political controversy … is calculated to damage that interest. In the
interpretation of statutes the courts must faithfully endeavour to give effect to
the expressed intention of Parliament as gathered from the language used and
the apparent policy of the enactment under consideration.
Lord Edmund-Davis said that,23
a judge’s sworn duty to “do right by all manner of people after the laws and
usages of this realm” sometimes puts him in difficulty, for certain of those
laws and usages may be repugnant to him. When that situation arises, he may
meet it in one of two ways. First, where the law appears clear, he can shrug
his shoulders, bow to what he regards as the inevitable, and apply it. If he has
moral, intellectual, social or other twinges in doing so, he can always invoke
Viscount Simonds, Lord Chancellor, who once said24: “For to me heterodoxy
or, as some might say, heresy, is not the more attractive because it is dignified
by the name of reform. Nor will I easily be led by an undiscerning zeal for
some abstract kind of justice to ignore our first duty, which is to administer
justice according to law, the law which is established for us by Act of
Parliament or the binding authority of precedent.”
Alternatively, a judge may be bold and deliberately set out to make new law if
he thinks the existing legal situation unsatisfactory. But he risks trouble if he
goes about it too blatantly, and if the law has been declared in statutory form it
may prove too much for him, dislike it though he may.
Lord Scarman said25 that,
below the surface of the legal argument lurk some profound questions as to
the proper relationship in our society between the courts, the government and
Parliament …. My basic criticism of all three judgments in the Court of
Appeal is that in their desire to do justice the Court failed to do justice
according to law …. In our society the judges have in some aspects of their
work a discretionary power to do justice so wide that they may be regarded as
lawmakers … i.e. the Common Law and equity …. The judges, even in this,
their very own field of creative endeavour, have accepted, in the interests of
certainty, the self-denying ordinance of stare decisis, the doctrine of binding
precedent; and no doubt this judicially imposed limitation on judicial
lawmaking has helped to maintain confidence in the certainty and even-
handedness of the law.

__________________________________________________________________________________________________________________________________________

23 At pp.547-8.
24 Scruttons v. Midland Silicones Ltd. [1962] AC 466 at 467.
25 At pp.550-551.
56 Understanding Statutes

But in the field of statute law the judge must be obedient to the will of
Parliament as expressed in its enactments. In this field Parliament makes and
unmakes the law, the judge’s duty is to interpret and to apply the law, not to
change it to meet the judge’s idea of what justice requires. Interpretation does,
of course, imply in the interpreter a power of choice where differing
constructions are possible. But our law requires the judge to choose the
construction which in his judgment best meets the legislative purpose of the
enactment. If the result be unjust but inevitable, the judge may say so and
invite Parliament to reconsider its provision. But he must not deny the statute.
Unpalatable statute law may not be disregarded or rejected, merely because it
is unpalatable. Only if a just result can be achieved without violating the
legislative purpose of the statute may the judge select the construction which
best suits his idea of what justice requires.
The Constitution’s separation of powers, or more accurately functions, must
be observed if judicial independence is not to be put at risk. For, if people and
Parliament came to think that the judicial power is to be confined by nothing
other than the judge’s sense of what is right, or, as Selden put it, by the length
of the Chancellor’s foot, confidence in the judicial system will be replaced by
fear of it becoming uncertain and arbitrary in its application. Society will then
be ready for Parliament to cut the power of the judges. Their power to do
justice will become more restricted by law than it need be, or is today.
However, in the other Commonwealth countries the hands of the courts are
not tied. They can, and do, declare an Act of Parliament as being
unconstitutional and therefore illegal. This arises from the fact that most
Commonwealth countries operate under a written constitution. Not all of the
provisions of the constitution are justicable, but fundamentally the constitution
creates authorities and vests certain powers in these authorities. It gives certain
rights to persons as well as to bodies of persons. It imposes obligations in
much the same say as it confers privileges and powers.
The duties, obligations, powers, privileges and rights specified in a
constitution must be exercised in accordance with the letter – and the spirit –
of the constitution. As Chief Justice John Marshall in Marbury v. Madison26
stated,
To what purpose are powers limited, and to what purpose is that limitation
committed to writing, if these limits may, at any time, be passed by those
intended to be restrained?
A written constitution thus lays down certain mechanics of enactment which
a Parliament under that constitution must obey. The constitution establishes the
fundamental maxims by which the authorities it creates must guide their
conduct. It thus controls alike those who govern and those who are governed. It

__________________________________________________________________________________________________________________________________________

26 1 Cranch 137, 2 L Ed. 60 (1803).

 The Function of the Courts 57

sets the standard by which the duties are measured, the obligations, the powers,
the privileges and the rights it has conferred, or imposed.
In the United States, the failure to observe the form of the enacting
formula led to Acts of the state Legislature being declared invalid. The cases
are Joiner v. State27 and State e rel Gouge v. Burrow, City Recorder.28 In the
Joiner case, an amendment by the state Legislature did not contain the
enacting formula. A question then arose whether the omission invalidated the
purported amendment. The Supreme Court held that the amendment ‘is a
nullity and of no force and effect as law’, and continued:
The purpose of an enacting clause is to establish the Act; to give it
permanence, uniformity and certainty; to afford evidence of its legislative
statutory nature, and to secure uniformity of identification and thus prevent
inadvertence, possible mistake, and fraud.
In the Burrow’s case, the enacting formula omitted the words ‘the state of’.
The Constitution of the State provided that,
... the style of the Laws of this State shall be, “Be it enacted by the General
Assembly of the state of Tennessee ….”
The Supreme Court of the State was emphatic:
The provision we are here called upon to construe is in plain and
unambiguous words. The meaning of it is clear and indisputable, and no
ground for construction can be found. The language is: “The style of the law
of the State shall be, …”. The word “shall”, as here used, is equivalent to
“must”. We know of no case in which a provision of the constitution thus
expressed has been held to be directory. We think this one clearly mandatory,
and must be complied with by the Legislature in all legislation important and
unimportant, enacted by it; otherwise it will be invalid.
In Sri Lanka also, article 75 of the Constitution of the Democratic Socialist
Republic confers on Parliament
the power to make laws, having retrospective effect and repealing or
amending any provision of the Constitution or adding any provision to the
Constitution.
However, in the exercise of this legislative power Parliament is bound by
the Constitution: the courts can declare statutes as not being valid on the
ground that they are unconstitutional. An interesting illustration is the case of
Liyanage v. R29, in which the appellants were charged with participation in an
abortive coup d’état. By the Criminal Law (Special Provisions) Act 1962,30

__________________________________________________________________________________________________________________________________________

27 Supreme Court of Georgia, 1969 223 Ga. 367, 155 SE 208.

28 Supreme Court of Tennessee, 1907 119 Tenn. 376, 104 SW526.
29 [1967] 1 AC 259 P C See also Ibralebe v. R [1964] AC 900.
30 No.1 of 1962.
58 Understanding Statutes

the Legislature sought to validate retroactively the prolonged imprisonment

without trial of the appellants; to create, ex post facto, a new criminal offence
so as to cover the situation of the abortive coup d’état; to alter the law of
evidence so as to render admissible much that otherwise would be
inadmissible and to prescribe a minimum penalty.
All those provisions were limited in their effect to the appellants and to the
circumstances of the coup d’état. By another Act, a special tribunal nominated
by the Chief Justice was constituted to try the case. The Privy Council
declared the legislation to be invalid because it infringed the doctrine of
separation of powers, which was a part of the Constitution of Sri Lanka.
In contrast, the 1983 Constitution of the Republic of South Africa states
specifically that,
no court of law shall be competent to enquire into or to pronounce upon the
validity of any Act passed by Parliament.31
Thus, where it is established that an Act of Parliament has been enrolled in
the office of the Registrar of the Supreme Court, a copy of the Act is
‘conclusive evidence as to the provisions of every such law’.32
So, in effect, under the 1983 Constitution the Supreme Court cannot
enquire into the merits of an Act of Parliament. But because the Constitution
lays down certain conditions for the observance and guidance of those
concerned, the Supreme Court could declare an Act of Parliament as invalid
where the procedure specified by the Constitution is not observed. For, by
s.34(2), the Supreme Court
shall be competent to enquire into and pronounce upon the question as to
whether the provisions of [the Constitution] were complied with in connection
with any law which is expressed to be enacted by the State President and any
House.

Obsolete Acts of Parliament

We have found that the courts cannot declare an Act of Parliament as being
invalid. But can they declare an Act to be obsolete? The answer is a simple
one – no. The doctrine of abrogation of a statute by disuse does not arise. A
statutory provision which forms part of the law, however dormant it may be
considered to be by lack of use, is still part of the law. Many Commonwealth
countries inherited the rules of the common law, the doctrines of equity and
the statutes of general application as it stood in England at the time the Crown

__________________________________________________________________________________________________________________________________________

31 This provision reenacts s.59(2) of the 1961 Constitution. The 1961 Constitution repeated a similar
provision in the South Africa Act, 1909.
32 Section 35, 1983 Constitution; s.65, 1961 Constitution.
 The Function of the Courts 59

took over the administration of the territory concerned.33 Those laws became
the basic law for the territory.
Indeed, s.135 of the South Africa Act 1909,34 provided that,
all laws in force in the several Colonies at the establishment of the Union shall
continue in force in the respective provinces until repealed or amended by
Parliament, or by the provincial councils in matters in respect of which the
power to make ordinances is reserved or delegated to them. All legal
commissions in the several Colonies at the establishment of the Union shall
continue as if the Union had not been established.
Also, Article 3 of the 1969 Ghana Constitution provided that the Common
Law of Ghana
comprise the rules of law generally known as the common law, the rules
generally known as the doctrines of equity and the rules of the customary law
…35
[and the existing law as comprising the written and unwritten law as they
existed before the commencement of the Constitution, and that]
… the operation of the existing law after the coming into force of [the]
Constitution shall not be affected by [that] commencement … [and] the
existing law shall be construed with such modifications, adaptations,
qualifications and exceptions as may be necessary to bring it into conformity
with the provisions of [the] Constitution, or otherwise to give effect to, or
enable effect to be given to, any changes effected by [the] Constitution.
The position, then, is this: that unless the enactment is expressly repealed
either by way of Statute Law Revision or otherwise, the enactment, to borrow
a phrase from Sir James Stephen,36 ‘obviously exists only because it is
forgotten’.

The Whole Act

In a debate in Parliament,37 Sir Roundell Palmer said that,
Nothing is better settled than that a statute is to be expounded, not according
to the letter, but according to the meaning and spirit of it. What is within the
true meaning and spirit of the statute is as much law as what is within the very
letter of it, and that which is not within the meaning and spirit, though it
seems to be within the letter, is not the law, and is not the statute. That effect
__________________________________________________________________________________________________________________________________________

33 In Lesotho, Sri Lanka, Zimbabwe and Swaziland it was the Roman Dutch Law.
34 9 Edw. 7 Ch.9.
35 The provision has been repeated in all the subsequent Constitutions of Ghana.
36 Digest of Criminal Law p.xxxi.
37 209 Hansard Parl. Deb. (3rd Series) 685.
60 Understanding Statutes

should be given to the object, spirit, and meaning of a statute is a rule of legal
construction, but the object, spirit, and meaning must be collected from the
words used in the statute. It must be such an intention as the legislature has
used fit words to express.
This statement has been accepted as the basis for the rule of construction
based upon the four corners of the Act – ex visceribus actus. In the Lincoln
College Case,38 Coke said that,
The office of a good expositor of an Act of Parliament is to make construction
on all parts together, and not of one part only by itself – for no one can rightly
understand any part without perusing the whole again and again.
However, in Warburton v. Loveland39 the House of Lords stated that,
No rule of construction can require, that when the words of one part of a
statute convey a clear meaning according to their strict grammatical
construction, a meaning which best advances the remedy, and suppresses the
mischief, aimed at by the legislature, it shall be necessary to introduce another
part of the statute which speaks with less perspicuity, and of which the words
may be capable of such construction, as by possibility to diminish the efficacy
of the other provisions of the Act.
It is thus well settled that in construing an Act of Parliament a court of law
(a) will not be astute to find out ways in which to defeat the object of the
Act40;
(b) will not look only at the language of the preamble or of any particular
section, but at the language of the whole Act41;
(c) will look at the context, the collocation and the objects of the words
relating to the matter in hand in order to interpret the meaning of the
words according to what would appear to be the meaning intended to
be conveyed by the use of the words42;
(d) will not admit the principle that abstract justice would require or justify
a departure from the established rule of construction43;
(e) will not, in the treatment of two consecutive subsections in an Act,
isolate one from the other and give effect to each without regard to the
other unless it is absolutely necessary.44

__________________________________________________________________________________________________________________________________________

38 (1595) 3 Co. Rep. 586.

39 (1832) 2 Dow & Cl 480 at p.500; 5 ER 499 at p.510.
40 Smith’s Case (In re London Marine Insurance Association) (1869) LR 4 Ch. App. 611 at p.614.
41 Bywater v. Brandling (1828) 7 B & C 643 at p.660.
42 Rein v. Lane (1867) LR 2 QB 144 at p.151.
43 Ex p. St. Sepulchre’s (1864) 33 L J Ch.372 at p.375.
44 [1955] Ch.730.
 The Function of the Courts 61

Casus omissus

An act of Parliament may be badly drafted. That may result in an omission of

certain matters in the Act, or even of a word or words. It may be the fault of
the Parliamentary Counsel who drafted the Bill for the Act, or the result of an
amendment in Parliament, but whatever the source of the omission, effect
must be given to the Act. In those circumstances the ‘intention of the
legislature, however obvious it may be, must, no doubt, in the construction of
statutes, be defeated where the language it has chosen compels to that result,
but only where it compels to it’.45
In that case, s.83 of the West India Docks Act 1831,46 provided that,
all lighters and craft entering into the said docks, basins, locks or cuts to
discharge or receive ballast or goods to or from on board of any ship or vessel
lying therein shall be exempt from the payment of any rates so long as such
lighter or craft shall be bona fide engaged in discharging or receiving such
ballast or goods as aforesaid, and also all such ballast or goods so discharged
or received shall be exempt from any rate or charge whatever.
Thus, when, due to lack of space, a lighter with goods which had entered
the docks was compelled to leave the docks without discharging its cargo, the
House of Lords held that the lighter was liable as it was not being engaged in
discharging or receiving cargo. Lord Loreburn contended that it would be
making the law rather than interpreting the law to hold the lighter exempt.
The rationale, then, is that in cases where a material particular is not
provided for in express terms there is a casus omissus. The courts will refuse
to apply the statute where the words do not compel the courts to supply the
omission. This is in consonance with the basic principle that the function of
the court is to interpret the law and not to legislate. Thus, in R v. Wimbledon
Justices ex p. Derwent,47 Lord Goddard said that,
Although in construing an Act of Parliament the court must always try to give
effect to the intention of the Act and must look not only at the remedy
provided but also at the mischief aimed at, it cannot add words to a statute or
read words into it which are not there, and, if the statute has created a specific
offence, it is not for the court to find other offences which do not appear in the
statute.
In the result, the courts would not extend a statute to meet a case for which
no express provision has been made.
It is instructive, however, to visit the arguments of Lord Denning, and Lord
Simonds’ strictures on him, in Magor and St Mellons RDC v. Newport
__________________________________________________________________________________________________________________________________________

45 London and India Docks Co. v. Thames Steam Tug and Lighterage Co. Ltd. [1909] AC at p.23.
46 1 & 2 Will. 4, c.52.
47 [1953] 1 QB 380.
62 Understanding Statutes

Corporation,48 and the apparent approval by the Law Commission of the

approach adopted by Lord Denning.49

The Problems of the Binding Authority of Precedent

The doctrine of stare decisis is a doctrine of policy, intended to ensure the
certainty of established principles of law. When legal principles are
established and understood, it is not wise to unsettle that which is established
and when rights have accrued, it is wise – and consistent with justice – to
recognise them. But consistency is a virtue only when facts remain consistent.
Thus in the interests of justice, it may be necessary to vindicate the obvious
principles of the law and remedy an injustice. In the words of Oliver Wendell
Holmes,
the law is always approaching and never reaching consistency. It is forever
adopting new principles from life at one end, and it always retains old ones
from history at the other, which have not yet been absorbed or sloughed off. It
will become entirely consistent only when it ceases to grow.50
Simply put, the doctrine of stare decisis means that a solemn decision of a
court of competent jurisdiction, made after arguments on questions of law and
necessary to the determination of a case, becomes an authority – a binding
authority – in the court that made the decision and on all courts of lower
jurisdiction. That decision becomes an example to be followed where the facts
and legal principles of the same hue arise in other cases. Similarity, however,
is not identity.
Stare decisis does not seek to control – its importance lies in the guidance
that it affords. It is a tool which has differential effects and differential values.
Like all tools, it may be bad, blundering or blunt. Its application must be
apposite with justice and its use compatible with common sense. Blind
adherence to precedent is fatal to the development of the law. The facts of one
case may be distinguished from another set of facts in another case. The
principles of law established may be of general application. It is always
desirable to distinguish between the general principle laid down by a case –
that is, the ratio decidendi – and the decision by itself.
In Bourne v. Keane,51 Lord Birkenhead LC said:
If there were, in fact, an unbroken line of authorities dating back 300 years, then
it would have been a matter of grave discussion whether this House, in
accordance with well recognised principles, would consent to break that chain.
__________________________________________________________________________________________________________________________________________

48 [1952] AC 189 at p.191.

49 See pp.49-51.
50 The Common Law, p.36.
51 [1919] AC 815 at p.857.
 The Function of the Courts 63

In that case, Lord Buckmaster enunciated the principles for stare decisis:
Firstly, the construction of a statute of doubtful meaning once laid down and
accepted for a long period of time ought not to be altered unless your
Lordships could say positively that it was wrong and productive of
inconvenience. Secondly, that the decisions upon which the title to property
depends or which by established principles of construction otherwise form the
basis of contracts ought to receive the same protection. Thirdly, decisions
affecting the general conduct of affairs, so that their alteration would mean
that taxes had been unlawfully imposed or exemption unlawfully obtained,
payments needlessly made or the position of the public materially affected
ought in the same way to continue.52
However, in West Ham Union v. Edmonton Union,53 Lord Loreburn LC
said that,
Great importance is to be attached to old authorities on the strength of which
many transactions may have been adjusted and rights determined. But where
they are plainly wrong, and especially where the subsequent course of judicial
decisions has disclosed weakness in the reasoning on which they were based,
and that practical injustice is the consequence that must flow from them, I
consider it is the duty of this House to overrule them.

The ratio decidendi

The legal reasoning behind a decision is the basis of the doctrine of stare
decisis. The reasoning must be clear in its statement, concise on its
formulation, free from an ambiguity. It is thus desirable to heed the advice of
Oliver Wendell Holmes:54
Great cases, like hard cases, make bad law. For great cases are called great,
not by reason of their real importance in shaping the law of the future, but
because of some accident of immediate overwhelming interest which appeals
to the feelings and distorts the judgment. These immediate interests exercise a
kind of hydraulic pressure which makes what previously was clear seem
doubtful, and before which even well settled principles of law will bind.
If an example were needed to support Holmes, Liversidge v. Anderson55
may be called in aid. In that case the issue was the meaning to be given to the
words, ‘has reasonable cause to believe’, in regulation 18B of the Defence
(General) Regulations, 1939. The regulation provided that,

__________________________________________________________________________________________________________________________________________

52 Ibid, at p.874.
53 [1908] AC 1 at p.4.
54 Northern Securities Co. v. United States, (1904) 193 US 197 at p.400.
55 [1942] AC 206.
64 Understanding Statutes

if the Secretary of State has reasonable cause to believe any person to be of

hostile origin or association and that by reason thereof it is necessary to
exercise control over him, he may make an order against that person directing
that he be detained.
The case involved a consideration of whether the Secretary of State was
bound to establish the reasonableness of his belief or whether his declaration
that he had that belief was legally sufficient. The test then was whether a
subjective or objective approach was required in the construction of the
provision. To Lord Macmillan, and to the majority of the Law Lords,
it is for the Secretary of State alone to decide in the forum of his conscience
whether he has a reasonable cause of belief, and he cannot, if he has acted in
good faith, be called on to disclose to anyone the facts and circumstances
which have induced his belief or to satisfy anyone but himself that those facts
and circumstances constituted a reasonable cause of belief.56
Lord Macmillan thus opted for the subjective approach. This approach
ignored Lord Shaw’s convincing dissent in R v. Halliday,57
in which the principles of liberty of the subject were forcibly asserted and an
impressive warning was uttered concerning the extensions of executive
action.58
Lord Atkin, however, favoured the objective approach. He showed, by
reference to no less than twelve examples of cases, that the objective approach
was the correct one; the one which the courts, and the House of Lords itself,
had adopted in a good number of cases. In a famous passage Lord Atkin
observed that the judges should always be ‘alert to see that any coercive action
is justified in law’.59 His stand was vindicated in Nakkuda Ali v. Jayaratne,60
where Lord Radcliffe observed that,
It would be an unfortunate thing if Liversidge v. Anderson came to be
regarded as laying down any general rule.

Obiter dictum

There is a distinction between the legal reasoning upon which the decision in a
case is based – the ratio decidendi – and things said by the way in the course of
a judgment or even in argument – obiter dicta. Obiter dicta are not necessarily
essential to the determination of the case in hand, but give an indication as to
the way a judge’s mind was working. To Bowen LJ, obiter dicta,
__________________________________________________________________________________________________________________________________________

56 Ibid, at p.248.
57 [1917] AC 260 at p.285.
58 CK Allen, Law and Orders 3rd ed., p.44.
59 Liversidge v. Anderson [1942] AC 206 at p.244.
60 [1951] AC 66 at p.76.
 The Function of the Courts 65

like the proverbial chickens of destiny, come home to roost sooner or later in a
very uncomfortable way to the Judges who have uttered them, and are a great
source of embarrassment in future cases.61
And Lord Esher MR in Ex p. Cox62 did not think that
a judge would wish any statement which he may have made in the course of a
case, merely obiter and casually, to be treated as necessarily being an
authority on the subject in question; but when a judge has thought it necessary
for the purpose of a case to make a deliberate examination of the practice of
his court and to state such practice, I do not think the authority of such
statement can be got rid of merely by arguing that it was not really necessary
for the actual decision of the case. I think that such a statement if cited as an
authority is entitled to great weight, though of course not binding on us as a
decision.
Therein lies the value of an obiter dictum – it is of persuasive authority, a
pointer to progress. On the other hand, a ratio decidendi is a principle, the
authoritative principle of a decision in a case, the abstract principle deduced
from the material facts as established by the judge, the abstract principle
which attains the force of law.
Judges need not necessarily accede to the authority of a case, however
strong the decision may be. It they are not convinced, they should not be
overcome.63 Judges are wise enough to appreciate their fallibility as human
beings. Ready to learn, they are great enough to discard mere pride of opinion,
follow truth wherever it leads, and acknowledge their errors. That is the test of
the very best men who are called upon to determine the fortunes of their
fellow human beings.

__________________________________________________________________________________________________________________________________________

61 Cooke v. New River Co. (1888) 38 Ch D 56 at p.71.

62 (1887) 20 QBD 1 at p.19.
63 See Mearing v. Hellings (1845) 14 M. & W. 711 at p.712.
 Chapter 3

Interpretation by Parliament

Interpretation is a journey of discovery. It is the process of ascertaining the

meaning of an Act of Parliament or of a provision of an Act. It is referred to as
doctrinal interpretation when what is involved is the attempt to get at the
meaning of a word or words, an expression or perhaps a whole sentence. In
that case, doctrinal interpretation is often referred to as grammatical
interpretation – that is, an interpretation based on what is called the ‘intention
of Parliament’.
When interpretation is based on the ‘intention of Parliament’ it is
described as logical. Logical interpretation is of two kinds: extensive and
restrictive. Extensive (or liberal) interpretation stretches the meaning of a
word or an expression to cover its obvious meaning. It may also be referred to
as remedial interpretation when ‘judges … bring in everything they can
within the maximum scope of the language used’. It adopts a very
comprehensive approach towards the interpretation.
Restrictive interpretation avoids giving the full meaning to the word or
expression in order to confine the meaning to the ‘intention of Parliament’. It
is often referred to as literal (as opposed to liberal) interpretation.

The Interpretation section

An Act of Parliament may have a section or a provision which defines certain
words or expressions as used in the Act, a practice that started in earnest with
Lord Brougham’s Interpretation Act 1850.1 Statutory definition is an example
of what is called authentic interpretation. Here a court of law is obliged to
follow the definition given in the Act. For example, where a provision of an
Act states that,
“animal” means a cat or a dog,
there is an authentic interpretation. The word animal cannot be interpreted to
include, say, a goat. The definition given here is also an example of a
restrictive interpretation. Animal has a wider meaning. Cats and dogs are not
the only animals on earth. Such a definition is used in order to avoid the
repetition of the words cat and dog.
Where an interpretation section provides that,
__________________________________________________________________________________________________________________________________________

1 13 & 14 Vict. c.21. The first use of an interpretation section appears to be s.115 of An Act for the
Regulation of Customs, 1825, 6 Geo. 4, c.107.
68 Understanding Statutes

“animal” includes a cat, a dog, a goat, a sheep and any other animal,
the question then arises whether the words any other animal will be
interpreted by reference to domestic animals or by reference to four-footed
animals. The category of animals specifically mentioned are all domestic
animals. They are all of them also four-footed animals. It could also be argued
that the dictionary meaning of the word animal is what is intended, because of
the use of the word includes.
Next to authentic interpretation, we have customary interpretation. Judicial
precedent plays a part here, since what we are dealing with are situations
where a succession of decisions of the courts have dealt with the same subject-
matter. It is an aspect of judge-made law. Indeed, the rules of interpretation
and construction dealt with in Chapter Four are based on customary
interpretation. In other words, customary interpretation is distinguished from
authentic interpretation in the sense that authentic interpretation, as we have
seen, is prescribed by Parliament.

The Interpretation Act

An Interpretation Act lays down the basic rules as to how the courts should
interpret the provisions of an Act of Parliament. It also defines certain words
or expressions so that there is no unnecessary repetition of the definition of
those words in other Acts. In other words, an Interpretation Act provides a
standard set of definitions or extended definitions of words and expressions
commonly used in legislation (and is thus an Act of wide application). It also
provides a set of rules which regulate certain aspects of the operation of other
enactments.
This means that an Interpretation Act is not all a question of definitions.
There are other provisions which are not merely definitions or rules of
construction but substantive rules of law, such as the provisions relating to the
effect of the repeal of an Act. Judicial decisions have also given their blessing
to the application of such provisions of the Interpretation Act. It should be
emphasised, however, that an Interpretation Act does not supply all the
answers only some of them. It helps to simplify the law by avoiding repetition
and promoting consistency in the use of language. It clarifies, to an extent, the
rules of construction.
Interpretation Acts have a long history. Lord Brougham’s Act was2
AN ACT for consolidating enactments relating to the Construction of Acts of
Parliament and for further shortening the language used in Acts of Parliament.

__________________________________________________________________________________________________________________________________________

2 The Interpretation Act, 1850, 13 & 14 Vict. c.21.

 Interpretation by Parliament 69

It provided (by s.2) for the use of the full stop in an Act of Parliament.3
The 1850 Act stayed its course until it was repealed by the Interpretation Act
1889.4 The 1889 Act became the mother of the many Interpretation Acts one
reads about in all Commonwealth countries. It was repealed by the
Interpretation Act 1978.5
It is also important to note a few considerations:
(a) quite a number of the provisions of an Interpretation Act are presumptive.
In other words, the rules and principles stated in the Interpretation Act do
not apply where a particular Act provides differently or the context
otherwise requires. It means that a definition in an Interpretation Act may
not be of an assistance to the court. For example, a definition which states
that, “banker” includes a body of persons whether incorporated or not
carrying on the business of banking
does not help much, since the court still has to ascertain the meaning it
should give to the expression, ‘the business of banking’. It is like defining
an archdeacon as a person who performs archidiaconal functions;
(b) a definition may, itself, be so lengthy that it would require interpretation by
the courts. The South Africa Terrorism Act 1967,6 dealt with later, affords
an example of a definition which is not only lengthy but complicated;
(c) a definition in an interpretation section will not be declared void on the
ground that it is uncertain or that it is vague.
(d) what does the expression ‘the intention of Parliament’ mean?
The definition of terrorism in the Terrorism Act 1967 of South Africa is
complicated. Perhaps this was intentional – one must bear in mind the
conditions of South Africa at the time, and the type of government that
brought about that legislation. Nor should one forget how the minority
government and its supporters at the time perceived the conditions in the
country.
The essential features of the offence lay in three basic categories of facts.
A person commits the offence of terrorism where
(a) that person, with intent to endanger the maintenance of law and order in
the Republic,
(i) does an act, whether in the Republic or outside the Republic, or

__________________________________________________________________________________________________________________________________________

3 This may well be the reason for earlier Parliamentary Counsel composing legislative sentences of
enormous lengths.
4 52 & 53 Vict. c.63.
5 C.30.
6 No.83 of 1967.
70 Understanding Statutes

(ii) attempts to do that act, or

(iii)incites or advises the commission of the act, or
(iv)conspires with others to bring about the doing of that act;7
(b) that person undergoes a course of training, whether in the Republic or
outside the Republic, which training would be of use to a person intending
to endanger the maintenance of law and order, or attempts or consents to
undergo that training or incites or advises any other person to undertake
that training;8
(c) that person possesses any explosives, ammunition, firearm or weapon.9
Once it is established that a person falls within paragraph (a), that person is
presumed to have intended to endanger the maintenance of law and order,
where the act or acts complained of had, or were likely to have had, certain
results. The provision does not admit of any proof beyond reasonable doubt
that the acts were not intended to have any of those results.
Where the conduct complained of is established to fall within paragraph
(b), the person concerned is conclusively guilty by reason of the training
undertaken, attempted or instigated. A person in this category will not be
convicted where that person proves beyond reasonable doubt that certain
results were not intended by the act or acts established.
As regards paragraph (c), a person must establish beyond reasonable doubt
that there was no intention to use the explosive, ammunition, firearm or
weapon to achieve certain results.
The certain results referred to, the contrary to each of which an accused
must prove, are:
(a) to hamper or to deter any person from assisting in the maintenance of law
and order;
(b) to promote, by intimidation, the achievement of an object;
(c) to cause or promote general dislocation, disturbance or disorder;
(d) to cripple or prejudice an industry or an undertaking or industries or
undertakings generally or the production or distribution of commodities or
foodstuffs at any place;
(e) to cause, encourage or further an insurrection or forcible resistance to the
Government or the Administration of the territory;

__________________________________________________________________________________________________________________________________________

7 Section 2(1)(a).
8 Section 2(1)(b).
9 Section 2(1)(c).
 Interpretation by Parliament 71

(f) to further or encourage the achievement of a political aim, including the

bringing about of a social or an economic change, by violence or forcible
means or by the intervention of or in accordance with the direction or
under the guidance of or in co-operation with or with the assistance of a
foreign government or a foreign or an international body or institution;
(g) to cause serious bodily injury to or endanger the safety of a person;
(h) to cause substantial financial loss to a person or the state;
(i) to cause, encourage or further feelings of hostility between the White and
other inhabitants of the Republic;
(j) to damage, destroy, endanger, interrupt, render useless or unserviceable or
put out of action the supply or distribution at a place of light, power, fuel,
foodstuffs or water, or of sanitary, medical, fire extinguishing, postal,
telephone or telegraph services or installations, or radio transmitting,
broadcasting or receiving services or installations;
(k) to obstruct or endanger the free movement of any traffic on land, at sea or
in the air;
(l) to embarrass the administration of the affairs of the State.10
The scope of this work does not permit of further detailed analysis and
elucidation of the offence of terrorism under the South Africa Act. It is
sufficient to add that mens rea does not appear to have a place in the operation
of the law of terrorism in South Africa.11
On the other hand, s.45 of the Charities Act 1960,12 states that charity
means
any institution, corporate or not, which is established for charitable purposes
and is subject to the control of the High Court in the exercise of the Court’s
jurisdiction with respect to charities.
This is a definition in circles: ‘What is an archdeacon’? ‘An archdeacon is
a person who performs archidiaconal functions.’ What are ‘archidiaconal
functions’? Archidiaconal functions are functions performed by an
archdeacon! So where do we go from here? Perhaps the Preamble to the
Charitable Uses Act 160113 may be called in aid. The 1601 Act was repealed
by the Mortmain and Charitable Uses Act 1891.14 The 1891 Act was in its
__________________________________________________________________________________________________________________________________________

10 Section 2(2) of the Act.

11 The South Africa Terrorism Act, 1967, No.83 of 1967, was repealed, with the exception of section
7, by the Internal Security Act, 1982, No.74 of 1982. The Internal Security and Intimidation
Amendment Act, 1991, No.138 of 1991, eventually repealed s.7 of the Terrorism Act, 1967. The
1991 Act made several amendments to the 1982 Act by way of repeals and substitutions.
12 8 & 9 Eliz. 2 c.58.
13 43 Eliz. c.4.
14 Section 13(1).
72 Understanding Statutes

turn repealed by s.38 of the Charities Act 1960. However, the Preamble to the
1601 Act is still a useful guide to an understanding of the meaning of the word
charity.15
That takes us back to the 1601 Act. Case law, in this respect, is still
reliable. In Commissioner for the Special Purposes of Income Tax v. Pemsel,16
Lord Macnaghten laid down the classification by which a particular trust
could be considered as being a charitable trust:
Charity in its legal sense comprises four principal divisions: trusts for the
relief of poverty; trusts for the advancement of education; trusts for the
advancement of religion; and trusts for other purposes beneficial to the
community, not falling under any of the preceding heads.17
Thus, legislation and case law – labyrinthine though the case law may be –
combine to give a reasonable answer to the question, ‘What is a charity?’ As
Lord Macnaghten said in the Pemsel case,
If a gentleman of education, without legal training, were asked what is the
meaning of a “trust for charitable purposes”, I think he would most probably
reply, “That sounds like a legal phrase. You had better ask a lawyer.” 18
However much we may claim to have buried the Common Law – because
legislation has ousted its application – it is very much alive in this respect. It
refuses to be buried because it is the very foundation of the law.
What the expression ‘the intention of Parliament’ means in the present
context is that the statutory definition as given in the particular Act should
prevail. But what if adhering to the statutory definition gives rise to
difficulties? These difficulties are normally solved by reliance on the rule that
an Interpretation Act does not apply where there is a contrary intention.
Usually an Interpretation Act would provide that
unless a contrary intention appears, [the Act] applies to every enactment ….
An Act is read as a whole. It cannot be interpreted in order to reduce it to
absurdity. The courts will thus give a meaning to an expression so that the Act
is not reduced to a nullity.19 In R v. Vasey and Lally20 the court re-arranged the
language of an amendment so as to make sense and carry out the object of the
amendment. The test is an objective one.

__________________________________________________________________________________________________________________________________________

15 See McGovern v. Attorney-General [1982] Ch.321 and Incorporated Council of Law Reporting for
England and Wales v. Attorney-General [1972] Ch.73.
16 [1891] AC 531.
17 At p.583.
18 At p.584.
19 Salmon v. Duncombe (1886) 11 AC 627.
20 [1905] 2 KB 748.
 Interpretation by Parliament 73

The Dictionary
In construing an Act of Parliament, the dictionary is of little assistance. To
begin with, a dictionary usually gives more than one meaning to a word or an
expression and divorces the word entirely from its context. A properly
composed sentence is the expression of an idea. In Re Bidie,21 Lord Green
said that,
The first thing one has to do … in construing words in a section of an Act of
Parliament is not to take those words in vacuo, so to speak, and attribute to
them what is sometimes called their natural or ordinary meaning. Few words
in the English language have a natural or ordinary meaning in the sense that
they must be so read that their meaning is entirely independent of their
context. The method of construing statutes … is not to take particular words
and attribute to them a sort of prima facie meaning which you may have to
displace or modify. It is to read the statute as a whole and ask oneself the
question: “In this statute, in this context, relating to the subject-matter, what is
the true meaning of that word?” In the present case…the learned [Judge]
attributed too much force to … the abstract or unconditioned meaning of the
word “representation”. No doubt, in certain contexts, “representation” would
be sufficient to cover not merely probate and not merely letters of
administration with the will annexed, but administration simpliciter. The real
question … is: What does the word mean in the context in which we find it
here, both in the immediate context of the subsection in which the word
occurs and in the general context of the Act, having regard to the declared
intention of the Act and the obvious evil that it is designed to remedy?
Words in the abstract do not have a meaning. They ‘cannot be read in
isolation; their colour and their content are derived from their context’.22 As
Lord Wright MR23 pointed out with respect to the word free,
It is now convenient to examine the actual language of the Constitution so far
as relevant, in order to ascertain its true construction. The first question is
what is meant by “absolutely free” in s.92. It may be that the word
“absolutely” adds nothing. The trade is either free or it is not free.
“Absolutely” may perhaps be regarded as merely inserted to add emphasis.
The expression “absolutely free” is generally described as popular or
rhetorical. On the other hand, “absolutely” may have been added with the
object of excluding the risk of partial or veiled infringements. In any case, the
use of the language involves the fallacy that a word completely general and
undefined is most effective. A good draftsman would realise that the mere
generality of the word must compel limitation in its interpretation. “Free” in
itself is vague and indeterminate. It must take its colour from the context.
__________________________________________________________________________________________________________________________________________

21 [1948] 2 All ER 995 at p.998.

22 Attorney-General v. Ernest Augustus (Prince) of Hanover [1957] AC 436 at p.461.
23 James v. Commonwealth of Australia [1936] AC 578 at pp.627-628.
74 Understanding Statutes

Compare, for instance, its use in free speech, free love, free dinner and free
trade. Free speech does not mean free speech; it means speech hedged in by
all the laws against defamation, blasphemy, sedition and so forth; it means
freedom governed by law … Free love, on the contrary, means licence or
libertinage, though, even so, there are limitations based on public decency and
so forth. Free dinner generally means free of expense, and sometimes a meal
open to any one who comes, subject, however, to his condition or behaviour
not being objectionable. Free trade means, in ordinary parlance, freedom from
tariffs.
“Free” in s.92 cannot be limited to freedom in the last mentioned sense. There
may at first sight appear to be some plausibility in that idea, because of the
starting-point in time specified in the section, because of the sections which
surround s.92, and because the proviso to s.92 relates to customs duties. But it
is clear that much more is included in the term ….
Nor does “free” necessarily connote absence of discrimination between inter-
state and intra-state trade. No doubt conditions restrictive of freedom of trade
among the States will frequently involve discrimination; but that is not
essential or decisive ….
Then there is the conception … that “free” means free from every sort of
impediment or control by any organ of Government, legislative or executive
to which s.92 is addressed with respect to trade, commerce or intercourse ….’
That the courts resort to the dictionary is illustrated by Cozens-Hardy MR
when he said that, in interpreting statutes, the courts
may no doubt assist themselves in the discharge of their duty by any literary
help which they can find, including of course the consultation of standard
authors and references to well-known and authoritative dictionaries, which
refer to the sources in which the interpretation which they give to the words
may be found.24
Swifen Eady LJ in the same case stated that:
It is the duty of the court to construe a statute according to the ordinary
meaning of the words used, necessarily referring to dictionaries or other
literature for the sake of informing itself as to the meaning of any words, but
any evidence on the question is wholly inadmissible.

Subsequent Acts of Parliament

The courts credit Parliament with a profound knowledge of the Common Law
and of the existing law. Thus, in Ex p. Copeland,25 Knight-Bruce LJ said, on a

__________________________________________________________________________________________________________________________________________

24 Camden v. Inland Revenue Commissioners [1914] 1 KB 641 at p.648.

25 (1852) 22 LJ Bank 17 at p.21.
 Interpretation by Parliament 75

question of construction arising ‘upon a subsequent statute on the same branch

of the law’ [that] ‘it is perfectly legitimate to use the former Act, though
repealed.’ He quoted the authority of Lord Mansfield:
Where there are different statutes in pari materia, though made at different
times, or even expired and not referring to each other, they shall be taken and
construed together as one system and as explanatory of each other.26
However, the basis of such an interpretation must be that the statutes are in
pari materia, that is to say,
(a) they are on the same branch of the law;27
(b) there are references to each other;28
(c) they relate to one subject-matter;29
(d) they are Consolidation Acts;30
(e) they are to be read with another Act or Acts;31
(f) the language used represents an adoption of an authoritative interpretation,
whether by judicial decision or by a long course of practice, of an earlier
Act or Acts;32
(g) the words used in an earlier Act are used in a subsequent Act.33
Where, though, there is a departure in a subsequent Act from the language
used in an earlier Act relating to the same subject, there is the presumption
that ‘the alteration in the language used in the subsequent statute was
intentional’.34 Lord Campbell CJ put it differently in Wray v. Ellis35:
There can be little use in referring to cases where a similar question has arisen
on Acts differently framed, for they only illustrate the general principle, which
is not in dispute.36
When, said Cockburn CJ,

__________________________________________________________________________________________________________________________________________

26 R v. Loxdale (1758) 1 Burr. 445 at p.447.

27 Ex p. Copeland (1852) 22 LJ Bank 17.
28 R v. Loxdale (1758) 1 Burr 445.
29 Crosley v. Arkwright (1788) 2 TR 603.
30 Mitchell v. Simpson (1890) 25 QBD 183; Smith v. Baker [1891] AC 325; R v. Riley [1896] 1
QB.309.
31 Canadian Southern Ry v. International Bridge Co. (1833) 8 App. Cas. 723; Mather v. Brown (1876)
1 CPD 596.
32 D’Emdem v. Pedder (1904) 1 CLR 91; Barlow v. Teal (1885) 5 QBD 403.
33 Lennon v. Gibson & Howes Ltd. [1919] AC 709.
34 Dickerson v. Fletcher (1873) LR 9 CP 1 at p.8.
35 (1859) 1 E & E 276 at p.288.
36 See also Re McGreavey [1950] 1 All ER 442 at p.446.
76 Understanding Statutes

the legislature, in legislating in pari materia and substituting certain

provisions for those which existed in an earlier statute, has entirely changed
the language of the enactment, it must be taken to have done so with some
intention and motive.37
In Casement v. Fulton,38 the Judicial Committee of the Privy Council said
that,
it is certainly to be wished that, in framing statutes, the same words should
always be employed in the same sense.
Yet there have been instances where the language of an Act has been
altered without the intention that the meaning thereby should change. Thus in
R v. Buttle39 it was held that, although the words in s.7 of the Corrupt Practices
and Elections Act 186340 were different from the words of s.8 of the Corrupt
Practices and Elections Act 1852,41 the words of the later s.7 should be
preferred to the wording of the earlier s.8. Said Kelly CB:
I think it was not the intention of the legislature that a witness should be
compelled to answer under pain of imprisonment and should then be exposed to
an indictment for some perjury committed on another occasion and that his
answers before the commissioners should be used in evidence at the trial of that
indictment. This would be subversive of the principle of the Common Law.
We have seen that a decision on an earlier Act, or a provision thereof, can
be used in determining the meaning to be given to any part of a subsequent
Act. In the same manner, a word or a provision of a subsequent Act can be
taken into consideration in construing an earlier one.42 However, it is not
unknown for an Act to be passed for the sole and express purpose of
explaining, or removing doubts in, an earlier Act.
Such an Act is often referred to as an ‘Act of explanation’. In Butler and
Baker,43 Lord Coke said that an Act of explanation
should not be construed by any strained sense against the letter of the previous
Act, for if any exposition should be made against the direct letter of the
exposition made by Parliament there would be no end of expounding.
There have also been times when Parliament has enacted legislation purely
declaratory of common or existing law. These are legislative declarations or
parliamentary expositions. But, says Craies44:
__________________________________________________________________________________________________________________________________________

37 R v. Price (1897) LR 6 QB 411 at p.416.

38 (1845) 5 Moore PC 130 at p.141.
39 (1870) LR 1 CCR 248.
40 26 & 27 Vict. c.29.
41 15 & 16 Vict. c.57.
42 Morgan v. London General Omnibus Co. (1883) 12 QBD 201.
43 (1591) 3 Co. Rep 25a.
44 Craies on Statute Law, 7th ed., p.147
 Interpretation by Parliament 77

Except as a parliamentary exposition, subsequent Acts are not to be relied on

as an aid to the construction of prior unambiguous Acts. A later statute may
not be referred to to interpret the clear terms of an earlier Act which the later
Act does not amend, even although both Acts are to be construed as one,
unless the later Act expressly interprets the earlier Act: but if the earlier Act is
ambiguous, the later Act may throw light on it, as where a particular
construction of the earlier Act will render the later incorporated Act
ineffectual.
The Republic of South Africa (Second Amendment) Act 198145 affords an
interesting example of an Act of explanation. Section 114 of the Constitution
Act 196146 provided that a prior petition by a province of the Union was
required before the Parliament of South Africa could alter the boundaries of a
province. Without any application for such a petition, parts of some of the
provinces were excised to form the so-called independent States of Transkei,
Bophuthatswana, Venda and Ciskei. The 1981 Act made it clear that s.114 had
applied only to the alteration of the boundaries of a province for the benefit of
another province.47
The Minister responsible for the Bill told the South African Parliament
that,
in the light of the momentum which the attainment of independence by
national states had gained and in view of the possible misconstruction of the
provisions of s.114 … as implying that all the changes in boundaries of
provinces must be preceded by petitions from the provincial councils
concerned, it is proposed … that s.114 be amended with retrospective effect48
to put the intention of the legislature regarding the provisions of that section
beyond all doubt.49
In Kantor v. MacIntyre,50 the Rhodesia Federal Supreme Court stated that:
It may happen that a later Act, by assuming that earlier cognate piece of
legislation has a particular meaning, throws light on what Parliament
originally intended. The use in this manner of later legislation to clear up
ambiguity or obscurity in earlier legislation has the approval of the House of
Lords.51 But it is a method of construction which must … be applied with
very great caution. If a statute is capable of two meanings and one is more
probable than the other, then the more probable meaning would presumably
be adopted by the courts in any event. If a later statute is involved to support
__________________________________________________________________________________________________________________________________________

45 No.101.
46 No.32.
47 My emphasis.
48 From 31 May 1961.
49 Cockram, The Interpretation of Statutes, p.32.
50 1958 (1) SA 45 at p.48.
51 Ormond Investment Co. v. Betts [1928] AC 143 at p.156.
78 Understanding Statutes

the less probable meaning, it comes dangerously near to making the later
statute retroactive and might have serious effects upon people who, before it
was passed, had, in good faith, acted upon the alternative construction.

Parliament as a Court
Parliament is that arm of government that is concerned with legislation, the
financial arrangements of the government and the representation of the people.
In the United Kingdom, it is also the highest court of appeal. We are not here
concerned with the penal jurisdiction of Parliament, nor with breaches of
privilege and contempt, but with the right of Parliament to interpret its own
legislation.
After the compilation of the Corpus Juris, Justinian forbade all
commentaries upon it and said that he would settle all questions of doubt.
Parliament at Westminster must have seized upon his approach, since in the
thirteenth and fourteenth centuries the common lawyers and the Judges
maintained that they were the only proper authorities to interpret statutes.
There is the celebrated case in which Hengham CJ reproved counsel: ‘Do not
gloss the statute; we understand it better than you do, for we made it.’52
Indeed, Edward 1 published an extra-judicial ‘exposition’ of the Statute of
Gloucester in 1278, and in 1281 the King-in-Council made a correction to it.
In Assessor for Aberdeen v. Collie,53 Lord Sands said that,
The House of Lords is an infallible interpreter of the law. A batsman who …
had been struck on the shoulder by a ball remonstrated against a ruling of
l.b.w; but the wicket-keeper met his protest by the remark: “it disna’ maitter if
the ba’ hit yer ned; if the umpire says yer oot, yer oot”, Accordingly, if the
House of Lords says, “this is the proper interpretation of the statute”, then it is
the proper interpretation. The House of Lords has a perfect legal mind.
Learned Lords may come or go, but the House of Lords never makes a
mistake.
Craies54 also, relying on Dicey, has stated that,
Parliament has power to declare by statute the common law or the meaning of
any prior statute, and may declare wrong or repeal any judicial legislation
effected by interpretation of statutes, and may make declaratory or repealing
enactments retrospective.
But until Parliament is driven to exercise the power of interpretation of its
own legislation, the interpretation of statutes is the special preserve of the
__________________________________________________________________________________________________________________________________________

52 Quoted by Megarry, Miscellany-at-Law, p.356. The Judges were then usually summoned to attend
Parliament.
53 1932 SC 304 at p.311.
54 Craies on Statute Law, 7th ed., pp.13-14.
 Interpretation by Parliament 79

Judiciary. That power is never exercised suo moto, but in the course of legal
proceedings – except, perhaps, in respect of practice directions.
In Le Neve v. Le Neve,55 the courts of equity attempted to water down the
effect of a statutory provision which made the registration of a registrable
instrument a condition for gaining precedence over a prior unregistered
registrable instrument. By the Yorkshire Registries Act 1884,56 Parliament did
not hesitate to frustrate that judicial attempt.57
This case shows that Parliament can react to judicial innovation in
interpreting statutes. Courts can circumvent a statutory requirement; the
doctrine of part-performance is a vivid illustration of this. The doctrine has its
own intrinsic mechanism to prevent abuse. It has been confined within limits
which are designed to promote the object of the legislation (which can be
flouted by its application).58 Hence the claim that the doctrine of part-
performance is ‘a partial substitute for the statutory safeguard of signed
writing.’59 The doctrine has stood the test of time, as can be seen from a
reading of s.40(2) of the Law of Property Act 1925. Yet Parliament, with the
enactment of s.2 of the Law of Property (Miscellaneous Provisions) Act
1989,60 has shown its dislike of attempts by the courts ‘to strain the law’. That
provision requires that contracts for the sale or other disposition of an interest
in land should be made in writing. It has the effect of making void, not merely
unenforcable, contracts affecting an interest in land which are merely verbal.
In Rahimtoola v. Nizam of Hyderabad,61 Lord Denning – fresh to the
House of Lords – ‘provoked a strong rebuke’ from Lord Simonds LC and the
other Law Lords (Lords Reid, Cohen, Morton and Tucker). In a dissenting
judgment, Lord Denning had argued that a sovereign state could not plead
immunity from suit in England if the transaction in question was a commercial

__________________________________________________________________________________________________________________________________________

55 (1747) Amb 436 at p.445.

56 47 & 48 Vict. c.54.
57 The substance of s.14 of the 1884 Act is now found in s.199 of the Law of Property Act, 1925. This
provides that, ‘A purchaser shall not be prejudicially affected by notice of (i) any instrument or mat-
ter capable of registration under the Land Charges Act, 1925, ... which is void or not enforceable as
against him under that Act or enactment by reason of non-registration thereof.’ See also Re
Monolithic Building Co. [1915] 1 Ch.643.
58 The doctrine of part-performance, as the term implies, relies, among other things, on acts performed
in part which acts are unequivocally referable to a contract affecting an interest in land. But the acts
must be consistent with the facts of the alleged contract: Maddison v. Alderson (1883) 8 App. Cas.
467; Kingswood Estate v. Anderson [1963] 1 QB 169. As Lord Selborne LC observed in Maddison
v. Alderson, the requirement was imposed ‘to prevent a recurrence of the mischief which the statute
was passed to suppress’ p.478.
59 Megarry and Wade, Law of Real Property, 5th ed. pp.784-785. See also Wade, Covenants - A Broad
and Reasonable View, 1972 BCLJ 157.
60 C.34.
61 [1958] AC 359.
80 Understanding Statutes

one. Whatever the strength of the House of Lords in that case, Lord Denning’s
dissentient view has been vindicated in the State Immunity Act 197862 –
Parliament has stepped in to over-rule the House of Lords. Jones v. Wrotham
Park Settled Estates63 is also a case which led to an amendment to the
Leasehold Reform Act 1967,64 by s.118 of the Housing Act 1974.65
The game of ping-pong between Parliament and the Judiciary which is
likely to result in a situation like this is well captured by Lord Morton of
Henryton in Chapman v. Chapman66:
If the court had power to approve, and did approve, schemes such as the
present scheme, the way would be open for a most undignified game of chess
between the Chancery Division and the legislature. The alteration of one
settlement for the purpose of avoiding taxation already imposed might well be
followed by scores of successful applications for a similar purpose by
beneficiaries under other settlements. The legislature might then counter this
move by imposing fresh taxation upon the settlements as thus altered. The
beneficiaries would then troop back to the Chancery Division …. So the game
might go on, if the judges of the Chancery Division had power which the
appellant claims for them, and if they thought it right to make the first move.

__________________________________________________________________________________________________________________________________________

62 C.33.
63 [1979] 2 WLR 132.
64 Ch.88.
65 C.44.
66 [1954] AC 429 at p.468.
 Chapter 4

The General Rules of Interpretation

General
The General Rules of interpretation of statutes appear to have taken root from
the principles laid down in Heydon’s Case.1 In that case, the Barons of the
Exchequer laid down the rule,
That for the sure and true interpretation of all statutes in general (be they penal
or beneficial, restrictive or enlarging of the common law) four things are to be
discerned and considered: (1) What was the common law before the making
of the Act? (2) What was the mischief and defect for which the common law
did not provide? (3) What remedy the Parliament hath resolved and appointed
to cure the disease of the Commonwealth (4) The true reason of the remedy.
And then the office of all the judges is always to make such construction as
shall suppress the mischief and advance the remedy, and to suppress subtle
inventions and evasions for the continuance of the mischief and pro privato
commodo, and to add force and life to the cure and remedy according to the
true intent of the makers of the Act pro bono publico.
That was the beginning of what is now often referred to as the purpose
approach or the Mischief Rule. Thus in the construction of an Act of
Parliament, it is important to consider the mischief that led to the passing of
the Act and then give effect to the remedy as stated by the Act in order to
achieve its object. This has its drawbacks: the language of the statute may
have inadequately expressed the objective intended to be achieved.
This brought in the second rule of interpretation, the Literal Rule, laid
down in the Sussex Peerage Case.2 This rule stated that,
The only rule for the construction of Acts of Parliament is, that they should be
construed according to the intent of the Parliament which passed the Act. 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 natural and
ordinary sense. The words themselves alone do, in such case, 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 mean of collecting the intention
to call in aid the ground and cause of making the statute, and to have recourse
to the preamble, which, according to Chief Justice Dyer,3 is “a key to open the

__________________________________________________________________________________________________________________________________________

1 (1584) 3 Co. Rep. 7a; 76 ER 637.

2 (1844) 11 Cl. & F. 85; 8 ER 1034 at p.1057.
3 Stowel v. Lord Zouch, Plowden, 369.
82 Understanding Statutes

minds of the makers of the Act, and the mischiefs which they intend to
redress”.
This means that only the words of the statute count; if they are clear by
themselves then effect must be given to them. This rule also has its drawbacks:
it disregards consequences and the object of the statute may be considered
only if there is doubt. It should be noted, however, that the object of a statute
and the circumstances that led to its enactment are always relevant – not just
in cases of doubt.
The next development came with Grey v. Pearson.4 The rule enunciated in
that case came to be known as the ‘golden rule’: a court could construe a
statute by departing from the literal meaning of the words if to do would avoid
consequences which are absurd. It stated that,
In construing wills, and indeed statutes and all written instruments, the
grammatical and ordinary sense of the words is to be adhered to, unless that
would lead to some absurdity, or some repugnance or inconsistency with the
rest of the instrument, in which case the grammatical and ordinary sense of
the words may be modified so as to avoid the absurdity and inconsistency, but
no further.

The Mischief Rule

The Rule laid down by the Exchequer in Heydon’s Case5 assists a court which
is trying to find out why the Act was enacted in order to give substance to a
word or words in the Act. The question asked is: ‘what was wrong that
necessitated the enactment of the Act?’ In other words, what is the object of
the Act, what is it intended to achieve, what are the consequences that follow
from its enactment? Here, not only the language, but the circumstances
surrounding the enactment, are involved; the spirit rather than the letter of the
law becomes important.
The judges of the sixteenth century were immersed in common law and
perceived legislation as, at best, a gloss, or at worst, an intrusion upon it. They
thus construed legislation simply by assessing to what extent it added to,
subtracted from, supplemented or complemented the existing canon of judge-
made law. Hence the four questions in Heydon’s Case6:
(a) What was the common law before the enactment of the Act?
(b) What was the mischief and defect for which the common law did not
provide a remedy or redress?

__________________________________________________________________________________________________________________________________________

4 (1857) 6 H. LC 61; 10 ER 1216.

5 (1854) 3 Co. Rep. 7a; 76 ER 637.
6 (1884) 3 Co. Rep. 7a; 76 ER 637.
 The General Rules of Interpretation 83

(c) What is the remedy now provided by the Act of Parliament to deal with the
mischief or defect for which the common law did not provide a cure?
(d) What is the rationale for the remedy as discerned from the preamble to the
Act or by the Act itself?
Having answered these questions a judge then had the duty to construe the
Act so as to
(a) suppress the mischief;
(b) advance the remedy;
(c) suppress anything that would lead to the continuance of the mischief; and
(d) advance the cure and the remedy according to the true intent of the makers
of the Act for the public benefit.
This really meant that the judges, in applying the Mischief Rule, did what
they could with the words of the statute in order to deal effectively with the
mischief or defect as they found it. As Corry7 put it,
‘In the fourteenth century, when the judges were members of the great council
and framed the statutes as well as voted upon their adoption, they could retort
to counsel who pressed a particular interpretation, “Do not gloss the statute.
We know better than you for we made it.”8 No theory of interpretation was
needed. After Parliament got the right to frame bills as well as petition for
removal of grievances, and after the judges had ceased to sit as members of
the upper house, the gap between Parliament and the judges was bridged by
equitable interpretation. That doctrine drew a distinction between the sense or
spirit of a statute and its words,9 and justified the judges in extending or
restricting the operation of the letter.10 In so taking liberties with the text of
the statute, they were always guided by “the intent of the Legislature which
they have collected sometimes by considering the cause and necessity of
making the Act, sometimes by comparing one part of the Act with another,
and sometimes by foreign circumstances”.11 The work of government was
integrated under the Crown, and the first duty of the judges was to make the
statute realise its purposes. This is clearly shown in Heydon’s Case,12 which
laid down four rules for the interpretation of all statutes. Its resounding
language celebrates the unity of purpose which, in theory at any rate,
animated the legislature and the judges under the leadership of the Crown.

__________________________________________________________________________________________________________________________________________

7 ‘Administrative Law and the Interpretation of Statutes’ (1936) 1 UTLJ 286.

8 Anon., YB 33 & 34 Edw. 1, 82.
9 Eyston v. Studd (1574), 2 Plowden 459 at p.464.
10 Hill v. Grange (1557), 1 Plowden 164 at p.178
11 Stradling v. Morgan (1560), 1 Plowden 201 at p.205.
12 (1584) 3 Co. Rep 7b.
84 Understanding Statutes

Nearer our times, Lord Reid in Black-Clawson International Ltd. v.

Papierwerke Waldhof-Aschaffenberg AG,13 has stated that,
It has always been said to be important to consider the “mischief” which the
Act was apparently intended to remedy. The word “mischief” is traditional. I
would expand it in this way. In addition to reading the Act you look at the
facts presumed to be known to Parliament when the Bill which became the
Act in question was before it, and you consider whether there is disclosed
some unsatisfactory state of affairs which parliament can properly be
supposed to have intended to remedy by the Act. There is a presumption
which can be stated in various ways. One is that in the absence of any clear
indication to the contrary Parliament can be presumed not to have altered the
common law farther than was necessary to remedy the “mischief”. Of course
it may and quite often does go farther. But the principle is that if the
enactment is ambiguous, that meaning which relates the scope of the Act to
the mischief should be taken rather than a different or wider meaning which
the contemporary situation did not call for. The mischief which this Act was
intended to remedy may have been common knowledge 40 years ago. I do not
think it is today. But it so happens that a committee including many eminent
and highly skilled members made a full investigation of the matter and
reported some months before the Act was passed …. I think that we can take
this report as accurately stating the “mischief” and the law as it was then
understood to be, and therefore we are fully entitled to look at those parts of
the report which deal with those matters.
The Black-Clawson Case appears to be the modern approach to the
Mischief Rule. (It will be remembered that under that rule the courts will
consider the mischief aimed at by the Act, and the remedy provided for it. In
order to discern the mischief the courts will look at the preamble, dealing with
the reason behind the law in addition to the words of the Act.)
This led to what became known as the equitable construction of an Act of
Parliament in which the intent of the Act prevailed over its words. The spirit,
not the letter, of the law was what was important. In Stowell v. Lord Zouch,14 it
was stated that,
everything which is within the intent of the makers of the Act, although it be
not within the letter, is as strongly within the Act as that which is within the
letter and the intent also.
The modern approach to the Mischief Rule still considers the spirit of the
Act, but the spirit is not used to ‘change’ or dominate the letter of the law. The
spirit or object of an Act is used to determine the meaning of the words used
in it. In Fothergill v. Monarch Airlines,15 the Court of Appeal in dealing with
__________________________________________________________________________________________________________________________________________

13 [1975] 1 All ER 810 at p.84.

14 (1569) 1 Plowden 353; 75 ER 536.
15 [1981] AC 251 at p.272.
 The General Rules of Interpretation 85

article 26 of the Warsaw Convention ‘for the Unification of certain Rules

relating to International Carriage by Air’, observed, per Lord Wilberforce:
I start by considering the purpose of article 26, and I do not think that in doing
so I am infringing any “golden rule”. Consideration of the purpose of an
enactment is always a legitimate part of the process of interpretation, and if it
is usual – and indeed correct – to look first for a clear meaning of the words
used, it is certain, in the present case, both on a first look at the relevant text,
and from the judgments in the court below, that no “golden rule” meaning can
be ascribed.

The Literal Rule

It has been shown in Chapter One16 that the primary meaning of a word
changes with its context. That is a caution that must be taken into account
when dealing with the application of the Literal Rule of interpretation or
construction. The Rule stipulates that in interpreting or construing an Act of
Parliament, if the words ‘are in themselves precise and unambiguous, then no
more can be necessary than to expound those words in their natural and
ordinary sense’,17
Yet words in themselves, not in the abstract, do not have a meaning. A
dictionary definition merely gives us a history of the word; how over the years
it has been used in various contexts with respect to various subject-matters.
Thus the sentence structure determines the meaning that is intended to be
conveyed, bearing in mind the idea that is intended to be expressed.18 In Re
Bidie,19 Lord Greene said that,
The first thing one has to do … in construing words in a section of an Act of
Parliament is not to take those words in vacuo, so to speak, and attribute to
them what is sometimes called their natural or ordinary meaning. Few words
in the English language have a natural meaning in the sense that they must be
so read that their meaning is entirely independent of their context. The method
of construing statutes that I prefer is not to take particular words and attribute
to them a sort of prima facie meaning which you may have to displace or
modify. It is to read the statute as a whole and ask oneself the question: “In
this statute, in this context, relating to this subject-matter, what is the true
meaning of that word?”…. No doubt, in certain contexts, “representation”
would be sufficient to cover not merely probate and not merely letters of
administration with the will annexed, but administration simpliciter. The real
question which we have to decide is: what does the word mean in the context
__________________________________________________________________________________________________________________________________________

16 Language p.6 et seq.;Words p.25 et seq.

17 Sussex Peerage Case (1844) 11 Cl & F. 85; 8 ER 1034.
18 See James v. Commonwealth of Australia [1936] AC 578 at pp.627-628.
19 [1948] 2 All ER 995 at p.998.
86 Understanding Statutes

in which we find it here, both in the immediate content of the subsection in

which the word occurs and in the general context of the Act, having regard to
the declared intention of the Act and the obvious evil that it is designed to
remedy?
The Literal Rule is clearly an advance on the Mischief Rule. In a sense the
Literal Rule is a reaction to the Mischief Rule. The latter rule could be
considered as judicial legislation. The Literal Rule as expounded by the Sussex
Peerage Case,20 rejected the notion that in the interpretation of an Act of
Parliament a judge could go outside the Act. Where a doubt arises as to the
words used in the Act, the object of the Act may be resorted to in a case where
there is clearly a choice presented by the language of the Act,21 or where the
meaning is not plain. Simply put, the Literal Rule stipulates that only the
words of the Act count, but where there is an ambiguity in the sense that the
words used are not precise a judge could consider the object of the Act.
Modern cases tend to give the impression that the two approaches of the
Mischief Rule and the Literal Rule are being merged into one subsumed under
the literal rule. As Lord Reid put it in Attorney-General for Northern Ireland v.
Gallagher,22
We can have in mind the circumstances when the Act was passed and the
mischief which then existed so far as these are common knowledge, but we
can only use these matters as an aid to the construction of the words which
Parliament has used. We cannot encroach on its legislative function by
reading in some limitation which we may think was probably intended but
which cannot be inferred from the words of the Act.

The Golden Rule

The Golden Rule, as stated in Grey v. Pearson,23 means no more than that the
meaning of the words of the Act may be modified in order to avoid
repugnance, inconsistency or absurdity. In Caledonian Railway v. North
British Railway,24 Lord Blackburn expressed agreement with the Golden Rule
but added – and that is the crux of the matter – that the Rule does not help
much because the
cases in which there is a real difficulty are those in which there is a
controversy as to what the grammatical and ordinary sense of the words used
with reference to the subject-matter is. To one mind it may appear that the

__________________________________________________________________________________________________________________________________________

20 (1844) 11 Cl & F., 85; 8 ER 1034.

21 Ellerman Lines v. Murray [1931] AC 126.
22 [1963] AC 349 at p.366.
23 (1857) 6 H LC 61; 10 ER 1216.
24 (1881) 6 App. Cas. 114.
 The General Rules of Interpretation 87

most that can be said is that the sense may be what is contended by the other
side, and that the inconsistency and repugnancy is very great, that you should
make a great stretch to avoid such absurdity, and that what is required to avoid
it is a very little stretch or none at all. To another mind it may appear that the
words are perfectly clear – that they can bear no other meaning at all, and that
to substitute any other meaning would be not to interpret the words used, but
to make an instrument for the parties – and that the supposed inconsistency or
repugnancy is perhaps a hardship – a thing which perhaps it would have been
better to have avoided, but which we have no power to deal with.
This, in effect, supports George Bernard Shaw’s statement that the only
golden rule is that there are no golden rules.25 In The Duke of Buccleuch,26
Lord Lindley said that,
You are not so to construe the Act of Parliament as to reduce it to rank
absurdity. You are not to attribute to general language used by the Legislature
in this case, any more than in any other case, a meaning which would not
carry out its object, but produce consequences which, to the ordinary
intelligence, are absurd. You must give it such a meaning as will carry out its
objects.
In Gartside v. IRC,27 Lord Reid said that,
It is always proper to construe an ambiguous word or phrase in light of the
mischief which the provision is obviously designed to prevent, and in the light
of the reasonableness of the consequences which follow from giving it a
particular construction.
All these authorities raise one fundamental problem: what is the test to be
applied? In River Wear Commissioners v. Anderson,28 Lord Blackburn stated:
We are to take the whole statute together, and construe it all together, giving
the words their ordinary signification, unless when so applied they produce an
inconsistency, or an absurdity or inconvenience so great as to convince the
court that the intention could not have been to use them in their ordinary
signification, and to justify the court in putting on them some other
signification, though less proper, is one which the court thinks the words will
bear.29
That, then, is the test. The departure from the grammatical or ordinary
sense of the words must of necessity relate to the Act read as a whole, and to a
consideration of the objective or scheme of the Act. The test deals with the
words used and not with the consequences of the application of the words. If
__________________________________________________________________________________________________________________________________________

25 Man and Superman III.

26 (1889) 15 PD 86 at p.96.
27 [1968] AC 553, at p.612.
28 (1877) 2 AC 743 at pp.764-765.
29 This is a repetition of what Lord Blackburn stated in Allgood v. Blake (1873), LR 8 Ex. 160. He
merely substituted the word statute for the word will.
88 Understanding Statutes

the meaning of the words are clear, the consequences of their application are
immaterial. This is illustrated by the words of Lord Reid in Westminster Bank
Ltd. v. Zang30:
no principle of interpretation of statutes is more firmly settled than the rule
that the court must deduce the intention of Parliament from the words used in
the Act. If those words are in any way ambiguous – if they are reasonably
capable of more than one meaning – or if the provision in question is
contradicted by or is incompatible with any other provision in the Act, then
the court may depart from the natural meaning of the words in question. But
beyond that we cannot go.
Yet it is difficult to dissociate the words of an Act from the application of
it. For what purposes was the Act enacted if one can draw a distinctive line
between the words and their application? Thus to understand an Act within the
principle of the Golden Rule, a few considerations are pertinent:
(a) whatever may be the reading as to what is meant by the words of an Act,
that reading cannot be a justification for so construing the words concerned
so as to escape the plain meaning31;
(b) it is desirable, always, to have a second look at the words actually used in
the Act32;
(c) where the ambiguity, obscurity or inconsistency could not be resolved by
an objective standard, then a subjective standard can be employed in order
to avoid unreasonable consequences33;
(d) consequences may legitimately be taken into consideration where there is a
choice between two reasonable interpretations.34
The Golden Rule, in its modern application is summed up by Lord
Atkinson in Victoria (City) v. Bishop of Vancouver Island35:
In the construction of statutes their words must be interpreted in their ordinary
grammatical sense, unless there be something in the context, or in the object
of the statute in which they occur, or in the circumstances with reference to
which they are used, to show that they were used in a special sense different
from their ordinary grammatical sense.

__________________________________________________________________________________________________________________________________________

30 [1965] AC 182 at p.222.

31 Duport Steel Ltd. v. Sirs [1980] 1 All ER 529.
32 Hartnell v. Minister of Housing and Local Government [1965] AC 1134 at p.1157.
33 Richards v. McBride (1881) 8 QBD 119; Fry v. Inland Revenue Commissioners [1959] 1. Ch. 86.
34 Gartside v. Inland Revenue Commissioners [1968] AC 553 at p.612; Fry v. Inland Revenue commis-
sioners [1959] 1 Ch.86 at p.105.
35 [1921] AC 384 at p.387.
 The General Rules of Interpretation 89

The Intention of Parliament

A statute has been defined as ‘the will of the legislature’.36 The function of a
court of competent jurisdiction in relation to an Act of Parliament is,
according to Coke, to interpret that Act ‘according to the intent of them that
made it.’37 This statement of Coke has, to a great extent, down the ages,
influenced the judges in the interpretation of an Act of Parliament. The judges
have always maintained that it is their function to give expression to the
intention of Parliament.38 And in Warburton v. Loveland,39 it was stated that,
Where the language of an Act is clear and explicit, we must give effect to it.
Whatever may be the consequences, for in that case the words of the statute
speak the intention of the legislature.
In SE Railway v. Railway Commissioners,40 Cockburn, CJ thought that
where the meaning of an Act was doubtful the judges were at liberty to refer
to the circumstances under which the Act was passed into law as a means of
solving the difficulty. Lord Reid41 has stated that there was room for exception
where examining the proceedings in Parliament would almost certainly settle
the matter immediately one way or the other.42 There is the eighteenth century
view43 that the sense and meaning of an Act of Parliament must be collected
from what it says when passed into law, ‘and not from the history of changes it
underwent in the House where it took its rise’.
An Act of Parliament does not take its ‘rise’ from Parliament, but from the
promoters of the Bill. Can what happened during the progress of a Bill in
Parliament really be a guide to the interpretation of a provision of the Act?
Parliamentary debates, at best, reflect the political, social and economic forces
behind the Bill. They may indicate how the other side would want to deal with
the same matter had it the power to do so. However, both the Government and
the Opposition seek to satisfy the demands of their respective political parties
during debates; and they also show how members of Parliament clear their
consciences when the general election may not be far away.
Therefore would ‘examining the proceedings in Parliament almost
certainly settle the matter’? If ‘the circumstances under which it passed into
law’ mean the objects and purposes of the Act, then there is room for taking
that into account. The Act was not enacted for the sake of its details but to
__________________________________________________________________________________________________________________________________________

36 Maxwell on Interpretation of Statutes 11th ed., p.1.

37 Coke, 4 Institutes, 330.
38 Sussex Peerage Claim (1884) 11 Cl & F 85 per Tindal CJ.
39 (1832) 2 Dow & Cl 480 at p.489.
40 (1880) 2 QBD 217, 226.
41 Beswick v. Beswick [1968] AC 88.
42 And now Pepper v. Hart [1993] 1 All ER 42.
43 Millar v. Taylor (1769) 4 Burr 2303, at p.2332.
90 Understanding Statutes

achieve a purpose. Thus, when it is stated that the meaning must be collected
from what the Act says, attention, it is submitted, must be directed towards the
problems that gave rise to its introduction into Parliament in the form of a Bill.
And since we could not, before Pepper v. Hart,44 take into consideration what
Parliament said during the passage of a Bill in Parliament, is it proper to talk
of the intention of Parliament?
What, in fact, is the ‘intention of Parliament’? Is it a myth encouraged by
the doctrine of separation of powers? Is it a mere dogma, fundamental though
it may be considered to be in the study of the science of government? Except
in a very limited sense, for example, the recommendations of a Parliamentary
Committee, Parliament never had an intention to introduce legislation. In the
great majority of cases, the government of the day introduces legislation.
According to de Smith,45
a very large majority of Government bills introduced into Parliament by
Ministers are passed into law substantially in their original form.
Gerald Kaufman46 has also demonstrated how ineffective Parliament is –
through its committee system, where the real work of legislating should be
done – to put its intention into legislation brought by the Executive. Has
Pepper v. Hart47 cleared the way for us to abandon the deceptions of political
or constitutional theory and of mythology and acknowledge that the judges, in
interpreting an Act of Parliament, seek to find solutions to the problems that
arise within society – social problems posed by social questions?
We may argue till the end of time whether or not judges make law;
whether or not they usurp the functions of Parliament through the process of
the interpretation of an Act of Parliament; whether or not their judgments are
based upon principle or policy. We shall, at the end of the day, come to
appreciate that the facts that lead to the interpretation of a piece of legislation
were not – or may not have been – in the contemplation of those who
promoted that legislation, nor of those who drafted or enacted it.
Legislation is introduced to deal with situations that have arisen. There is
then the hope that those situations will not occur in the future since the law
has provided a solution to those situations. What happens is that when other
situations arise in the future we seek to bring them within the ambit of what
has been provided for, and the judges do their best to relate the law to the facts
of the situation that has now arisen in order to reflect the conscience of society
as a whole.48
__________________________________________________________________________________________________________________________________________

44 [1993] 1 All ER 42.

45 Constitutional and Administrative Law 5th ed. p.247.
46 The Listener, 29 March, 1984. Paul Meredity in the Introduction to his article ‘Legislation:
Educational Reform’ refers to the ‘elective dictatorship’ of Parliament: Modern Law Review,
Vol.52, pp.215-216.
47 [1993] 1 All ER 42.
48 This will depend to a great extent on the view of interpretation adopted.
 The General Rules of Interpretation 91

Although a piece of legislation deals with the past, it also speaks to the
future in the hope that a problem dealt with would not occur again. If it does
occur again there is legislation to deal with it. Legislation is thus but a
reflection of social progress in any given society.
Was Coke really referring to Parliament as we know it today in his use of
the celebrated phrase, ‘according to the intent of them that made it’? How
effective was Parliament in the sixteenth and seventeenth centuries?
Parliament in Coke’s day was, in essence, the Sovereign. Legislation in those
centuries was not only drafted by the judges but voted on by them as well.
There is that celebrated remark, ‘Do not gloss the statute. We know better than
you for we made it.’49 So surely, when Coke refers to the ‘intent of them that
made it’ he was referring to the ‘lions under the throne’.
Experience has taught us that Parliament has no mind. And if Parliament
has no mind, how can it have an intention? Nor can we talk of ‘the collective
intention of members of Parliament’. Instead, perhaps,
it may be more realistic to accept the Act as printed as being the product of the
whole legislative process, and to give due weight to anything found in the
printed Act …. If we take these matters into consideration, then we are in
effect searching for the intention of the draftsman rather than the intention of
Parliament. And then it becomes very relevant to ask – could any competent
draftsman have adopted this form of drafting if he had intended the result for
which the appellant contends? If the answer is no, then there is such real doubt
that it must be resolved in favour of the accused.50
Why then does the use of the phrase continue? It may well be the influence
of Coke as already stated, or of Locke and Montesquieu. Locke51 taught us
that men have certain inalienable rights, rights that were beyond the reach of
any government; life, liberty and the pursuit of happiness.52 This theory of the
natural rights of man influenced the doctrine held by the judges that certain
laws regarding life, liberty and property, were so fundamental that they should
be placed beyond the reach of Parliament. Holt CJ said that,
If an act give away the property of a subject it ought not to be countenanced.53
No judge in the United Kingdom today would say such a thing!

__________________________________________________________________________________________________________________________________________

49 Year Book 33 & 34. Ed. 1, 82.

50 Lord Reid in Director of Public Prosecutions v. Schildkamp [1971] AC 1 at p.10.
51 Second Treatise of Government ss.6, 24-27, 135.
52 This found expression in the Constitution of the United States.
53 Callady v. Pilkinton (1707) 12 Mod. 573.
92 Understanding Statutes

Montesquieu54 taught us that liberty is sustained by the doctrine of the

separation of powers. This the judges interpreted to mean that they did not
make the law, they only apply it; it is the legislature that makes the law. One
effect of the 1688 Revolution55 was to cut the royal prerogative to the bone;56
the King’s wish was no longer a command and Hobbes’ sovereign had
vanished. Governmental action had to be justified by the laws and that meant
Parliament became the new sovereign, representative of the will of the people
– if such a will there is.
Blackstone stated that,
if Parliament will positively enact a thing to be done which is unreasonable, I
know of no power in the ordinary forms of the constitution that is vested with
authority to control it.57
Perhaps we may now consider another phrase: the legislative intent, that is,
the object and purpose of the legislation. Would it not be better to talk of the
intention of the promoters of the Bill which became the Act of Parliament,
that is to say, of the policy behind the law? The promoters, whether they be
lobbyists, individuals or a political party, are the source of what we now call
the intention of Parliament.
Is it pertinent to realise that what the judges do in interpretation is to
restore certainty for the uncertainties of meaning in a particular provision of
an Act of Parliament in the light of social conditions58 and not to divine the
intention of Parliament?
Modern parliamentary practice and procedure have shown that what
Parliament does in relation to an Act of Parliament, is to give its stamp of
approval, as the Legislative arm of government, to an intention conceived,
nurtured and brought forth by others. They that intended the law may not
necessarily be members of Parliament.
A building inspector who approves a house as being fit for human
habitation is not the architect of that house. Still less can he claim to be the
person who built the house. Similarly, of the majority who vote in favour of

__________________________________________________________________________________________________________________________________________

54 L’Esprit de Lois.
55 The ‘Glorious Revolution’ established the sovereignty of Parliament, though it can be said that, that
Parliament represented 10% of the male population. That Parliament placed power securely in the
Whig Oligarchy. It ruled Britain until the nineteenth century, by which time the power of the Whigs
was on the decline.
56 In the Case of Proclamations (1611) 13. 12 Co. Rep. 74, the judges asserted their right to determine
the limits of the prerogative. And since the 1688 Revolution the Crown has not contested that claim
of the judges. See also R. v. Lewes JJ., Home Secretary [1973] AC 388 (HL).
57 Commentaries 1766 Vol. 1 at p.91.
58 Much though will depend on the Judge’s philosophy of interpretation.
 The General Rules of Interpretation 93

the passing of a Bill, it would be wrong to assert that they had a common
intention regarding the details, whether minor or of major importance, of the
detailed provisions of the Bill. The votes of the majority are but an indication
of the success of the Government whips.
In civil law countries the reports of those who codified the law are used as
sources of interpretation of ambiguous provisions of extant codes. The
Memorandum to a Bill does, also, under our system, supply useful
information regarding the intention of Parliamentary Counsel and of the
promoters of a Bill. The function of a Memorandum to a Bill is to give
sufficient background information to set ‘in perspective and in context the
facts and problems which the legislative proposal is intended to meet’.
It also indicates the principal objects of the legislation, the means by which
the objectives of the legislation are intended to be achieved, as well as the
known implications and difficulties, whether legal, social or administrative.
Equally, a Memorandum to a Bill is intended to assist members of Parliament
in understanding the Bill.
The English courts, however, do not, as a rule, refer to the Memorandum
to a Bill as an aid to interpretation. No doubt such a Memorandum, especially
in the case of a Bill of considerable importance, would contain very useful
information as to the intention of Parliamentary Counsel and of the promoters
of the Bill. Equally, the courts do not countenance explanatory notes issued by
departmental officials for the guidance of their officers for the purpose of
construing an Act promoted by the Ministry. It could be argued that there is
the danger here that a court may be unduly influenced by official opinion. But
would it? Can not the court make up its own mind in the process of which it
may derive assistance from such an explanatory note?
It would be realistic in the process of interpretation to consider, if need be,
what the promoters wanted to achieve. If we are reluctant to appreciate this
simple truth, the problem which brought the solution in the form of a
provision of an Act of Parliament is side-tracked and semantics govern the
day. Heydon’s Case59 must still have some relevance if we consider not only
‘the mischief and defect for which the common law did not provide’ but also
the problems and defects for which the law was conceived, nurtured and
presented to Parliament as a Bill.
Then the office of all the Judges is always to make such construction as shall
[solve the problems which have arisen, and advance the solution to the
problems] and to suppress subtle inventions and evasions [which do not
accord with the objects and purposes of the Act] and to add force and life to
the cure and remedy according to the objects and purposes of the Act, [the
demands of society and the dictates of common sense and justice].60
__________________________________________________________________________________________________________________________________________

59 3 Co. Rep. 7a.

60 The italics and the words in the square brackets are mine.
94 Understanding Statutes

This approach, it is submitted, is the one taken in Smith v. Hughes.61 In

that case the words ‘in a street’ used in subsection (1) of s.1 of the Street
Offences Act 1959,62 were construed to bring within the ambit of the Act
prostitutes who attracted the attention of passers-by from balconies or
windows. Lord Parker63 stated that for his part he approached
the matter by considering what is the mischief aimed at by the Act. Everybody
knows that this was an Act intended to clean up the streets, to enable people to
walk along the streets without being molested or solicited by common
prostitutes.64
Would it be wrong for a court of competent jurisdiction, when faced with a
problem of interpretation of an enactment, to look at the legislative history of the
enactment? The traditional view is that judges seek to divine the intention of the
legislature, but surely the real question should be ‘did the legislature fail to
provide the apparently missing pieces or did those responsible for introducing
the Bill – the policy makers, departmental officials and parliamentary counsel –
all simply fail to anticipate the situation that has arisen?’
In 1958 Lord Denning65 said:
We do not refer to legislative history as they do in America, we do not look at
the explanatory memoranda which preface Bills before Parliament.
But in 1964 he said:
It is legitimate to look at the report of a Committee leading to legislation so as
to see what was the mischief at which the Act was directed; but you cannot
look at what the Committee recommended or at least if you do look at it, you
should not be unduly influenced by it.66
No doubt it is now recognised that the report of a Committee, and for that
matter of a Commission of Inquiry,67 both explains and delimits the mischief
at which the Act was directed.
__________________________________________________________________________________________________________________________________________

61 [1960] 1 WLR 830.

62 7 & 8 Eliz 2 c.57.
63 Ibid at p.832.
64 See also R v. Males (1962) 2 QB 500. In Lower v. Sorrell [1963] 1 QB Omerod LJ, at p.968 adopted
an interpretation that would have the effect of defeating the purpose of the Agricultural Holdings
Act, 1948.
65 Escoigne Properties Ltd. v. IRC [1958] AC 549 (HL).
66 Letang v. Cooper [1964] 1 QB 53. Lord Denning’s approach to interpretation has not been free from
criticism even by the House of Lords. See Magor and St. Mellons RDC v. Newport Corporation
[1952] AC 189.
67 Ghana has a provision in its Interpretation Act 1960 which allows the Courts to look at the report of
a Commission of Inquiry in these matters. Australia has a similar provision. But Sir Noel Hutton
considers that ‘a Government report in particular is not a reliable basis for the interpretation of sub-
sequent legislation. Very often the Act is deliberately not intended to reflect what the original report
said, and this is just a method of making things worse’. Professionalising Legislative Drafting Ed.
Reed Dickerson. See, however, Duke v. GER Reliance Ltd. [1988] 1 All ER 626 and Lord
Templeman’s dictum at p.634; and Pickstone v. Freemans plc [1988] 2 All ER 803.
 The General Rules of Interpretation 95

It should be noted also that an increasing number of Acts of Parliament

gives discretionary powers to Ministers – in effect, to departmental officials –
to issue Regulations. In some cases there are no guidelines. In respect of
expressions such as
The Minister may by order make Regulations for the purposes of this Act,
what is the Minister to prescribe? The Local Government Finance Act 198867a
gives power in almost every sentence to the Secretary of State to make
Regulations. Those Regulations are intended to deal with exemptions,
penalties, the enforcement of payments and appeals.
When a provision of a Regulation under that Act comes up for
interpretation, can we sincerely talk of the intention of Parliament? There are
the procedures of negative and affirmative resolutions to give Parliament
effective control of delegated legislation. What is the practice? How effective
is the Standing Committee on Delegated Legislation? Does it not suffer the
fate of all other Committees of Parliament? In order to be able to talk about
‘the intention of Parliament’, perhaps we need another Committee on
Ministers’ Powers68 to review the recommendations of the 1932 Committee,
to investigate how far the 1932 recommendations have worked in the light of
the domination in Parliament of the political party that forms the government,
and how far we can move away from the mechanical consideration of
legislation in Parliament to a system which will allow Parliament a real
influence as the legislative arm of government.
Even granting the argument in favour of the intention of Parliament, if
Parliament did not see or foresee the injustice in what it has provided, why
should not judges, who see it when dealing with the lives and fortunes of
fellow human beings, in the name of Justice rectify the error? If those who
promoted the legislation did not see or foresee the injustice that had arisen, not
in their proposals but in the way the proposals had become law, why should
that not be corrected outside the chamber? How would that undermine the
sovereignty of Parliament? Which is the higher principle – Justice or dogma?
Of all those who have anything to do with a piece of legislation called in
question, it is only the judges who have sworn to do justice. Members of
Parliament do not swear to do justice between the individual and the state,
between one individual and the other.
Whichever philosophy of interpretation is adopted, should Justice not be
pursued in the interpretation of a piece of legislation? Should we crucify
Justice at the altar of a myth (turned into a principle of government) that
judges do not and should not make the law? It is submitted that in the
interpretation of an Act of Parliament the question should be ‘which
construction would best advance the cause and course of justice?’ and not
‘what has Parliament intended?’ Justice is worth pursuing for Her own sake.

_________________________________________________________________________________________________________________________________________

67a C.41.
96 Understanding Statutes

When litigants go to court they are not interested in any of the fine
arguments we make about the separation of powers, about the intention of
Parliament – they have faith that justice will be done. That faith should be a
living faith not a meaningless one. The advice of Christ regarding an ear of
corn on the sabbath day69 should not be forgotten. ‘The place of justice is a
hallowed place.’70
There is a school of thought, however, that believes that the intention of
Parliament is not a myth.71 In that regard it is as well to consider what Lord
Simon of Glaisdale said in Ealing LBC v. Race Relations Board72:
The court sometimes asks itself what the draftsman must have intended. This is
reasonable enough: the draftsman knows what is the intention of the legislative
initiator (nowadays almost always an organ of the executive); he knows what
canons of construction the courts will apply; and he will express himself in
such a way as accordingly to give effect to the legislative intention. Parliament,
of course, in enacting legislation, assumes responsibility for the language of the
draftsman. But the reality is that only a minority of legislators will attend
debates on the legislation. Failing special interest in the subject-matter of the
legislation, what will demand their intention will be something on the face of
proposed legislation which alerts them to a questionable matter. Accordingly,
such canons of construction as that words in a non-technical statute will
primarily be interpreted according to their ordinary meaning or that a statute
establishing a criminal offence will be expected to use plain and unequivocal
language to delimit the ambit of the offence (i.e. that such a statute will be
construed restrictively) are not only useful as part of that common code of
juristic communication by which the draftsman signals legislative intent, but
are also constitutionally salutory in helping to ensure that legislators are not left
in doubt as to what they are taking responsibility for.

The Modern Approach

The modern approach to the interpretation of an Act of Parliament is what is
termed the Purposive Approach. As Lord Griffith put it in Pepper v. Hart,73
The days have long passed when the courts adopted a strict constructionist
view of interpretation which required them to adopt the literal meaning of the
language. The courts must adopt a purposive approach which seeks to give
effect to the true purpose of legislation.

__________________________________________________________________________________________________________________________________________

69 Luke 6, 1-4.
70 Bacon, Essays, of Judicature, 56.
71 See Bennion, Statutory Interpretation pp.226-228 and pp.231-235, and Reed Dickerson, Materials
on Legal Drafting p.51.
72 [1972] AC 342 at pp.360-361.
73 [1993] 1 All ER 42 at p.50.
 The General Rules of Interpretation 97

The Purposive Approach thus takes account not only of the words of the
Act according to their ordinary meaning but also the context. ‘Context’ here
does not mean simply ‘linguistic context’; the subject-matter, scope, purpose
and (to some extent) background of the Act are also taken into consideration.
There is no concentration on language to the exclusion of context (or, indeed,
vice versa); the ultimate aim is one of synthesis.
The language used by Lord Griffith in Pepper v. Hart is clear and cogent:
to give effect to the true purpose of the legislation. He did not say ‘to give
effect to the intention of Parliament’. And that, it is submitted, takes us again
to a principle of the rule in Heydon’s Case74:
That for the sure and true interpretation of all statutes … the office of all the
judges is always to make such construction as shall [solve the problems which
have arisen, and advance the solutions to the problem] and to suppress subtle
inventions and evasions [which do not accord with the objects and purposes
of the Act] and to add force and life to the cure and remedy according [to the
objects and purposes of the Act, the demands of society and the dictates of
common sense and justice.]75

Extrinsic Aids to Interpretation

The road to Pepper v. Hart is scattered with doubts, criticism and boldness.
Vera Sacks76 considers it
perverse that judges refuse to seek the legislative intent in the very place
where it might be found, that is, the background materials to the statute, Law
Commission Reports, White Papers, Hansard etc.
Viscount Dilhorne in Davis v. Johnson77 stated that what is said by a
Minister or member sponsoring a Bill is not a legitimate aid to the
interpretation of an Act. Crawford78 observed, as regards the admissibility of
extrinsic aids for the purpose of the interpretation or construction of legislation
in the United States of America, that,
After all intrinsic aids have been exhausted, if the meaning of the statute is
still in doubt, certain extrinsic matters may be considered by the court in its
efforts to ascertain the statute’s meaning. But the statute must be ambiguous
before a resort to extrinsic evidence is justified.
Our tradition has been that travaux preparatoires – that is, ‘materials used
in the preparation of, and having a formative influence on, the ultimately
__________________________________________________________________________________________________________________________________________

74 (1884) 3 Co. Rep. 7a.

75 The italics and the words in the square brackets are supplied.
76 Vera Sacks, ‘Towards Discovering Parliamentary Intent’ (1982) Stat LR p.143.
77 [1979] AC 264 at p.337.
78 Crawford, Construction of Statutes, p.365.
98 Understanding Statutes

adopted form of the treaty’79 – cannot be consulted in order to ascertain the

intention of Parliament. Sacks observes that in Europe the approach to
interpretation of statutes is eclectic, and although the practice varies from
country to country, no European or American would seek to ban their use.80
The arguments are legion regarding the admissibility of extrinsic aids. The
Renton Committee81 strongly argued against the use of extrinsic aids on the
grounds of relevance, reliability and availability. It is also argued that the
materials may be misleading as the words used might be agreed upon but not
the purpose or intent. Equally, preparatory materials might tend to be prepared
with a view to influence the courts in the interpretation or construction of an
Act of Parliament or a provision thereof.
The House of Lords has been willing to admit an official report for the
purpose of ascertaining the background and objectives of an Act, but not to
admit the same material for the purpose of construing it. Lord Dilhorne would
have admitted recommendations where Parliament had by enacting the Act
accepted the recommendations of the official report.82 Lord Simon83 pointed
out that an official report and a consequential Act form an integral process and
logically one could not look at the result for one purpose and not another. In
Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenberg,84
the House of Lords laid down guidelines to the effect that reference to
parliamentary debates are to be excluded but reference to other travaux
preparatoires might be permitted only to determine the mischief which the
Act seeks to remedy.
The House of Lords took a different approach in Fothergill v. Monarch
Airlines.85 Lord Wilberforce considered it proper that the House of Lords
recognise that there may be cases where travaux preparatoires could be
profitably used. The rule about the admissibility of extrinsic aid is now clear
and settled. Official reports leading to legislation may be referred to for the
purpose of ascertaining the mischief sought to be overcome, but not for the
purpose of construction of the statute itself.86 There is no doubt that the policy
or purpose of an Act may be found outside the strict words of the Act itself.
The courts are now becoming accustomed to the ways of legislators. They
are now learning to differentiate between the value of different kinds of
material. Thus in general, debates in the legislature are much less frequently
__________________________________________________________________________________________________________________________________________

79 Walker, The Oxford Companion to Law (1980) p.1231.

80 Vera Sacks, ‘Towards Discovering Parliamentary Intent’ [1982] Stat LR p.143.
81 Cmnd. 6035 paras. 19, 23.
82 Black-Clawson v. Papierwerke [1975] 1 All ER 810.
83 Ibid.
84 [1975] 1 All ER 810.
85 [1980] 2 All ER 696 at p.703.
86 Alec Samuels, ‘The Interpretation of Statutes’ [1980] Stat LR p.86.
 The General Rules of Interpretation 99

used than the reports presented by legislative committees. In France, the

meaning suggested by the travaux preparatoires is not regarded as decisive
and may even be ignored. In Scandinavia, travaux preparatoires are
extensively used, not as evidence of the legislative intent, but as general
information on the whole background to a particular Act, in cases where it is
essential for the court to know the background in order to give meaning to its
task.87
In the United States of America, the courts may properly refer to what is
known as contemporaneous circumstances. These include the history of the
times existing when the Act was enacted, the previous state of the law and the
evil it intended to correct. The court may inform itself upon these matters, and
the various extraneous considerations … are not to be resorted to in order to
alter the meaning of the statute, but to remove whatever doubt that still
remains after all intrinsic aids have been considered.88
The question that may be asked is ‘what materials should the courts have
recourse to when seeking to ascribe meaning to a given statutory provision?’ It
is as well to take a look at the different materials.

Legislative History

The materials on legislative history are of three kinds:

(a) the legislative antecedents of the statutory provisions under consideration,
for example, corresponding provisions in previous enactments;
(b) pre-parliamentary materials relating to the provision in the Act in which it
is contained. Reports of committees and commissions reviewing the
existing law and recommending changes are examples;
(c) parliamentary materials, such as the text of a Bill as first published and
successively amended in its passage through Parliament, explanatory
memoranda, proceedings in committees and parliamentary debates.89
The records of the debates and speeches in Parliament are the most likely
source from which to discover evidence of the ‘intention of Parliament’. Fears
have been expressed that an examination of the legislative history might be at
the expense of the time devoted to the statutory text itself.90 This ‘view is best
encapsulated in the quip that only when legislative history is doubtful do you
go to the statute’91 itself.
__________________________________________________________________________________________________________________________________________

87 Vera Sacks, supra, p.144.

88 Crawford, Construction of Statutes, pp.366-368.
89 Cross, Statutory Interpretation, by Bell and Engle, p.150
90 G. Parker ‘Criminal Law - Statutory Interpretation - Use of Parliamentary Debates’ - (1982) 60 Can.
Bar Rev. 502 at 505.
91 United States v. Bass 404 US 336 (1971) 339 per Justice Marshall.
100 Understanding Statutes

In our system legislative history is not yet recognised as a permissible aid

to construction or interpretation.
Although a judge might look to the intention of Parliament when it brought
forward the legislation (the so-called mens or sententia legis), the common
law, (unlike the civil law) would argue that it is a rule of practice that while
interpreting an item of legislation, the judge should not survey any debates or
amendments which preceded its enactment. In essence, a judge must look to
the legislation and not the legislative process. Many judges have commented
on this rule of practice which tends to restrain their powers of statutory
interpretation. Many have noted it, some have criticised it and even a few
have departed from it.92
One argument against admissibility of legislative history is that the
admission would mean that every lawyer who advised a client without first
examining all the relevant history would be acting negligently. It would also
require a lot of time and expense. It seems inconsistent also to permit the
courts to look to legislative history in their construction of statutes while also
recognising that an individual’s reliance upon that same history may offer
some justification for conduct which is arguably inconsistent with the
legislative intention as revealed in the history.93
All these argument notwithstanding, the courts have on occasion departed
from the practice (eg in Sillery v. R)94 especially where a judge was personally
involved in the production of the piece of legislation now up for construction.
Lord Nottingham claimed in Ash v. Abdy95 to ‘have some reason to know the
meaning’ of the Statute of Frauds because, he said, it had its rise from him; he
had brought it into the House of Lords. In Rowe v. Law96 the Chief Justice of
the Republic of Ireland substantiated his construction by turning to the
legislative history of the Act, as did Lord Denning in Sagnata Investments Ltd.
v. Norwich Corporation.97
According to Rhodes, White and Goldman98 the constitutional separation
of powers requires a conscientious search for legislative intent. This would
include investigating legislative history and other extrinsic aids in instances
where the circumstances disclose relevant uncertainty. They suggested the
criteria for the use of legislative history – something in the nature of

__________________________________________________________________________________________________________________________________________

92 Vincent J.G. Power, ‘Parliamentary History as an Aid to Statutory Interpretation’, [1984] Stat LR
38-39.
93 S.J.Gibb, ‘Parliamentary Materials as Extrinsic Aids to Statutory Interpretation’, [1980] Stat LR
p.29 at p.35.
94 (1981) 35 ALR 227 at p.233.
95 (1678) 3 Swan 644; 36 ER 1014.
96 [1978] IR 55.
97 [1971] 2 All ER 1441 at p.1445.
98 ‘The Search for Intent: Aids to Statutory Construction in Florida’ (1978) 6 Fla. H. U. L. Rev. 383.
 The General Rules of Interpretation 101

substantially increased committee reports, recording and retaining the records

of committee hearings and floor details and requiring sponsor’s statement of
intent99:
According to the weight of authority and surely the better view, the court may
consider the general history of a statute, including its derivation, that is, the
various steps leading up to and attending its enactment, as shown by the
legislative journals in its efforts to ascertain the intention of the legislature
where it is in doubt.100
In the United States, amendments to a Bill and the action taken on them,
messages from the Chief Executive, reports of legislative committees and
debates of the legislature are often referred to, as indicative of the legislative
intent where that intent is obscure: United States v. Raynor.101 In that case the
United States Congress had passed an Act which provided that the possession
of paper similar to that used by the Government in printing its obligation
constituted a crime and the defendant was charged with violating the Act. The
issue for determination was whether a paper similar but not identical to that
used by the Government fell within the ambit of the section. The Court looked
into the legislative history of the Act and concluded:
The section now under consideration is plainly a combination of a long series
of legislative aids, each of which has declared it to be a crime to have
possession of paper counterfeiting the distinctive paper …. Each change since
1837 was intended to make the possession of counterfeit paper more
dangerous for counterfeiters.
The Ghana Interpretation Act 1960 deals with this question of recourse to
external materials. Section 19 empowers the court to turn
to any text-book, or other work of reference, to the report or any
memorandum published by authority in reference to the enactment or the Bill
for the enactment and to any papers laid before the National Assembly in
reference to it, but not to the debates in the Assembly.
This is a very wide provision. It makes it possible for a court to consider
White Papers, Green Papers, the Memorandum to the Bill and text-books. The
section, however, clearly excludes the use of parliamentary debates.

Parliamentary Debates

The traditional rule was that the courts could not have recourse to
parliamentary debates for any purpose, be it to find out the mischief to be
cured or the ‘intention of Parliament’. This rule was affirmed in Davis v.
__________________________________________________________________________________________________________________________________________

99 Ibid at pp.405-407.
100 Crawford, Construction of Statutes, p.383.
101 302 US 540, 58 C 353, 82L Ed. 413.
102 Understanding Statutes

Johnson102 and in Hadmor Productions v. Hamilton,103 Lord Diplock said

that,
There are a series of rulings by this House, unbroken for a hundred years, and
most recently affirmed emphatically and unanimously in Davis v. Johnson,
that recourse to reports of proceedings in either House of Parliament during
the passage of the Bill which … became the Act of Parliament that falls to be
construed, is not permissible as an aid to its construction.
The non-admissibility of parliamentary debates for purposes of
interpretation has nothing to do with parliamentary privilege; in recent years
attempts have been made to change the position. Lord Scarman, in Tuck v.
National Freight Corporation104 stated that if Parliament chooses to use
language that is general to the point of ambiguity, ought not judges to be
allowed the aid of, for example, official reports or the record of proceedings at
the committee stage of the Bill to determine the intention of Parliament?105
He also wished that ‘Notes on Clauses’ used by Ministers when taking the
Bill through Parliament could be referred to: ‘How useful they would be, not
of course decisive but an invaluable guide …’
Lord Denning has been described as
the most persistent advocate of a departure from the rule forbidding use of
Hansard in statutory interpretation … Unlike some advocates of change, Lord
Denning was not at all willing to wait for the Parliament in England to decide
the dispute: instead he simply went ahead and looked at the records of
parliamentary debates regardless of the weight of authority to the contrary…
Even in 1976 he was aware that he was not supposed to look at Hansard in
order to discover why Parliament took certain action. Nonetheless he did so.
Lord Dilhorne has argued that it is improper for a judge to look at Hansard.
But what is intrinsically improper about reference to Parliamentary
Debates? The Ghana Interpretation Act 1960 which by its s.19 actually set the
pace for the use of extrinsic aids, surprisingly failed in the area of
admissibility of parliamentary debates – influenced, no doubt, by the stand
taken by the judges in England. The Memorandum to the Bill which later
became the Act stated that,
There are two cogent reasons for their exclusion: first, it would not be
conducive to the respect which one organ of state owes to another, that its
deliberations should be open to discussion in court and secondly, it would

__________________________________________________________________________________________________________________________________________

102 [1979] AC 264 at p.337 per Viscount Dilhorne.

103 [1982] 2 WLR 322 at p.337.
104 [1979] 1 WLR 37 at 55.
105 It does appear that Lord Scarman has had a change of heart between Tuck and the Hadmor
Production cases.
 The General Rules of Interpretation 103

greatly interfere with the freedom of debate if members had to speak in the
knowledge that every remark might be subject to judicial analysis.
However, as Lord Hailsham, the Lord Chancellor, pointed out:
If they really think that courts and practitioners do not read blue books in
order to find out what statutes mean, they are living in a complete fool’s
paradise. When I was at the Bar I was constantly having to advise as to the
meaning of statutes and as constantly I was finding, as I do in this House and
as I do when I sit judicially, that the words of the Parliamentary draftsman are
at first sight incomprehensible. I always look at Hansard, I always look at
everything I can.106
Lord Denning, in an attempt to make the admissibility of parliamentary
debates possible, found a way of circumventing the difficulty. In a public
address, the Parliamentary Commissioner had quoted portions of a debate in
Parliament. These were then quoted by Professor Wade in one of his books,
which brought them into the domain of permissible reference.
In R v. Local Commission for Administration,107 Lord Denning explained:
The Parliamentary Ombudsman, Sir Edward Compton, has acknowledged
openly that he himself gained assistance by looking at the debates in
Parliament on the subject. He looked at Hansard …. Now the question at once
arises: are we the judges to look at Hansard when we have the self-same task?
... According to the recent pronouncement of the House of Lords in Davis v.
Johnson108 ... we ought to regard Hansard as a closed book to which we as
judges must not refer at all, not even as an aid to the construction of statutes....
By good fortune, however, we have been given a way of overcoming that
obstacle. For the Ombudsman himself in a public address to the Society of
Public Teachers of Law quoted the relevant passages of Hansard … as part of
his address: and Professor Wade has quoted the very words in his latest text
book on Administrative Law, 4th ed. (1977) p.82. And we have not yet been
told that we may not look at the writing of the teachers of law. Lord Simonds
was as strict upon these matters as any judge ever has been, but he confessed
his indebtedness to their writings, even very recently …. So have other great
judges. I hope therefore that our teachers will go on quoting Hansard so that a
judge may in this way have the same help as others have in interpreting a
statute.
According to Alec Samuels,
with characteristic ingenuity, Lord Denning has found a possible way round
the direct non-admissibility of Hansard, though one which might put pressure
on text-book writers.109
__________________________________________________________________________________________________________________________________________

106 Parliamentary Debates, 1983 1986 cols 1345-1346.

107 [1979] QB 287 at p.311.
108 [1978] 2 WLR 553.
109 The Interpretation of Statutes [1980] Stat LR 98.
104 Understanding Statutes

Did the courts have to wait for the text-books to refer to parliamentary
debates before they admit Hansard? The refusal to admit parliamentary
debates as an aid to construction, be it noted, is a self-imposed rule.

Policy Documents

A judge may read privately whatever policy documents he chooses to read in

order to arrive at an understanding of the legal effect of a statutory provision.
Yet, in what circumstances is it permissible for the judge to refer explicitly to
these policy documents in a judgment? According to Miers and Page,110
Domestic pre-legislative documents which include reports of Royal
Commissions, the Criminal Law Revision Committee, the Law Commissions,
the Law Reform Committee, departmental inquiries and Parliamentary Select
Committees may be used as an aid to identify the mischief which the legislation
is intended to remedy; but not for the purpose of construing enacting words in
such a way as to conform with recommendations made in the report as to the
form the remedy should take. By contrast, the explanatory memoranda and
notes of clauses prepared by the department to accompany the parliamentary
stages on a Bill may not be publicly referred to by a judge for any purpose.
But Crawford111 states that,
In spite of authority to the contrary, the general policy of the state, or the
established policy of the Legislature as revealed by its legislation generally
should be considered in the construction of statutes …. Where doubt exists
regarding the meaning of a statute, rather than allow a miscarriage of the
intention of the legislature when that intention is in fact ascertainable, it would
seem proper for the court to give the general policy of the state some
consideration. Nevertheless, if the Legislature reveals an intent to depart from
existing public policy, that intent must be effective; and the court should not
ignore or override it.

Reports of Commissions and Committees

The courts in Australia use the reports of the Law Commission in order to
discover the mischief which an Act is intended to remedy. But Gibbs J is
cautious:
One [must] … confine one’s consideration of such a report to discovering the
previous state of the law and the mischief or defect for which it was
considered that the law did not provide: such a report is not to be used for the
purpose of ascertaining directly what the Act was intended to mean.112
__________________________________________________________________________________________________________________________________________

110 Legislation, pp.174-175

111 Construction of Statutes, pp.371-372.
112 Wacal Developments Pty Ltd. v. Realty Development Pty Ltd. (1978) 14 CLR 503 at p.509.
 The General Rules of Interpretation 105

It was held in Attorney-General v. Maksimovich113 that the interim report

of a commission of inquiry is
likely to provide a useful compilation of background material which, so long
as it is compatible with the language of the legislation ultimately enacted, may
help in understanding the mischief to which it was addressed.
In Eastman Photographic Materials Co Ltd. v. Comptroller of General
Patents,114 the Act under consideration was passed as a result of a report of a
departmental Commission on the use of geographical names. Said Lord
Halsbury:
I think no more accurate source of information as to what was the evil or
defect which the Act of Parliament now under consideration was intended to
remedy could be imagined than the report of that Commission.
The House of Lords, in Assam Railways and Trading Co Ltd. v. Inland
Revenue Commissioners,115 refused to admit the Royal Commission’s report.
More recently, in Black-Clawson International Ltd. v. Papierwerke Waldhof-
Aschaffenberg AG,116 a distinction was drawn between the admissibility of
pre-parliamentary materials as evidence of surrounding circumstances and the
admissibility of such materials as direct evidence of the intention of
Parliament. In the United States of America and Western European countries
no such distinction is made.
Select Committees of either House of Parliament or some other publicly
appointed Committee or Commission may be required to report on such matters
for the very purpose of identifying changes which ought to be made in the law.
Such a report may only be looked at in order to ascertain the relevant
mischief.117 In the Black-Clawson case, Lord Reid pointed out that the courts
should disregard expressions of intention by Committees reported before a Bill
is introduced. Lord Denning appears to have agreed that the courts cannot look
at what the Committee recommended! However, Viscount Dilhorne118 said:
That one can look at such reports to discern the mischief is now, I think,
established, but there is a difference of opinion as to what can be looked at in
such reports. Can one have regard to the recommendations of the Committee
or Commission? Where a draft Bill is attached to the report as is now
frequently the case ... can one refer to the terms of the draft Bill when they
have been enacted without material alterations by Parliament? Can one refer
to the notes on the clauses of the draft Bill appended to it by the Committee?
__________________________________________________________________________________________________________________________________________

113 (1985) 4 NWLR 300 at p.304 per Kirby P.

114 [1898] AC 571 at p.575.
115 [1935] AC 445.
116 [1975] AC 591.
117 Funning v. Board of Governors of the United Liverpool Hospitals [1933] All ER 454 at p.457.
118 [1975] AC 591 at pp.622-623.
106 Understanding Statutes

... Is it legitimate to make use of such parts of a report as an aid to the

construction of the Act?
In my opinion it is. The question why one is entitled to consider what was the
mischief at which the Act was aimed is surely that that will throw a revealing
light on the object and purpose of the Act, that is to say, the intention of
Parliament; and applying Lord Halsbury’s observation ... what more accurate
source of information both as to law at the time and as to the evil or defect
which the Act was intended to remedy can be imagined than the report of such
a Committee or, for that matter, the reports of the Law Commission?
Lord Dilhorne’s case is compelling, and one questions why Lord Reid
thinks the court is ‘not ... entitled to take any of this into account in construing
the Act’.

Treaties

It is usual for treaties to be accompanied by travaux preparatoires. Can the

courts use a treaty to interpret an Act or admit the travaux preparatoires of the
treaty to construe an Act? The question is easily answered where the Act
resolves the problem by including the text of the treaty as a Schedule to the
Act. And where the Act seeks to give effect to the treaty by adoption of the
treaty, no doubt the travaux preparatoires can be consulted. Said Lord
Diplock in Quazi v. Quazi119:
It is a legitimate aid to construction of any provisions of the Act that are
ambiguous or vague to have recourse to the terms of the treaty in order to see
what was the obligation in international law that Parliament intended that this
country should be enabled to assume. The ambiguity is to be resolved in
favour of that meaning that is consistent with the provisions of the treaty.
According to Meirs and Page, where a treaty has become part of the law of
the United Kingdom two conditions are required: ‘first, that the material is
public and accessible, and secondly, that the travaux preparatoires clearly and
indisputably point to a definite legislative intent.’120
In Fothergill v. Monarch Airlines Ltd., articles 18(1) and 26(2) of the
Warsaw Convention Relating to International Carriage by Air as embodied in
the Carriage by Air Act 1961121 were in issue. The texts of the Convention
both in the English and in the French Acts were contained in the Schedule to
the Act. There is a provision in the Act that in case of an inconsistency the
French Act should prevail. It was held that any doubts could be resolved by
looking at French text-books and judicial opinions on the subject. Cross
therefore considers that,
__________________________________________________________________________________________________________________________________________

119 [1980] AC 744 at p.808.

120 Legislation, pp.175-176.
121 9 & 10 Eliz. 2 ch 27.
 The General Rules of Interpretation 107

The difference in the judicial approach to travaux preparatoires in the case of

treaties as compared with domestic legislation was justified by Lord Diplock
on the ground that delegates to the conference giving rise to the treaty would
have voted on the understanding that certain materials would be consulted,
and that therefore no further clarification of the treaty’s wording on the
particular point was necessary. To consult the travaux preparatoires best
ensures the comity of nations and uniformity of interpretation among
signatories.122
It should now be clear that judicial consideration of legislative action is not
participation in the legislative process, nor an infringement of the legislative
functions of Parliament. It is an exercise of the judicial function.
The constitutional separation of powers requires a conscientious search for
legislative intent. This should include investigating legislative history and
other extrinsic material where there is ambiguity or even vagueness or
uncertainty, and the courts should be able to resort to the use of extrinsic
material if they are to perform efficiently their function of interpretation or
construction. The legislative history of an Act would definitely help the courts
in discovering the meaning of an ambiguous word or expression. Legislative
history will also give sufficient information and insight not readily available
elsewhere.
We live in an age of increasing cultural, economic and social complexity.
Legal solutions must match the attempts to solve the problems of the day
through the instrumentality of legislation. The cultural, economic and social
stimuli of the day are of immense importance in the search for a just society.
The courts should not stand aloof, oblivious to these currents, or refuse to seek
the meaning of words or expressions in an Act in the very materials which
would explain the meaning the words and expressions are intended to have.
Green Papers, parliamentary debates, White Papers, all have a part to
contribute in this important exercise of understanding statutes.
The various arguments against the use of extrinsic material are not enough.
The arguments about inaccessibility, about unreliability, about overwhelming
the judges – and lawyers – are not convincing in the face of the demands of
social justice and all that go with it. If the legislators know that their words
will be subject to careful scrutiny and analysis by the courts in the effort to do
justice, they would be more careful in their approach to their responsibilities in
relation to a Bill presented to them. Parliamentary debates are published. Is
there then a problem of inaccessibility?
The House of Lords admits official reports for the purposes of ascertaining
the background, the mischief, the objectives of an Act of Parliament. Why not
admit those materials for the purpose of construing an Act of Parliament?
Lord Simon of Glaisdale was correct when he said that an official report and a
__________________________________________________________________________________________________________________________________________

122 Statutory Interpretation, by Bell and Engle, p.164.

108 Understanding Statutes

consequential Act form an integral process and logically one cannot look at
the result for one purpose and not for the other.123 The value in reading the
parliamentary debates is to get to the pith and substance of the legislation.
Travaux preparatoires should be used as evidence of legislative intent as
well as general information on the whole background of an Act, material
which is essential for the courts to know in order to give meaning to their
tasks. Extrinsic material, legislative history, the previous state of the law, the
evil intended to be corrected, are all vital to an understanding of an Act of
Parliament, and the removal of the doubts that may remain.

Pepper (Inspector of Taxes) v. Hart

This very important case found the House of Lords grappling with the issue of
reference to the proceedings in Parliament as an aid to the construction of an
ambiguous or obscure legislation. The legislation in question was the Finance
Act 1976.124 The particular provisions which came up for construction were
sub-sections 61(1), 63(1) and 63(2). They provided that,
61.(1) Where in any year a person is employed in director’s or higher-paid
employment and –
(a) by reason of his employment there is provided for him, or for others being
members of his family or house-hold, any benefit to which this section
applies; and
(b) the cost of providing the benefit is not (apart from this section) chargeable
to tax as his income,
there is to be treated as emoluments of the employment, and accordingly
chargeable to income tax under Schedule E, an amount equal to whatever is
the cash equivalent of the benefit.
63.(1) The cash equivalent of any benefit chargeable to tax under s.61 above
is an amount equal to the cost of the benefit, less so much (if any) of it as is
made good by the employee to those providing the benefit.
(2) Subject to the following subsections, the cost of a benefit is the amount of
any expense incurred in or in connection with its provision, and (here and in
those subsections) includes a proper proportion of any expense relating partly
to the benefit and partly to other matters.
Nine masters and the bursar at an independent boy’s school were the
taxpayers in this case. For the benefit of the members of the teaching staff, the
school operated a concessionary fees scheme. The sons of the masters and the
bursar were educated at the school on those concessionary terms. The fees
__________________________________________________________________________________________________________________________________________

123 Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenberg AG [1975] 1 All ER 810 at pp.842-848.
124 C.40.
 The General Rules of Interpretation 109

they paid were one-fifth of the fees ordinarily charged to members of the
public.
The concessionary fees more than covered the additional cost to the school
of educating the taxpayers’ sons. In the relevant years the school was not full
to capacity, so the admission of the sons did not therefore cause the school to
lose full fees which would otherwise have been paid by members of the public
for the places so occupied. The education of the sons of the nine members and
the bursar at reduced fees was a taxable benefit under s.61(1) of the Finance
Act 1976.
The taxpayers were assessed to income tax on the cash equivalent of that
benefit on the basis that they were liable for a rateable proportion of the
expenses in the running of the school as a whole for all the boys of the school.
That proportion was roughly equal to the amount of the ordinary school fees.
By s.63(1) of the 1976 Act, the cash equivalent of the benefit was an amount
equal to the cost of the benefit and by s.63(2) the cost of the benefit was the
amount of any expense incurred in or in connection with its provision.
The taxpayers appealed against the assessments made by the Inspector of
Taxes. They claimed that since all the costs of running the school generally
would have had to be incurred in any event the only expense incurred by the
school in or in connection with the education of their sons was the small
additional or marginal cost to the school caused by the presence of their sons,
that was covered by the fees they paid. Thus the cash equivalent of the benefit
was nil. The Crown contended that the expense incurred in or in connection
with the provision of education for the taxpayers’ sons was exactly the same
as the expense incurred in or in connection with the education of all other
pupils at the school. Accordingly the expense of educating any one child was a
proportionate part of the cost of running the whole school.
The Special Commissioner allowed the taxpayers’ appeals. It was held that
since the taxpayers’ sons occupied only surplus places at the school at the
school’s discretion and the fees paid by the taxpayers fully covered and
reimbursed the cost to the school of educating the taxpayers’ sons no tax was
payable by the taxpayers. The Crown appealed. The Court of Appeal affirmed
the decision of the judge. The taxpayers then appealed to the House of Lords.
In the House of Lords it became apparent that an examination of the
proceedings in Parliament in 1976 in respect of sections 61 and 63 might help
in determining
(a) whether Parliament intended that the cost of the benefit, that is to say,
the amount of any expense incurred in or in connection with its
provision, in s.63(2) meant the actual expense incurred by the school in
providing the benefit, or
(b) the average cost of the provision of the benefit (that being very close to
a market value test).
110 Understanding Statutes

The House of Lords, by a majority, held that,

(a) having regard to the purposive approach to the construction of legislation the
courts had adopted in order to give effect to the true intention of the
legislature, the rule prohibiting the courts from referring to parliamentary
material as an aid to statutory construction should, subject to any question of
parliamentary privilege, be relaxed so as to permit reference to parliamentary
material where
(i) the legislation was ambiguous or obscure or the literal meaning led to
an absurdity,
(ii) the material relied on consisted of statements by a minister or other
promoter of the Bill which led to the enactment of the legislation
together, if necessary, with such other parliamentary material as was
necessary to understand the statements and their effect, and
(iii) the statements relied on were clear;
(b) the use of parliamentary material as a guide to the construction of
ambiguous legislation would not infringe s.1, art 9 of the Bill of Rights
since it would not amount to a ‘questioning’ of the freedom of speech or
parliamentary debate provided counsel and the judge refrained from
impugning or criticising the minister’s statements or his reasoning;
(c) the purpose of the courts in referring to parliamentary material would be to
give effect to, rather than thwart through ignorance, the intentions of
Parliament, nor would it be the purpose of the courts to question the
processes by which the legislation was enacted or to criticise anything said
by anyone in Parliament in the course of enacting it;
(d) section 63(2) of the 1976 Act was clearly ambiguous because the ‘expense
incurred in or in connection with’ the provision of in-house benefits could
be interpreted as being either the marginal cost caused by the provision of
the benefit in question or as a proportion of the total cost incurred in
providing the service both for the public and for the employee (the average
cost);
(e) the parliamentary history of the 1976 Act and statements made by the
Financial Secretary to the Treasury during the committee stage of the Bill
made it clear that Parliament had passed the legislation on the basis that the
effect of sections 61 and 63 was to assess in-house benefits, and
particularly concessionary education for teachers’ children, on the
marginal cost to the employer and not on the average cost of the benefit.
Accordingly s.63 should be given that meaning;
(f) since the Crown had not identified or specified the nature of any
parliamentary privilege going beyond that protected by the Bill of Rights,
there was no defined privilege as to the existence and validity of which the
House of Lords in its judicial capacity would otherwise have been entitled
to make a determination, and it would therefore not be right to withhold
 The General Rules of Interpretation 111

from the taxpayers the benefit of a decision to which, in law, they were
entitled.
Lord Bridge of Harwich found it very difficult, in conscience, to reach a
conclusion adverse to the taxpayers on the basis of a technical rule of
construction requiring him
to ignore the very material which ... indicates unequivocally which of the two
possible interpretations of s.63(2) of the 1976 Act was intended by Parliament
.... It should … only be in the rare cases, where the very issue of interpretation
which the courts are called on to resolve has been addressed in parliamentary
debate and where the promoter of the legislation has made a clear statement
directed to that very issue, that reference to Hansard should be permitted.
Indeed, it is only in such cases that reference to Hansard is likely to be of any
assistance to the courts. Provided the relaxation of the previous exclusionary
rule is so limited, I find it difficult to suppose that the additional cost of
litigation or any other ground of objection can justify the court continuing to
wear blinkers which, in such a case as this, conceal the vital clue to the
intended meaning of an enactment.125
To Lord Griffiths,
The days have long passed when the courts adopted a strict constructionist
view of interpretation which required them to adopt the literal meaning of the
language. The courts now adopt a purposive approach which seeks to give
effect to the true purpose of legislation and are prepared to look at much
extraneous material that bears on the background against which the
legislation was enacted. Why then cut ourselves off from the one source in
which may be found an authoritative statement of the intention with which
the legislation is placed before Parliament.126
Lord Oliver of Aylmerton stated that,
A statute is, after all, the formal and complete intimation to the citizen of a
particular rule of the law which he is enjoined, sometimes under penalty, to
obey and by which he is both expected and entitled to regulate his conduct ….
But experience shows that language – and, particularly, language adopted or
concurred in under the pressure of a tight parliamentary timetable – is not
always a reliable vehicle for the complete or accurate translation of legislative
intention; and I have been persuaded ... that the circumstances of this case
demonstrate that there is both the room and the necessity for a limited
relaxation of the previously well-settled rule which excludes reference to
parliamentary history as an aid to statutory construction … I accept,
therefore, that in referring to “the cost of the benefit” and the “expense
incurred in ... its provision”, s.63(1) and (2) of the Finance Act 1976
introduced an element of ambiguity. That is underlined by the absurdity which

__________________________________________________________________________________________________________________________________________

125 Ibid at p.49. Emphasis supplied.

126 Ibid at p.50. Emphasis supplied.
112 Understanding Statutes

would result from a literal construction of the word “cost” in the case of a
loss-making concern such as British Rail or a heavily endowed institution,
where the employee’s benefit would have to be valued at a figure in excess –
indeed, it may be many times in excess – of the market price of the service
provided. The references to Hansard ... put it beyond doubt that that could not
have been the intention of Parliament in enacting the section.127
Lord Browne-Wilkinson reviewed extensively the case law on the subject
of the admissibility of extrinsic aids and of parliamentary debates in the
interpretation or construction of an Act of Parliament. He came to the
conclusion that,
Where the words used by Parliament are obscure or ambiguous, the
parliamentary material may throw considerable light not only on the mischief
which the Act was designed to remedy but also on the purpose of the
legislation and its anticipated effect. If there are statements by the minister or
other promoter of the Bill, these may throw as much light on the “mischief”
which the Bill seeks to remedy as do the white papers, reports of official
committees and Law Commission reports to which the courts already have
regard for that purpose. If a minister clearly states the effect of a provision and
there is no subsequent relevant amendment to the Bill or withdrawal of the
statement it is reasonable to assume that Parliament passed the Bill on the
basis that the provision would have the effect stated. There is no logical
distinction between the use of ministerial statements introducing subordinate
legislation … and such statements made in relation to other statutory
provisions which are not in fact subsequently amended …. In my judgment ...
reference to parliamentary material should be permitted as an aid to the
construction of legislation which is ambiguous or obscure or the literal
meaning of which leads to an absurdity. Even in such cases references in
court to parliamentary material should only be permitted where such material
clearly discloses the mischief aimed at or the legislative intention lying behind
the ambiguous or obscure words .... Statute law consists of the words that
Parliament has enacted. It is for the courts to construe those words and it is the
court’s duty in so doing to give effect to the intention of Parliament in using
those words .... Parliament never intends to enact an ambiguity ... but in a few
cases it may emerge that the very question was considered by Parliament in
passing the legislation. Why in such a case should the courts blind themselves
to a clear indication of what Parliament intended in using those words? The
court cannot attach a meaning to words which they cannot bear, but if the
words are capable of bearing more than one meaning why should not
Parliament’s true intention be enforced rather than thwarted?
The courts can now look at white papers and official reports for the purpose of
finding the “mischief” sought to be corrected, although not at draft clauses or
proposals for the remedying of such mischief. A ministerial statement made in

__________________________________________________________________________________________________________________________________________

127 Ibid at pp.52-53. Emphasis supplied.

 The General Rules of Interpretation 113

Parliament is an equally authoritative source of such information; why should

the courts be cut off from this source of information as to the mischief aimed
at? ... Given the purposive approach to construction now adopted by the
courts in order to give effect to the true intentions of the legislature, the fine
distinctions between looking for the mischief and looking for the intention in
using words to provide the remedy are technical and inappropriate. Clear and
unambiguous statements made by ministers in Parliament are as much the
background to the enactment of legislation as white papers and parliamentary
reports .… The courts should not deny themselves the light which
parliamentary materials may shed on the meaning of the words Parliament
has used and thereby risk subjecting the individual to a law which Parliament
never intended to enact .… Recourse is already had to white papers and
official reports not because they determine the meaning of the statutory words
but because they assist the court to make its own determination …. The
exclusionary rule should be relaxed so as to permit reference to
parliamentary materials where
(a) legislation is ambiguous or obscure, or leads to an absurdity;
(b) the material relied on consists of one or more statements by a minister or
other promoter of the Bill together if necessary with such other
parliamentary material as is necessary to understand such statements and
their effect;
(c) the statements relied on are clear.127a
The House of Lords was not persuaded by the argument that the practical
difficulties arising from a limited relaxation of the rule was sufficient to
outweigh the need for the Courts to give effect to the words of an Act of
Parliament by reference to parliamentary material. There are serious
considerations for permitting the relaxation of the exclusionary rule:
(a) experience in New Zealand and Australia had shown that not only are
parliamentary materials available but also that they are readily
understandable by the lawyer as well as the layman;
(b) the suggestion that lawyers and judges are not familiar with parliamentary
procedures and will thus have difficulty in giving proper weight to the
parliamentary materials is a very weak one;
(c) the danger of litigation becoming time-consuming and more costly will not
necessarily be significant as long as the courts maintain strict control over
the use of parliamentary materials;
(d) the cost of researching to the legal adviser is over-estimated.128

__________________________________________________________________________________________________________________________________________

127a Emphasis supplied.

128 Ibid pp.66-67 per Lord Browne-Wilkinson.
114 Understanding Statutes

Lord MacKay LC, while agreeing that the appeal should be allowed, was
unable to concur in the considerations mentioned above. He had no objection
in principle to a relaxation of the rule, but felt that the practical difficulties of
relaxing the rule would outweigh its effectiveness:
(a) the difficulty of legal advisers having to study in practically every case
the whole proceedings in Parliament on the Bill in question to see
whether or not there is any help to be gained from them;
(b) the difficulty of an immense increase in the cost of litigation confirmed
by the various Law Commissions.129

Bill of Rights

The House of Lords were in complete agreement that

(a) the use of parliamentary materials as a guide to the construction of an
Act of Parliament would not infringe s.1 of article 9 of the Bill of
Rights, 1688.130 The provision states
“That the freedom of speech and debate or proceedings in
Parlyament ought not to be impeached or questioned in any Court
or place out of Parlyament”;131
(b) the purpose of the article is to protect members of Parliament from any
penalty, civil or criminal, for what they said and to enable them to
discuss what they, as opposed to the Sovereign, choose to discuss;
(c) the relaxation of the exclusionary rule would not amount to a
‘questioning’ of the freedom of speech or parliamentary debate
provided counsel and judge refrained from impugning or criticising the
minister’s statements or the reasoning of the minister.
Lord Griffiths said:
I agree that the use of Hansard as an aid to assist the court to give effect to the
true intention of Parliament is not “questioning” within the meaning of s.1
article 9 of the Bill of Rights (1688). I agree that the House is not inhibited by
any parliamentary privilege in deciding this appeal.132
Lord Oliver of Aylmerton also said:
I find myself quite unable to see how referring to the reports of parliamentary
debates in order to determine the meaning of words which Parliament has
employed could possibly be construed as “questioning” or “impeaching” the

__________________________________________________________________________________________________________________________________________

129 Ibid pp.47-48.

130 1 Will. & Mar. Second Session, c.2.
131 See p.55 of the judgment of Lord Browne-Wilkinson.
132 Ibid p.50.
 The General Rules of Interpretation 115

freedom of speech or debate or proceedings in Parliament or as otherwise

infringing the provisions of art. 9 of s.1 of the Bill of Rights.133
Lord Browne-Wilkinson considered that the purpose of the courts in
referring to parliamentary material would be to give effect to, rather than
thwart through ignorance, the intentions of Parliament and not to question the
legislative process leading up to the enactment or to criticise anything said by
anyone in Parliament in the course of enacting it.
A writer in support of the judgment has expressed surprise at the
submission by the Crown that citing Hansard in court infringes parliamentary
privilege. He referred to the argument by the Crown as ‘absurd.’ The criticism
is unsparing on this issue:
It is surely one thing for Parliament to commit the Sheriff of Middlesex for
contempt in levying execution on Hansard’s property,134 but quite another to
complain that the courts are giving effect to what might for the first time
accurately be described as “the intention of Parliament”.135
Francis Bennion agrees with Lord Browne-Wilkinson that the resolution
gives leave only for reference to be made to debates and that the reference
does not authorise discussion or argument about what was said in the debates.
Bennion is of the opinion that,
Article 9 is badly drafted and ambiguous since “freedom” may qualify only
“speech” or it may qualify “debates or proceedings in Parliament.” In other
words, is it merely the freedom of parliamentary debates and proceedings that
ought not to be impeached or questioned or is it the debates and proceedings
in its entirety?’136
But he was not convinced that the view adopted by the House of Lords
was correct:
To allow an advocate to cite in court, as an indication of the intended legal
meaning of an Act, a statement made in Parliament by the minister sponsoring
the Bill for the Act, surely must involve “questioning” the ministerial
statement in court.137
Advocates’ arguments and counter-arguments in court in an effort to
understand what the promoter of a Bill has said in Parliament and the judge’s
view on the arguments do not amount to questioning the statement made by
the promoter in Parliament. It is part of the time-honoured method the courts
have evolved over the years in order to ascertain the meaning of what has
been said. To try to find out what a person has said is not the same thing as
__________________________________________________________________________________________________________________________________________

133 Ibid p.53.

134 (1840) 11 A& E 273.
135 The Current Notes (1993) British Tax Review, p.1.
136 Statute Law, (1992) All ER Annual Review, p.394.
137 Ibid p.396.
116 Understanding Statutes

finding out whether that person has any right to say it. There is a marked
difference between questioning the right of a person and questioning the
exercise of that right. And clearly there is a difference between, (a) a right, (b)
the normal exercise of the right, and (c) the meaning of the words used in the
exercise of the right.
Before the second hearing of the case, the Attorney-General submitted a
letter written by the Clerk of the House of Commons referring to a resolution
passed by the House of Commons on 31 October 1980 giving general leave
for reference to be made to Hansard or other parliamentary reports in court
proceedings. The relevant portion of the letter of the 5 June 1992 stated:
In my opinion, the use proposed for the Official Report of Debates in this case
is beyond the meaning of the “reference” contemplated in the Resolution of
October, 1980. If a court were minded in particular circumstances to permit
the questioning of the proceedings of the House in the way proposed, it would
be proper for the leave of the House to be sought first by way of petition so
that, if leave were granted, no question would arise of the House regarding its
Privileges as having been breached.
The House of Lords held that since the Crown or the Clerk of the House of
Commons had not identified or specified the nature of any parliamentary
privilege going beyond that protected by the Bill of Rights, there was no
defined privilege as to the existence and validity of which the House of Lords
in its judicial capacity would otherwise have been entitled to make a
determination. It would therefore not be right to withhold from the tax payers
the benefit of a decision to which, in law, they were entitled.
It does appear that on this point the omission on the part of the Crown to
adequately prepare and submit a full argument was crucial to its rejection.
Despite having notice that the resumed hearing before the House of Lords was
to consider references to parliamentary material, the Attorney-General did not
present his argument until the start of the hearing and to the other side. Nor
was an adjournment requested to enable the House of Commons to consider
the matter. Perhaps the Crown, through the Attorney-General, never believed
the submission would carry much weight on the decision.

The Outlook

Pepper v. Hart may now be considered a change of judicial approach to the

interpretation or construction of an Act of Parliament. The rules which tend to
disapprove of the use of extrinsic aids to construction may have to be looked
at again. In R v. Warwickshire County Council, ex p. Johnson,138 a case
involving a reference to parliamentary material, Pepper v. Hart was followed
__________________________________________________________________________________________________________________________________________

138 [1993] 2 WLR 1. See also Stubbings v. Webb [1993] 2 WLR 120; Foster v. Chief Adjudicating
Officer [1993] 2 WLR 292; [1993] 1 All ER 705 HL.
 The General Rules of Interpretation 117

in order to construe s.20 of the Consumer Protection Act 1987.139 The door
has been opened. It will be difficult now to close it.

__________________________________________________________________________________________________________________________________________

139 C.43.
 Chapter 5

Presumptions

A presumption is a mere legal device, yet it is a rule of law. It operates, in the

field of the interpretation or construction of an Act of Parliament, to allow
certain inferences to be drawn from available material. It is an assumption that
it is legitimate to make in order to achieve a result, legal and desirable, in a
given set of circumstances. The presumption of innocence, for example, is a
presumption of law jealously guarded by the courts. Thus, in addition to the
rules of interpretation discussed in Chapter Four, the courts have accepted
certain presumptions of law which are called to aid in the interpretation or
construction of an Act of Parliament.

Consistency
It is a basic principle in legislative drafting, and one accepted by the courts,
that the same idea should be expressed in the same way every time it is
expounded. Thus different ideas should be differently expressed, and where
comparable ideas are expressed they are correspondingly identified to indicate
the appropriate differences in meaning. Therefore, in the interpretation of an
Act of Parliament, the courts presume that a word used with one meaning is
intended to bear that meaning each time the word is used in the Act.
However, any obvious departure from this principle would be treated to
mean a departure in meaning. A court would then be faced with two
interpretations. In those circumstances,
If the choice is between two interpretations, the narrower of which would fail
to achieve the manifest purpose of the legislation, [the court would] avoid a
construction which would reduce the legislation to futility and [would] rather
accept the bold construction based on the view that Parliament would legislate
only for the purpose of bringing about an effective result. If the language is
capable of more than one interpretation, one ought to discard the more natural
meaning if it leads to an unreasonable result and adopt the interpretation
which leads to a reasonable practical result.1
In Giffels & Vallet v. The King,2 it was put clearly that,
while it is quite true that a word may have different meanings in the same

__________________________________________________________________________________________________________________________________________

1 Gill v. Donald Humberstone Co. Ltd. [1963] 1 WLR 929 at pp.933-934 See also Nokes v. Doncaster
Amalgamated Collieries Ltd. [1940] AC 1014 at p.1022; Bracey v. Read [1963] 1 Ch 88.
2 [1952] 1 DLR 620 at p.630.
120 Understanding Statutes

statute or even in the same section, it is not to be forgotten that the first
inference is that a word carries the same connotation in all places where it is
found in a statute.
In Income Tax Commissioners for City of London v. Gibbs, 3 Lord
Macmillan said:
The scheme of legislation in the matter in hand has been far from logical. It
has been a case of makeshift patches of different hands, and verbal
consistency is the last virtue that can be attributed to a code which uses so
vital a term as “assessment” in no less than eight differing senses … Indeed,
Lord Wrenbury, in Kensington Income Tax Commissioners v. Aramayo4 went
so far as to say that “no reliance can be placed upon an assumption of
accuracy in the use of language in these Acts.” Section 62 of the Act of 1880
does not profess to be an amendment of the previous law. It is a new departure
and … its language ... may fairly be held to cover the case of changes in the
persons carrying on a partnership concern. The draftsman of s.62 may have
taken that view and [may] have regarded a change in partnership personnel as
a ceasing by one set of persons to carry it on and a succeeding to it of another
set of persons, notwithstanding, or perhaps without due regard to, the
distinction drawn in the fourth rule in the Act of 1842.

Consolidation Acts
Director of Public Prosecutions v. Schildkamp5 can be cited as an authority for
the very strong presumption that a provision in a consolidation Act does not
alter the pre-existing law. This presumption is based upon parliamentary
procedure: the assurance is given that the consolidating Bill does not make a
substantial change in the existing law and that assurance facilitates the
progress of the Bill in Parliament. It practically precludes amendment being
moved during the committee stage of the Bill.6
In Mitchell v. Simpson,7 Lord Esher said:
The [Sheriffs Act 1887] is a consolidation Act, and the provision in question
is in substantially the same terms as that of the Act of Geo. 2, and therefore, in
order to determine the meaning of the provision, we must consider to what the
Act of Geo. 2 was applicable.

__________________________________________________________________________________________________________________________________________

3 [1942] AC 402 at p.424.

4 [1916] 1 AC 215 at p.228.
5 [1971] AC 1.
6 See also Beswick v. Beswick [1968] AC 58 at p.73; Mackay v. Davies (1904) 1 CLR 483 at p.491.
7 (1890) 25 QBD 183 at p.188.
 Presumptions 121

Reasonableness of an Act – Avoidance of Injustice

In Pepper v. Hart,8 Lord Browne-Wilkinson stated that ‘Parliament never
intends to enact an ambiguity’. However, the instances are numerous where
the courts are faced with ambiguity in a provision of an Act of Parliament. A
set of words used in an Act may be capable of more than one meaning. A
court has to choose, in those circumstances, the interpretation or construction
which best suits the purpose of the legislation.
The courts proceed on the basis that it is not the duty of a Court of law to
decide on the reasonableness or unreasonableness of an Act of Parliament.
Thus in Holmes v. Bradfield Rural District Council,9 Finnemore J said:
The mere fact that the results of a statute may be unjust or absurd does not
entitle this court to refuse to give it effect.
In Salmon v. Duncombe,10 the Judicial Committee of the Privy Council
treated as immaterial the words ‘as if such subject resided in England’ in order
to make sense and give meaning to the statute. To do otherwise would be to
reduce s.1 of the Natal Ordinance No. 1 of 1856 to a nullity. So also in R v.
Vasey & Lally,11 the court rearranged the words of an amendment in order to
make sense of the amendment and carry out the manifest object of the
amendment.
The presumption of reasonableness of an Act of Parliament involves other
principles of construction, which are:
(a) statutory provisions would be interpreted to affect all persons equally and
impartially, unless other persons or classes of persons are specifically
excluded from the ambit of the legislation;
(b) the legislature never intends to deprive an individual of that individual’s
existing vested rights, whether the rights were acquired under the Common
Law or under a statute;
(c) statutes imposing taxes would be strictly construed in favour of the person
liable to pay tax;
(d) penal statutes would not be so strictly construed as to result in the creation
of an absurdity;
(e) an accused person must have a guilty mind in the commission of an
offence before that person could be convicted of an offence.

__________________________________________________________________________________________________________________________________________

8 [1993] 1 All ER 42 at p.64.

9 [1949] 2 KB 1 at p.7.
10 (1886) 11 AC 627.
11 [1905] 2 KB 748.
122 Understanding Statutes

Inequality of treatment

The use of the universal description, a person, in an Act of Parliament means

that the Act demands an equality of treatment; it applies equally to all persons.
Thus unless the Act specifically or by necessary implication limits its
application to certain persons or to a class of persons, all other persons not
specifically excluded are included in its application. The courts will decline to
assist a person who seeks their aid in order to relieve him or herself from
express statutory provisions.12
In Equitable Life Assurance Society of USA v. Reed,13 Lord Dunedin stated
that when a statutory provision lays down a rule of public policy, neither party
to a contract can contract out of it. In Burrow’s Case,14 Vice-Chancellor
Bacon was of the opinion that ‘the doctrine of estoppel cannot be applied to an
Act of Parliament’. Equality of treatment applies equally to subsidiary
legislation: the conditions in an enabling Act provided for the protection or
benefit of the public cannot be dispensed with (R v. Bertrand).15
Modern written constitutions now assert equal treatment under the law.
These constitutions specify in great detail the provisions relating to
Fundamental Human Rights and the areas within which discrimination will be
permitted – and permitted only – by law.

Vested rights

An Act of Parliament is never construed so as to interfere with vested rights. It

is a presumption that is usually invoked where a provision in a statute is
shown to have two meanings. In Attorney-General for Canada v. Hallett &
Carey Ltd.,16 Lord Radcliffe explained:
It is fair to say that there is a well-known general principle that statutes which
encroach upon the rights of the subject, whether as regards person or property,
are subject to a “strict” construction. Most statutes can be shown to achieve
such an encroachment in some form or another, and the general principle
means no more than that, where the import of some enactment is inconclusive
or ambiguous, the court may then properly lean in favour of the interpretation
that leaves private rights undisturbed.
In R v. Halliday,17 Lord Aitkinson said that he could never appreciate the
contention
__________________________________________________________________________________________________________________________________________

12 Edwards v. Edwards (1876) 2 Ch D 291 at p.297.

13 [1914] AC 587 at p.595.
14 (1880) 14 ChD 432 at p.441.
15 (1867) LR 1 PC 520.
16 [1952] AC 427 at p.450.
17 [1917] AC 260 at p.274.
 Presumptions 123

that statutes invading the liberty of the subject should be construed after one
manner, and statutes not invading it after another, that certain words should in
the first class have a meaning put upon them different from what the same
words would have put upon them when used in the second. I think the tribunal
whose duty it is to interpret a statute of the one class or the other should
endeavour to find out what, according to the well-known rules and principles
of construction, the statute means, and if the meaning be clear to apply it in
that sense. Should the statute be ambiguous, equally susceptible of two
meanings, one leading to an invasion of the liberty of the subject, and the
other not, it may well be that the latter should be preferred on the ground of
the presumed intention of the Legislature not to interfere with it.

Taxation statutes

A tax is a pecuniary burden imposed by the government of the day, the object
of which is to generate revenue for public purposes. It can only be imposed
through legislation; without legislative authority the government cannot
impose a tax on income or property.
Being a creature of legislation, it is thus subject to all the rules and
principles to which an Act of Parliament is subject where it comes to matters
of construction and interpretation. In Attorney-General v. Carlton Bank,18
Lord Russell of Killowen CJ saw no reason why any special canons of
construction should be applied to any Act of Parliament, nor that there was
authority
for saying that a taxing Act is to be construed differently from any other Act.
The duty of the court is … in all cases the same, whether the Act to be
construed relates to taxation or to any other subject, viz. to give effect to the
intention of the legislature, as that intention is to be gathered from the
language employed, having regard to the context in connection with which it
is employed. The court must no doubt ascertain the subject-matter to which
the particular tax is by the statute intended to be applied, but when once that is
ascertained, it is not open to the court to narrow or whittle down the operation
of the Act by considerations of hardship or business convenience, or the like.
However, in Oriental Bank v. Wright,19 the Judicial Committee of the
Privy Council stated that,
the intention to impose a charge upon a subject must be shown by clear and
unambiguous language.
Therefore in the words of Lord Hanworth MR,

__________________________________________________________________________________________________________________________________________

18 [1989] 1 KB 64 at p.71.
19 (1880) 5 App Cas. 842 at p.856.
124 Understanding Statutes

Either in the clear words of a taxing statute the subject is liable or if he is not
within the words, he is not liable.
And in IRC v. Saunders,20 Lord Reid said:
It is sometimes said that we should apply the spirit and not the letter of the law
so as to bring in cases which, though not within the letter of the law, are
within the mischief at which the law is aimed. But it has long been recognised
that our courts cannot so apply taxing Acts.
It is thus clear from the cases that taxing statutes are strictly construed, so
that
(a) the person sought to be taxed must fall within the clear words of the Act,
whatever may be the consequences;
(b) the Courts will take the Act as a whole in determining whether a wider
meaning or a narrower meaning is intended;
(c) of two alternative constructions, the Courts will accept the construction
that favours the subject and is consistent with the scheme of the legislation.

Penal statutes

It is important to be clear what the term ‘penal statutes’ actually means. Penal
statutes are statutes which create offences against the State. The character of
the punishment for the offence is not important. An Act of Parliament
normally contains a command to do a thing or a prohibition to refrain from
doing a thing and there is usually a sanction to enable the command or
prohibition to be enforced. That does not mean that an Act of that nature is
necessarily a penal statute. In Attorney-General v. Bradlaugh,21 Brett MR said
that,
The recovery of a penalty, if that is the only consequence, does not make the
prohibited act a crime. If it did ... that distinction which has been well known
and established in law for many years between a penal statute and a criminal
enactment, would fall to the ground, for every penal statute would involve a
crime and would be a criminal enactment.
In Tuck & Sons v. Priester,22 Lord Esher said that the court must be careful
in construing s.6 of the Copyright Act,186823
because it imposes a penalty. If there is a reasonable interpretation which will
avoid the penalty in any particular case we must adopt that construction. If

__________________________________________________________________________________________________________________________________________

20 [1958] AC 285 at p.298.

21 (1885) 14 QBD 667 at p.687.
22 (1877) 19 QBD 629 at p.638.
23 25 & 26 Vict c.68.
 Presumptions 125

there are two reasonable constructions we must give the more lenient one.
That is the settled rule for the construction of penal sections.
This was followed in London County Council v. Ayelsbury Dairy Co24
where Wright J said:
I have certainly always understood the rule to be that where there is an
enactment which may entail penal consequences, you ought not to do violence
to its language in order to bring people within it.
In order to determine whether an Act of Parliament is a penal statute
consideration should be given to whether
(a) the imposition of a forfeiture or a penalty is such that the procedure to be
used in enforcing the law is criminal procedure25;
(b) the fine, forfeiture or penalty is payable to an individual or to the State; but
the fact that it is payable to an individual does not necessarily mean that
the fine, forfeiture or penalty is a civil remedy26;
(c) the penalty is exacted by way of punishment or by way of compensation;
for if it is by way of punishment, then the contravention is a criminal
offence, even if it is a statutory offence; and if it is by way of
compensation, then the penalty is liquidated damages27;
(d) the penalty is recoverable as a debt in a civil cause or matter, for if it is so
recoverable it is not penal28;
(e) the penalty to be recovered is for the benefit of an aggrieved person29;
(f) the statute concerned is merely remedial though also penal.30

Mens rea

Mens rea means the guilty mind, the unlawful intention, with which an act is
done – or omitted to be done. It is an essential element in criminal
responsibility, as well as in some civil wrongs. Carelessness, negligence and
recklessness import an element of mens rea. The criminal intent or the
wrongful purpose with which a person does an act turns the act into an

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24 [1898] 1 QB 106 at p.109.

25 Mellor v. Denham (1880) 5 QBD 467; Ex p. Schofield [1891] 2 QB 428; R v. Whitchurch (1881) 7
QBD 534; R v. Paget (1881) 8 QBD 151.
26 R v. Paget (1881) 8 QBD 151.
27 R v. Tyler [1891] 2 QB 588. See also Musgrove v. Chung Teeong Tay [1891] AC 272.
28 Girdlestone v. Brighton Aquarium Co. (1878) 3 Ex D 137.
29 Earl of Mexborough v. Whitwood U D Co. [1897] 2 QB 111.
30 Stanley v. Wharton (1821) 9 Price 301 at p.310; Hobbs v. Hudson (1890) 25 QBD 232; Ex p. Pearson
(1873) LR 8 Ch App 667 at p.673; Derby Corporation v. Derbyshire County Council [1897] AC 550.
126 Understanding Statutes

offence. It is part of the ability of the prudent person to foresee the

consequences of the wrongful act. Thus where an act is prohibited by law, the
law is construed so as, in the appropriate cases, to make mens rea an
ingredient of the offence.
However, there are limitations. In murder, for example, under the doctrine
of constructive malice, where death ensues in the course of the commission of
an unlawful act, it is immaterial whether or not the person charged with the
offence intended or did not foresee that the conduct complained of might lead
to death.31 Equally, a provision of an Act of Parliament may be so drafted that,
considering the subject-matter of the provision, it is immaterial whether or not
a person charged under that provision had any intention to break the law, or
otherwise to do what is prohibited. In such cases the words of the provision
and the subject-matter are important considerations. So also are the
circumstances that make for reasonable construction of the provision and the
sanction imposed for the infringement of the law.32
Another limitation in the application of mens rea is the presence of
mistake or ignorance of fact. A belief, honestly and reasonably held, in the
existence of certain circumstances which are true, would make a wrongful act
an innocent one.33 The conduct complained of in such circumstances might
not be voluntary, nor would it be reasonable to impute foresight of the
consequences. This rule is applied in some cases to statutory offences. Thus in
the Tolson case, it was a good defence that the woman charged with bigamy
believed on reasonable grounds that her husband was dead.
However, in R v. Prince, 34 there was total prohibition of the act
complained of. The position then is that ignorance of the material facts would
not avail as a defence where there is absolute prohibition. Where the law
categorically prohibits the doing of an act, it would not be a defence to argue
that one did the act in ignorance. The public must be protected against the
doing of certain things. A person cannot be allowed to set fire to a building
and then claim an intention not to cause injury to persons, or damage to
property, in the building.
In general, a master is not responsible for the acts of the servant:
The criminal law makes no one punishable for an offence but the person who
either committed it or incited and procured the other to commit it, or who
aided in its commission.35

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31 Director of Public Prosecutions v. Beard [1920] AC 479; R v. Stone (1937) 53 TLR 1046.
32 R v. Tolson (1889) 23 QBD 164 at pp.172-176, per Wills J.
33 R v. Tolson (1889) 23 QBD 164 at p.181, per Cave J.
34 (1875) LR CCR 154.
35 R v. Holbrook [1878] 4 QBD 42 at p.47 per Lush J.
 Presumptions 127

But, where the prohibition is absolute or it is intended for the protection of

the public, a master may be held liable: Parker v. Alder,36 Christie, Manson &
Woods v. Cooper, 37 Allen v. Whitehead, 38 and Hobbs v. Winchester
Corporation.39
Drunkenness may also be taken into account whether there is mens rea. A
person may be so drunk as to be incapable of forming an intention. In R v.
Meade,40 Lord Coleridge’s direction to the jury was held right:
if the mind at that time is so obscure by drink, if the reason is dethroned and
the man is incapable therefore of forming that intent (i.e. the intent to kill or
inflict serious injury), it justifies the reduction of the charge from murder to
manslaughter.
As with drunkenness, so it is with
• natural disabilities: Chisholm v. Doulton41;
• insanity: R v. Marsland,42 and R v. Kopsch43;
• infancy, with its various degrees of criminal responsibility: R v. Owen,44 R
v. Waite,45 R v. Tatam,46 R v. Eldershaw,47 R v. Williams48 and R v.
Brown.49
The tendency now is to lessen the importance of mens rea in crime. In
1937 Goddard J said50:
With the complexity of modern legislation one knows that there are times
when the court is constrained to find that, by reason of the clear terms of an
Act of Parliament, mens rea or the absence of mens rea becomes immaterial
and that if a certain act is done, an offence is committed whether the person
charged knew or did not know of the Act.
In 1946, as Lord Goddard LCJ, he said:

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36 [1899] 1 QB 20.
37 [1900] 2 QB 522.
38 [1930] 1 KB 211.
39 [1910] 2 KB 471.
40 [1909] 1 KB 895.
41 [1889] 22 QBD 736; 1 Hawk PC 1.
42 7 Cr App 77.
43 (1925) 19 Cr App R 50.
44 4 C & P 236.
45 [1892] 2 QB 600.
46 (1921) 15 Cr App R 122.
47 3 C & P 396.
48 [1893] 1 QB 320.
49 [1890] 24 QBD 357.
50 Evans v. Dell (1937) 53 TLR 310 at p.313.
128 Understanding Statutes

It is of the utmost importance for the liberty of the subject that a court should
always bear in mind that unless a statute either clearly or by necessary
implication rules out mens rea as a constituent part of a crime, the court
should not find a man guilty of an offence against the criminal law unless he
has a guilty mind.51
In 1948 Lord Goddard LCJ said52:
If a statute contains an absolute prohibition against the doing of some act, as a
general rule mens rea is not a constituent of the offence, but there is all the
difference between prohibiting an act and imposing a duty to do something on
the happening of a certain event. Unless a man knows that the event has
happened, how is he to carry out the duty imposed?
In 1949, Lord Goddard LCJ said53:
Actus non facit reum nisi mens sit rea is a cardinal doctrine of the criminal
law. No doubt the legislature can create offences which consist solely in doing
an act whatever the intention or state of mind of the actor may be ... of late
years the courts have been so accustomed to dealing with a host of offences
created by regulations and orders independent of guilty intention, that it is
desirable to emphasise that such cases should be regarded as exceptions to the
rule that a person cannot be convicted of a crime unless it is shown not only
that he has committed a forbidden act or default but also that a wrongful
intention or blameworthy condition of mind can be imputed to him.
This brings to mind the words of Wills J in R v. Tolson54:
Although, prima facie and as a general rule, there must be a mind at fault
before there can be a crime, it is not an inflexible rule, and a statute may relate
to such a subject-matter and may be so framed as to make an act criminal
whether there has been any intention to break the law or otherwise to do
wrong, or not. There is a large body of municipal law in the present day which
is so conceived. By-laws are constantly made regulating the width of
thoroughfares, the height of buildings, the thickness of walls, and a variety of
other matters necessary for the general welfare, health, or commerce, and such
by-laws are enforced by the sanction of penalties, and the breach of them
constitutes an offence, and is a criminal matter ... and in such a case the
substance of the enactment is that a man shall take care that the statutory
direction is obeyed, and that if he fails to do so he does so at his peril.

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51 Brend v. Wood (1946) 62 TLR 462 at p.463.

52 Harding v. Price [1948] 1 KB 695 at p.701 (failure to inform police of collision), following Nicholls
v. Hall (1873) LR 8 C P 322 at p.326, per Keating J.
53 Younghusband v. Luftig [1949] 2 KB 354 at p.370.
54 (1889) 23 QBD 168 at p.173.
 Presumptions 129

Alteration of the Existing Law

It is part of the law and custom of Parliament that an Act may be altered,
amended or repealed in the same session in which it was passed. This was
reflected in s.10 of the Interpretation Act 1889.55 The principle is embedded in
the assertion that Parliament as the legislative arm of government is the
supreme legislative authority. Incidental to this is the power to change, modify
or abrogate the law. Hence the principle that a present Parliament cannot fetter
the hands of a subsequent Parliament. A provision in an Act of Parliament
forbidding Parliament to amend that self-same Act would be void.

Conformity with the Constitution

The modern manifestation of this principle is found in the written

constitutions of many countries of the world today. The Constitution is the
fundamental law. It:
• contains the principles upon which the government is established;
• regulates the powers of the various authorities it establishes;
• directs the persons or authorities who shall or may exercise certain powers;
• determines the manner in which the powers it confers are to be confined or
exercised;
• specifies the limits to which powers are confined in order to protect
individual rights and prevent the abusive exercise of arbitrary power.
A constitution is the bedrock of constitutional government.
It usually confers the legislative power of the state on a Legislature and
then clothes that Legislature with the power to make laws for good order and
good government. But, the Constitution remains the supreme law. Thus a law
passed by the Legislature which is not in consonance with the spirit and the
letter of the Constitution will be declared an unconstitutional law56 – to the
extent of the contravention of, or inconsistency with, the Constitution. Hence
Chief Justice John Marshall could say in Marbury v. Madison57:
To what purpose are powers limited, and to what purpose is that limitation
committed to writing, if these limits may, at any time, be passed by those
intended to be restrained? The distinction between a government with limited
and unlimited powers is abolished, if these limits do not confine the persons
on whom they are imposed, and if acts prohibited and acts allowed are of
equal obligation. It is a proposition too plain to be contested, that the

__________________________________________________________________________________________________________________________________________

55 52 & 53 Vict c.63 And now see s.2 of the Interpretation Act, 1978, c.46.
56 Liyanage v. R [1967] 1 AC 259 PC; Ibralebe v. R [1964] AC 900.
57 1 Cranch 137, 2 L Ed 60 (1803).
130 Understanding Statutes

constitution controls any legislative act repugnant to it; or, that the legislature
may alter the constitution by an ordinary act... So if a law be in opposition to
the constitution; if both the law and the constitution apply to a particular case,
so that the court must either decide that case conformably to the law,
disregarding the constitution; or conformably to the constitution disregarding
the law; the court must determine which of these conflicting rules governs the
case. This is the very essence of judicial duty.
In Marbury v. Madison, the Supreme Court of the United States concluded
that ‘a legislative act contrary to the constitution is not law’.
However, in the United Kingdom, where there is no written constitution as
such, the exercise of the legislative sovereign power of Parliament cannot be
so treated. An Act of Parliament not in harmony with the existing
constitutional principles changes or abrogates the law. It thus nullifies the
principle of unconstitutionality rather than the Act being nullified by virtue of
the principle of constitutionality. So Lord Campbell could say that,
all that a Court of Justice can do is to look at the Parliament roll: if from that it
should appear that a Bill has passed both Houses and received the Royal
Assent, no Court of Justice can inquire into the mode in which it was
introduced into Parliament, nor into what passed in Parliament during its
progress in its various stages through both Houses.58
In other words, the power to control or modify the constitution resides in
the ordinary law-making powers of the Parliament of the United Kingdom.
The declared will of the Parliament at Westminster is the final law – save,
perhaps, the force of public opinion.59 But in jurisdictions with written
constitutions, the will of the Legislature is subordinate to, and must be
exercised in conformity with, the controlling instrument – the Constitution.
That Constitution governs the Executive, the Legislature and the Judiciary as
much as it governs the ordinary individual.
But what is the impact of a written constitution on the ordinary law of the
land where the Constitution, which is the supreme law, specifically saves what
is often described as the existing law? The existing law might be inconsistent
with, or in contravention of, the Constitution, particularly with respect to the
provisions relating to Fundamental Human Rights and Freedoms of the

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58 Edinburgh & Dalkeith Railway Co. v. Wauchope (1842) 8 Cl & F 710 at p.725 But see City of
London v. Wood (1701) 12 Mod 669 at p.687, where Holt CJ said that “if an Act of Parliament
should ordain that the same person should be party and Judge, or, which is the same thing, Judge in
his own cause, it would be a void Act of Parliament; for it is impossible that one should be Judge
and party, for the Judge is to determine between party and party, or between Government and the
party; and an Act of Parliament can do no wrong, though it may do several things that look pretty
odd” See also Day v. Savage (1614) Hob 85 at p.87: “Even an Act of Parliament, made against nat-
ural equity, as to make a man a Judge in his own case, is void in it self”.
59 In the Thatcher years, people defied the Poll Tax, the political consequences of which contributed to
the fall of the Prime Minister, Mrs Margaret Thatcher.
 Presumptions 131

Individual.
Section 26 of the Constitution of Barbados60 provides for the saving of the
existing law. It states that,
(1) Nothing contained in or done under the authority of any written law shall
be held to be inconsistent with or in contravention of any provision of sections
12 to 2361 to the extent that the law in question
(a) is a law (in this section referred to as “an existing law”) that was enacted or
made before 30th November, 1966,62 and has continued to be part of the
law of Barbados at all times since that day;
(b) repeals and re-enacts an existing law without alteration; or
(c) alters an existing law and not thereby render that law inconsistent with any
provision of sections 12 to 23 in a manner in which, or to an extent to
which, it was not previously so inconsistent.
(2) In subsection (1)(c) the reference to altering an existing law includes
references to repealing it and re-enacting it with modifications or making
different provisions in lieu thereof, and to modifying it; and in subsection (1)
“written law” includes any instrument having the force of law, and in this
subsection and subsection (1) references to the repeal and re-enactment of an
existing law shall be construed accordingly.
It is obvious that at the time of independence there would be laws on the
statute book which would be, or would become after the date of the
independence, inconsistent with the Constitution. Thus s.4(1) of the Barbados
Independence Order 196663 states that,
Subject to the provisions of this section the existing laws shall be construed
with such modifications, adaptations, qualifications and exceptions as may be
necessary to bring them into conformity with the Barbados Independence Act
1966,64 and this Order.
It must be emphasised that the Barbados Independence Act 1966 and the
Barbados Independence Order 1966 should be read together. They form part
of the constitutional order which gave independence to Barbados. In that
context, the existing law comprises the written and the unwritten law; that is to
say the statute law and the common law of Barbados are both saved. Thus in
any interpretation or construction of s.4(1) by reliance on the literal rule of

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60 The Schedule to the Barbados Independence Order, 1966, No. 1455 Other Constitutions have similar
provisions.
61 That is, the Fundamental Human Rights and Freedoms of the individual provisions of the
Constitution.
62 That is, the day on which Barbados became a sovereign, independent State.
63 1966 No. 1455.
64 1966 c.37.
132 Understanding Statutes

construction could produce unfortunate results and could work hardship

against a person despite the detailed provisions of Chapter III on the
Fundamental Human Rights and Freedoms of the Individual: ss 11 to 27.
This was brought to light in Re Clarke.65 The Magistrates Jurisdiction and
Procedure Act 195666 prevents a person from impeaching a conviction by a
magistrate on the ground that the magistrate had no jurisdiction to convict,
unless the objection to jurisdiction was taken at the trial. Section 24(3) of the
Constitution provides that, should a question arise as to the contravention of a
provision of Chapter III in proceedings before a court subordinate to the High
Court, the person presiding at the subordinate court
shall refer the question to the High Court unless, in his opinion, the raising of
the question is merely frivolous and vexatious.
Robert Clarke sought certiorari to quash his conviction by a magistrate
under the Public Order Act 1970.67 He argued that the magistrate should have
referred the constitutional issue to the High Court on the ground that the
Public Order Act violated his freedom of expression. The order for certiorari
was refused. The reason was, amongst other things, that the 1956 Act as an
existing law could not be held to be inconsistent with the provisions of the
Constitution relating to Fundamental Human Rights and Freedoms of the
Individual. Bearing in mind that s.24(3) uses the word shall, was it obligatory
for the magistrate to refer the issue to the High Court, or can it be said that to
allow the 1956 Act to prevail is to undermine s.24(3)?
The issue really is whether it can be argued that the existing law and the
common law guaranteed, in this respect, any rights of the individual prior to
the coming into force of the Constitution. What is the approach of the courts?
It would seem that the courts will not allow the existing law or the common
law to be used as a cloak for wrong-doing. Nor will the courts, equally, allow
the relevant provisions of the Constitution to be defeated merely by invoking
the existing law or the common law.
Practical necessity dictates the saving, in a written constitution, of the
existing law. The absence of such a saving provision would create an
intolerable vacuum. It would be chaotic. Since, however, the Constitution is
the supreme law, its express provisions cannot be whittled away by reliance on
the existing law which the Constitution has saved. The existing law and the
common law including equity are saved within the spirit of the Constitution.
Hence s.4(1) of the Independence Order, which provides for modifications,
adaptations, qualifications and exceptions which are necessary to bring the

__________________________________________________________________________________________________________________________________________

65 17 WIR 49 (1971) Barbados.

66 Cap 116.
67 Cap 168A.
 Presumptions 133

existing law into conformity with the Constitution.

South Africa and Zimbabwe provide some interesting examples. The
Bophuthatswana Constitution Act 1977 68 provides in s.7(1) that for
Bophuthatswana the Constitution shall be the supreme law. Chapter 2 provides
for Fundamental Human Rights. Section 7(2) provides that,
Any law passed after the date of coming into operation of the Constitution
which is inconsistent with the provisions thereof, shall to the extent of such
inconsistency, be void.
In S v. Marwane,69 it was argued before the Bophuthatswana Supreme
Court that the South African Terrorism Act 196770 which was in conflict with
the letter and the spirit of the Declaration of Fundamental Rights,
is irreconcilable with the terms of the Constitution, and is in fact so radically
opposed to it, that it can only continue to operate in Bophuthatswana in terms
of a specific provision to that effect.
Hiemstra J rejected that argument. He said that s.7(2) of the Constitution
is plain enough that only subsequent legislation was affected. Practically
speaking, there was no other way of reconciling existing legislation with the
declaration of Fundamental Rights. South African legislation continue to
apply … and the (Bophuthatswana) Government proceeded to adapt it to their
own needs as time and manpower allowed.
The Appellate Division71 rejected the reasoning of Hiemstra J. Millar JA,
speaking for the court, noted that there was no doubt that provisions of the
Terrorism Act conflicted with provisions of the Bophuthatswana Constitution.
Under the Terrorism Act, the accused person bore the onus of proving beyond
reasonable doubt the absence of certain essential elements of the offence. The
Bophuthatswana Constitution provides in s.12(7) that everyone charged with a
criminal offence shall be presumed innocent until proved guilty. Equally, the
Terrorism Act provided that no court may pronounce on the validity of a
detention or order the release of a detainee. Section 12(5) of the
Bophuthatswana Constitution provides the opposite. Millar JA stated that,
in respect of each of the ... points of conflict, the provision of the Constitution
with which the Terrorism Act is in direct conflict appears in Chapter 2 of the
Constitution – a chapter which is entitled “Declaration of Fundamental
Rights”. The “fundamental rights” proclaimed in the chapter are said in s.8(1)
to be “binding on the Legislature, the Executive and the Judiciary, and are
directly enforceable by law”. The concluding section of Chapter 2 provided

__________________________________________________________________________________________________________________________________________

68 No. 18 of 1977.
69 1981 (3) SA 588 at pp.589-90.
70 No. 83 of 1967.
71 1982 (3) SA 717 (AD) at p.745.
134 Understanding Statutes

that the “rights and freedoms” referred to in that chapter may be restricted
only by Parliament (of Bophuthatswana) and that except in circumstances
provided for in Chapter 2, a fundamental right and freedom shall not be totally
abolished or in its essence be encroached upon ….
The words “subject to the provisions of this Constitution” in s.93(1) of the
Constitution clearly govern the provision that laws in operation immediately
prior to the commencement of the Constitution are to continue in operation ....
When the legislator wishes to convey that which is now being enacted is not
to prevail in circumstances where it conflicts, or is consistent or incompatible
with a specified other enactment, it very frequently, if not almost invariably,
qualifies such enactment by the method of declaring it to be “subject to” the
other specified one. As Megarry J observed in C & J Clark v. Inland Revenue
Commissioners,72 “When there is no clash, the phrase ... ‘subject to’ ... does
nothing; if there is collision, the phrase shows what is to prevail …”.
The approach to interpretation of a Constitution, and more particularly one
that contains a declaration of human rights and freedoms, has recently been
discussed by Lord Wilberforce in Minister of Home Affairs & another v.
Collins MacDonald Fisher & Another.73 After observing that such an act
called for “a generous interpretation avoiding what has been called ‘the
austerity of tabulated legalism’, suitable to give to individuals the full measure
of the fundamental rights and freedoms referred to”, Lord Wilberforce went
on to consider an argument that provisions in the Act subsequent to the
declaration of fundamental rights should be construed as would any other Act
of Parliament. To this argument he said that there were two possible answers:
“The first would be to say that, recognising the status of the Constitution as, in
effect, an Act of Parliament, there is room for interpreting it with less rigidity,
and greater generosity, than other Acts .... The second would be more radical;
it would be to treat a constitutional instrument such as this sui generis, calling
for principles of interpretation of its own, suitable to its character as already
described, without necessary acceptance of all the presumptions that are
relevant to legislation of private law …”.
Of these two possible approaches it was the unanimous opinion of the Privy
Council that the second was to be preferred, but the judgment went on to
explain that this did not mean that no rules of interpretation should be applied
when construing a Constitution; respect had still to be paid to the language
used “and to the traditions and usages which have given meaning to that
language”. But consistently with recognition of “rules of interpretation”, the
Court interpreting a Constitution would also recognise “the character and
origin of the instrument and be guided by the principle of giving full
recognition and effect to those fundamental rights and freedoms with a
statement of which the Constitution commences…”.

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72 [1973] 2 All ER 513 at p.520.

73 [1980] AC 319 at pp.328-9.
 Presumptions 135

… whether our courts were to regard an Act creative of a Constitution as it

would any other statute, or as an Act sui generis, when construing a particular
provision therein, they would give effect to the ordinarily accepted meaning
and effect of the words used and would not deviate therefrom unless to give
effect to the ordinary meaning would give rise to glaring absurdity; or unless
there were indications in the Act – considered as a whole in its own peculiar
setting and with due regard to its aims and objects – that the legislator did not
intend the words to be understood in their ordinary sense. It appears to me,
therefore, that, if the words in issue have a clear and generally accepted
connotation and effect and there are no such indications as I have mentioned,
the result would be the same whether the accepted principles of interpretation
of statutes in our courts were applied or whichever of the possible approaches
referred to in the judgment of the Privy Council were adopted ….
… It was contended on behalf of [the] respondent that indications such as I
have referred to were present and the ... argument in support thereof was that
it was extremely unlikely, if not inconceivable, that the makers of the
Constitution would take over the whole body of existing laws ... to cover the
“transition period”, with the reservation that any of the laws so taken over
could, when they were in issue, be challenged on the ground of conflict with
the Constitution. Such a situation, it was contended, would result in
uncertainty regarding the validity of any law. I do not find this argument to be
convincing, or even persuasive. What it overlooks, or tends to give scant
weight to, is that, whatever interpretation is given to s.93(1), uncertainty
relating to the validity of laws is necessarily inherent in the terms of the
Constitution. Section 7(2) provides that any law passed after the date of
coming into operation of the Constitution, which is inconsistent with the
provisions thereof, “shall to the extent of such inconsistency, be void”. For so
long as this Constitution stands, the right to challenge the validity of
legislation passed by the legislative authority will remain, as will the Supreme
Court’s power – and its duty, when properly called upon so to do – to test the
validity of the challenged legislation by reference to the provisions of the
Constitution. This is usually a feature of systems in which a “Bill of Rights” is
enshrined in a Constitution, to which very many cases decided in the United
States of America bear irrefutable testimony …. There is no question here of
repeal with retrospective effect; the conflicting law is excluded by s.93(1)
from the body of existing law taken over by the new state ….
I have ... in this judgment referred to the embarrassing and undesirable
situation which the co-existence of conflicting provisions would bring about.
That remains true whether such co-existence was of long or short duration. A
simple example will suffice to demonstrate the sort of situation which I have
no doubt the makers of the Constitution were concerned to avoid. A person
taken into detention without trial in terms of the Terrorism Act, after 6
December 1977, in Bophuthatswana, might move the Court in terms of
s.12(5) of the Constitution for an order that he be released on the ground that
his detention was unlawful. If s.93(1) of the Constitution did not have the
136 Understanding Statutes

effect of rendering at least parts of the Terrorism Act inapplicable in

Bophuthatswana, as being in conflict with the Constitution, the Court would
be obliged ... to brush aside sections 7(1) and 12(5) of the Constitution and to
refuse to entertain the applicant’s suit at all. The applicant would then be
required to remain in detention, despite what might be called his “guaranteed”
or “entrenched” constitutional rights, for such period of time as might be
required to set in motion the legislative process for the repeal of the Terrorism
Act or part thereof. Whether such time was short or long, the situation created
by the continued applicability of laws in conflict with the Constitution would
be conducive to dissatisfaction amongst citizens of the new State who, not
without reason, would tend to regard as illusory the fundamental rights
afforded them by the Constitution. Such a situation would be detrimental to
the public interest ….
The effect of continued applicability of “inherited” laws in conflict with the
Constitution would be suspension, for an undefined period of time, of the
provisions of the Constitution affected by such conflicts. I can find nothing in
the Constitution Act to suggest an intention that the provisions … thereof ...
should remain in suspense at all; on the contrary … the clear indications are
that such provisions were forthwith to become operative ….
I am, in all the circumstances, unable to construe the words “subject to the
provisions of this Constitution” in the context of s.93(1) in any way other than
that laws in conflict with the Constitution are to be excluded from the laws
which in terms of that section are to continue in operation. Any other
construction would, in my view, constitute an unjustifiable departure from
their natural, ordinary meaning in the context of s.93(1) and in the context of
the Constitution Act as a whole, and would defeat the purpose of their
inclusion in the provisions of s.93(1) …. The result is that the Terrorism Act,
in the respects in which it is in conflict with the provisions of the Constitution,
is not applicable in Bophuthatswana and was not therefore applicable at the
time of the alleged contravention by the appellant ... for it was, effectively,
repealed by the Constitution to the extent of the conflict.’
In Minister of Home Affairs & others v. Dabengwa,74 the Zimbabwe
Supreme Court decided that in so far as they conflicted with the Zimbabwe
Constitution, the Emergency Powers (Maintenance of Order) Regulations
prohibiting detainees from instructing and consulting with their legal advisers
were invalid. The Supreme Court quoted with approval Lord Wilberforce’s
statement in Minister of Home Affairs & another v. Collins.75
Telford Georges CJ also quoted with approval from that judgment in

__________________________________________________________________________________________________________________________________________

74 1982 (4) SA 301.

75 [1980] AC 319 (PC).
76 1984 (2) SA 778 (ZSC) at p.782.
 Presumptions 137

Zimbabwe Township Developers (Pvt) Ltd. v. Lou’s Shoes (Pvt) Ltd76 He

observed that the presumption of constitutionality:
is a phrase which appears to me to be pregnant with the possibilities of
misunderstanding. Clearly a litigant who asserts that an Act of Parliament or a
regulation is unconstitutional must show that it is. In such a case the judicial
body charged with deciding that issue must interpret the Constitution and
determine its meaning and thereafter interpret the challenged piece of
legislation to arrive at a conclusion as to whether it falls within that meaning
or does not. The challenged piece of legislation may, however, be capable of
more than one meaning. If that is the position, then, if one possible
interpretation falls within the meaning of the Constitution and others do not,
then the judicial body will presume that the law makers intended to act
constitutionally and uphold the piece of legislation so interpreted. This is one
of the senses in which a presumption of constitutionality can be said to arise.
One does not interpret the Constitution in a restricted manner in order to
accommodate the challenged legislation. The Constitution must be properly
interpreted, adopting the approach accepted above. Thereafter the challenged
legislation is examined to discover whether it can be interpreted to fit into the
framework of the Constitution… Even where the Constitution does not make
it clear where the onus lies, as the Zimbabwe Constitution does, the onus lies
on the challenger to prove that the legislation is not reasonably justifiable in a
democratic state, and not on the state to show that it is. In that sense there is a
presumption of constitutionality.
Minister of Home Affairs v. Bickle & others77 concerned s.16(8)(b) of the
Zimbabwe Constitution. The section protected the individual against
compulsory acquisition by the State of that individual’s property except in
certain prescribed circumstances, including the property of the enemy. The
word enemy was not defined in s.113, which is the interpretation section of the
Constitution. Telford Georges CJ quoted with approval the words of Lord
Wright in James v. The Commonwealth of Australia78:
It is true that a Constitution must not be construed in any narrow and pedantic
sense. The words used are necessarily general, and their full import and true
meaning can often only be appreciated when considered, as the years go on, in
relation to the vicissitudes of fact which from time to time emerge. It is not
that the meaning of the words changes, but the changing circumstances
illustrate and illuminate the full import of that meaning …. The task of the
Court must be to interpret the Constitution, applying the normal canons, then
to interpret the challenged legislation, and then to decide whether a meaning
can fairly be placed on that legislation which enables it to fit within the
already determined constitutional framework ….

__________________________________________________________________________________________________________________________________________

77 1984 (2) SA 439 (ZSC).

78 [1936] AC 578 at p.614.
138 Understanding Statutes

Although the word [enemy] is not defined, its meaning does not appear to me
to be in doubt on all the authorities to which we have been referred. Indeed,
perhaps because of that, the need for definition did not arise. The word can
only be used in situations where there is a state of war or armed conflict.
Accordingly, an order made under the Emergency Powers (Forfeiture of
Enemy Property) Regulations 1981 was declared invalid, as the meaning of
enemy in the Regulations did not accord with the limited meaning of that term
in the constitutional guarantees, in that the Regulations purported to include
situations not amounting to war or armed conflict.
The conflict between the Constitution and the existing law as saved by the
Constitution is yet again illustrated by the Jamaican case of DPP v. Nasralla.79
In that case the Common Law and the written law were considered as co-
extensive with the Constitution by virtue of the saving by the Constitution of
the existing law, under a provision of the Constitution of Jamaica similar to
the Barbados provisions reproduced above. The effect of the Nasralla Case is
that
(a) the provisions on the Fundamental Human Rights and Freedoms of the
Individual
(i) could only be relied on where the right invoked can be proved to be a
right that existed immediately before the Constitution came into force;
(ii) could not be relied on where the right invoked could not have been
asserted but for the Constitution;
(b) the existing law under the circumstances must be reasonably justifiable in
terms of the spirit of the Constitution.

Conformity with the Case Law80

The relationship between Statute Law and Case Law is that case law pre-dates
the statute law. Thus in R v. Morris81 Byles J said:
It is a sound rule to construe a statute in conformity with the common law
rather than against it, except where and so far as the statute is plainly intended
to alter the course of the common law.
As such, an Act of Parliament
(a) may alter the common law: Barber v. Pigden82; Handley v. Handley83;
__________________________________________________________________________________________________________________________________________

79 [1967] 2 AC 238 (PC).

80 The term is used here to comprise both the Common Law and Equity.
81 [1867] LR 1 CCR 90 at p.95.
82 [1937] 1 KB 664 at p.677.
83 [1891] P 124 at p.127.
84 [1912] AC 305 at pp.309-311.
 Presumptions 139

(b) may exclude the operation of the common law: Leach v. R84;
(c) may extend the application of the common law to cases not previously
covered by the common law: Re Ludmore85;
(d) may merge the common law with the statute law: New Windsor
Corporation v. Taylor86;
The basic rule of construction, however, must be stated that where there is
a conflict between the case law and the statute law, the statute law will prevail:
Hammersmith Ry v. Brand.87 In all such cases the courts will not infer that a
statute intended to alter the common law. The provisions of the Act must be in
express terms:
It is a well-established principle of construction that a statute is not to be taken
as effecting a fundamental alteration in the general law unless it uses words
that point unmistakably to that conclusion.88

Conformity with the Existing Law

In Nokes v. Doncaster Amalgamated Collieries89 Lord Atkin applied the

presumption that the Legislature does not, except in clear terms or by
necessary implication, intend to make a substantial change in the existing law.
In that case Lord Atkin decided that a statutory transfer of property did not
include a contract of personal service. A person cannot be compelled against
his or her will to serve a master. This principle Lord Atkin regarded as being
so deep-seated in the common law that it can only be over-ruled by clear,
definite or positive enactment.90
The test to be applied is the principle Romilly MR laid down in Minet v.
Leman91:
the general words of the Act are not to be so construed as to alter the previous
policy of the law, unless no sense or meaning can be applied to those words
consistently with the intention of preserving the existing policy untouched.
The Legislature, it has already been stated, has the power to modify,
extend, alter or repeal an Act of Parliament. Therefore, as stated in Re

__________________________________________________________________________________________________________________________________________

85 (1884) 13 QBD 415.

86 [1899] AC 41.
87 (1869) 4 HL 171.
88 National Assistance Board v. Wilkinson [1952] 2 QB 648 (DC) per Devlin J.
89 [1940] AC 1014.
90 Ibid, at p.1033.
91 (1855) 20 Beav 269.
92 (1887) 36 ChD 573 at p.578.
140 Understanding Statutes

Williams,92
The provisions of an earlier Act may be revoked or abrogated in particular
cases by a subsequent Act, either from the express language used being
addressed to the particular point, or from implication or inference from the
language used.
Express repeals do not pose a problem. An Act of Parliament may
specifically provide that a particular Act or a provision of an Act is repealed.
However, there are instances where the subsequent Act does not specifically
repeal the earlier enactment, and questions do arise as to how much and to
what extent in those circumstances the later enactment had repealed the earlier
enactment. Fletcher Moulton LJ dealt with the issue in respect of the
Copyright Act 1842.93 This what he said in Macmillan v. Dent94:
The Act of 1842 did two things. It established a new copyright law and wiped
out all the old statutes relating to copyrights. For the sake of clearness I will
use the phrase “it had an enacting part and it had a repealing part”. The
enacting part must have full force given to it whatever be the pre-existing
statutes. If those provisions are contrary to those of the Act of Anne, these
provisions being in a later Act override and pro tanto extinguish the
provisions of the earlier Act. But apart from this, the repealing part wiped
these earlier Acts off the statute book. The consequence of this would have
been that all the rights which had been created under them and had not
expired would have been wiped out. The enabling part of the Act of 1842
applies only to books published after that date, but if the preceding statutes
had been wiped out simpliciter, all the books published before that date which
were then in the enjoyment of copyright would have lost their privilege.
In his view, however, that was not the intention and thus s.1 of the 1842
Act preserved the older Acts so far as was needed to secure rights already
acquired under the earlier Acts that had not then expired.
Express repeal is now effected
(a) by means of a Schedule which would specify the enactments to be
repealed, and the extent of the repeal;
(b) by Statute Law Revision, in which exercise any doubts about inconsistency
of enactments are dealt with;
(c) by consolidation, where the enactments incorporated in the consolidation
are specifically repealed;
(d) by codification, in which, like consolidation, the enactments incorporated
in the codification are specifically repealed.

__________________________________________________________________________________________________________________________________________

93 5 & 6 Vict c.45.

94 [1907] 1 Ch 107 at p.124.
 Presumptions 141

As has been noted, the effect of a repeal is that the enactment repealed is
completely obliterated – as if it had never been enacted. Now, Interpretation
Acts provide that, unless a contrary intention is expressed, the repeal of an Act
of Parliament does not
(a) revive an enactment or anything not in force or existing at the time when
the repeal takes effect;
(b) affect the previous operation of the enactment so repealed or anything duly
done or suffered thereunder;
(c) affect a right, a privilege, an obligation or a liability acquired, accrued,
accruing or incurred under the enactment so repealed;
(d) affect an offence committed against or a violation of a provision of the
enactment so repealed, or a penalty, a forfeiture or a punishment incurred
under the enactment so repealed; or
(e) affect an investigation, legal proceeding or remedy in respect of any such
right, privilege, obligation, liability, penalty, forfeiture or punishment;
and an investigation, legal proceeding or remedy as described in paragraph (e)
may be instituted, continued or enforced, and the penalty, forfeiture or
punishment may be imposed as if the enactment had not been so repealed.
There is also a presumption – the principle of implied repeal – that where
two Acts are inconsistent with each other the later is construed as having
repealed the earlier Act by necessary implication.95 The later Act is the latest
expression of the will of Parliament and the latest will prevails.96

The Jurisdiction of the Courts

The Judiciary is a vital and an indispensable component in constitutional

government. Its integrity and independence ensure the democratic operation of
constitutional government. The struggle to assert and, then, maintain the
independence of the Judiciary had been concomitant with the fight to establish
the liberty of the subject. Its success against despotism culminated in the Act
of Settlement 1700.97 It has stood as the custodian – and the bastion – of the
liberty and the dignity of the individual. As Lord Hewart, Lord Chief Justice,
put it in The New Despotism,
When, for any reason or combination of reasons, it has happened that there
has been lack of courage on the Judicial Bench, the enemies of equality before

__________________________________________________________________________________________________________________________________________

95 Paine v. Slater (1883) 11 QBD 120.

96 White v. Islington Corporation [1909] 1 KB 133; Ellen Estates v. Minster of Health [1934] 1 KB
590; British Columbia Electric Ry v. Stewart [1913] AC 816.
97 12 & 13 Will 3 c.2.
142 Understanding Statutes

the law have succeeded, and the administration of the law has been brought
into disrepute.
Independent of statute, the courts have at common law exercised the power
of review of administrative authority. With a written constitution, the
jurisdiction of the courts becomes peculiarly essential. The limitations
imposed by the constitution on persons and the various authorities it
establishes can only be preserved through the medium of the courts of justice.
Without that power, all constitutional guarantees fade into nothingness. The
interpretation and the construction of the laws, be they written or unwritten,
must of necessity be the peculiar province, ultimately, of the courts. All this is
now well recognised in all modern constitutions.
The Judiciary is the ultimate arbiter in which is vested the judicial power
of the State. It ensures the crucial balance between the State and the
individual, between one individual and another. We may well recall the words
of Abraham Lincoln98:
I do not forget the position assumed by some that constitutional questions are
to be decided by the Supreme Court, nor do I deny that such decisions must be
binding in any case upon the parties to a suit as to the object of that suit, while
they are also entitled to very high respect and consideration in all parallel
cases by all other departments of the Government. And while it is obviously
possible that such decision may be erroneous in any given case, still the evil
effect following it, being limited to that particular case, with the chance that it
may be overruled and never become a precedent for other cases, can better be
borne than could the evils of a different practice. At the same time, the candid
citizen must confess that if the policy of the Government upon vital questions
affecting the whole people is to be irrevocably fixed by decisions of the
Supreme Court, the instant they are made in ordinary litigation between
parties in personal actions the people will have ceased to be their own rulers,
having to that extent practically resigned their Government into the hands of
that eminent tribunal. Nor is there in this view any assault upon the Court or
the judges. It is a duty from which they may not shrink to decide cases
properly brought before them, and it is no fault of theirs if others seek to turn
their decisions to political purposes.

Judicial Review – The Supervisory Role

Marbury v. Madison99 established the principle of judicial review. Chief

Justice John Marshall asserted that,
The very essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever he receives injury.

__________________________________________________________________________________________________________________________________________

98 Inaugural Address in 1861, S Richardson, Messages and Papers of Presidents (1900).

99 1 Cranch 137, 2 L Ed 60 (1803).
 Presumptions 143

One of the first duties of government is to afford that protection ....

He emphasised that a government should be
a government of laws, and not of men … [and] where a specific duty is
assigned by law, and individual rights depend upon the performance of that
duty, it seems equally clear that the individual who considers himself injured,
has a right to resort to the laws of his country for a remedy...[for the] original
and supreme will organises the government, and assigns to different
departments their respective powers ... [therefore it] is emphatically the
province and duty of the judicial department to say what the law is.
It is not for some official, minor or major, to say what the law is. Thus in
Campbell’s Trustees v. Police Commissioners of Leith,100 Lord Hatherley said
The courts will hold a strict hand over those to whom the legislature has
entrusted large powers, and take care that no injury is done by extravagant
assertion of them.
The main grounds upon which the courts will now interfere to assert their
supervisory role are
(a) improper motives, including mala fides, in the exercise of a power;
(b) that the powers are exercised
(i) in an arbitrary manner, or
(ii) capriciously; and
(c) that the powers exercised are ultra vires the enabling power.
The due processes of the law by which this interference is now exercised is
by way of the issue of orders of certiorari, mandamus, prohibition and quo
warranto.

Certiorari

This is an order – formerly a prerogative writ – of common law origin. It is

issued from a superior court to an inferior court requiring the inferior court to
produce a record to be certified, that is to say, the proceedings before the
inferior court would be examined to determine whether there has been an
irregularity. It was first issued in the seventeenth century to control statutory
powers when proceedings were brought before the King’s Bench. If there was
an error on the face of the record the decision was quashed.
Now the remedy is available in cases where there is excess of jurisdiction,
want of jurisdiction, abuse of power and the exercise of powers which are
ultra vires. Certiorari, in the sense of a review of the record of an inferior
__________________________________________________________________________________________________________________________________________

100 (1870) LR 2 HL (Sc) 1 at p.3.

101 Walsall Overseers v. London & North Western Railway (1878) 4 App. Cas. 30.
144 Understanding Statutes

court, was thus originally a method of exercising judicial control. Evolution of

the process has led to its use as a supervisory weapon over the decisions of
tribunals and administrative authorities. 101 In R v. Northumberland
Compensation Appeal Tribunal ex p. Shaw,102 Denning LJ said:
‘We have here a simple case of error of law by a tribunal, an error which they
frankly acknowledge. It is an error which deprives Mr Shaw of the
compensation to which he is by law entitled. So long as that erroneous
decision stands, the compensating authority dare not pay Mr Shaw the money
to which he is entitled lest the auditor should surcharge them. It would be
quite intolerable if in such a case there were no means of correcting the
error.103

Mandamus

This order – originally a prerogative writ104 – is a command. Indeed, it

translates directly as ‘we command’. It issues from a superior court directed to
an inferior authority, whether private or municipal, administrative, executive or
judicial that a legal duty be done.105 But mandamus will not be granted where
there exists any other remedy which is swift, beneficial and effectual. It is a
wide discretionary power in the hands of the courts – and the judges jealously
guard the exercise of that power.

Prohibition

Prohibition is like certiorari. It is used to prevent an inferior court or tribunal

from exceeding its judicial or quasi-judicial powers or, indeed, from taking
cognisance of matters not within its jurisdiction to hear or to determine. It is,
though, prospective in character, not retrospective as in the case of certiorari.
Lord Atkin, in R v. Electricity Commissioners ex p. London Electricity Joint
Committee Co. (1920) Ltd.,106 said that he could
see no difference in principle between certiorari and prohibition, except that
the latter may be invoked at an earlier stage. If the proceedings establish that
the body complained of is exceeding its jurisdiction by entertaining matters

__________________________________________________________________________________________________________________________________________

102 [1952] 1 KB 338 at p.354.

103 See also R v. Logan ex p. McAllister [1974] 4 DLR 676; John East Ironworks v. Labour Relations
Board of Saskatchewan [1949] 3 DLR 51.
104 The prerogative writs of mandamus, prohibition and certiorari were abolished by the Administration
of Justice (Miscellaneous Provisions) Act, 1938, s.7 of which provides for orders of mandamus,
prohibition or certiorari.
105 Re Nathan (1884) 12 QBD 461; Stepney Borough Council v. John Walker & Sons Ltd. [1934] AC
365.
106 [1924] 1 KB 171 at p.206.
 Presumptions 145

which would result in its final decision being subject to being brought up and
quashed on certiorari ... prohibition will lie to restrain it from so exceeding its
jurisdiction.
And in R v. Greater London Council ex p. Blackburn,107 Lord Denning
MR said that prohibition
is available to prohibit administrative authorities from exceeding their powers
or misusing them. In particular, it can prohibit a licensing authority from
making rules or granting licences which permit conduct which is contrary to
law.

Quo warranto

This order was originally a prerogative writ in common law issued to test the
legality of the exercise of a power – ‘by what authority is the power exercised?’
It is intended to prevent the exercise of a power not conferred by law. It is not
used to regulate the manner of the exercise of a power lawfully conferred. It is
now an injunction used to prevent the usurpation of a public office.

Ousting the Jurisdiction of the Courts

Legislation has, occasionally, provided that,

the determination by the Minister of an application made to the Minister under
this Act shall not be called in question in a court of law.
This type of provision is normally referred to as an ouster clause – it is
intended to oust the jurisdiction of the courts. To a layman, a power of this
kind would seem to deprive the courts of jurisdiction over the Minister or any
other person or authority exercising an administrative or a judicial function.
The courts do not think so. The House of Lords has held in Anisminic Ltd. v.
Foreign Compensation Commission 108 that s.4(4) of the Foreign
Compensation Act 1950,109 which provided that the determination by the
Commission of an application shall not be called in question in a court of law,
did not protect any such determination from the jurisdiction of the courts.
The effect of Anisminic is that a provision of an Act of Parliament which
directly or indirectly protects a particular act or thing from the jurisdiction of
the Courts or manifests an insulation of that act or thing from interference by
the Courts will not be countenanced by the courts in respect of a remedy that
the Courts feel they are in a position to give.
__________________________________________________________________________________________________________________________________________

107 [1967] 1 WLR 550 at p.559.

108 [1969] 2 AC.
109 14 Geo 6 Ch 12.
110 (1670) 1 Mod 44.
111 (1686) 3 Mod 94.
146 Understanding Statutes

Ouster clauses have a long history. R v. Smith110 and R v. Plowright111

appear to be the earliest of the cases which deal with them. R v. Smith involved
the interpretation of a provision of the Ecclesiastical Leases Act 1571.112
Under that Act, a commissioner of sewer was not liable to make a return for
his actions. Some commissioners disobeyed writs of certiorari issued from the
King’s Bench to stop them rating land outside their jurisdiction and were duly
imprisoned for contempt. The courts would not tolerate the exercise of a
jurisdiction that was not subject to their control.
In R v. Plowright, statute imposed a tax on chimneys, and empowered the
Justices of the Peace, in a case of a dispute, ‘to hear and finally determine the
matter’. On an application for a writ of certiorari the court held that the
absence in the statute of a reference to certiorari did not mean that the remedy
by way of certiorari had been excluded. The courts have been consistent in
their dislike of attempts by the Legislature to oust or curtail their
jurisdiction.113
Lord Campbell CJ attributed the origin of this dislike to the contest for
fees in the early common law.114 In the eighteenth and early nineteenth
centuries, the courts were active in their use of the prerogative writ of
certiorari. Indeed, the proliferation of tribunals in England after the Second
World War led to the growth of the ouster clause, which was used by
Parliament to prevent the High Court from interfering with the decisions of
tribunals.115 The culmination of the determination of the courts to override
ouster clauses came with an obiter dictum of Lord Denning in Taylor v.
National Assistance Board116:
The remedy is not excluded by the fact that the determination of the Board is
by statute made “final”. Parliament gives the impress of finality to the
decisions of the Board only on the condition that they are reached in
accordance with the law; and the Queen’s courts can issue a declaration to see
that condition is fulfilled.

__________________________________________________________________________________________________________________________________________

112 13 Eliz Ch 10.

113 See R v. Morely (1760) 2 Burr 1040; Shipman v. Henbest (1790) 4 Term Rep 109; Balfour v. Malcol
(1842) 8 Cl & Fin 485; Smith v. Brown (1871) LR 6 QB 729; Oram v. Breary (1877) 2 Ex D 346;
Seaward v. The Vera Cruz (Owner), The Vera Cruz (1884) 10 App Cas 59; Payne v. Hogg (1900) 2
QB 43; Morris v. Loughborough Corporation (1908) 1 KB 205; Attorney-General v. Boden [1912]
1 KB 539; Re Vexatious Actions Act, 1896 [1915] 1 KB 21; R v. Nat Bell Liquors [1922] 2 AC 128;
Goldsake v. Shore [1950] 1 KB 708; Francis v. Yiewsley and West Drayton Urban District Council
[1957] 2 QB 136.
114 Scott v. Avery (1856) 5 HL Cas 811.
115 Dr Albert K Fiadjoe, Judicial Approaches to Constitutional and Statutory Exclusion of Judicial
Review in Commonwealth Caribbean Public Law: Commonwealth Caribbean Legal Studies, Ed G
Kodilinye & PK Menon, p.161.
116 [1957] AC 101 at p.111, affirmed in [1958] AC 532.
 Presumptions 147

Classification

Ouster clauses may be classified under three heads:

• constitutional ouster clauses;
• statutory ouster clauses;
• non-statutory ouster clauses.
A constitutional ouster clause is usually found in modern written
constitutions, where a provision of the constitution would aim at ousting or
restraining the jurisdiction of the courts on certain matters. When a statute
ousts or restrains the jurisdiction of the courts in respect of certain matters the
ouster is referred to as a statutory ouster clause. Apart from constitutions or
statutes, an agreement, a treaty or the rules of a voluntary organisation may
contain clauses that may be termed non-statutory ouster clauses.
In considering a non-statutory ouster clause a contract was held to be
illegal on the ground of public policy, in so far as its terms forbade the parties
to seek remedy in a court of law.117 Agreements which provide for the
submission of disputes to arbitration form an exception to this rule. Czarnikov
v. Roth, Schmidt & Co118 is authority for the proposition that the parties to an
agreement cannot wholly exclude access to the courts by making the decision
of an arbitration final.
In Baker v. Jones,119 the court held that a provision in the rules of a
voluntary association making its governing council the sole and ultimate
arbiter on the legal construction of the rules of the association was contrary to
public policy and thus void. Where a testator made a will incorporating an
ouster clause, it was held that a testator cannot wholly deprive the courts of
their jurisdiction to construe the terms of a will.120
Ouster clauses may take different forms. Attaching finality to the decisions
of an administrative authority was the first formula used by Parliamentary
Counsel to provide for the ouster clause. It has been extended to exclude
certiorari, and other formulae: ‘shall not be questioned’ clauses, time-limit
clauses, conclusive evidence clauses, ‘as if enacted in this Act’ clauses, Henry
VIII clauses, ‘if satisfied’ clauses, and exclusive jurisdiction or exclusive
remedy clauses.

Final Decisions

__________________________________________________________________________________________________________________________________________

117 Bennett v. Bennett [1952] 1 KB 249.

118 [1922] 2 KB 478.
119 (1954) 1 WLR 1005; and see also Walton v. Holland (1963) NZLR 729.
120 Re Raven [1915] Ch 673; Dundee General Hospital v. Walker [1952] 1 All ER (HL) 896.
121 (1760) 2 Burr 1040.
148 Understanding Statutes

In R v. Morely121 it was held that provision which provided that a decision

shall be final excluded only appeals and was thus not applicable to certiorari.
In Fraser v. City of Fraserville122 it was held that in making, under a statute,
the award of an arbitrator final and without appeal, the findings of fact of the
arbitrator were not free from challenge if there had been an excess of
jurisdiction, such as by assessing the value of the wrong thing.
Section 36(3) of the National Insurance (Industrial Injuries) Act, 1946123
provided that ‘... any decision on a claim or question ... shall be final …’ This
section was considered in R v. Medical Appeal Tribunal ex p. Gilmore.124 The
applicant, a colliery pick sharpener, sustained an injury to his good eye while
at work. The applicant claimed for a disablement benefit under the Act. The
final medical board made no award. The applicant then appealed to a medical
tribunal which, in making its award, assessed the injury at only 20%. The
Divisional Court refused leave to apply for certiorari, so the applicant then
moved the Court of Appeal which granted the request. Denning LJ said:
The word “final” is not enough. That only means “without appeal”. It does not
mean “without recourse to certiorari”. It makes the decision final on the facts
but not on the law. Notwithstanding that the decision is by statute made
“final”, certiorari can still issue for excess of jurisdiction or for error of law
on the face of the record.125
In Pearlman v. Keepers and Governors of Harrow School,126 the words
‘such determination shall be final and conclusive’ were considered. Lord
Denning MR said that the
words “final and conclusive” have been considered by the courts a hundred
times. It has been uniformly held that they preclude any appeal to a higher
court .... But those words do not preclude the High Court from correcting the
errors of the lower tribunal by means of certiorari – now called judicial
review. Notwithstanding that a decision is by a statute made “final and
conclusive”, certiorari can still issue for excess of jurisdiction or for error of
law on the face of the record ... or a declaration can be made by the High
Court to determine the right of the parties.127
In Jones v. Department of Employment128 the words ‘shall be final’ were
again considered. Glidewell L.J. observed in an obiter dictum129 that if the

__________________________________________________________________________________________________________________________________________

122 [1917] 34 DLR 211.

123 9 & 10 Geo 6 Ch 62.
124 [1957] 1 QB 574.
125 At p.583.
126 [1979] QB 56.
127 At p.68.
128 [1988] 2 WLR 493; [1989] 1 QB 1.
129 At p.19.
 Presumptions 149

decision-making process is flawed, as shown by error of law on the face of the

record, certiorari would issue to quash the decision. In South East Asia Fire
Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees
Union & Others130 the court was faced with the interpretation of s.29(3)(a) of
the Industrial Relations Act, 1967.131 The section provided that,
an award of the [Industrial] Court shall be final and conclusive, and no award
shall be challenged, appealed against, reviewed, quashed or called in question
in any court of law.
An application was made by the company to the High Court for an order
of certiorari to quash the award made by the Industrial Court. The ground of
the application was that there were errors of law on the face of the record. The
High Court held that the words of s.29(3)(a) were wide enough to oust the
jurisdiction of the High Court to review the decisions by certiorari, but that
the provision would not exclude the jurisdiction of the High Court if the
Industrial Court had exceeded its jurisdiction. Accordingly, there was power to
grant certiorari for an error of law on the face of the record of the award
which did not affect the jurisdiction of the Industrial Court. However, since the
application was based on errors of law on the face of the award, the High
Court had no jurisdiction to grant an order for certiorari, because there were
no such errors.
In R v. Coldham ex p. Australian Union132 the court held that s.60(1) of the
Conciliation and Arbitration Act 1904 did not operate to confer any
conclusive or quasi-conclusive character on the Commission’s finding on
preliminary questions. In Griffith v. Barbados Cricket Association,133 it was
held by the Judicial Committee of the Privy Council that s.6 of Act No. 12 of
1933[B], which had provided that ‘... the decision ... made shall be binding
and conclusive on all the parties without appeal’ could not exclude the
jurisdiction of the court where an allegation of a breach of natural justice had
been made.

No Certiorari

An Act of Parliament may provide that, ‘No proceedings touching the

conviction of an offender against this Act shall be removed by certiorari’.134
In R v. Wood135 there was a conviction under a by-law issued under the Public
__________________________________________________________________________________________________________________________________________

130 [1981] AC 363.

131 No.35 of 1967 (Malaysia).
132 (1983) 49 ALR 259.
133 (1989) 41 WIR 48.
134 Taken from s.137 of the Public Health Act of Canada.
135 (1855) 5 E & B 49; 119 ER 400.
136 11 & 12 Vict c.63.
150 Understanding Statutes

Health Act 1848.136 As a defence the validity of the by-law had been
challenged but the magistrate had refused to inquire into the challenge. On an
application for certiorari, the appellate court held that since the magistrate had
refused to hear the defence, the accused had been denied jurisdiction. The writ
of certiorari was granted.
Under the Public Health Act 1848, the right to certiorari is expressly taken
away by statute, but the courts would have none of that; they would rely on a
restrictive interpretation, or upon the proposition that Parliament could not
have intended that a tribunal with limited jurisdiction should have the right to
exceed its authority without the possibility of direct supervision by the
appropriate higher court. Thus the courts have persistently declined to apply
the rule of literal interpretation in the circumstances. The position then is this:
that certiorari would be issued notwithstanding the presence of words taking
away the right to apply for it. The grounds for the interference by the courts
are that
(a) the inferior tribunal
(i) was improperly constituted, as where some of the members of the
tribunal had interests which should have been disclosed137;
(ii) lacked or exceeded its jurisdiction because of the nature of the subject-
matter or the failure to observe the essential preliminaries138;
(iii)had deviated from the prescribed procedure139;
(b) the act in question is an infringement of a rule of natural justice140;
(c) there is a total absence of jurisdiction.141
The early leading case on certiorari is Colonial Bank of Australia & Other
v. William.142 That case laid down the proposition that the effect of a ‘no
certiorari’ clause is not to oust entirely the powers of the superior court to
issue certiorari. If a party makes a fraudulent use of the processes of a court,
and no remedy is to be had in that court, the parties aggrieved may obtain
relief by regular suit in the appropriate competent court. In R v. Medical
Appeal Tribunal ex p. Gilmore143 the Court of Appeal considered the finality
and no certiorari clauses. Referring to the no certiorari clause, Denning LJ
observed:

__________________________________________________________________________________________________________________________________________

137 R v. Cheltenham Commissioners (1841) 1 QBD 467.

138 R v. Hurst ex p. Simth [1960] 2 QB 133.
139 R v. Chairman of General Sessions at Hamilton ex p. Atterby (1959) W W R 800 at p.806.
140 Ridge v. Baldwin [1964] AC 40.
141 Ex p. Bradlaugh [1878] 3 QB 509.
142 (1874) LR 5 PC 417 at p.442.
143 [1957] 1 QB 574.
 Presumptions 151

I find it very well settled that the remedy by certiorari is never to be taken
away by any statute except by the most clear and explicit words.
It is submitted that even clear and explicit words are not enough to oust the
jurisdiction of the courts. In Anisminic v. Foreign Compensation144 the House
of Lords stated:
Mandamus, prohibition, certiorari and habeas corpus are all writs which will
be granted where what the inferior tribunal has done is a nullity ….
The root principle is that if the order, decision or determination is not a
determination at all, it is not within the Act and there is nothing on which the
ouster clause can bite.

Shall not be questioned

Anisminic Ltd. v. Foreign Compensation Commission145 laid to rest the use in

an Act of Parliament of the expression shall not be questioned in a court of
law. In that case the Foreign Compensation Act 1950146 provided in s.4(4) that
a determination by the Commissioners shall not be called in question in any
court of law. The dispute arose from an agreement between the Government
of Egypt and the government of the United Kingdom that a sum of money be
paid by the Government of Egypt to provide compensation for the benefit of
British companies and of persons whose property had been lost or damaged in
the 1956 Suez incident, and subsequent expropriations of British property by
the Government of Egypt.
The United Kingdom Government entrusted the distribution of the
compensation to the Foreign Compensation Commission. The statutory
instrument defining the powers of the Commission in relation to applications
arising out of the Suez incident contained provisions, complicated and
obscure, as to the nationality of applicants for compensation.
The object was to ensure that only those of British nationality received
compensation, be they the original owners of the property lost or damaged, or
their successors in title. Anisminic Ltd. was a British company but its property
had been first sequestrated and then sold to an Egyptian organisation.
The Commission interpreted the statutory instrument defining applicants
for compensation as excluding Anisminic because their successor in title was
of Egyptian nationality. The House of Lords held that the Commission had
misconstrued the instrument because where the original owner of the property
claimed that he was British, the nationality of his successor in title was
irrelevant.
__________________________________________________________________________________________________________________________________________

144 [1969] 2 AC 147 at pp.164-165.

145 [1969] 2 AC 147.
146 14 Geo 6 Ch 12.
152 Understanding Statutes

The Commission had considered a matter totally irrelevant to the questions

which they had been granted jurisdiction to determine. Accordingly they had
exceeded their jurisdiction and their purported determination was not valid. As
such it was not protected by the provision preventing a proper determination
of the Commission being questioned in the courts.
Anisminic established the basic principle that if an authority or tribunal
exceeds its jurisdiction then its decision is regarded by the courts as invalid
and beyond the protection of any exclusionary formula previously used by
Parliamentary Counsel. In Attorney-General v. Ryan the Privy Council held
that a Minister’s refusal of an application for citizenship without a fair hearing
could be challenged notwithstanding a provision that such a decision shall not
be subject to appeal or review in a court of law.
In R v. Miall,147 s.41(3) of the Criminal Justice Act 1988 148 was in
question. The section provided that a magistrate court’s decision to commit a
defendant for trial under s.41(1) of the Act ‘… shall not be subject to appeal
or liable to be questioned in any court’. It was held that these words did not
prevent the quashing of a criminal order which went beyond the powers
conferred by s.41(1). Tudor Evans J said149:
We interpreted the language of sub-section (3) as meaning that a lawful
decision by a Magistrates’ Court cannot be subject to appeal or questioned,
but that, where the court has reached a decision for which there is no legal
basis whatsoever and has therefore acted in excess of jurisdiction, then … the
decision is a nullity and an application lies to quash the decision to commit.

Time limit clause

The form of this type of ouster clause may be as follows:

(3) Where a person aggrieved by an order desires to question its validity on
the ground that the order is not within the powers of this Act or that a
requirement of this Act has not been complied with, that person may, within
six weeks after the publication of the notice of confirmation, make an
application to the High Court ….
(4) … an order shall not, either before or after its confirmation be questioned
by prohibition, or certiorari or in any legal proceedings, and shall become
operative on the expiration of six weeks from the date on which notice of its
confirmation is published ….
It appears that if the application is made to the High Court within six
weeks, the normal rights of appeal to the higher courts may be exercised
__________________________________________________________________________________________________________________________________________

147 [1992] 3 All ER 153 at p.158.

148 C33.
149 At p.158.
150 See (1975) 38 MLR 274 (J Alder).
 Presumptions 153

without restriction as to time. But this statutory formula has generated many
problems150 of which three in particular stand out:
(a) is the judicial review absolutely cut off after six weeks?
(b) what is the scope of the review if the action is duly brought within the six
weeks?
(c) what is the meaning of ‘a person aggrieved’?
Before Anisminic, the authorities held that after the expiry of the specified
period judicial review of the validity of the order was absolutely cut off. In
Smith v. East Elloe Rural District Council,151 it was alleged that a local
authority had taken land for housing under a compulsory purchase order made
wrongfully and in bad faith. The House of Lords refused to allow the action to
proceed since it was brought outside of the specified period, that is, more than
six weeks after publication of the notice of confirmation. Viscount Simonds
said that
anyone bred in the tradition of the law is likely to regard with little sympathy
legislative provisions for ousting the jurisdiction of the court, whether in order
that the subject may be deprived altogether of remedy or in order that his
grievance may be remitted to some other tribunal ….
... two things may, I think, fairly be said. First, if the validity of such an order
is open to challenge at any time within the period allowed by the ordinary
Statute of Limitations with the consequence that it and all that has been done
under it over a period of many years may be set aside, it is not perhaps
unreasonable that Parliament should have thought fit to impose an absolute
bar to proceedings even at the risk of some injustice to individuals. Secondly,
the injustice may not be so great as might appear. For the bad faith or fraud on
which an aggrieved person relies is that of individuals, and this very case
shows that, even if the validity of the order cannot be questioned and he
cannot recover the land that has been taken from him, yet he may have a
remedy in damages against those individuals.152
East Elloe was distinguished in Anisminic. Lord Reid did not regard the
former case (in which he had dissented) as very satisfactory. It was not certain,
he said, whether the plaintiff was claiming that the authority which made the
order had itself acted in bad faith, in which case the order would be a nullity;
or whether the plaintiff was alleging that the clerk had fraudulently misled the
Council and the Ministry, in which case the result would be different.
East Elloe was considered by Lord Reid and Lord Pearce as not a binding
authority and Lord Wilberforce said that he could not regard it as a reliable
solvent of a similar case. The House of Lords did not suggest that there was a

__________________________________________________________________________________________________________________________________________

151 [1956] AC 736.

152 At pp.750, 752.
154 Understanding Statutes

fundamental difference between an absolute ouster clause and an ouster clause

which operated only after a prescribed period; if anything they tended to
emphasise their similarity. The question therefore is whether an order
protected by a time limit ouster clause can be challenged in proceedings
brought after the expiry of the time limit on any grounds which would render
it ultra vires, such as bad faith, wrong grounds or a violation of a rule of
natural justice, in accordance with the principles of Anisminic.
It may be argued that public authorities would be in an impossible position
if compulsory purchase orders, housing orders, planning orders and similar
orders were exposed to invalidation by the courts after public money had been
invested in, say, building on land compulsorily acquired. It may be further
argued that there is a clear distinction between a complete ouster clause and a
time limit ouster clause.
The latter might well be regarded not as ousting the jurisdiction of the
courts but merely confining the time limit within which it can be invoked.
Also, these time limit clauses may be considered as being analogous to
limitation of actions. There is no judicial criticism of statutes of limitation
where after a certain period of time a claim is time-barred and the jurisdiction
of the courts to entertain a suit is ousted; and their effect is exactly akin to that
of an ouster clause. On this basis East Elloe and Anisminic can be reconciled.
The time limit ouster clause again came in issue in R v. Secretary of State
for the Environment, ex p. Ostler 153 in which the Court of Appeal
distinguished Anisminic from East Elloe and applied the decision in East
Elloe. The details of the case were that a breach of natural justice and bad faith
were alleged in a case of a compulsory purchase order for a trunk road
scheme, under which much work had already been done, but which the
complainant had not challenged within six weeks because he had not known
of the supplementary plans which would affect his property.
Lord Denning MR expressly mentioned the analogy with a limitation
period and pointed also to the public interest in imposing finality where action
had already been taken under the disputed orders. The House of Lords refused
leave to appeal.
In R v. Cornwall County Council, ex p. Huntington,154 paragraph 12 of
Schedule 15 of the Wildlife and Countryside Act, 1981,155 was in issue. That
paragraph provided, inter alia, that,
if any person is aggrieved by an order … he may within 42 days … make an
application to the High Court … Except as provided by this paragraph, the
validity of an order shall not be questioned in any legal proceedings

__________________________________________________________________________________________________________________________________________

153 [1977] QB 122.

154 [1992] 3 All ER 566.
155 C.69.
 Presumptions 155

whatsoever.
It was held that where a statute contained a standard form of preclusive
clause proscribing an opportunity for challenge on specified grounds together
with the period within which that challenge could be made and proscribing a
challenge outside that period, questions as to the invalidity of action taken
under that statute could only be raised on the specified grounds in the
prescribed time and manner.
The jurisdiction of the court was excluded in the interest of certainty in
respect of any other challenge irrespective of whether the body whose
decision was sought to be impugned was quasi-judicial or administrative and
whether or not the decision sought to be impugned was fundamentally invalid.
It followed that the court had no jurisdiction to grant judicial review of a right
of way order and the grant of leave to apply for judicial review would
accordingly be set aside. East Elloe and ex p. Ostler were applied.
But is the decision in ex p. Huntington correct? The facts of East Elloe and
ex p. Ostler were different from the facts of Huntington; here, lack of
jurisdiction and fundamental invalidity were in issue. It could be argued that
when an order is made without jurisdiction, it is not tenable in law, but it
should not be argued that Parliament had the intention of protecting an invalid
order after the lapse of the prescribed time. In the instant case, the applicant
was waiting for a local inquiry and the time lapsed. Was the applicant at fault?
Should not the court have made an adjudication on the allegations made by the
applicant?

Conclusive evidence clause

Section 98(2) of the Companies Act 1948156 provided that a certificate given
by a Registrar for the registration of a charge in pursuance of that Act, stating
the amount thereby secured, was ‘conclusive evidence’ as to the compliance
with the requirements of the Act. In R v. Registrar of Companies, ex p. Central
Bank of India,157 it was held that the section precluded the court from
considering evidence to show that the requirements as to registration had not
been complied with. But the European Court of Justice in Johnson v. Chief
Constable of the Royal Ulster Constabulary158 held that making a certificate
conclusive evidence is unlawful.
It does appear that, on the authority of these cases, a challenge which does
not depend on evidence relating to the correctness of the certificates will not
be excluded. Where a certificate is obtained by forgery, challenges would be
__________________________________________________________________________________________________________________________________________

156 11 & 12 Geo 6 Ch 38.

157 [1986] 1 QB 1114.
158 [1987] QB 129.
159 [1990] 96 ALR 251.
156 Understanding Statutes

available – a forged certificate is a nullity. In Sharpe v. Goodhew159 it was held

that the conclusive evidence provisions in a 1916 Australia Act could not give
power to an officer to validate anything which was void ab initio.

As enacted in this Act

There have been instances where an enabling Act has provided that
subordinate legislation made thereunder has effect as if enacted in this Act.
The intention would appear to be to make such subordinate legislation
immune from review in the same way as the parent legislation is immune from
review. In Institute of Patent Agents v. Lockwood,160 a majority of the House
of Lords held that the provision made the Regulations unquestionable by a
court of law as if they were actually incorporated in the Act. But in 1931, the
House of Lords found a more reasonable solution in a case under the Housing
Act 1925,161 Minister of Health v. ex p. Yaffe.162 Here the Minister of Health
had power to confirm a housing scheme and the Act had provided that the
order when made shall have effect as if enacted in this Act. It was held that the
Minister
was empowered to confirm only schemes which conformed to the Act; if the
scheme itself conflicted with the Act, the order was not an order within the
meaning of the Act, and was not saved by the clause.
Yaffe was followed by the Manitoba Court of Appeal in MacCharles v.
Jones.163 In the latter case the Court questioned the validity of rules that were
declared by the legislature to have effect as if embodied in and as part of the
Act under which they were made. Until the later part of the nineteenth century,
it was not unusual for an Act of Parliament to provide that Regulations made
under the Act would have the same effect as if enacted in the Act. A statute of
that nature would confer authority to make Regulations, but might not
expressly confer authority to prescribe penalties for breach of a regulation.
The statute itself would prescribe a penalty but only for breach of a provision
of the Act. The provision that the Regulations should have the same force and
effect as if enacted in this Act was regarded as incorporating the Regulations
into the Act for the purpose of making the penalty section applicable to a
breach of the Regulations.

Henry VIII clause

__________________________________________________________________________________________________________________________________________

160 [1804] AC 347.

161 15 Geo 5 Ch 14.
162 [1931] AC 494.
163 (1939) 1 WLR 133.
 Presumptions 157

Parliament may delegate to a subordinate authority a power to amend an Act

of Parliament. This is not desirable but it has been done and still could be
done. The clause by which it originated was referred to as the ‘Henry VIII
clause’ – because ‘that king is regarded popularly as the impersonation of
executive autocracy’.164 The object was to assist in bringing a new Act into
effect, particularly in cases where previous legislation had been complicated,
or where there might be local Acts of Parliament which had to be harmonised.
Examples are to be found in many Acts.165
A Henry VIII clause was considered by the House of Lords in the Institute
of Patent Agents v. Lockwood.166 It was held that the courts would not interfere
to scrutinise the validity of a scheme made under a wide statutory provision. It
is submitted that if the modification or amendment affected is beyond the
intention of the legislature, the door would be open to judicial review on a
purely jurisdictional ground. This type of provision is now used to amend the
Schedule to an Act and would not be used to achieve a substantive amendment
of the law.

Subjective formulae – if the Minister is satisfied

In delegating statutory powers, an Act of Parliament may provide that the

Minister or the relevant authority may perform a certain function if the
Minister is satisfied ... or if it appears to the Minister so to do …
The intention is to make the Minister or the relevant authority the sole
judge of the existence of the conditions which make the power exercisable. It
had been argued that in such a case instead of judging objectively whether the
conditions do, in fact, exist, the court is merely to judge subjectively whether
the requisite state of mind exists in the Minister or the relevant authority. But
the courts detest legislative devices that make public authorities the sole
judges of the extent of the powers conferred which in effect exempt such
authorities from judicial control.
There is a subjective element in the exercise of a discretionary power.
Expressions such as if the Minister is satisfied differ only in degree from a
power to act as the Minister thinks fit. The limits of that type of power are that
the Minister must act reasonably, in good faith and upon proper grounds. But
then in using subjective language, the discretion granted may be exceptionally
wide. Regulation 18B of the Defence (General) Regulations, 1939, gives a
very wide discretion: if the Secretary of State had reasonable cause to believe
__________________________________________________________________________________________________________________________________________

164 Report of the Committee on Ministers Powers (Donoughmore Report), 1932 Cmnd 4060.
165 For example, National Insurance Act, 1911; Factories Act, 1961; Sex Discrimination Act, 1975,
European Communities Act, 1972.
166 [1894] AC 347.
167 [1942] AC 206.
158 Understanding Statutes

a person to be of hostile origin or association, the Secretary of State would

direct that person to be detained.
Matters came to a head in Liversidge v. Anderson.167 The House of Lords
eventually held that the discretion conferred on the Secretary of State under
Regulation 18B was a matter outside the control of the courts. The courts
could not inquire into the necessity of the exercise of the discretion. Lord
Atkin dissented. His judgment is regarded today as the correct one. In R v.
Inland Revenue Commissioners ex p. Rossminster,168 Lord Diplock stated that
for his part he thought
the time [had] come to acknowledge openly that the majority of [the House of
Lords] in Liversidge v. Anderson were expediently and, at that time, perhaps
excusably wrong and [that] the dissenting speech of Lord Atkin was right.
In Thornloe & Clarkson Ltd. v. Board of Trade,169 the Board of Trade was
authorised to establish by order a development council for an industry where
the Board or the Minister was satisfied that the establishment was desired by a
substantial number of persons engaged in the industry. It was held that it was
for the Minister or the Board to assess whether the requirement had been
fulfilled. In Chitambazam v. King Emperor,170 the Act under consideration
authorised the Governor to issue a Proclamation if at any time the Governor
was ‘satisfied that a situation has arisen in which the government of Burma
cannot be carried on’. A Proclamation was issued in which it was recited that
the Governor was so satisfied. Lord Wright171 citing as authority Liversidge v.
Anderson172 said that,
as no suggestion is made that the Governor acts otherwise than in good faith,
this declaration cannot be challenged.
In Jones v. Robson,173 it was held that the fact that a Secretary of State
made an order was sufficient evidence that the Secretary of State was so
satisfied. In R v. Comptroller General of Patents ex. p. Bayer Products Ltd174
Scott LJ said that,
the effect of the words “as appears to him to be necessary or expedient” is to
give to His Majesty in Council a complete discretion to decide what

__________________________________________________________________________________________________________________________________________

168 [1980] AC 952.

169 [1950] 2 All ER 245. See also Adegbenro v. Akintola [1963] AC 614.
170 [1947] AC 200.
171 At p.207.
172 [1942] AC 206.
173 [1901] 1 QB 673.
174 [1941] 2 KB 306.
175 At pp.311, 312.
 Presumptions 159

regulations are necessary for the purposes named in the subsection. That being
so, it is not open to His Majesty’s Courts to investigate the question whether
or not the making of any particular regulation was in fact necessary or
expedient for the specified purposes.175
In Point of Ayr Collieries v. Lloyd George176 the court again considered
similar provisions and held that the court had no jurisdiction to interfere with
the Minister’s decision, and that the Minister was the sole judge whether or
not a case for the exercise of the powers had arisen. In the Chemicals
Reference177, Chief Justice Duff held that every Order-in-Council, every
regulation and every rule derives its legal force solely from the enabling Act of
Parliament which creates the power and not from the executive body by which
they are made. He refused to entertain any arguments based upon the
considerations which led to the making of the Regulations.
It is submitted that if on the face of the Regulations it is apparent that the
regulation-making authority could not have been satisfied as to the existence
of certain facts as required by the statute, the Regulations would presumably
be ultra vires. Thus the court can inquire into the validity of a set of
Regulations, although the regulation-making authority was satisfied with the
necessity for making it, if other conditions are not fulfilled, e.g. publication,
laying before Parliament, good faith, reasonableness, consultation, error of
material fact or of law.178
In Ross-Clunis v. Papadopoullos & Others, 179 the Privy Council
considered the words if satisfied and held:
If it could be shown that there were no grounds on which the appellant could
be so satisfied, a Court might infer that he did not honestly form that view or
that, in forming it, he could not have applied his mind to the relevant facts.
In Secretary of State for Employment v. Associated Society of Locomotive
Engineers and Firemen and Others (No. 2)180 the Secretary of State had
statutory power to seek a secret ballot order where it appeared to him that
certain circumstances existed. Could the correctness or reasonableness of the
Secretary of State’s belief as to the existence of those requisite circumstances
be challenged? Lord Denning MR said that,
the Minister’s decision is [not] put beyond challenge. The scope available to the
challenger depends very much on the subject matter with which the Minister is
dealing. In this case I would think that, if the Minister does not act in good faith,

__________________________________________________________________________________________________________________________________________

176 [1943] 2 All ER 546.

177 [1943] SCR 1 at p.13.
178 Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] AC
1014; Laker Airways Ltd. v. Department of Trade [1977] QB 643.
179 [1958] 2 All ER 23 per Lord Morton of Henryton at p.33.
180 [1970] 2 QB 55 at p.493.
160 Understanding Statutes

or if he acts on extraneous considerations which ought not to influence him, or if

he plainly misdirects himself in fact or in law, it may well be that a court would
interfere; but when he honestly takes a view of the facts or the law which could
reasonably be entertained, then his decision is not to be set aside simply because
thereafter someone thinks that his view was wrong.
He then excused the emergency procedure by saying:
It has to be set in motion quickly, when there is not time for minute analysis
of fact or of law.

Exclusive remedy

An Act of Parliament may make specific provision for the availability of a

particular remedy to persons adversely affected by action taken by an
administrative agency under the Act. The question then arises whether that
remedy should be considered as exclusive of other remedies. We are here
concerned, however, with the situation where no such express statement of
statutory intention can be found. In what circumstances will the courts infer
from the provisions of a specific remedy that that remedy is to be exclusive?
In Barraclough v. Brown,181 a harbour authority was empowered by statute
to recover from a vessel’s owner the expenses it had incurred in removing the
vessel from the harbour in which it had sunk. The expenses, which would not
have been recoverable at Common Law, were under the statute made
recoverable summarily before the magistrates. The harbour authority sought
instead a declaration from the High Court as to its entitlement to the expenses.
The House of Lords refused to grant a declaration and held that the only right
conferred by statute is to recover such expenses from the owner of the vessel
in a court of summary jurisdiction.
The Barraclough principle was applied in Healey v. Minister of Health.182
It was held that the procedure by way of a declaration could not be resorted to,
in a case where the statute has provided a different remedy in respect of
disputes in question. Even if the statute did not mention the remedy to be
exclusive, it would be considered as being exclusive. But in Pyx Granite Co.
Ltd. v. Minister of Housing,183 the appellants sought a declaration of their
Common Law rights to quarry their land without the need to obtain
permission under the Town and Country Planning Act 1947.184
It was urged that the appellant had to apply to the local planning authority,
with a right of appeal therefrom to the Minister, whose decision was to be

__________________________________________________________________________________________________________________________________________

181 [1897] AC 615.

182 [1954] 2 QB 221.
183 [1970] AC 260. See also Slough Estates v. Slough Borough Council [1968] Ch 299.
184 10 & 11 Geo 6 Ch 51.
 Presumptions 161

final. The House of Lords rejected this argument and held that the principle in
Barraclough v. Brown did not apply. Viscount Simonds explained:
The appellant company are given no new right of quarrying by the Act of
1947. Their right is a Common Law right and the only question is how far it
has been taken away. They do not uno flatu claim under the Act and seek a
remedy elsewhere. On the contrary, they deny that they come within its
purview and seek a declaration to that effect. There is, in my opinion, nothing
in Barraclough v. Brown which denies them that remedy, if it is otherwise
appropriate.

Constitutional ouster clauses

Where a constitution provides for ousting the jurisdiction of the courts, a

serious problem arises in the interpretation of such ouster clauses. It had been
argued185 that these clauses must be taken at face value since they represent
the clear policy intent of the founding fathers of the constitution that certain
questions should not be reviewed by the courts. This argument may apply
where the constitution specifically ousts the jurisdiction of the courts in
respect of certain discretions ascribed to the Head of State. The Head of State
has certain immunities from civil and criminal proceedings during the
prescribed term of office. Thus an ouster clause protecting the discretion of the
Head of State from interference by the courts is made in conformity with the
immunities enjoyed by the Head of State.186
Thus where the constitution itself ousts the jurisdiction of the courts, ‘the
courts lose their jurisdiction to entertain those questions altogether because
they have no power to override the constitution and the questions, accordingly,
become unjusticable.’ This view was applied by Hyatali CJ in Harrikissoon v.
Attorney-General of Trinidad and Tobago.187 He said he was
firmly of the opinion that a court would be acting improperly if a perfectly
clear ouster provision in the constitution of a country which is its supreme law
is treated with little sympathy or scant respect, or is ignored without strong
and compelling reasons.
Does this mean that the door is left open to review a constitutional ouster

__________________________________________________________________________________________________________________________________________

185 Dr Basu, Constitution of India (1965) Vol 1 p. 338.

186 See, for example, the Constitution of the People’s Republic of Bangladesh. The proviso to clause (3)
of article 48 protects the advice tendered by the Prime Minister to the President from any question
in a Court Clause (5) of article 55 protects the President’s attestation or authentication of an order.
Article 5 provides for the Immunities of the President from legal proceedings Article 98(2) of the
Constitution of Trinidad and Tobago provides for the protection of the President’s discretion.
187 [1981] AC 265.
162 Understanding Statutes

clause in the face of ‘strong and compelling reasons’? If so, what would those
reasons be? Dr Albert K. Fiadjoe188 supplies a very rational answer:
‘Any evidence of an “offence” against the constitution is enough to satisfy the
test of strong and compelling reasons without necessarily having to draw the
distinction between administrative, judicial and quasi-judicial functions.’
In Kesavananda v. State of Kerala 189 the Supreme Court of India
considered a constitutional ouster clause. Article 13c of the Constitution was
incorporated by way of the Twenty-fifth Amendment to the Constitution. It
provided that
Notwithstanding anything contained in article 13, no law giving effect to the
policy of State … shall be called in question in any court.
The Supreme Court held this ouster clause of the Constitution to be ultra
vires the Constitution and declared it invalid. The second part of that article
which ousted the jurisdiction of the courts was struck down. But, for
constitutional cases, the most important case is Smt. Indira Gandhi v. Raj
Narain.190 It arose from a dispute over Mrs Indira Gandhi’s election to the
Lok Sabha in 1971 when the validity of the Constitution (Thirty-ninth
Amendment) Act 1975 was challenged.191 By that Amendment Act, Article
329A(4) and (5) was inserted.
The amending article provided that a dispute as to the election of the Prime
Minister and of the Speaker would be resolved by Parliament itself, that the
existing law for determining election disputes would not apply to the election
of the Prime Minister and of the Speaker, that the disputed election of the
Prime Minister, Mrs Indira Gandhi, was valid and that the election petition
against her abated. The Supreme Court declared the Amendment Act invalid
and held that Parliament, by declaring the disputed election ‘valid’, exercised
a judicial power not vested in it by the Constitution.
Again in 1980, the Supreme Court of India considered another
constitutional ouster clause. Article 368(4) of the Constitution was
incorporated by the Forty-second Amendment to the Constitution. In Minerva
Mills Ltd. v. Union of India192 it was held that the consequence of exclusion of

__________________________________________________________________________________________________________________________________________

188 Judicial Approaches to Constitutional and Statutory Exclusion of Judicial Review in Commonwealth
Caribbean Public Law, Commonwealth Caribbean Legal Studies, p.165.
189 ALR (1973) SC 1461.
190 AIR (1975) SC 2299.
191 Mrs Indira Gandhi was elected to the Lok Sabha, that is, the Lower House of Parliament. The elec-
tion was challenged by Raj Narain, a contesting candidate, on an election petition. The petition was
allowed and the election was declared void by the Election Tribunal on the ground that Mrs Indira
Gandhi had adopted corrupt practices in the election She appealed to the Supreme Court. During
the pendency of the appeal, Parliament passed that Thirty-ninth Amendment Act inserting article
329A(4) and (5).
192 AIR (1980) SC 1789.
 Presumptions 163

the power of judicial review would be that, in effect and substance, the
limitation on the amending power of Parliament would, from a practical point
of view, become non-existent and by the exclusion of judicial review the
amending power of Parliament would stand enlarged.
This would undoubtedly damage the basic structure of the Constitution in
two ways:
• the limited power of Parliament to amend the Constitution;
• the power of judicial review which gives the mandate to the Supreme
Court to examine whether an authority under the Constitution has
exceeded the limits of its powers.
Bhagwati CJ reiterated his views expressed in Smt. Indira Gandhi v. Raj
Narain 193 that judicial review was a basic and essential feature of the
Constitution of India, and no law passed by Parliament could abrogate or take
it away. The legality of the exercise of the powers of the Executive and of the
Legislature could not be decided by the Executive or the Legislature
themselves.
In Guyana the courts took the clear position that the ouster clause in the
Constitution could be reviewed on the ground of jurisdictional error. In Re
Sarran194 Cummings JA said:
It means no more than that there can be no enquiry by a court into the validity
of an act that the Commission is legally authorised to do; this does not mean
that if the Commission or person does something which it has no jurisdiction
to do, or which is beyond its or his power, as defined in the Constitution, that
that act cannot be enquired into by the courts.
In Farrell v. Attorney-General of Antigua195 the Court of Appeal of the
Associated States considered the ouster clauses in the Industrial Court Act
1976 and held that the provisions of the Act, in so far as they purport in
s.17(4) to divest the Supreme Court of its supervisory jurisdiction were in
conflict with the Constitution and, therefore, void. In Tomas v. A-G196 the
Judicial Committee of the Privy Council held that it was for the court and not
for the Police Service Commission to determine what, on the true construction
of the Constitution, were the limits to the functions of the Commission. If the
Commission did something beyond its functions or the validity of which was
challenged as a contravention of the rights guaranteed by the Constitution, s
102(4) of the 1962 Constitution would not oust the jurisdiction of the courts.

__________________________________________________________________________________________________________________________________________

193 AIR (1975) SC 2299.

194 (1981) 32 WIR (PC) 375.
195 (1979) 27 WIR 377.
196 (1989) 41 WIR 299.
197 (1981) 32 WIR (PC) 375.
164 Understanding Statutes

In 1989 the Court of Appeal of Trinidad and Tobago considered s.129(3)

of the Constitution of Trinidad and Tobago. In Jones v. Soloman,197 the Court
held that although s.129(3) of the Constitution precluded any court from
inquiring into the validity of the performance of the functions vested in a
service commission by the Constitution, the courts were not absolutely
debarred from reviewing the decisions of such commissions if, for example, a
Commission had acted capriciously or arbitrarily. In Sundry Workers v.
Antigua Hotel and Tourist Association,198 s.17(6) of the Industrial Court Act,
1976 was considered in the light of s.122 of the Constitution of Antigua and
Barbuda 1981 by the Judicial Committee of the Privy Council. Subsection (1)
of s.17 of the Act prescribes certain grounds for appeal from an order or award
of the Industrial Court to the Court of Appeal. Subsection (4) prohibits any
other remedy.
The question for decision was whether an appeal lay to Her Majesty from
a decision of the Court of Appeal of Antigua and Barbuda determining an
appeal from a judgment of the Industrial Court. The Privy Council held that
s.17(6) was not a bar, and that the right of appeal to Her Majesty-in-Council is
a constitutional one.
From these cases the conclusion could be drawn that constitutional ouster
clauses are no longer a bar to judicial review – nor are they any different from
statutory ouster clauses.
The determination and the ingenuity of judges have led to a dislike of
ouster clauses. The Committee on Ministers’ Powers 1932199 recommended
that ouster clauses should, in all but the most exceptional cases, be abandoned.
In 1957 the Franks Committee200 recommended that no statute should contain
words purporting to oust the prerogative remedies. The Tribunal and Inquiries
Act 1971201 replacing the Act of 1958,202 has pointed the way in respect of the
latter recommendation. Section 14 of that Act provides that,
Any provision in an Act passed before 1st August, 1958, that any order or
determination shall not be called in question in any court, or any provision in
such an Act which by similar words excluded any of the powers of the High
Court, shall not have effect so as to prevent the removal of the proceedings
into the High Court by order of certiorari or to prejudice the powers of the
High Court to make orders of mandamus.
A review of most of the cases on ouster clauses would seem to suggest

__________________________________________________________________________________________________________________________________________

198 (1993) 42 WIR 145.

199 Cmnd 60 p.65.
200 Cmnd 218 para 117.
201 C 62.
202 6 & 7 Eliz 2 Ch 66.
203 C.56.
 Presumptions 165

that, whatever the form of the wording, an ouster clause may fail to protect an
ultra vires decision or act. However, the form is not yet dead. Section 7 of the
Interception of Communications Act 1985203 establishes a tribunal to
investigate complaints relating to the interception of communications under
the Act. Subsection (8) provides that,
the decisions of the Tribunal including any decision as to their jurisdiction
shall not be subject to appeal or liable to be questioned in any court.
Are the words ‘including any decision as to their jurisdiction’ an attempt
to defeat Anisminic?

Rules of Natural Justice

The presumption of natural justice is a corollary to the presumption that an

Act of Parliament does not intend to exclude the jurisdiction of the courts of
law. It requires that an authority shall not be a judge in its own cause, that
there is no bias, that a party to an action or any other proceedings is not
condemned without a hearing, that the party concerned shall be informed of
the reason for the decision given.204 It does not mean that the authority
exercising a quasi-judicial function must of necessity observe the procedure
and follow the technical rules of evidence practised in a court of law. It is
sufficient that the authority adopts a procedure that affords to a party to the
proceedings an opportunity to produce evidence, an opportunity to challenge
or contradict prejudicial statements.
In fine, the authority is required to hear all the parties to the dispute and,
generally, observe what a layman would describe as fair play. The courts will
interfere where grave injustices might be done or where justice might not be
observed since a decision which offends the principle of natural justice is
outside the promise of the decision-making authority. 205 In Fairmount
Investments Ltd. v. Secretary of State for the Environment206 Lord Russell
stated that,
it is to be implied, unless the contrary appears, that Parliament does not
authorise by the Act the exercise of powers in breach of the principles of
natural justice, and that Parliament does by the Act require, in particular
procedures, compliance with those principles.
The use by Lord Russell of the words, unless the contrary appears, creates
the impression that Parliament would expressly or by necessary implication

__________________________________________________________________________________________________________________________________________

204 Hood Phillips, Constitutional and Administrative Law, 4th ed p.634.

205 Attorney-General v. Ryan [1980] AC 718; Isaacs v. Robertson [1985] AC 97.
206 [1976] 1 WLR 1255 at p.1263.
207 1934 SA(AD) 11 at p.38.
166 Understanding Statutes

exclude the presumption that the principles of natural justice need be

observed. Indeed, South Africa is replete with examples in which the courts
have decided that statute has excluded the principles of natural justice. In the
most important case on the matter, Sachs v. Minister of Justice,207 Strafford
ACJ said:
Sacred though the maxim audi alteram partem is held to be, Parliament is free
to violate it. In all cases where by judicial interpretation it has been invoked,
this has been justified on the ground that the enactment impliedly incorporated
it. When, on the true interpretation of the Act, the implication is excluded,
there is an end of the matter.

Retroactive and Retrospective Operation of Statutes

A statute may be said to be retroactive or retrospective in operation. The two
words are often used interchangeably,208 but there is a distinction, however
subtle that distinction is. Driedger209 establishes that there is a difference
between retroactive and retrospective even if in the dictionaries the definition
of the one word includes that of the other.
A statute could be
• retroactive but not retrospective;
• retrospective but not retroactive;
• both retroactive and retrospective.
And statutes that are both retroactive and retrospective could be, and usually
are, prospective in character.
It is a fundamental rule of English law that no statute is construed to have a
retrospective operation unless that construction appears very clearly in the
terms of the Act, or arises by necessary and distinct operation. 210 The
presumption against retrospective operation applies in the interpretation of
legislation of a penal nature and is based on the general principle that penal
enactments are construed strictly and not extended beyond their clear
meaning.211
The presumption applies to both retrospective and retroactive operation of
the law, but the test of retroactivity is different from that of retrospectivity. For
retroactivity the question is whether there is in the Act, read as a whole,
anything which indicates that the Act must be deemed to be the law from a

__________________________________________________________________________________________________________________________________________

208 See, for example, C K Comans, The Power of the Commonwealth Parliament to make Retrospective
or Retroactive Laws is Well Established, 27 Australian Law Journal.
209 Construction of Statutes, p.186.
210 Phillips v. Eyre (1870) LR 6 QB p.23.
211 See, for example, Attorney-General for Canada v. Hallet and Carey [1952] AC 427.
 Presumptions 167

date antecedent to its enactment? For retrospectivity the question is whether

there is anything in the Act which indicates that the consequences of an
earlier event are changed, not for the time before the enactment, but
prospectively from the time of the enactment, or from the time of the
commencement of the Act.
The application of the presumption against the retrospective operation of
statutes is a difficult problem in the process of statutory interpretation. There
is a confusion between presumptions: the presumption against interference
with vested rights and the presumption against the retrospective operation of
the law.
A statute that interferes with or destroys a previously acquired right could
not be said to be retrospective. Thus in West v. Gwynne,212 the question for
determination was whether s.8 of the Conveyancing and Law of Property Act
1892213 was of general application; or whether its operation was confined to
leases made after the commencement of the Act. It provided that in a lease
containing a covenant against assigning or under-letting without licence or
consent, the covenant should be deemed to be subject to a proviso to the effect
that no fine was payable for the licence or consent.
It was argued that a statute is presumed not to have a retrospective
operation unless the contrary appears by express language or by necessary
implication. Cozens Hardy MR assented to that general proposition, but he
said that he failed to appreciate its application to the present case. To Buckley
LJ the issue of retrospection was irrelevant. ‘Retrospective operation is one
matter. Interference with existing rights is another.’
West v. Gwynne also supports the proposition that there are two distinct
kinds of requisites for the application of a statute ‘drawn from time antecedent
to its passing’. The first is a characteristic, the second an event. A statute
cannot be said to be retrospective merely because it is brought into operation
by a characteristic or status that arose before it was enacted. That in my view
would make it retroactive.
The second is a fact situation which occurred, or a status which was
acquired, before the commencement of the statute. A statute is retrospective if
it is brought into operation by a prior event described in it. In West v. Gwynne,
there was a fact-situation which could be described as a characteristic only and
not an event.
Language is not always precise. Hence the difficulty in saying precisely
whether the words in an Act setting forth a fact-situation are intended to
describe an event or a characteristic. For example, a provision of an Act that

__________________________________________________________________________________________________________________________________________

212 [1911] 2 Ch 1.
213 55 & 56 Vict Ch 13.
214 (1875) LR 10 QB 195.
168 Understanding Statutes

the Act applies to a person who was employed on 1 January 1970, has two
elements. One, that the person referred to took employment on that day – an
event. Two, that the person referred to was an employee on that date – a
characteristic, a status.
In R v. Vine214 it was provided that ‘every person convicted of a felony’
should be disqualified from selling spirits by retail. The court, by a majority,
interpreted that provision to mean a convicted person, therefore applying the
statute to persons convicted before the statute came into being. Lush J
dissenting, said the phrase meant ‘every person who shall hereafter be
convicted’. To the majority there was a disability, attached to a characteristic.
A person who was caught within the ambit of that provision had acquired a
status, that of a convicted person – whatever the date of the conviction. That,
clearly, is a retrospective operation of the statute.
A retroactive statute is one that states, simpliciter,
This Act shall be deemed to have come into force on the first day of July,
1980.
when its date of enactment is, say, June, 1985.
A retrospective statute operates for the future. It is prospective in character
but imposes new results in respect of a past event or transaction. A retroactive
statute does not operate backwards; it operates forwards from a date prior to
its enactment. A retrospective statute operates prospectively but attaches new
consequences for the future to an event that took place before the statute was
enacted. A retroactive statute changes the law from what it was, or from what
it otherwise would be with respect to a prior event or transaction.
In West v. Gwynne the true reason for holding that the statute in question
was not retrospective was that there was no reference in the statute to a past
event or transaction – the only reference was to leases of a certain kind. Yet
Buckley LJ rejected the presumption because the statute was not operative as
of a past time. His definition of retrospectivity was in fact a definition of
retroactivity. He said:
If an Act provides that as at a past date the law shall be taken to have been that
which it was not, that Act I understand to be retrospective.
Phillips v. Eyre215 dealt with an Act of Indemnity. The Act was ‘expressed
to be operative with respect to past transactions as of a past time’ and thus was
in essence retroactive. Where an Act attaches an obligation or disability or
imposes a duty as a new consequence, prejudicial in most cases, of a prior
event, then it can be said to be retrospective. In Re A Solicitor’s Clerk216 the
statute provided that,

__________________________________________________________________________________________________________________________________________

215 (1870) LR 6 QB 1.
216 [1957] 1 WLR 1219.
 Presumptions 169

Where a person who is or was a clerk to a solicitor ... has been convicted of
larceny ... or any other criminal offence in respect of any money or property
belonging to or held by the solicitor ... an application may be made ... that an
order be made directing that ... no solicitor shall ... take or retain the said
person into or in his employment.
It was held that the making of an order in respect of a clerk who had been
convicted prior to the enactment of the statute was a retrospective operation.
Goddard LCJ said that in his opinion the
Act is not in truth retrospective. It enables an order to be made disqualifying a
person from acting as a solicitor’s clerk in the future and what has happened
in the past is the cause or reason for the making of the order, but the order has
no retrospective effect .... This Act simply enables a disqualification to be
imposed for the future and in no way affects anything done by the appellant in
the past.
Indeed, the dictum of Goddard LCJ is in fact a classic statement of what a
retrospective statute is. The fact situation here was the characteristic of the
clerk as a convicted person. Similarly in R v. Vine,217 the statute imposed a
disability on ‘every person convicted of a felony’. That person had acquired a
status, that is, the status of a convicted person. The statute attached a disability
to a characteristic and not to the felonious act or the conviction qua conviction.
According to Driedger, there are three kinds of statutes that can properly
be said to be retrospective:
(a) statutes that attach benevolent consequences to a prior event;
(b) statutes that impose a penalty on a person who is described by reference to
a prior event, but the penalty is not a consequence of the event;
(c) statutes that attach prejudicial consequences to a prior event.
Of these, only the last attracts the presumption against the retrospective
operation of the law.
It is not difficult to identify a retroactive statute. There is a specific
statement that it shall be deemed to have come into force on a date prior to its
enactment. Or it is expressed to be operative with respect to past transactions
as of a past time.218 What is difficult is first to identify a retrospective statute
and then to distinguish between those retrospective statutes that attract the
presumption and those that do not. The latter may be illustrated by two
examples219:
A person convicted of impaired driving is disqualified from holding a licence.
This provision imposes a new disability and the courts would in all
__________________________________________________________________________________________________________________________________________

217 [1875] LR 10 QB 195.

218 Driedger, Construction of Statutes, p.186.
219 Taken from Driedger, Construction of Statutes, p.198.
170 Understanding Statutes

likelihood hold that the statute would be given retrospective effect if it were
applied in respect of prior convictions. A person convicted of impaired driving
shall pay an additional insurance premium of $100 to the Government
Insurance Commission. Here there is a further penalty imposed in respect of a
conviction. But would a Court following R v. Vine and Re A Solicitor’s Clerk
hold that its application in respect of prior convictions is not retrospective?
In the second example, where an Act provides that:
A person who has attained the age of eighteen years is qualified to vote at an
election,
no one would say that the Act applies only to persons who attained the age of
eighteen years after its enactment. This is a beneficial provision. But if the
Act provided that,
The lands of a person who has been convicted of the offence of treason are
forfeited to the State,
no one would want to apply that Act to convictions before its enactment. This
is a prejudicial provision. The situations in between these two extremes are the
difficult ones.
The principle is that the presumption applies if the statute would attach a
new duty, disability, or penalty, that is to say, a prejudicial consequence, to a
prior event.
To discover when a prejudicial provision is a consequence of an event and
when it is not, it is instructive to examine cases like R v. Vine. As stated above,
in that case the statute considered provided that,
Every person convicted of a felony shall forever be disqualified from selling
spirits by retail, and no licence to sell spirits by retail shall be granted to any
person who shall have been so convicted ....
The question, as stated by Cockburn CJ, was whether a person who had been
convicted of a felony before the Act was passed became disqualified on the
passing of the Act. There was no provision in the Act that could be construed
as a rebuttal of the retrospective presumption. Cockburn CJ said:
Here the object of the enactment is not to punish offenders, but to protect the
public against public houses in which spirits are retailed being kept by persons
of doubtful character.
He obviously construed the words ‘Every person convicted of a felony’ as
referring to a status or characteristic only, and not to a past transaction. The
majority regarded the new disability as a protection to the public, and not as a
new punishment. Archibald J said:
It is an enactment with regard to public and social order, and the infliction of

__________________________________________________________________________________________________________________________________________

220 [1894] 1 QB 725.

 Presumptions 171

the penalty is merely collateral.

In his view the statute was retrospective since he considered that a new
disability was attached to past events. On Cockburn’s view the statute was
prospective only since the fact-situation described in the statute was a
characteristic that arose in the past and not a past event.
In Re Pulborough Parish School Board Election,220 the Court of Appeal
considered a provision of the Bankruptcy Act 1883. It provided that where a
debtor is adjudged bankrupt, he should be subject to certain disqualifications,
including election to the office of member of a school board. The question was
whether the Act applied to a person who had been adjudged bankrupt before
its enactment. The majority held that it did not. Lopes J said:
It has been contended that the words “is adjudged bankrupt” are to be read,
“has been adjudged bankrupt either before or after the passing of this Act”. I
cannot so read those words …. Under s.32 of the Bankruptcy Act 1883 the
respondent on being adjudged a bankrupt is disqualified from being elected a
member of the school board until the adjudication of bankruptcy against him
is annulled, or he obtains from the court his discharge, with a certificate to the
effect that his bankruptcy was caused by misfortune, without any misconduct
on his part … A new disability, therefore, is imposed upon him, and
disabilities are imposed on other persons which had no existence before the
Bankruptcy Act of 1883. Having regard to the scope of the Act, and the rule
of construction applicable to statutes, I am confirmed in my view that the true
meaning of the words in s.32 “is adjudged bankrupt”….
Davey CJ stated:
It has been suggested that the words be read as meaning “where a man is an
adjudicated bankrupt”. The answer seems to me to be that those are not the
words before us, and that the words we have to construe are grammatically
different. I think the words “is adjudged” are the verb, whereas in the
paraphrase suggested the word “adjudicated” would be an adjective. The one
form of sentence points to an event to happen, whereas the form suggested
predicates a certain quality of the subject which may just as well attach to him
by a previous adjudication as by a subsequent one.
Lord Esher dissented. In his opinion section 32
is not penal within the meaning of the proposition, which states that a penal
statute must be construed strictly, and in my opinion it is not, in the true sense
of the term, retrospective. To my mind, to say that the legislature intended to
punish a debtor of whom that can be said would be to charge the legislature
with injustice. The disqualifications are intended solely for the protection of

__________________________________________________________________________________________________________________________________________

221 Construction of Statutes, p.202.

172 Understanding Statutes

the public, and not by way of punishment. The case of R v. Vine is a strong
authority to show that under such circumstances that which is enacted is not
penal.
Driedger221 considers that if the intent is to punish or penalise a person for
having done what he did, the presumption applies because a new consequence
is attached to a prior event. If the new punishment or penalty is intended to
protect the public, the presumption does not apply. In R v. Vine the majority
held that the object of the statute was not to punish offenders but to protect the
public. Lush J, however, considered the Act a highly penal enactment, and on
that view the presumption would apply.
In Re Pulborough, the majority held the disabilities to be added to those
set out in the Bankruptcy Act. Lord Esher did not think that the new
disqualifications were intended as punishment but that they were intended
solely for the protection of the public.
In summary it may be stated that,222
(a) an Act is retroactive where it changes the law from a date prior to the date
of its enactment;
(b) an Act is retrospective where it attaches new consequences to an event that
occurred prior to its enactment;
(c) an Act is not retrospective by reason only that it adversely affects an
antecedently acquired right;
(d) an Act is not retrospective unless the description of the prior event is the
fact-situation that brings about the operation of the Act;
(e) the presumption against the retrospective operation of an Act does not
apply,
(i) where the consequences attaching to the prior event are prejudicial
ones, namely, a new penalty, a new disability or a new duty;
(ii) if the new prejudicial consequences are intended as protection for the
public rather than as punishment for a prior event;
(f) Regulations can not be given retrospective or retroactive effect unless the
enabling Act so authorises, expressly or by necessary implication;
(g) there is one exception to the presumption against retrospective operation of an
Act, that is, where an enactment is repealed and replaced, the new enactment
is retrospective so far as it is a repetition of the former enactment.

Conformity with the Rules of International Law

__________________________________________________________________________________________________________________________________________

222 Construction of Statutes, pp.202-203.

223 (1883) 8 P D 101 at p.104.
 Presumptions 173

There is a presumption that an Act of Parliament will not be interpreted so as

to violate a rule of international law. The courts will not construe an Act so as
to bring it into conflict with international law. In Bloxham v. Favre223 it was
stated that,
every statute is to be so interpreted and applied, as far as its language admits,
as not to be inconsistent with the comity of nations or with the established
principles of international law.
This does not mean that an Act of Parliament would be declared ultra vires
as being in contravention of an international law, but that the Courts will desist
from a construction that would lead to a breach of an accepted rule of
international law.224
The courts therefore take judicial notice of international law, but treaties do
not form part of the municipal law. They need incorporation into the
municipal law by the legislature or through the constitutional processes
required by each jurisdiction. In Salomon v. Customs and Excise
Commissioners,225 it was held that where the evidence was clear that the
enactment is the direct result of a Convention, the Convention would be read
in the interpretation of the enactment even though the Convention is not
specifically mentioned in the enactment.226
It is thus instructive to consider what Lord Denning said in Trendtex
Trading Corporation v. Central Bank of Nigeria227:
The doctrine of sovereign immunity is based on international law. It is one of
the rules of international law that a sovereign state should not be impleaded in
the courts of another sovereign state against its will. Like all rules of
international law, this rule is said to arise out of the consensus of the civilised
nations of the world. All nations agree upon it, so it is part of the law of
nations. To my mind this notion of a consensus is a fiction. The nations are
not in the least agreed upon the doctrine of sovereign immunity. The courts of
every country differ in their application of it…. There is no consensus
whatever. Yet this does not mean that there is no rule of international law
upon the subject. It only means that we differ as to what that rule is ….
A fundamental question arises for decision. What is the place of international
law in our English Law? One school of thought holds to the doctrine of
incorporation. It says that the rules of international law are incorporated in
English law automatically and considered to be part of English law unless
they are in conflict with an Act of Parliament. The other school of thought
holds to the doctrine of transformation. It says that the rules of international
__________________________________________________________________________________________________________________________________________

224 Cheney v. Conn Airways [1968] 1 All ER 779; Corocraft Ltd. v. Pan-Am Airways [1969] 1 QB 616.
225 [1967] 2 QB 116.
226 See also Post Office v. Estuary Radio [1968] 2 QB 740; Corocraft Ltd. v. Pan Am Airways [1969] 1
QB 616.
227 [1972] QB 529 (CA) at pp.552-554.
174 Understanding Statutes

law are not to be considered as part of English law except in so far as they
have been already adopted and made part of our law by the decisions of the
judges, or by Act of Parliament, or long established custom. The difference is
vital when you are faced with a change in the rules of international law. Under
the doctrine of incorporation, when the rules of international law change, our
English law changes with them. But, under the doctrine of transformation, the
English law does not change. It is bound by precedent. It is bound down to
those rules of international law which have been accepted and adopted in the
past. It cannot develop as international law develops. As between these two
schools of thought, I now believe that the doctrine of incorporation is correct.
Otherwise I do not see that our courts could ever recognise a change in the
rules of international law. It is certain that international law does change ...
and the courts have applied the changes without the aid of any Act of
Parliament .... It follows ... that a decision of this Court – as to what was the
ruling of international law fifty or sixty years ago – is not binding on this
Court today. International law knows no rule of stare decisis.

Action or Conduct Lawful

There is a presumption in the construction of a statute that a reference to an
action or a conduct, unless a contrary intention appears, is a reference to a
lawful action or lawful conduct. A power conferred by statute enabling a thing
to be done is a power conferred that what is allowed to be done shall be done
lawfully. Otherwise there is a breach for which the courts will enforce the
appropriate remedy. In Wolverhampton New Waterworks Co. v.
Hawkesford,228 Willes J said:
There are three classes of cases in which liability may be established by
statute: There is that class where there is a liability existing at Common Law
which is only remedied by the statute with a special form of remedy: thus,
unless the statute contains words expressly excluding the Common Law
remedy, the plaintiff has his election of proceeding either under the statute or
at Common Law. Then there is a second class, which consists of those cases
in which a statute has created a liability but has given no special remedy for it:
thus the party may adopt an action of debt or other remedy at Common Law
to enforce it.229 The remedy which by law is properly applicable to the right
or the obligation flows as an incident.230 The third class is where a statute
creates a liability not existing at Common Law, and gives also a particular

__________________________________________________________________________________________________________________________________________

228 (1859) 6 C B (N S) 336 at p.356. See also Dawson & Co. v. Bingley Urban District Council [1911]
2 KB at 149 at p.156.
229 In such a case the Common Law will, in general, give a remedy suited to the particular nature of the
case: Doe d Bishop of Rochester v. Bridges (1831) 1 B & Ad 847, 859, Lord Tenterden CJ; See also
Devonport Corporation v. Plymouth, etc, Tramways Co. (1884) 52 L T 161, 164.
230 Per Kennedy LJ in Dawson & Co. v. Bingley UDC [1911] 2 KB 149 at p.159.
 Presumptions 175

remedy for enforcing it. ... With respect to that class it has always been held
that the party must adopt the form of remedy given by the statute.

Malfeasance, Misfeasance, Non-feasance

In dealing with lawful acts or lawful conduct three things need to be

distinguished: malfeasance, misfeasance and non-feasance. Malfeasance is
evil conduct, that is, doing an act or thing which is clearly unlawful. It deals
with what should not have been done at all, or the unjust performance of what
a person had no right to do. It could be a wrongful act which affects, interrupts
or in any way interferes with the lawful performance of an official duty. It is
an act for which there is no authority or legal basis.
Mis-feasance is the negligent doing of an act for which there is legal
authority. It is equivalent to negligence in the discharge of a statutory duty.
Non-feasance is the failure to do what is lawfully permitted.231 These two
instances often involve the breach of a statutory duty, whether ministerial or
judicial. In order to succeed in an action based on a statutory breach three
things need to be established:
(a) that the injury which is the cause of action was contemplated by the
statute;
(b) that the person who has suffered as a result of the breach is a person who
falls within the ambit of the statute; and
(c) that the damage falls within the injury contemplated by the statute.232

Application to Crown or Republic

Interpretation Acts usually provide that the Crown, State or Republic is not
bound by legislation unless there are express words which provide that the Act
binds the State, or there are words to that effect, or the State is named by
necessary implication. It is also a well settled principle of construction that an
Act does not affect the prerogatives, rights and interests of the Crown unless

__________________________________________________________________________________________________________________________________________

231 Vaughan v. Taff Vale Railway (1860) 5 H & N 679.

232 East Suffolk Rivers Catchment Board v. Kent [1914] AC 74; Mersey Docks & Harbour Board v.
Gibbs (1866) LR 1 HL 93; Geddis v. Proprietors of Bann Reservoir (1878) 3 App Cas 430;
Longhurst v. Metropolitan Water Board (1948) 64 T LR 579; Bank View Mill Ltd. v. Nelson
Corporation [1943] KB 337.
233 Attorney-General v. Hancock [1940] 1 KB 427.
234 Attorney-General for Ceylon v. AD Silva [1953] AC 461; China Ocean Shipping Co. v. South
Australia (1929) 27 ALR 1.
176 Understanding Statutes

there are clear words in the Act that indicate interference.233 This is founded
on the presumption that an Act of Parliament does not bind the Crown in the
absence of an express provision or necessary implication,234 which is a long-
standing rule of interpretation which applies in the case of a Republic. The
Crown Proceedings Act 1947235 expressly refrains from altering this long-
standing rule.

Words to have the same meaning

There is a presumption that words in a statute are strictly and correctly
used.236 Lord Hewart CJ in Spillers Ltd. v. Cardiff Assessment Committee,237
stated:
It ought to be the rule and … it is the rule that words are used in an Act of
Parliament correctly and exactly and not loosely and inexactly. Upon those
who assert that the rule has been broken, the burden of establishing their
proposition lies heavily, and they can discharge it only by pointing to
something in the context which goes to show that the loose and inexact
meaning is to be preferred.
But the warning given by Lord Loreburn LC in Nairn v. University of St.
Andrews238 should be taken into account:
It is a dangerous assumption to suppose that the legislature foresees every
possible result that may ensue from the unguarded use of a single word, or
that the language used in statutes is so precisely accurate that you can pick out
from various Acts this and that expression, and, skilfully piecing them
together, lay a safe foundation for some remote inference.
In other words, the words of an Act of Parliament should not be construed
without reference to the context. Thus an Act is read as a whole, for the
language of one section may affect the construction of another. This pre-
supposes that a word is used to mean one thing and is not used in an Act of
Parliament to mean different things. Nor are different words used to mean the
same thing in an Act of Parliament; synonyms do not have a place in
legislation. In Giffels & Vallet v. The King,239 it was said:
It is not to be forgotten that the first inference is that a word carries the same

__________________________________________________________________________________________________________________________________________

235 10 & 11 Geo 6 Ch 44.

236 Law Society v. United Services Bureau [1934] 1 KB 343.
237 [1931] 2 KB 21 at p.43; See also New Plymouth Borough Council v. Tara Electrical Power Board
[1933] AC 680 at p.682.
238 [1909] AC 147 at p.161.
239 [1955] 1 DLR 620 at p.630.
240 [1909] 2 KB 61.
 Presumptions 177

connotation in all places when it is found in a statute.

Territorial Operation
Tomalin v. J Pearson & Son Ltd240 is authority for the presumption that, unless
there is a contrary intention expressly stated or to be inferred from the
language of the Act, its legislative history or subject-matter, an Act of
Parliament does not operate outside the jurisdiction. The presumption is in
consonance with Bloxham v. Favre,241 where it was said that,
every statute is to be so interpreted and applied, as far as its language admits,
as not to be inconsistent with the comity of nations or with the established
rules of international law.

Surplusage
In Auchterarder Presbytery v. Lord Kinnoull,242 Lord Brougham said that ‘a
statute is never supposed to use words without meaning’. Yet occasions still
arise when verbosity has caused ambiguity. The courts must still construe the
language used, and in such cases the courts will adopt a ‘construction which
will give some effect to the words rather than that which will give none.’ In
Hill v. William Hill (Park Lane) Ltd.243 Viscount Simon said:
It is observed that though a Parliamentary enactment (like parliamentary
eloquence) is capable of saying the same thing twice over without adding
anything to what has already been said once, this repetition in an Act of
Parliament is not to be assumed. When the legislature enacts a particular
phrase in a statute, the presumption is that it is saying something which has
not been said immediately before. The rule that a meaning should, if possible,
be given to every word in the statute implies that, unless there is good reason
to the contrary, the words add something which has not been said immediately
before.
Much, much earlier in Harcourt v. Fox,244 Lord Holt had said:
I think we should be very bold men, when we are entrusted with the
interpretation of Acts of Parliament, to reject any words that are sensible in
the Act.

__________________________________________________________________________________________________________________________________________

241 (1883) 8 PD 101 at p.104.

242 (1839) 6 Cl & F 646 at p.686.
243 [1949] AC 530 at p.546.
244 (1693) 1 Show 506 at p.532.
245 R v. East Ardsley (Inhabitants) (1850) 14 QB 793 at p.801.
246 (1876) 1 CPD 691 at p.701.
 The courts will not, however, hesitate to reject words as surplusage where
to give a meaning to every word would make the Act of Parliament
unintelligible.245 In Stone v. Yeovil Corporation,246 it was held that,
it is a canon of construction that, if it is possible, effect must be given to every
word of an Act of Parliament or other document, but that if there be a word or
a phrase therein to which no sensible meaning can be given, it must be
eliminated.
 Chapter 6

Maxims

General
A maxim is the quintessence of an experience, so in law a maxim is an
attempt to capture the essential principle of a rule of law or conduct. However,
a maxim only becomes reliable when the extent of its application has been
tested by cases brought before the courts. Acquiescence, reasonableness, time
and usage are the mothers of a maxim of the law.
In this Chapter an attempt is made to deal with some, but by no means all,
of the maxims that have a bearing on the interpretation of a statute. Indeed,
some of the maxims used in the interpretation or construction of an Act of
Parliament have been dealt with in the course of explaining the approach of
the courts in the interpretation or construction of statutes. They form a general
view of a practical utility in this area of the judicial function.
As we have seen, an Act of Parliament may need to be interpreted or
construed in order to get to the meaning of the Act or words in the Act when
that is called in question. There must be rules to guide the courts in such an
important role. The maxims here discussed are some to the principles that help
the courts in the task of giving effect to an Act of Parliament – when its
language is called in question.

A later law repeals an earlier law that is inconsistent with the later law

In the cases where there is inconsistency between provisions within the same
Act, the courts modify the grammatical or ordinary meaning of the words in
order to achieve a meaning in consonance with the scheme of the Act. This
they do by relying on the principle of construction either that the general
words control the meaning of the special words or the special words control
the meaning of the general words.1 The same principles will be used where
there is a conflict between different Acts.
Where the conflict between different Acts cannot be reconciled the courts
go by the principle that a later law repeals an earlier law that is inconsistent
with the later law. This is based on the assumption that Parliament is aware of
the contents of the statute book. And, since one Parliament cannot fetter the
hands of a subsequent Parliament, an earlier Act must give way to a later Act
__________________________________________________________________________________________________________________________________________

1 Seaward v. Vera Cruz [1881] 10 App. Cas. 59 at p.68; North Level Commissioners v. River Welland
Catchment Board [1938] Ch.379.
180 Understanding Statutes

where the two Acts cannot be reconciled. This principle is also reflected in
section 2 of the Interpretation Act 19782 which states that an Act may be
altered, amended or repealed in the same session in which it was passed.
Not only does the maxim apply as between earlier and later Acts, but it
also applies to oust the operation of the common law where there is a conflict
between the common law and statute law.3 Equally, when an ancient custom is
repugnant to the express words of an Act of Parliament that custom stands
abrogated.4

A new law ought to be prospective in character and not retrospective in

operation

Willis J, in Phillips v. Eyre,5 stated the principle of the application of the

maxim:
Retrospective laws are, no doubt, prima facie of questionable policy, and
contrary to the general principle that legislation by which the conduct of
mankind is to be regulated ought, when introduced for the first time, to deal
with future acts, and ought not to change the character of past transactions
carried on the faith of the existing law … Accordingly, the courts will not
ascribe retrospective force to new laws affecting rights unless by express words
or necessary implication it appears that such was the intention of the legislature.
The application of the maxim has already been discussed.6

Laws are adapted to frequent cases

Legislation is enacted on the basis that it shall deal with cases as they arise. It
is intended to deal with present circumstances, but with the implied projection
that it shall deal with future cases. Hence the prospective nature of an Act of
Parliament, unless otherwise stated or by necessary implication, as we have
learnt from the preceding maxim. However, an Act of Parliament cannot be so
drafted that it will include every possible case; Parliamentary Counsel and
Parliament are not that clairvoyant. When in Miller v. Salomans7 it was argued
that King George III having died, the oath specified under s.1 of the Treason
Act 1766 8 could not be applied because the late King was specifically
mentioned in the oath, Baron Parke stated:
__________________________________________________________________________________________________________________________________________

2 C.46.
3 Stevens v. Chown [1921] 1 Ch.894.
4 Green v. R (1876) 1 App. Cas. 573.
5 (1890) LR 6 QB 1 at p.23.
6 See Chapter 5 pp.116-172.
7 (1852) 7 Exch. 475 at pp.549-553.
8 6 Geo. 3 c.53.
 Maxims 181

If in the vast majority of possible cases – in all ordinary occurrence – the law
is in no degree inconsistent or unreasonable, construed according to its plain
words, it seems to me an untenable proposition, and unsupported by authority,
to say that the construction may be varied in every case, because there is one
possible but highly improbable one in which the law would operate with great
severity, and against our own notions of justice. The utmost that can be
reasonably contended is, that it should be varied in that particular case, so as
to obviate that injustice – no further …
It is clear that the legislature meant the oath to be taken always thereafter, and
as it could not be taken in those words during the reign of a sovereign not of
the name of George, it follows that the name George is merely used by way of
designating the existing sovereign, and the oath must be altered from time to
time in the name of the sovereign. This is an instance in which the language of
the legislature must be modified, in order to avoid absurdity or inconsistency
with its manifest intentions.9

A liberal construction is desirable in the interpretation of a statute

In the interpretation of a statute, the intention of the law-giver is to be found in

the language of the Act or by general inference drawn from the subject-matter
of the Act. Thus an Act should be construed according to the intention of the
legislature. That means that an Act will be construed so that effect is given to
it rather than so as to stultify the intention of the legislature. However, where
the intention of the legislature is not clear the courts will adhere to the natural
import of the language of the statute. Thus in New Windsor Corporation v.
Taylor10 it was stated:
Where an Act of Parliament has, according to its true construction …
“embraced and confirmed” a right which had previously existed by custom or
prescription, that right becomes henceforward a statutory right, and … the
lower title by custom or prescription is merged in and extinguished by the
higher title derived from the Act of Parliament.
In the construction of penal statutes a liberal approach is adopted. Thus
where the intention of the legislation is not clear the courts will adopt a
construction which will not impose a burden on the subject. Furthermore, as
stated by Lord Westbury in Dickson v. R,11 fiscal legislation
[is] not to be extended by any laboured construction, but you must adhere to
the strict rule of interpretation; and if a person who is subjected to a duty in a
particular character or by virtue of a particular description no longer fills that

__________________________________________________________________________________________________________________________________________

9 See also Dixon v. Caledonian Ry Co. (1882) 5 App. Case 820 at p.838.
10 [1899] AC 41 at pp.45, 49.
11 (1864-65) 11 HL Cas 175 at p.184.
182 Understanding Statutes

character, or answers that description, the duty no longer attaches upon him
and cannot be levied.

A passage is best interpreted by reference to what precedes and what

follows it

This really means that an Act of Parliament should be read as a whole and that
every part of it should be taken into account. This is desirable if only
because one assumes that in drafting one clause of a Bill the draftsman had in
mind the language and substance of other clauses, and attributes to Parliament
a comprehension of the whole Act.12
It is by reading the Act as a whole that one can really determine whether
there is an ambiguity or not, whether it can be said that there is vagueness or
that the words of a particular section are not clear. Viscount Simonds put it
this way:
It must often be difficult to say that any terms are clear and unambiguous until
they have been read in their context. That is not to say that the warning is to
be disregarded against creating or imagining an ambiguity … It means only
that the elementary rule must be observed that no one should profess to
understand any part of a statute or of any other document before he has read
the whole of it. Until he has done so he is not entitled to say that it or any part
of it is clear and unambiguous.13
Every piece of legislation has its own legislative scheme. Each word in an
Act is intended to bear a particular meaning. If a section of an Act appears to
be obscure its true meaning can only be ascertained by reference to what
precedes it as well as to what follows it. Lord Wright in James v.
Commonwealth of Australia14 showed how the word free is itself vague and
indeterminate. Within the context in which it is used, however, its particular
meaning becomes clear. The words of an Act of Parliament cannot be read in
isolation.

The meaning of a doubtful word may be sought by reference to the

meaning of words attached with it

This maxim is similar to a familiar adage: ‘show me your friend and I will tell
you your character’ and is closely related to the previous maxim. It is,
however, wider in scope. Said Stamp J in Bourne v. Norwich Crematorium
Ltd.:15
__________________________________________________________________________________________________________________________________________

12 Inland Revenue Commissioners v. Hinchy [1960] AC 748 at p.766 per Lord Reid.
13 Attorney-General v. Ernest Augustus (Prince) of Hanover [1957] AC 436 at p.463.
14 [1936] AC 578 at pp.627-628.
15 [1967] 2 All ER 576.
 Maxims 183

English words derive colour from those which surround them. Sentences are
not mere collections of words to be taken out of the sentence defined
separately by reference to the dictionary or decided cases, and then put back
again into the sentence with the meaning which you have assigned to them as
separate words, so as to give the sentence or phrase a meaning which as a
sentence or phrase it cannot bear without disturbing the English language.
Thus in Corkery v. Carpenter,16 Daisy Bell and her stylish marriage did
not help a defendant who argued that carriage as used in s.12 of the Licensing
Act 187217 did not include a bicycle. It was held that bicycle fell within the
words ‘drunk while in charge in any highway of any carriage …’. The
‘meaning of a doubtful word might be ascertained by reference to the meaning
of words associated with it’.18

There is no need to interpret that which has no need of interpretation

This is a maxim of common sense. No court of law will attempt to interpret or

construe an Act of Parliament contrary to the express words of the Act. As
Lord Denham observed in Everard v. Poppleton19:
Nothing is more unfortunate than a disturbance of the plain language of the
legislature, by the attempt to equivalent terms.

The express mention of one thing is the exclusion of another

This is a maxim of long standing and importance. In Blackburn v. Flavelle20 it

was stated:
If there be any one rule of law clearer than another, it is this, that, where the
legislature have expressly prescribed one or more particular modes of dealing
with property, such expression always excluded any other mode, except as
specifically authorised.
The maxim can be put no higher than as stated in Whiteman v. Sadler21:
Express enactment shuts the door to further implication.
But in a Southern Rhodesia case, R v. Barrington,22 it was held that the
maxim will not apply where its application ‘would obviously defeat the

__________________________________________________________________________________________________________________________________________

16 [1951] 1 KB 102 at p.103.

17 35 & 36 Vict. c.94.
18 Per Lord Diplock in Peart v. Stewart The Times, 14 March 1983.
19 (1884) 5 QB 181 at p.184.
20 (1886) 6 App. Cas. 628 at p.634.
21 [1910] AC 514 at p.517.
22 1969 (4) SA 179 (RAD) at pp.182-3.
184 Understanding Statutes

intention of the legislation and permit the very mischief which the statute is
designed to prevent’. Said Beadle CJ:
To make it an offence to offer gold for sale and not also make it an offence to
offer to buy gold, would … appear to be most illogical because to do this
might encourage the very mischief which the Act is designed to stop. For
example, if a man made it widely known among the employees in a mining
location that he was always prepared to buy unwrought gold, this would
undoubtedly be an encouragement to employees to misappropriate gold in
order to sell it to him. I cannot conceive that the legislature did not intend to
prohibit unlawful buyers from canvassing for the purchase of gold.
A distinction is often drawn between absolute enactments and directory
enactments. An absolute enactment must be obeyed or fulfilled exactly as
expressed by the Act, otherwise what is done will be treated as unlawful and
therefore invalid. A directory enactment need only be obeyed substantially.23
In Liverpool Borough Bank v. Turner24 Lord Campbell stated:
No universal rule can be laid down as to whether mandatory enactments shall
be considered directory only or obligatory with an implied nullification for
disobedience. It is the duty of courts of justice to try to get at the real intention
of the legislature by carefully attending to the whole scope of the statute to be
construed.
This was approved in Howard v. Bodington25 by Lord Penzance:
I believe, as far as any rule is concerned, you cannot safely go further than
that in each case you must look to the subject-matter, consider the importance
of the provision and the relation of the provision to the general object intended
to be secured by the Act, and upon a review of the case in that aspect decide
whether the enactment is what is called imperative or only directory.

Statutes on the same subject-matter are read together

Statutes are said to be of the same subject or matter where they relate to the
same thing or person or they have a common purpose. Such statutes are read,
construed or applied together so that the intention of the legislature is
discovered from the whole set of enactments on the same subject-matter. This
maxim is only applied in cases where a particular Act of Parliament is
ambiguous. In R v. Loxdale,26 Lord Mansfield stated the rule that where
different statutes deal with the same subject-matter even when made at
different times, expired, or not referring to each other, they shall be taken and
construed together, as one system and as explanatory to each other.
__________________________________________________________________________________________________________________________________________

23 Woodward v. Sarsons (1875) LR 10 CP 733 at p.746.

24 (1861) 30 LJ Ch.379 at p.380.
25 (1877) 2 PD 203 at p.211.
26 (1755) 1 Burr. 445 at p.447.
 Maxims 185

A consolidation Act is a collection of the statutes bearing on the same

subject-matter brought up to date in a comprehensive whole; a restatement of
the law which was scattered about in various statutes as at the time of the
consolidation. Therefore, in the construction of consolidation Act, statutes that
are repealed but substantially reproduced in the consolidation Act are
considered as of the same kind. Equally, the case law on a statute that is
repealed can be used to construe an Act which is substantially identical to a
repealing Act.27 However, the Acts will not be treated as if, together, they are
parts of the same Act. There must be a clear indication before the principle
can be applied that the Acts are on the same subject-matter.28
It is also not uncommon for an Act of Parliament to provide that it shall be
read as one with another Act. In such cases the later Act is construed as if it
had been contained in one Act,
unless there is some manifest discrepancy making it necessary to hold that the
later Act has, to some extent, modified something found in the earlier Act.’29
In cases, however, where there is a material difference between the words
used in statutes on the same subject-matter, the presumption is that there was
an intention to change the meaning.30 In Lord Howard de Walden v. Inland
Revenue Commissioners,31 Lord Uthwatt said that,
the introduction of new words into an existing section may alter the meaning
of words already there. But no such alteration can result unless, (1) the
requirements of the English language demand it or, (2) those requirements
permit it and the sense of the section demands it.
The Interpretation Act 1967-68 of Canada provides in s.14(2) that,
Where an enactment contains an interpretation section or provision, it shall be
read and construed
(a) as being applicable only if the contrary intention does not appear, and
(b) as being applicable to all other enactments relating to the same subject-
matter unless the contrary appears.
There is a similar provision in the Interpretation Act of most Common-
wealth countries.

__________________________________________________________________________________________________________________________________________

27 Inland Revenue Commissioners v. Hinchy [1960] AC 748.

28 Blake v. Attersoll (1824) 2 B & C 875 at p.882.
29 Canada Southern Railway v. International Bridge Co. (1883) 8 App. Cas. 723 at p.727.
30 R v. Price (1871) LR 6 QB 411 at p.416; R v. Buttle (1870) LR 1 CCR 248 at pp.251, 252.
31 [1948] 2 All ER 825 at p.830.
186 Understanding Statutes

General words following particular or specific words are construed as of

the same kind or class as the particular or specific words

In Great Western Railway Co. v. Swindon and Cheltenham Extension Railway

Co32 Lord Bramwell said:
As a matter of ordinary construction, where several words are followed by a
general expression which is as much applicable to the first and other words as
to the last, that expression is not limited to the last, but applies to all. For
instance, “horses, oxen, pigs, and sheep, from whatever country they may
come” – the latter words would apply to horses as much as to sheep.
In a New Zealand case, Cooney v. Covell,33 a question arose as to whether
the words ‘advertisement or other publications’ applied to a pamphlet which
was an appendix to a medical work. Williams J stated:
There is a very well known rule of construction that if a general word follows
a particular and specific word of the same nature as itself, it takes its meaning
from that word, and is presumed to be restricted to the same genus as that
word. No doubt that rule is one which has to be followed with care; but if not
to follow it leads to absurd results, then I am of the opinion that it ought to be
followed.
This maxim of construction of a statute is on a par with the other maxim
which states that the meaning of a doubtful word may be sought by reference
to the meaning of words associated with it. However, in order that the former
maxim will apply, there must be one category to which both words belong.34
Therefore, where the words used are wider in their meaning the maxim will
not apply.35

He who sticks to the letter of the law only gets to the bark of the tree

The principle here is that the substance of the law, the effect of the law, are
matters far weightier than the niceties of form or circumstances. The reason
behind the law makes the law what it is. For ‘reason is the soul of the law, and
when the reason of any particular law ceases, so does the law itself’.36 Laws
are not enacted for the mere purpose of enactment. They are intended in their
application to achieve a purpose. That should be borne in mind when

__________________________________________________________________________________________________________________________________________

32 (1884) 9 App. Cas. 787 at p.808.

33 (1901) 21 NZLR 106 at p.108.
34 Tillmans & Co. v. S.S. Knutsford [1908] 2 KB 385 at p.403; [1908] AC 207.
35 Corporation of Glasgow v. Glasgow Tramway and Omnibus Co. Ltd. [1898] AC 631 at p.634. See
also National Association of Local Government Officers v. Bolton Corporation [1943] AC 166;
Coleshill and District Investment Co. Ltd. v. Minister of Housing and Local Government [1968] 1
All ER 62 at p.65.
36 See for example, Edwards v. Porter [1925] AC.
 Maxims 187

interpreting or construing an Act of Parliament. The present maxim is the

spirit behind many rules of construction, such as
(a) that the construction of a statute depends upon the intention of the law-
maker, which intention is to be collected from the words used in the
statute37;
(b) that statutes should be construed according to the ‘intention of
Parliament’38;
(c) that the words in a statute should be read in their popular, natural and
ordinary sense.39

Afterword
Law is an instrument of justice. Its original purpose may have been political,
in order to remove evils considered political by the body politic, but its
progress has been dictated by experience. From taboos to custom, from
custom to legislation, law has been and still is through legislation a great
instrument of social change and the orderly development of society. Its reason
cannot be hampered by mere niceties of language and form. Nor can the
development of legislation be arrested by slavish adherence to principles
which retard the purposes for which legislation is enacted. Necessity is the
mother of invention; so is reason the necessity for legislation.
Legislation involves a choice of values. Those values depend upon the
values of a given society. Its interpretation and construction must thus take
account of its province as a tool for the development of society. To understand
an Act of Parliament is to understand the law of language, the language of the
law and the law in language.

__________________________________________________________________________________________________________________________________________

37 Fordyce v. Bridges 1 HL Cas. 1.

38 Director of Public Prosecutions v. Schildkamp [1971] AC 1 at p.10.
39 Attorney-General v. Ernest Augustus (Prince) of Hanover [1987] AC 436.
 Appendix A

Classification of Statutes

Affirmative statutes
An affirmative statute is an Act of Parliament drafted in affirmative or
mandatory terms. It commands the doing of an act or declares the conduct or
action required by the law. It is opposed to a Negative statute which is one that
prohibits the doing of an act.

Criminal statutes
These are Acts of Parliament, in some jurisdictions referred to as Codes, such
as the Criminal Code or the Criminal Procedure Code, which define, classify
and provide for criminal offences and the sanctions attached to each offence.
In a Procedure Code the law governing the procedures to be followed in the
prosecution of crimes is set out and the procedural rules for the trial of
criminal offences are dealt with. In some cases it contains the rules of court
dealing with such matters as arrests, detention, searches, the questioning of
persons suspected of having committed as a criminal offence, and the
procedure for the granting of bail.

Declaratory statutes
A declaratory statute is enacted for the purpose of removing doubts or settling
the law where there are conflicting decisions of the courts. It declares what the
law is on a particular matter. It may state categorically what the Common Law
is on a particular matter or state the meaning or effect of a provision of an Act
of Parliament. A declaratory statute is also used to correct what is considered
to be a judicial error. It is normal to have a preamble to a declaratory statute to
explain why the statute is being declared and enacted.

Enabling statutes
These are pieces of legislation enacted to empower agencies, corporations or
persons to do what they could not do before the enactment of the Act. They
can prescribe imperative or absolute formalities or formalities which are
merely directory.
190 Understanding Statutes

Expository statutes
These are like declaratory statutes. They are enacted to explain the meaning of
a previous provision of an Act of Parliament or its tenure. They may also
declare the extent of the application of a previous Act.

General statutes
Most Acts of Parliament are general statutes. They apply to the people of a
given jurisdiction as a whole. There are no limits as to area or effect in the
application of a general statute as regards a particular jurisdiction.

Local statutes
A local statute is one that operates over a particular area of a jurisdiction and
does not apply to the whole country. (However, the term ‘local law’ or
‘municipal law’ is used in contradistinction to laws which operate in the
sphere of international law.)

Negative statutes
These Acts are expressed in negative terms. They prohibit the doing of an act,
declaring what shall not be done.

Penal statutes
Like criminal statutes, penal statutes in general define criminal offences and
the sanctions applicable to those offences. They deal with offences of a public
nature or acts against the State which are prohibited.

Perpetual statutes
Most statutes remain in force ‘for ever’. They contain no provision for their
repeal or as to their duration. They operate without limitation as to time,
unlike temporary statutes which by their nature have temporary operation (e.g.
an Appropriation Act).

Personal statutes
These have for their objects a particular person. The operation of a personal
statute affects only the person named, that is, it is for that person’s sole benefit
or disadvantage.
 Classification of statutes 191

Private statutes
Private statutes are like personal statutes in that they operate only on particular
persons or private concerns. They operate to administer, define, enforce or
regulate the relationship among certain associations, corporations or
individuals. The term is used in contradistinction to public statutes. A private
statute needs to be proved in court. It is not judicially noticed.

Public statutes
A public statute, like a general statute, states a universal rule applicable to the
jurisdiction as a whole. It does not restrict its application to certain individuals
or a particular class of people. It does not concern itself with particular
persons nor does it affect people’s private rights, except in a general way.
Public statutes are concerned with organisation of the affairs of government
and the relationship that exists between the government and the public as a
whole. They operate in the sphere of public law and are not restricted to a
particular area of the jurisdiction. Public statutes are judicially noticed.

Punitive statutes
Punitive statutes, like penal statutes, relate to punishment and impose
penalties, in some cases, including forfeiture.

Real statutes
These statutes deal principally with real property and only with people in so
far as they relate to issues of property.

Reference statutes
These statutes are in the area of referential legislation: they refer to other
statutes, making the referred statute part of the legislation concerned. In such
cases parts or the operation of other Acts of Parliament are made part of the
legislation. In other words parts of an Act of Parliament are incorporated or
adopted in the legislation.

Remedial statutes
Remedial statutes, as the name implies, provide the means or the procedures
to be used or applied in order to obtain redress or relief. They afford remedies
192 Understanding Statutes

or improve existing remedies for the enforcement of rights. They do not

modify the existing law, nor affect substantive rights, but merely provide the
methods for obtaining redress.

Revised statutes
Revised statutes are the result of Statute Law Revision. The whole corpus of
the statute law is revised, collected into Chapters and arranged in subject-
matter order. The existing statute law as so revised and arranged is enacted as
a whole and supersedes the separate Acts of Parliament.

Special statutes
Special statutes are like Private Acts of Parliament. They are enacted for
individual cases or for particular purposes rather than for the public as a whole.

General
Statutes were originally classified as general and special. General statutes
were judicially noticed by the judges in much the same way that they noticed
the Common Law. Special statutes were treated as exceptions to the general
law and would thus require proof.1
In time statutes were classified as Public statutes and General statutes to
distinguish them from Private statutes and Special statutes.
It is obvious from the above classifications that statutes can be broadly
classified as
(a) public general statutes;
(b) public local statutes;
(c) public special statutes;
(d) private local statutes;
(e) special local statutes;
(f) private personal statutes.
All these lend themselves to two main categories of statutes:
(A) statutes which apply to the public at large as one unit, whether directly
or indirectly. The courts take judicial notice of these statutes. Their
common characteristic is that

__________________________________________________________________________________________________________________________________________

1 Craies on Statute Law p 55.

 Classification of statutes 193

(a) they operate on all persons or things or upon all persons of a class;
(b) they operate only on a particular class of persons or a particular
class of things;
(c) they operate only in a given part of a jurisdiction.
(B) statutes which deal more with private interests and as such are not
judicially noticed and need to be pleaded.
A further classification is possible:
1. Public statutes
(a) general statutes;
(b) special statutes, private or local;
(c) local statutes, or special statutes.
2. Private statutes
(a) special statutes;
(b) personal statutes.
The Classification can be further narrowed down:
(a) public general statutes;
(b) local statutes;
(c) private and personal statutes.
Public statutes, whether general, special or local, have various
characteristics:
(a) temporary or perpetual;
(b) retro-active, retrospective or prospective;
(c) declaratory;
(d) permissive;
(e) prohibitive;
(f) remedial;
(g) directory;
(h) mandatory;
(i) repealing;
(j) affirmative or negative;
(k) civil or penal.
Statutes can also be classified under subject, such as statutes dealing with
real property etc.
 Appendix B

Note – This is a preliminary Draft of a Bill for an Interpretation Act. A student should be able to
find as many faults as possible in the Draft. It should be a pleasant exercise. Note the placement
of the marginal notes. It is the practice in some jurisdictions.

A Bill for an Interpretation Act

Arrangement of Clauses

Clause
1. Short title
Interpretation
2. Meaning of certain expressions
3. Application of Act
4. Application of rules of construction
Enacting Clauses
5. Words of enactment
Public and Private Acts
6. Public Acts
7. Provisions in private Acts
Application
8. Application of enactments
9. References to Head of State
10. Substantive enactments
Aids to Construction
11. Aids to interpretations or construction
12. References in enactments
13. Amending provisions
Operation of Statutes
14. Date of commencement of enactments
15. Publication and Commencement
16. Expiration of enactments
17. Exercise of powers before commencement of enactment
18. Statutory functions
19. Errors and omissions
20. Provisions as to holders of offices
21. Effect of words of incorporation
22. Offences and penalties
196 Understanding Statutes

Procedure of Courts etc.

23. Rules of procedure of courts and tribunals
24. Service of documents
25. Deviation in forms
26. Oaths, affirmations and declarations
Repeals etc.
27. Cessation of operation of enactments
28. Effect of repeal
29. Effect of substituting enactment
Enactment always Speaking
30. Enactment always speaking
31. Expressions in statutory instruments
Application of Definitions etc.
32. Application of interpretation provisions
33. Parts of speech
34. Names commonly used
35. Rules as to gender and number
36. Construction of “shall” and “may”
37. Distances
38. Time
39. Statutory boards, etc.
40. Definitions for legislative purposes
41. Definitions for judicial purposes
42. Definitions for executive purposes
43. References relating to land
44. Miscellaneous definitions
45. Assignment of Ministerial responsibilities
Delegation etc.
46. Delegation of functions
47. Signification of delegation
48. Instruments under the Public Seal
49. Citation of Acts
 A Bill for an Interpretation Act 197

DRAFT OF A BILL
FOR

AN ACT to provide for the operation and interpretation of enact-

ments and for other matters connected therewith.

ENACTED by the Parliament of [Ruritania].

Short title
1. This Act may be cited as the Interpretation Act, [...].
Interpretation
Meaning of certain expressions
2. In this Act, unless the context otherwise requires,
‘Act’ means an Act enacted by Parliament;
‘Assent’ means the Assent of the [Head of State];
‘constitutional instrument’ means an instrument made pursuant to a
power conferred in that behalf by the Constitution;
‘enact’ includes to issue, make or establish;
‘enactment’ means an Act of Parliament, or a statutory instrument, or
a constitutional instrument, or a provision of an Act of
Parliament, or of a constitutional instrument, or of a statutory
instrument;
‘instrument’ includes a notice, scheme, Rules, Regulations, By-Laws
or a Proclamation, an order, or a warrant, other than an order
made or a warrant issued by a court of competent jurisdiction;
‘private Act’ means an Act for the purpose of affecting or benefiting a
particular person passed in accordance with the Standing
Orders of [both Houses of] Parliament;
‘statutory instrument’ means an instrument made, whether directly of
indirectly, under a power conferred by an Act of Parliament;
‘statutory document’ means a document issued under an Act, other
than a statutory instrument or an order of a court of competent
jurisdiction.
Application of this Act
3 (1) This Act applies to an enactment whether enacted before or after
the coming into force of this Act, unless a contrary intention
appears in that enactment.
198 Understanding Statutes

(2) This Act applies to this Act as it applies to an enactment as

specified in subsection (1) and references in this Act to an
enactment so passed shall be construed accordingly.
Application of rules of construction
4. Nothing in this Act shall be construed as excluding the application to
an enactment of a rule of interpretation or construction applicable
thereto and not inconsistent with this Act.
Enacting Clauses
Words of enactment
5 (1) The words of enactment shall follow the Preamble where there is
one, or the Long Title to the Act, and the several sections within
the body of the Act shall follow in a concise and enunciative form.
(2) In a Bill presented to the [Head of State] for the Assent, other than
a Bill presented under article … of the Constitution, the words of
enactment shall be,
‘Enacted by the Parliament of [Ruritania.]’
(3) In a Bill presented to the [Head of State] for the Assent under
article … of the Constitution, the words of enactment shall be,
‘Enacted by the Parliament of [Ruritania] in accordance with the
provisions of article … of the Constitution.’
(4) In a Bill presented to the [Head of State] for the Assent under
article … or … of the Constitution, the words of enactment shall
be,
Enacted by the [Head of State] by and with the advice and consent
of the [House of Representatives] in accordance with the
provisions of article … or article … of the Constitution and by the
authority of the same.’
(5) In a Bill passed in accordance with the provisions of article … of
the Constitution, the words of enactment shall be
‘Enacted by the [Senate and the House of Representatives] in
accordance with the provisions of article …. of the Constitution
and by the authority of the same.’
Public and Private Acts
Public Acts
6. An Act is a public Act and shall be judicially noticed as such,
unless the contrary is expressly provided by the Act.
Provisions in private Acts
7. A provision in a private Act does not affect the rights of a person
not specifically mentioned in the private Act.
 A Bill for an Interpretation Act 199

Application
Application of enactments
8. An enactment shall, unless the contrary intention appears, apply to
the whole of [Ruritania.]
References to [Head of State]
9 (1) A reference in an enactment to the [Head of State] shall be
construed as a reference to the [Head of State] for the time being in
office.
(2) An enactment does not bind or in any manner affect the
[Crown] [Republic] [State] or the rights and prerogatives of the
[Crown] [Republic] [State] unless it is expressly stated therein that
the [Crown] [Republic] [State] is bound thereby.
(3) This Act binds the [Crown] [Republic] [State].
(4) A private Act shall be construed as containing a saving for
the rights of the [Crown] [Republic] [State].
Substantive enactments
10. A provision of an enactment has effect as a substantive enactment
without introductory words.
Aids to Construction
Aids to interpretation or construction
11 (1) Where a court is concerned with ascertaining the meaning of
an enactment, the court may have recourse to
(a) all indications provided by the enactment as printed,
published and distributed by the Government Printer;
(b) a report of a Commission, Committee or other body
appointed by Government or authorised by Parliament,
which has been presented to Government or laid before
Parliament;
(c) a relevant treaty or other international agreement which has
been ratified by Parliament or is referred to in the
enactment of which copies have been presented to
Parliament or where the Government is a signatory to the
treaty or other international agreement;
(d) an agreement which is declared by the enactment to be a
relevant document for the purposes of that Act.
(2) A court may, where it considers the language of an
enactment to be ambiguous or obscure, have reference to and
consider
(a) the legislative antecedents of the enactment;
(b) pre-parliamentary material relating to the enactment;
200 Understanding Statutes

(c) text-book, or other work of reference, a report or a

memorandum published by authority in reference to the
enactment, and any papers laid before Parliament in
reference to the enactment; and
(d) the parliamentary debates prior to the passing of the
enactment.
(3) Where a court has recourse to parliamentary debates under
subsection (2) the legislative intention lying behind the ambiguous
or obscure words must be clearly disclosed in the parliamentary
material and the statement shall be one made by the Minister or
other promoter of the Bill.
References in enactment
12 (1) A reference in an enactment to any other enactment shall be
construed as a reference to that other enactment as amended by or
under any other enactment, including the enactment in which the
reference is made.
(2) A reference in an enactment to a statute of general
application or to an instrument made under that statute, shall be
construed as a reference to that statute or instrument as it applies to
[Ruritania]; and that statute or instrument shall be read with the
requisite alteration, modification or adaptation so as to make that
statute or instrument applicable to the circumstances.
(3) Where in an enactment reference is made to a provision of a
statute of general application and that provision is subsequently
repealed and re-enacted without substantial modification that
reference shall, if the context so requires, be construed as a
reference to the provision as so re-enacted.
(4) A reference in an enactment by number or letter to a Part,
section, subsection, paragraph, sub-paragraph or other division of
any other enactment or of a statute of general application shall be
construed as a reference to that Part, section, subsection,
paragraph, sub-paragraph or other division of that other enactment
or statute as printed by authority.
(5) A reference in an enactment by number or letter to two or
more Parts, divisions, sections, subsections, paragraphs, sub-
paragraphs, Schedules, instruments or forms shall be construed as
including the number or letter first mentioned and the number or
letter last mentioned.
(6) Where in an enactment reference is made to a Part, division,
section, Schedule or form without anything in the context to
indicate that a reference to a Part, division, section, Schedule or
form of some other enactment is intended, the reference shall be
 A Bill for an Interpretation Act 201

construed as a reference to the Part, division, section, Schedule or

form of the enactment in which the reference is made.
(7) Where in a section of an enactment reference is made to a
subsection, paragraph, sub-paragraph or other division without
anything in the context to indicate that a reference to a subsection,
paragraph, sub-paragraph or other division of some other section
or provision is intended, the reference shall be construed as a
reference to the subsection, paragraph, sub-paragraph or other
division of the section in which the reference is made.
(8) Where in a Schedule or Part of a Schedule to an enactment
reference is made to a paragraph, sub-paragraph or other division
without anything in the context to indicate that a reference to a
paragraph, sub-paragraph or other division of some other
enactment or division is intended, the reference shall be construed
as a reference to the paragraph, sub-paragraph or other division of
the Schedule or the part of the Schedule in which the reference is
made.
(9) Where in an enactment reference is made to a statutory
instrument or statutory document, without anything in the context
to indicate that a reference to a statutory instrument or statutory
document made under some other enactment is intended, the
reference shall be construed as a reference to the statutory
instrument or statutory document, made under the enactment in
which the reference is made.
(10) A reference in an enactment to a power exercisable, or to a
statutory instrument or statutory document made or issued or an
act or a thing done, under an enactment or a statute of general
application, shall include a reference to a power exercisable, a
statutory instrument or statutory document made or issued or an
act or a thing done, by virtue of that enactment or statute or of a
statutory instrument or statutory document made or issued under or
by virtue of that enactment or statute.
Amending provisions
13 (1) An Act may be amended, altered or repealed in the same
session of Parliament.
(2) An amending enactment shall, so far as consistent with the
tenor thereof, operate and be construed as part of the enactment
which it amends and, without prejudice to subsection (1) of section
12 shall, as from the date on which it comes into operation, have
effect accordingly for the purpose of the construction and
operation of any other enactment which refers to, or is
incorporated with, the enactment which it amends.
202 Understanding Statutes

Operation of Enactments
Date of commencement of enactments
14 (1) The date of the commencement or coming into operation of an
Act shall be the date on which the Assent is given or as otherwise
specified in the Act.
(2) The Assent and the day, month and year thereof shall be
inscribed on an Act and the inscription shall be taken to be part of
the Act.
(3) The date of the making of a statutory instrument shall be the
date therein expressed as the date of the making thereof, but where
the instrument is made by two or more authorities jointly and is
therein expressed to have been made by those authorities on
different dates, the date of the making thereof shall be the last date
so expressed.
(4) Where a statutory instrument made by an authority or a
person requires the concurrence or approval of any other authority
or person, the concurrence or approval shall be formally inscribed
on the instrument,
(a) on or before the date of the making thereof; or
(b) within one month after the making of the instrument, if the
other authority or person has before that date indicated an
intention to concur in or approve of the making of the
instrument.
Publication and Commencement
15 (1) An enactment shall be published in the Gazette and subject to
section 14, and unless the enactment otherwise provides, shall take
effect and come into operation on the date of the publication.
(2) Where an enactment is expressed to come into force or
operation on a particular day, whether that day is before or after the
date of the passing of that enactment, or where the enactment is a
statutory instrument, of the making thereof, and whether that day is
named in the enactment or is to be appointed or fixed or
ascertained in any other manner, the enactment shall be construed
as coming into force immediately on the expiration of the day
before that particular day.
(3) Where an Act provides
(a) that it is to come into force or operation on a day or date to
be fixed or determined, or appointed by Proclamation, or
(b) that it is not to come into force or operation until a day or
date to be so fixed, determined or appointed,
that Proclamation
 A Bill for an Interpretation Act 203

(c) may apply to the whole of, or to a provision of, the Act, and
may be issued at different times in respect of that provision;
or
(e) may specify different dates in respect of different provisions
of the Act.
Expiration of enactments
16 (1) Where an enactment is expressed to expire or otherwise cease
to have effect on a particular day, the enactment shall, except as
provided by subsection (2), be construed as ceasing to have effect
immediately on the expiration of that day.
(2) Where a Bill is introduced into a session of Parliament for
the continuance of an Act limited to expire in that session and the
Act expires before the Bill receives in that session the Assent and
is published in the Gazette, then, subject to subsection (3), that Act
shall be deemed to have continued as fully and effectively in
operation as if the Bill had received the Assent and been published
in the Gazette before the Act expired.
(3) Subsection (2) shall not operate so as to render a person
liable under the provisions of an Act which has expired to a
penalty or forfeiture by reason of an act done by that person before
the date on which the Bill for the continuance of that Act receives
the Assent and is published in the Gazette.
Exercise of powers before commencement of enactment
17. Where an enactment is not in force and it contains provisions
conferring power to make Regulations or to do any other thing,
that power may, for the purpose of making the enactment effective
upon its commencement be exercised at any time before its
commencement, but Regulations so made or a thing so done has
no effect until the commencement of the enactment, except in so
far as may be necessary to make the enactment effective upon its
commencement.
Statutory functions
18 (1) Where an enactment confers a power or imposes a duty, the
power may be exercised and the duty shall be performed, as
occasion requires.
(2) Where an enactment confers a power to make a statutory
instrument, the power shall be construed as including a power,
exercisable in the like manner and subject to the like consent and
conditions, to amend, alter, rescind, or revoke that statutory
instrument and to make other statutory instruments, but this
subsection shall not apply to an order which is not made by a rule-
making authority in the exercise of a statutory power which is of a
legislative character.
204 Understanding Statutes

(3) Where power is given to a person or an authority to do an act or

thing, or enforce the doing of an act or thing, the power so given
includes all other powers as are reasonably necessary to enable that
person or authority to do that act or thing, or enforce the doing of
that act or thing, or are incidental to the doing or enforcement
thereof.
(4) Where an enactment authorises or requires an act or thing to be
done collectively by more than three persons, a majority of those
persons may do that act or thing, unless a quorum is fixed by that
or any other enactment.
(5) A power conferred by an enactment to make a statutory instrument
or issue a statutory document may be exercised
(a) either in relation to all cases to which the power extends, or
in relation to all those cases subject to specified exceptions,
or in relation to any specified cases or classes of case; and
(b) so as to make, as respects the cases in relation to which it is
exercised,
(i) the full provision to which the power extends or any less
provision (whether by way of exception or otherwise);
(ii) the same provision for all cases in relation to which the
power is exercised, or different provision for different cases
or classes of case, or different provision as respects the same
case or class of case for different purposes of the enactment;
(iii) any such provision either unconditionally or subject to any
specified condition.
(6) Where an enactment confers upon a person or authority power to
make a statutory instrument, the statutory instrument so made
(a) shall be construed subject to the enactment under which it is
made;
(b) shall not exceed the power so conferred.
(7) Where an enactment confers upon a person or an authority power
to make a statutory instrument, an act done under a statutory
instrument so made shall be deemed to have been done under that
enactment in so far as the act done is not inconsistent with, or in
contravention of, the statutory instrument so made.
(8) A statutory instrument or a statutory document which is expressed
or purports to be made or issued by a person or an authority under
a specific enactment, shall be deemed also to be made or issued
under all powers thereunto enabling that person or authority.
 A Bill for an Interpretation Act 205

(9) Where an enactment confers a power upon a person or an

authority to make a statutory instrument for a general purpose and
also for a special purpose incidental thereto, the enumeration of the
special purposes shall not be construed as derogating from the
generality of the power conferred with respect to the general
purpose.
(10) Where an enactment confers a power to make a statutory
instrument that power includes a power to provide
(a) a punishment by way of a fine or imprisonment or both for a
contravention of that statutory instrument;
(b) that an offence against that statutory instrument may be tried
summarily or on an indictment.
Errors and omissions
19 (1) Where an enactment confers a power or imposes a duty upon a
person to do an act or thing of an administrative or executive
character or to make an appointment, the power or duty may be
exercised or performed in order to correct an error or omission in a
previous exercise or performance of the power or duty.
(2) The substantive rights of, or the procedures for redress by, a
person who has suffered loss or damage or is otherwise aggrieved
as a result of an omission or error corrected under subsection (1)
shall not be affected as a result of the correction of that omission or
error and an investigation, a legal proceeding or a remedy in
respect of a right, privilege, obligation or liability shall continue as
if the omission or error had not been corrected.
Provisions as to holders of offices
20. (1) Words in an enactment which authorise the appointment of a
person to an office confer, in addition, on the authority in whom
the power is vested,
(a) a power, at the discretion of the authority, to remove or
suspend that person;
(b) a power, exercisable in the like manner and subject to the
like consent and conditions applicable to the appointment,
(i) to reappoint or reinstate that person; or
(ii) to appoint any other person, whether substantively or in an
acting capacity;
(iii) to determine the remuneration and the terms of payment of
the remuneration applicable to the office.
(2) Where the power of appointment is exercisable only upon the
recommendation or subject to the approval, consent or concurrence
of some other authority or person, the power of removal shall be
206 Understanding Statutes

exercised only upon the recommendation or subject to the

approval, consent or concurrence of that other authority or person.
(3) In an enactment a reference, without qualification, to the
holder of an office includes a reference to a person for the time
being holding that office, and, in particular
(a) words in an enactment directing, or empowering the holder
of an office to do an act or thing, or otherwise applying to
the holder of that office, shall apply to the successors in
office and to a deputy;
(b) where an enactment confers a power or imposes a duty on
the holder of an office, as such, the power may be exercised
and the duty shall be performed by the person for the time
being charged with the exercise or performance of the
powers and duties of the office.
(4) Where the change of title of a public officer is notified in the
Gazette by a Government Notice setting out the former title and
the substituted title of the officer, a reference to the former title in
an enactment or in a document made or issued under that
enactment shall be construed as a reference to the substituted title.
(5) Where a public officer is by reason of absence or incapacity
through illness or any other sufficient cause unable to perform a
function conferred upon that officer by or under an enactment, that
function shall be performed by a public officer or person
designated by the appropriate authority subject to the conditions,
exceptions or qualifications specified by the appropriate authority.
Effect of words of incorporation
21 (1) Where an enactment contains words establishing, or providing
for the establishment of, a body corporate the words operate
(a) to vest in that body when established
(i) the power to sue and be sued, to contract and be contracted
with, by its corporate name;
(ii) the right to have a common seal and to alter or change that
seal, which common seal shall be judicially noticed, and
shall authenticate a document to which it is affixed and
attested in accordance with the law applicable to the
attestation of documents;
(iii) the right to acquire and hold real or personal property for
purposes for which the corporation is constituted and to
dispose of or charge that property;
(iv) the right to regulate its own procedure and business; and
 A Bill for an Interpretation Act 207

(v) the right to employ the necessary staff for the performance
of its functions;
(b) to vest in a majority of the members of that body corporate
the power, subject to a quorum fixed by the enactment under
which it is established or by any relevant standing orders, to
bind other members thereof; and
(c) to exempt from personal liability for the debts, obligations or
acts of that body not being offences committed by that body
corporate, the members thereof who do not contravene the
provisions of the enactment under which that body is
established.
(2) Subsection (1) does not
(a) prevent additional powers being conferred by an enactment
on that body; or
(b) prevent the powers conferred by the subsection being limited
by an enactment; or
(c) prejudice or affect the liability of a member of that body to
be surcharged with the payment of an amount which may be
disallowed in the accounts of that body by an auditor
whether acting in pursuance of an enactment or otherwise.
Offences and penalties
22 (1) Where an act or omission constitutes an offence under two or
more than two enactments or under an enactment or at common
law, the offender is liable to be prosecuted and punished under
either or any of those enactments or at common law, but shall not
be punished twice for the same offence.
(2) Where an offence under an enactment is committed by a body
corporate the directors, the general manager, the secretary or other
senior officer of that body corporate shall be deemed to have
personally committed that offence.
(3) A person shall not be convicted of an offence pursuant to
subsection (2) where it is proved to the satisfaction of the court that
that person did not consent to, or did not connive at, the
commission of the offence, or did exercise such reasonable
diligence as ought in the circumstances to have been exercised to
prevent the commission of the offence, having regard to the nature
of the offence.
(4) For the purposes of subsections (2) and (3), a body corporate
includes a firm or partnership and those subsections shall be
construed accordingly in the case of a firm or a partnership.
208 Understanding Statutes

(5) Subsections (2) and (3) shall not operate so as to affect the
liability of the members of the body corporate.
(6) A person shall not be charged under subsection (2) except
with the consent of the [Director of Public Prosecutions]
[Attorney-General].
(7) An enactment creating criminal liability for an act or
omission which, apart from that enactment, would give rise to civil
liability shall not operate to prejudice the civil liability; but this
subsection shall not be construed as excluding the application of a
rule of law which restricts the right to take civil proceedings in
respect of an act or omission which constitutes a felony.
(8) Where an enactment provides a punishment for an offence
against the enactment, the offence is punishable by a punishment
not exceeding that so provided.
(9) Where an enactment creates an offence, an attempt to
commit that offence is an offence under the enactment and the
attempt is punishable as if the offence itself had been committed.
(10) Where under an enactment an animal or a thing
(a) is or is ordered by a competent authority to be confiscated or
forfeited, the forfeiture shall be to the state;
(b) ordered or deemed to be forfeited is sold, the net proceeds of
the sale shall be paid into and form part of the Consolidated
Fund.
(11) Nothing in subsection (10) shall prejudice an enactment
under which the whole or a part of a fine, penalty or forfeiture or
the proceeds of a forfeiture is recoverable by a person or may be
granted by an authority to a person.
(12) A fine or pecuniary penalty imposed by or under an
enactment shall be paid into the Consolidated Fund.
(13) Where in an enactment an offence is declared to be
punishable on indictment or summary conviction, the procedure in
respect of the trial and punishment of the offence and the recovery
of the penalty, and all matters incidental to, or arising out of the
trial and punishment of the offence or the recovery of the penalty,
shall be in accordance with the law relating to the trial of offences
on indictment or the trial of summary offences.
Procedure of Courts and Tribunals
Rules of procedure of courts and tribunals
23 (1) Where an enactment confers jurisdiction on a court or other
tribunal or extends or varies that jurisdiction, the authority having
 A Bill for an Interpretation Act 209

power to make Rules or Orders regulating the practice and

procedure of that court or tribunal may make the Rules or Orders
that appear to the authority to be necessary for regulating the
practice and procedure of that court or tribunal in the exercise of
the jurisdiction so conferred, extended or varied, and it shall not be
necessary for any other enactment to confer power on the authority
to make Rules or Orders for these purposes.
(2) An authority empowered to make Rules or Orders regulating
the practice and procedure of a court or a tribunal shall not, in the
exercise of that power, make without the concurrence of the
Minister responsible for Finance an order which
(a) directs money to be paid out of, or in aid of, the
Consolidated Fund; or
(b) prescribes or alters court fees.
(3) The validity of Rules or Orders made pursuant to subsection
(1) shall not in proceedings in a court or a tribunal be impugned
either by the court or tribunal or by a party to the proceedings on
the ground only that the concurrence of the Minister responsible
for Finance has not been given or is not expressed to have been
given.
Service of documents
24 (1) Where an enactment authorises or requires a document to be
served by post that document shall be sent by registered post to the
person on whom the document is to be served at that person’s last
known place of abode or business.
(2) Where an enactment authorises or requires a document to be
served on a person without directing it to be served in a particular
manner the service of that document may be effected
(a) by personal service; or
(b) by post in accordance with subsection (1); or
(c) by leaving it with some adult person at that person’s usual or
last known place of abode or business; or,
(d) in the case of a corporate body, or of an association of
persons (whether incorporated or not) by delivering it to the
secretary or clerk of the body corporate or association at the
registered or principal office of the body corporate or
association or serving it by post on that secretary or clerk at
that office; or,
(e) where it is not practicable after reasonable enquiry to
ascertain the name or address of an owner, a lessee, or an
occupier of premises on whom the document ought to be
210 Understanding Statutes

served, by addressing the document to that person by the

description of ‘owner’ or ‘lessee’ or ‘occupier’ of the premises
(naming them) to which the document relates, and by delivering it
to some person on the premises or, if there is no person on the
premises to whom it can be delivered, by affixing it, or a copy of it,
to some conspicuous part of the premises.
Deviation in forms
25. Where a form is prescribed or specified by an enactment,
deviations therefrom not materially affecting the substance nor
calculated to mislead shall not invalidate the form used.
Oaths, affirmations and declarations
26 (1) Where an enactment authorises or requires evidence to be
taken on oath, or authorises or directs an oath to be made, taken or
administered, the oath may be administered, and a certificate or
acknowledgement of its having been made, taken or administered
may be given by a person authorised by the enactment to take the
evidence or by a judge of a court of competent jurisdiction, or a
notary public, or a commissioner for oaths or a person so
authorised by any other enactment.
(2) In an enactment the word ‘oath’ or ‘affidavit’ includes an
affirmation or a declaration.
(3) A reference in an enactment to a statutory declaration shall
be construed as a reference to a declaration made
(a) by virtue of the enactment relating to statutory declarations,
or
(b) under the enactment relating to the taking of evidence where
the declaration is made before the appropriate competent
authority.
(4) A power conferred by an enactment upon a justice of the
peace to administer an oath or an affirmation, or to make an
affidavit or a declaration, may be exercised by a notary public or a
commissioner for oaths.
Repeals etc.
Cessation of operation of enactments
27. Where in an enactment it is declared that the whole or a part of any
other enactment is to cease to have effect, that other enactment
shall be deemed to have been repealed to the extent to which it is
so declared to cease to have effect.
Effect of repeal
28 (1) Where an enactment repeals or revokes an enactment, the
repeal or revocation shall not, save as in this section otherwise
 A Bill for an Interpretation Act 211

provided,
(a) revive an enactment or a thing not in force or existing at the
time at which the repeal or revocation takes effect;
(b) affect the previous operation of the enactment so repealed or
revoked, or anything duly done or suffered thereunder;
(c) affect a right, privilege, obligation or liability acquired,
accrued or incurred under the enactment so repealed or
revoked;
(d) affect an offence committed against the enactment so
repealed or revoked, or a penalty or a forfeiture or a
punishment incurred in respect thereof; or
(e) affect an investigation, a legal proceeding or a remedy in
respect of a right, a privilege, an obligation, a liability, a
penalty, a forfeiture or a punishment;
and the investigation, legal proceeding or remedy may be
instituted, continued or enforced, and the penalty, forfeiture or
punishment may be imposed, as if the enactment had not been
repealed or revoked.
(2) Nothing in subsection (1) shall be taken to authorise the
continuance in force after the repeal or revocation of an enactment
of an instrument made under that enactment.
(3) Where an enactment expires, lapses or otherwise ceases to
have effect, this section shall apply as if that enactment had then
been repealed or revoked.
(4) The inclusion in the repealing provisions of an enactment of
an express saving with respect to the repeals affected thereby shall
not be taken to prejudice the operation of this section with respect
to the effect of those repeals.
Effect of substituting enactment
29 (1) Where an enactment repeals or revokes and re-enacts, with or
without modification, an enactment, a reference in any other
enactment or statutory document to the enactment so repealed or
revoked shall, without prejudice to the operation of subsections (2)
and (3), be construed as a reference to the enactment as re-enacted.
(2) Where an enactment repeals or revokes an enactment, in this
subsection and in subsection (3) referred to as the ‘old enactment’,
and substitutes another enactment therefor by way of amendment,
revision or consolidation,
(a) a person acting under the old enactment shall continue to act
as if appointed under the enactment so substituted;
(b) a bond or a security given by a person appointed under the
212 Understanding Statutes

old enactment remains in force and all books, papers and things
used or made under the old enactment shall continue to be used so
far as is consistent with the enactment so substituted;
(c) a proceeding taken under the old enactment shall be
prosecuted and continued under and in conformity with, the
enactment so substituted, so far as it may be done
consistently with the substituted enactment;
(d) in the recovery or enforcement of penalties and forfeitures
incurred, and in the enforcement of rights, existing or
accruing under the old enactment, or in any other proceeding
under the old enactment, the procedure established by the
enactment so substituted shall be followed so far as it can be
adapted; and
(e) where a penalty, a forfeiture or a punishment is reduced or
mitigated by a provision of the enactment so substituted, the
penalty, forfeiture or punishment, if imposed or awarded
after the repeal or revocation, shall be reduced or mitigated
accordingly.
(3) Without prejudice to subsection (2), where an enactment
repeals or revokes an enactment and substitutes another enactment
therefor by way of amendment, revision or consolidation,
(a) all statutory instruments or statutory documents made,
issued, confirmed or granted under the old enactment and all
decisions, authorisations, directions, consents, applications,
requests or things made, issued, given or done thereunder
shall, in so far as they are in force at the commencement of
the enactment so substituted, and are not inconsistent
therewith, have the like effect and the like proceedings may
be had thereon and in respect thereof as if they had been
made, issued, confirmed or granted or made, issued, given or
done under the corresponding enactment so substituted; and
(b) a reference to the old enactment in an unrepealed or
unrevoked enactment shall, in relation to a subsequent
transaction, matter or thing, be construed as a reference to so
much of the enactment so substituted as relates to the same
subject-matter as the old enactment; and, if nothing in the
enactment so substituted relates to the same subject-matter,
the old enactment shall stand good, and be read and
construed as unrepealed or unrevoked in so far, and in so far
only , as is necessary to support, maintain or give effect to
the unrepealed or unrevoked enactment.
 A Bill for an Interpretation Act 213

Enactments always Speaking etc.

Enactment always speaking
30. An enactment shall be construed as always speaking and anything
expressed in the present tense shall be applied to the circumstances
as they occur, so that effect may be given to each enactment
according to its true spirit, intent and meaning.
Expressions in statutory instruments
31 (1) Where an enactment confers power to make a statutory
instrument or issue a statutory document, unless a contrary
intention appears,
(a) expressions used in the statutory instrument or statutory
document have the same respective meanings as in the
enactment; and
(b) the expression ‘the Act’ if used in the statutory instrument or
statutory document shall be construed as referring to the Act
under which the instrument is made or the document is
issued.
Application of Definitions
Application of interpretation provisions
32 (1) Definitions or rules of interpretation contained in an enactment
apply to the construction of the provisions of the enactment which
contain those definitions or rules of interpretation.
(2) An interpretation section or provision contained in an
enactment shall be read and construed as being applicable
(a) only if the contrary intention does not appear in the
enactment; and
(b) to all other enactments relating to the same subject-matter,
unless a contrary intention appears in the enactment.
Parts of speech
33. Where a word is defined in an enactment, other parts of speech and
grammatical variations of that word and cognate expressions shall
have corresponding meanings in that enactment.
Names commonly used
34. In an enactment, a name commonly applied to a country, place,
Government department, body, corporation, society, Minister,
officer, functionary, person, party, statutory provision, or other
thing means the country, place, Government department, body,
corporation, society, Minister, officer, functionary, party, statutory
provision or thing to which the name is commonly applied,
whether or not the name is the formal or unabbreviated designation
thereof.
214 Understanding Statutes

Rules as to number and gender

35. (1) Words in an enactment importing
(a) male persons include female persons; and
(b) female persons include male persons.
(2) Words in an enactment importing persons include male and
female persons, corporations, whether aggregate or sole, and
unincorporated bodies of persons.
(3) A reference in an enactment to a party aggrieved includes a
reference to a body corporate in every case where that body
corporate is a party aggrieved.
Construction of ‘shall’ and ‘may’
36. In an enactment the expression ‘may’ shall be construed as
permissive and empowering, and the expression ‘shall’ as
imperative and mandatory.
Distances
37. In the measurement of a distance for the purposes of an enactment,
the distance shall be measured in a straight line on a horizontal
plane.
Time
38 (1) In an enactment, words relating to time and references to a
point in time shall be construed as relating or referring to standard
time.
(2) In an enactment, the expression ‘standard time’ shall be
construed as meaning the time specified by the appropriate
authority to be the standard time.
(3) Where in an enactment a period of time is expressed to begin
on, or to be reckoned from, a particular day, that day shall not be
included in the period.
(4) Subject to subsection (6), where in an enactment a period of
time is expressed to end on, or to be reckoned to, a particular day,
that day shall be included in the period.
(5) Where the time limited by an enactment for the doing of a
thing expires or falls upon a Sunday or a public holiday, the time
shall extend to and the thing may be done on, the first following
day that is not a Sunday or a public holiday.
(6) Where a period of time prescribed by an enactment for the
doing of a thing does not exceed six days, Sundays and public
holidays shall not be included in the computation of the period.
(7) Where by an enactment a period of time is expressed as
‘clear days’ or is qualified by the term ‘at least’, both the first day
 A Bill for an Interpretation Act 215

and the last day shall be excluded from the computation of the
period.
(8) In an enactment
(a) a reference to midnight, in relation to a particular day, shall
be construed as a reference to the point of time at which that
day ends;
(b) a reference to a week-day shall be construed as a reference
to a day that is not a Saturday or Sunday;
(c) a reference to a month shall be construed as a reference to a
calendar month;
(d) a reference, without qualification, to a year, shall be
construed as a reference to a period of twelve months;
(e) a reference to a financial year shall be construed as a
reference to a period of twelve months as specified in the
enactment.
(9) In an enactment, the expression ‘public holiday’ means a
day that under the provisions of an enactment or other law is, or is
declared to be, or is proclaimed as, a public holiday.
(10) An enactment requiring or authorising the doing of a thing
but not prescribing or limiting the period within which that thing is
to be done, or may be done, shall be construed as requiring or
authorising that thing to be done with all convenient speed and not
otherwise.
(11) Subsections (1) and (2) shall have effect in relation to deeds
and other legal instruments as they have effect in relation to an
enactment.
Statutory boards, etc.
39 (1) The functions of a statutory board shall not be affected by a
vacancy in the membership of that statutory board.
(2) A power conferred by or under an enactment upon an authority
or a person to appoint the members of a statutory board includes
(a) the power to appoint the chairman of the statutory board;
and
(b) the power to appoint an individual person as an alternative
member to act in the place of the member in respect of
whom the alternate appointment is made.
(3) An alternative member when acting as such shall have and
perform all the functions of the member in whose place the
alternate appointment is made.
216 Understanding Statutes

(4) An authority or person empowered by or under an enactment

to appoint or designate a person to be a member of a statutory
board or to perform any other function may
(a) appoint or designate a person by name; or
(b) appoint or designate a person by reference to an office;
and the person so appointed or designated may perform the
function in respect of which the appointment or designation is
made.
Definitions for legislative purposes
40 (1) In an enactment, the expression
‘House’ means the lower or, as the case may be, the upper
chamber of Parliament;
‘Parliament’ means Parliament as established under
article...of the Constitution;
‘President’ means the President elected in accordance with
article … of the Constitution;
‘session’ in relation to Parliament means the sittings of
Parliament commencing when it first meets after a
dissolution or prorogation of Parliament at any time and
terminating when Parliament is dissolved or prorogued;
‘sitting’ in relation to Parliament includes a period during
which either House is sitting continuously without
adjournment and a period during which that House is in
committee;
‘Speaker’ means the person elected as Speaker by members
of Parliament..
(2) In an enactment the expression ‘statutory period’ in relation
to a statutory instrument means a period of forty days or such other
period as may be prescribed by the enactment.
(3) Where an enactment provides that a statutory instrument
(a) shall be laid before Parliament, and
(b) may be annulled or approved by a resolution of Parliament,
the computation of the period within which the instrument shall be
laid or annulled or approved, shall not take account of a period
when Parliament is dissolved or prorogued.
(4) A reference in an enactment to the laying of a statutory
instrument or a statutory document or a report, an account or other
document before Parliament, shall be construed as a reference to
the taking, during the existence of Parliament, of the action
 A Bill for an Interpretation Act 217

(a) which, by or under a Standing Order, Sessional Order or

other direction of the House before which the instrument or
document is laid, constitutes the laying of the instrument or
document before that House; or
(b) which is accepted by virtue of the practice and the procedure
of that House as constituting the laying.
(5) The expression ‘subject to an affirmative resolution’ when
used in relation to a statutory instrument or a statutory document
means that the instrument or document shall be laid before
Parliament, and shall not come into operation unless it is approved
by a resolution supported by the votes of not less than [one-half of
all the members of each House].
(6) The expression ‘subject to a negative resolution’ when used
in relation to a statutory instrument or a statutory document means
that the instrument or document shall be laid before Parliament but
it shall cease to have effect when each House by a resolution
supported by the votes of not less than [one-half of all the
members of each House] annuls the instrument or document.
(7) The annulment of an instrument or document by virtue of
subsection (6) shall not affect the validity of any thing done under
the instrument or the document, or prejudice the making of a new
instrument or document.
Definitions for judicial purposes
41. In an enactment, the expression
‘Chief Justice’ means the Chief Justice appointed under article … of
the Constitution;
‘committed for trial’ includes
(a) committed by a court of competent jurisdiction; or
(b) committed on bail upon a recognisance to appear and stand
trial before a court of competent jurisdiction;
‘court of summary jurisdiction’ means a magistrate exercising
statutory summary jurisdiction;
‘Director of Public Prosecutions’ means the Director of Public
Prosecutions appointed under article … of the Constitution;
‘High Court’ means the High Court of Justice established by article …
of the Constitution;
‘indictable offence’ means an offence triable on indictment in
accordance with ….
‘Justice’ includes the Chief Justice and any other Justice of the
superior courts of record;
218 Understanding Statutes

‘Magistrate’ means a Magistrate appointed under ….

‘printed by authority of law’ means printed by the Government
Printer;
‘Rules of Court’ when used in relation to a court means Rules made by
the competent authority to regulate the practice and procedure of
the courts;
‘statute of general application’ means ….
‘summary conviction’ means conviction of a summary offence;
‘summary offence’ means an offence triable otherwise than on
indictment;
‘Supreme Court’ means the Supreme Court of Judicature established
by article … of the Constitution;
Definitions for executive purposes
42. In an enactment, the expression
‘appointed day’ for the purposes of an enactment means the day
specified as such by the [Head of State] by Proclamation published
in the Gazette;
‘Auditor-General’ means the Auditor General appointed under article
… of the Constitution;
‘Cabinet’ means the Cabinet established by ….
‘Commonwealth’, means the countries specified or certified as
Commonwealth countries in or under an Act of Parliament relating
to membership of the Commonwealth;
‘Commonwealth country’ means a country that is a member of the
Commonwealth;
‘Consolidated Fund’ means the Consolidated Fund established by
article … of the Constitution;

‘Gazette’ includes the Gazette published by order of the Government

and supplements thereto;
‘Government’ means an authority by which the executive authority of
[Ruritania] is duly exercised;
‘Government Notice’ means an announcement, whether or not of a
legislative character, published in the Gazette by or with the
authority of the Government;
‘Government Printer’ includes a printer authorised by the Government
Printer;
 A Bill for an Interpretation Act 219

‘Leader of the Opposition’ means the Leader of the Opposition

appointed under article of the Constitution;
‘Minister’ includes the Prime Minister and any other Minister for the
time being having responsibility for the subject-matter of the
enactment in respect of which that expression is used;
‘payable by warrant’ means payable out of the Consolidated Fund
upon the authority of a warrant under the hand of the Minister
responsible for Finance;
‘Prime Minister’ means the Prime Minister appointed under
article…of the Constitution;
‘prescribed’ means prescribed in or under the enactment in which that
expression occurs;
‘prescribed by Parliament’ means prescribed by the authority of
Parliament;
‘Proclamation’ means a Proclamation made by the [Head of State]
under the Public Seal;
‘public corporation’ means a corporation or any other body of persons
established by an Act of Parliament or set up out of funds provided
by Parliament or by any other public fund;
‘public interest’ includes a right or an advantage which enures or is
intended to enure for the benefit generally of the whole of the
people of [Ruritania];
‘public office’ includes an office the emoluments attaching to which
are paid directly from the Consolidated Fund or directly out of
moneys provided by Parliament and service with a public
corporation established entirely out of public funds or moneys
provided by Parliament;
‘public service’ includes service in a civil office of Government the
emoluments attaching to which are paid directly from the
Consolidated Fund or directly out of moneys provided by
Parliament and service with a public corporation;
‘public officer’ includes the holder of a public office and a person
appointed to act in that office;
‘Public Service Commission’ means the Public Service Commission
established by article…of the Constitution;
‘Public Seal’ means the Public Seal of [Ruritania]
References relating to land
43 (1) In an enactment, the expression ‘land’ includes messuages,
tenements, and hereditaments, corporeal or incorporeal, of every
220 Understanding Statutes

kind and description and houses and other buildings of any tenure,
and any estate, right, title or interest in, to or over land.
(2) In an enactment, the expression
‘registered land’ means land the title to which is registered
under that enactment;
‘unregistered land’ means land the title to which is not
registered under that enactment.
Miscellaneous definitions
44. In an enactment, the expression
‘act’ where used in reference to an offence or civil
wrong includes a series of acts, and words so used which refer to
acts done extend to omissions;
‘coin’ means a coin which is legal tender in [Ruritania];
‘commencement’ when used with reference to an enactment means the
time at which that enactment comes into operation;
‘Commonwealth citizen’ means a person who by law has the status of
a Commonwealth citizen;
‘consul’ or ‘consular officer’ includes consul-general, consul, vice-
consul, consular agent, and a person authorised to discharge the
duties of consul-general, consul or vice-consul;
‘contravention’ in relation to an enactment, includes a failure to
comply with that enactment;
‘service by post’ means service in accordance with subsection (1) of
section 24;
‘signature’ includes the making of a mark;
‘will’ includes a codicil;
‘writing’ or a term of like import includes words typewritten, printed,
painted, engraved, lithographed, photographed or represented or
reproduced by any mode of representing or reproducing words in a
visible form;
(2) In an enactment, the expression
‘access’ includes ingress, egress and regress;
‘assets’ includes property or rights of any kind;
‘costs’ includes fees, charges, disbursements, expenses or
remuneration;
 A Bill for an Interpretation Act 221

‘fault’ means wrongful act or default;

‘functions’ includes powers and duties;
‘goods’ includes movable property and animals;
‘individual’ means a natural person other than a corporation;
‘movable property’ means property of every description, including
growing crops, except immovable property;
‘perform’ in relation to functions includes exercise;
‘sale’ includes exchange or barter;
‘surety’ means sufficient surety;
‘vessel’ means a ship, boat, lighter or other floating craft used or
capable of being used for transport by water;
‘words’ when used in an amending enactment includes figures,
punctuation marks and typographical, monetary, mathematical and
scientific symbols.
Assignment of Ministerial responsibilities
45. Notwithstanding anything to the contrary in an enactment, where a
change in the assignment or responsibility for the business of
government is notified in the Gazette by a Government Notice
setting out the former assignment and the substituted assignment, a
reference to the former assignment in an enactment and in a
document made or issued under the enactment shall be construed
as a reference to the substituted assignment from the date specified
in the Government Notice.
Delegation etc.
Power to delegate functions
46. Where by or under an enactment a function is conferred on a
person or authority other than a function in relation to the hearing
of a petition or the making of subsidiary legislation that person or
authority may by instrument in writing delegate the performance
of those functions to a person either by name or as the holder of an
office as is specified in the instrument subject to such conditions,
exceptions and qualifications as are so specified.
Signification of delegation
47 (1) A delegation made under section 46 shall, within twenty-four
hours, be published in the Gazette.
(2) A delegation made under section 46 may be revoked or varied
by the like instrument or order as is respectively specified in that
section; and the revocation or variation shall, within twenty-four
hours, be published in the Gazette.
222 Understanding Statutes

Instruments under the Public Seal

48 (1) A Proclamation, warrant or other instrument issued under the
Public Seal shall be signified under the hand of the [Head of State].
(2) Subject to subsection (1), a statutory instrument
(a) made by the [Head of State], may be signified under the
hand of a Minister;
(b) made by the Cabinet, may be signified under the hand of the
Secretary to the Cabinet.

(3) Prima facie evidence of a statutory instrument may be given

in proceedings before a court by the production of a copy of the
Gazette purporting to contain the statutory instrument.
Citation of Acts
49 (1) An Act may be cited by reference to its short title.
(2) Where a statutory instrument is published in the Gazette in
accordance with section 15, then
(a) without prejudice to any other enactment, the original of that
instrument and a copy thereof printed by the Government
Printer, is admissible in evidence without proof of the
authority, signature or capacity of the person by whom the
instrument is signed;
(b) a copy of that instrument printed by the Government Printer
shall, for all purposes, be evidence of the due making of that
instrument and of its content; and
(c) a copy of that instrument purporting to have been printed by
the Government Printer shall be deemed to have been so
printed unless the contrary is proved.
(4) In an enactment a description of, or citation from, any other
enactment or from a document shall be construed as including the
word, subsection, section, or other portion mentioned or referred to
as forming the beginning or as forming the end of the portion
comprised in the description or citation or as being the point from
which or to which the portion extends.
 Appendix C

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224 Understanding Statutes

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Miers and Page, Legislation
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Stat LR
Parker, G., ‘Criminal Law – Statutory Interpretation – Use of Parliamentary
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Hood-Phillips, Constitutional and Administrative Law
Potter, Simeon, Language in the Modern World
Power, Vincent J.G., ‘Parliamentary History as an Aid to Statutory
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Preparation of Bills, 1948, HMSO
Richardson, S., Messages and Papers of Presidents
Renton, Lord, The Preparation of Legislation, Cmnd 6035
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Shaw, George Bernard, Man and Superman
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From Parliamentary Counsel to Mr Cutts’ [1993] 14 Stat LR
Thornton, G.C.,Legislative Drafting
Thring, Lord , Practical Legislation
Turnbull, I.M.L., Problems of Legislative Drafting
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Ullman, Stephen, Words and Their Meaning
Wade, ‘Covenants – A Broad and Reasonable View’ [1972B] CLJ 157
Walker, The Oxford Companion to Law
Williams, Glanville , ‘Language and the Law’, 61 LQR 71
Wurm, S.A., ‘Aboriginal Language and the Law’, 6 Annual Law Review,
University of Western Australia
 Index

Abrogation, doctrine of, 58-59 Barbados

Acts of Explanation constitution, conformity of
function of, 76 legislation with, in, 131-132
South Africa in, 77-78 Bill of Rights
Affirmative statutes, 189 parliamentary privilege and, 114-116
Ambiguity of statutes, 42-43 Pepper v Hart, rule in, and, 110, 114
Civil law under, 93 Bills,
contextual, 43 see also COMMITTEE STAGES,
extrinsic aids to DEBATES, DRAFTING, MONEY
interpretation and, 97 BILLS, PREAMBLES, PROMOTERS,
Golden Rule and, 87-88 SCHEDULES
judicial inventions and, 54-55 amendments of, 14
Literal Rule and, 86 Parliamentary Counsel,
long titles and, 19-20 drafted by, 16
‘may’ and, 37 refusal of, 15
Mischief Rule and, 84 Assent to, 14
Pepper v Hart, rule in, and, 110, 112 clauses of, 15
reasonableness of guidance notes of officials and, 93
legislation and, 121-128 headings, function of, 21
semantic, 42-43 Interpretation Acts and, 195-222
syntactic, 42 interpretation section in, 22-23,
verbosity, caused by, 177 67-68
whole Acts and, 182 long titles of, 19-20
‘And’ or ‘Or’, marginal notes,
legal effect of words and, 35-38 construction, aid to, as, 21
Antigua and Barbuda function of, 20-21
constitutional ouster memorandum to, 93, 102
clauses in. 163-164 Ministers, comments on, 3
Appeal, right of, money, 17
word ‘shall’ and, 30 Notes on Amendments of, 15
Arbitration Notes on Clauses and, 15, 102
finality of awards and, 148 parts of, 22
Assent, 16-18 passing of, 14
Bills to, 14 readings of, 14
Canada in, 18 report stage of, 14
Commonwealth countries in, 17-18 sections of, 23-24
Lord Commissioners, short titles of, 19-20
declaration of, by, 11 stages in Parliament of, 14-16
Norman French, declared in, 11 Standing Committees of, 15
querying of, 17 titles of, 19-20
Royal Commissions, given by, 17 announcement of, 14
sovereignty and, 17 Cabinet, 3
validity of, courts’ declaration on, 17 Canada
Australia Assent in, 18
Law Commission reports Case law,
interpretation aids as, 104-105 see COMMON LAW, JUDGES
Law Reform Committee of casus omissus
Victoria in Plain English and, 12 construction and, 52
parliamentary materials, drafting and, 61-62
availability of, in, 113 Parliamentary counsel and, 61-62
Background information Certainty
on legislation, 3-4 judges of, 92
228 Index

precedents and, 55 stare decisis and, 46

presumption of, 155 statutes, distinguished from, 1-2
certiorari, 143-144 Commonwealth
Barbados in, 131-132 Assent in, 17-18
convictions and, 149-151 Royal Commission,
errors of law and, 149 given by, 17
finality of decisions and, 147-149 common law, inheritance
judicial review and, 143-151 of, by, 58-59
ouster clauses and, 146 constitutions of, 56-57
prohibition, compared with, 144-145 Interpretation Act in, 69, 185
Civil law Money Bills in, 17
ambiguity under, 93 statutes, declarations of
intention of legislature and, 93 illegality of, in, 56-57
Clauses, Notes on, 15, 102 Communication of purpose, 44-47
Commission reports, Conformity, presumption of, 129-138,
see also COMMISSIONS OF INQUIRY, 172-174
LAW COMMISSIONS Consistency, 68, 119-120
interpretation, aids to, 103-106 Consolidation Acts, 75
Royal, 17 amendment of pre-existing
Commissions of Inquiry law and, 120
interest groups as, 2 consistency of, 120
reports of, 94 maxim on, 185
interpretation aids as, 99 subsequent Acts and, 75
Committee of Selection, 15 Constitutions
Committee of the Whole House, 15 Commonwealth, 56-57
Committee on Ministers’ Powers, 95 Ghana of, 59
Committee stage, 14-15 human rights and, 132
intention of Parliament and, 90 illegality of legislation and, 56
legal history and, 99 Jamaica of, 138
mistakes during, 15 ouster clauses and, 147
Notes on Amendments, 15-16 presumption of conformity
Notes on Clauses, 15-16 with, 129-138
Parliamentary counsel and, 14 validity of legislation under, 17
Pepper v Hart, rule in, and, 14 Construction,
Committees see also INTERPRETATION
cabinet, 3 casus omissus and, 52
reports of, 94 equitable, 84
interpretation aids as, 99, 104-106 liberal, maxim on, 181-182
Common law, marginal notes, aid to, as, 21
see also CASE LAW, JUDGES rules of
Commonwealth, inheritance clarification of, 68
of, by, 58-59 subsequent Statutes and, 75
customary interpretation and, 68 whole Acts of, 59-62
Ghana in, 59 Context, 39-41
Heydon’s case, rule in, and, 82-83 ambiguity and, 43
importance of, 44-47 literal rule and, 85-86
intention of Parliament and, 68, 72 purposive approach and, 97
knowledge of Parliament and, 74-75 Conventions,
object of, 2 see TREATIES
ousting of, 180 Convictions
presumption of certiorari and, 149-151
conformity with, 138-139 Counsel
juries, address to, 11
 Index 229

Courts, casus omissus and, 61-62

see also JUDGES instructions on, 4-5
errors by, 143-144 legislative scheme and, 5-6
function of, 49-65 Parliamentary Counsel by, 3
jurisdiction of, 141-142 process of, 5-6
ousting the, 145-147 research on, 5
legislation and vagueness of, 41
declaration of illegality of, 52-58 Duties
Criminal offences discretion, disguised as, 32
mens rea needed for, 121 Enabling statutes, 189
Criminal statutes, 189 English,
Crown see also PLAIN ENGLISH
presumption against statutes first published in, 11
application of Acts to, 175 Equity
Culture construction of statutes and, 84
language and, 10-11 function of, 45
Customs intention and, 84
abrogation of, 180 object of, 2
common law and, 68 statutes, distinguished from, 1-2
interpretation and, 52, 68 Errors
precedent and, 68 certiorari and, 149
Debates, Committee stage, during, 15
see also HANSARD, Pepper v Hart Courts by, 143-144
Bills on, 14-15 rectification of, 95
Ghana in, 102 Europe
intention of Parliament and, 99 interpretation of Acts in, 98, 105
interpretation of statutes and, 13, 89, Evidence
101-104 conclusive evidence
non-admissibility of, 101-102 clauses and, 155-157
value of, 98-99 interpretation and, 105
Declaratory statutes, 189 natural justice and, 165
Definitions Exclusive remedies, 160-161
extensive, 22 Explanation, Acts of, 76-78
Interpretation Acts and, 68-69 Expository statutes, 190
restrictive, 22 Federal States,
Delegated legislation, see also UNITED STATES
see REGULATIONS legislation of, 1
Delegation of powers Finality of decisions
amendment of arbitration and, 148
legislation and, 156-157 certiorari and, 147-149
ministers’ discretion and, 157-160 presumption of, 147-149
Departmental officials public interest in, 154
interest groups as, 2 France
Dictionaries, 73-74 travaux preparatoires in, 99
Discretion ‘Free’, meaning of, 73, 182
delegation of powers and, 157-160 General statutes, 190, 192-193
duty, disguised as, 32 Ghana
judges of, 55 common law in, 59
‘may’, use of word, and, 32-35 constitution of, 59
use of, 30 debates in, 102
Drafting, English law in, 59
see also PARLIAMENTARY legislative intent in, 101
COUNSEL
230 Index

Golden rule, 86-88 Ghana in, 101

ambiguity and, 87-88 Golden rule and, 28-29, 85
function of, 82 Government and, 90
intention and, 28-29, 85 Heydon’s case, rule in, and, 49-50
objective standards and, 88 Interpretation Acts and, 72
subjective standards and, 88 judges and, 27, 49-65
Government justice and, 95-96
intention of Parliament and, 90 language, alteration of, and, 76
Grey v Pearson, rule in, 82 literal interpretation and, 67, 81-82
Guidance notes literal rule and, 81-82
bills on, 93 logical interpretation and, 52, 67
Guyana meaning of, 90-96
constitutional ouster clauses in, 163 Parliament of, 13, 69,
Hansard, 89-96
see also DEBATES, Parliamentary Committees
Pepper v Hart and, 90
availability of, 113 Parliamentary Counsel of, 91, 93, 96
interpretation and, 102-104 separation of powers and, 55, 90
refusal to consult, 97 statutory definitions and, 72
resolution on leave to use, 116 subsequent Acts and, 76
Headings, function of, 21 Interest groups, 2
Henry VIII clauses, 156-157 International law
Heydon’s case, rule in, 5 adoption of, 173
common law and, 82-83 doctrine of incorporation of, 173
intention of Parliament and, 49-50 doctrine of transformation and, 173
judicial interpretation and, 51 precedents and, 173-174
promoters of Bills and, 93 presumption of
rules on interpretation and, 81 conformity with, 172-174
Human rights Interpretation,
Barbados in, 131-132 see also AMBIGUITY,
constitutions, conformity CONSTRUCTION, HANSARD,
with, and, 132 PRESUMPTIONS
South Africa in, 133-138 authentic, 67
Zimbabwe in, 136-8 casus omissus and, 62
Illegality consistency and, 68
Commonwealth, declarations customary, 52, 68
of, in, 56-57 debates in Parliament and, 13, 89,
constitutions and, 56 101-104
legislation of, declaration doctrinal, 52, 67
by Courts on, 52-58 Europe in, 98, 105
‘Includes’ evidence on, 105
meaning of, 68 extensive, 52, 67
India extrinsic aids to, 97-117
constitutional ouster grammatical, 67, 88
clauses and, 162-163 Heydon’s case, rule in, and, 51, 81
judicial review and, 162-163 history of, 68
Instability Judges, legislation of, 29, 49-65, 79
words of, 43-44 liberal, 67
Intention logical, 52, 67
Bills, promoters of, 29, 92-93 modern approach to, 96-97
Committee stage and, 90 obiter dictum and, 64-65
common law and, 72 objective, 64, 67-80
debates and, 99 Parliament and, 67-80
equitable construction and, 84
 Index 231

Parliamentary debates and, 13 final decisions and, 147-149

Parliamentary Ombudsman and, 103 grounds for, 143
precedents and, 55, 62-65 Henry VIII clauses and, 156-157
promoters of Bills and, 89, 92-93 India in, 162-163
punctuation and, 25, 69 mandamus and, 144
regulations of, 95 natural justice and, 165-166
remedial, 67 ouster clauses and, 145-147
repeals and, 68 constitutional, 161-165
restrictive, 52, 67 prohibition and, 144-145
rules of, 81-117 quo warranto and, 145
section, 22-23, 67-68 regulations on, 156, 159
separation of powers and, 54 subjective formulae and, 157-160
subjective, 64 time limit clauses and, 152-155
United States in, 97 Juries
usual, 52 counsel’s address to, 11
whole Acts of, 59-62 Jurisdiction
Interpretation Acts, 68-72 courts of, 141-142
Bills and, 195-222 judges of, 141-142
Commonwealth in, 69, 185 ousting, 145-147
contrary intentions and, 72 presumption on, 176-177
Crown, application of Justice
legislation to, and, 175 intention and, 95-96
definitions and, 68-69 Language,
intentions and, 72 see also LANGUAGES
objective test and, 72 alteration of, 76
presumptive provisions and, 69 changes in, 75-78
Jamaica criticism of, 12
constitution, presumption culture and, 10-11
of conformity with, 138 definition of, 9
Judges legal, 6-13
certainty and, 92 United States constitution and, 9
customary interpretation and, 68 subsequent Acts and, 75-78
discretion of, 55 Languages
errors, rectification of, by, 95 English, statutes first
independence of, 56, 141-142 published in, and, 11
innovation by, 79 Latin, language of
intention statutes as, 11, 23-24
legislators of, 49-65 Norman French, language
interpretation of legislation by, 29, of statutes as, 11
49-65, 79 Latin
inventions of, ambiguities language of statutes as, 11, 23-24
causing, 54-55 Law Commission reports
jurisdiction of, 141-142 interpretation, aids to, as, 97
lawmakers as, 55, 90 Australia in, 104-105
legislation, filling gaps in, by, 29 Law Reform Commission of
unjust, comments on, 56 Victoria, Plain English and, 12
separation of powers and, 56 Lawful conduct,
social conditions and, 92 presumption of, 174-175
Judicial review, 142-172 Legislative declarations, 76-77
certiorari and, 143-151 Legislative history, 99-101
conclusive evidence interpretation, aid to, as,
clauses and, 155-157 commissions as, 99
exclusive remedies and, 160-161 Committee stage as, 99
232 Index

debates as, 99 Cabinet, 3

expense of, 100 Mens rea, 121
Ghana in, 101 Ministers
materials on, 99 comments on Bills by, 3
Pepper v Hart, rule in, and, 111-112 Committee on Powers of, 95
previous statutes and, regulations and,
separation of powers and, 100-101 discretion of, 157-160
speeches as, 99-100 statements by, 110,
travaux preparatoires and, 107 112-113, 115-116
United states in, 101 Ministries
Literal rule, 81-82, 85-86 Committee on Ministers
ambiguity and, 86 powers and, 95
Barbados in, 131-132 guidance notes of, 93
context of, 85-86 sponsors of legislation as, 3
intention and, 67, 81-82 Mischief rule, 81-85
mischief rule and, 86 ambiguity and, 84
Pepper v Hart, rule in, and, 111 literal rule and, 86
preambles and, 81-82 preambles and, 84
Sussex Peerage, rule in, 81-82 research and, 5
Lobbyists, 2 Sussex Peerage case, rule in, 86
Local statutes, 190 Misfeasance, presumption
Long title, 19-20 against, 174-175
Lords Commissioners Money Bills
Assent, declaration of, by, 11 Commonwealth countries in, 17
Malfeasance, presumption against, 174-175 Natural justice, 165-166
mandamus, 144 Negative statutes, 190
Marginal notes New Zealand
construction, aid to, as, 21 parliamentary materials,
function of, 20-21 availability of in, 113
Maxims, 179-187 Non-feasance, presumption
Consolidation Acts and, 185 against, 174-175
directory enactments on, 184 Norman French
express enactments on, 183-184 Assent, declared in, 11
frequent cases on, 180-181 statutes, language of, 11
liberal construction on, 181 Notes on Amendments to Bills, 15
penal statutes on, 181-182 Notes on Clauses to Bills, 15
prospective nature of Acts and, 180 obiter dictum
purpose of Acts and, 186-187 function of, 65
reliability of, 179 interpretation and, 64-65
repeals on, 179-180 Objects
retrospectivity on, 180 statutes of, 2-5
statutes Obsolete Statutes, 58-59
conflicts between, and, 179-180 Omissions, 61-62
same subjects on, 184-185 ‘Or’,
whole Acts, reference to, and, 182 see ‘AND’ OR ‘OR’
words on, 182-183, 185, 186 Ouster clauses, 145-147
‘May’, 30-35 certiorari and, 146
ambiguity of, 37 classification of, 146-147
discretion and, 32-35 constitutional, 161-165
enacting verbs as, 30-31 constitutions and, 147
purpose of, 32-35 Guyana in, 163
use of, 30 India in, 162-163
Memorandum non-statutory, 147
Bills to, 93, 102
 Index 233

time limit clauses and, 152-155 Pepper v Hart, rule in, 90, 108-114
Trinidad and Tobago in, 163-164 ambiguity and, 110, 112
Parliament, Bill of Rights and, 110
see also DEBATES Committee stage and, 14
common law legislative history and, 111-112
declarations of, on, 78 literal rule and, 111
knowledge of, and, 74-75 Ministers’ statements and, 110, 112-113,
declaration of common law by, 78 115-116
intention of, 13, 69, official reports and, 112-113
89-96 parliamentary materials
interpretation and, 67-80 availability of, 113
debates and, 13 expense of, 113
judicial innovation in, 79 parliamentary privilege and, 110
legislative interpretation in, 78 purposive approach and, 96-97, 110, 113
Parliamentary Committees White Papers and, 112-113
intentions of Parliament and, 90 Perpetual statutes, 190
interest group as, 2 Personal statutes, 190
Parliamentary Counsel Petitions
Bills, Preambles and, 19
amendments to, drafting by, 16 Plain English
casus omissus and, 61-62 Law Reform Commission of
committee stage and, 14 Victoria and, 12
criticisms of, 6, 13, 49 Policy
drafting by, 3 documents, 104
instructions to, 4 formulation of, 2-5
intention of, 91, 93, 96 Political parties
intention of Parliament and, 13 interest group, as, 2
responsibilities of, 4-5 Practice directions, 79
Parliamentary expositions, 76-77 Preambles, 18-19
Parliamentary materials challenges to, 18
availability of, 113 function of, 19
expense of, 113 literal rule and, 81-82
interpretation aids as, 99 Mischief rule and, 84
Pepper v Hart and, 110 petitions and, 19
resolution on leave to use, 116 Precedent, 11, 46, 62-65
New Zealand in, 113 certainty of, 55
Parliamentary Ombudsman international law and, 173-174
interpretation and, 103 interpretation of legislation and, 55
Parliamentary privilege, 114-116 customary, 68
Bill of Rights and, 114-116 Pressure groups
Pepper v Hart, rule in, and, 110, 114 interest group as, 2
Parliamentary proceedings Presumptions, 119-177
interpretation and, 89-96 alteration of existing
Parts,function of, 22 law against, 129-138
Penal statutes certainty of, 155
maxim on, 181-182 common law, conformity
meaning of, 190 with, of, 138-139
presumptions and, 124-125 conclusive evidence
reasonableness of, 121 clauses and, 155-157
retroactivity, presumption consistency of, 119-120
against, 166 constitutions, conformity
retrospectivity, presumption with, of, 129-138
against, 166 equality of treatment of
persons of, 122
234 Index

exclusive remedies and, 160-161 ratio decidendi

existing law, conformity function of, 65
with, of, 141 precedent and, 62-63
finality of decisions, of, 147-149 Readings of Bills, 14
injustice, against, 121-128 Real statutes, 191
international law, conformity Reasonableness
with, 172-174 criminal offences and,
lawful conduct, of, 174-175 mens rea needed to prove, 121
mens rea and, 125-128 penal statutes of, 121
natural justice, conforming presumption of, 121-128
to rules of, 165-166 taxation legislation of, 121
ousting the jurisdiction vested rights and, 121
of the courts, against, 145-147, Reference statutes, 191
152-155 Regulations
penal statutes, and, 124-125 interpretation of, 95
reasonableness of acts of, 121-128 judicial review and, 156, 159
retroactivity against, 166-172 Minister’s discretion and, 157-160
retrospectivity against, 166-172 Standing Committee on
statutes and Delegated Legislation and, 95
as enacted in this Act, 156 statutes
shall not be questioned, 151-152 same effect as, of, 156
surplusage of, 177 validity of, 159
taxation and, 123-124 Remedial statutes, 191-192
territorial application of, 176-177 Repeals
vested rights, interference effect of, 140-141
with, against, 121-123, implied, 141
167 Interpretation Act and, 68
words having same maxim on, 179-180
meaning, of, 176 Schedules in, 140
Private statutes, 191 sovereignty and, 179-180
Prohibition, 144-145 Report stage, 14
Promoters of Bills Reports
Heydon’s case, rule in, and, 93 interpretation of statutes and, 98
intention of, 29, 92-93 Pepper v Hart, rule in, and, 112-113
interpretation and, 89-96 resolution on leave to use, 116
ministerial statements and, 115-116 Republic
statement of interests by, 101 presumption against
Public statutes, 191 application of legislation to, 175
Punctuation, 25 Research
full stops and, 69 cost of, 113-114
Punitive statutes, 191 drafting process on, 5
Purpose, Retroactivity
see also MISCHIEF RULE retrospectivity, difference
communication of, 44-47 between, 166-172
‘may’ and, 32-35 Rhodesia in, 77-78
maxims and, 186-187 South Africa in, 77
Purposive approach Sri Lanka in, 58
context and, 97 test for, 166
Pepper v Hart and, 96-97, 110, 113 Retrospectivity
Queen’s speech maxims on, 180
legislative proposals in, 3 retroactivity, difference
Quia Emptores, 17 between, 166-172
quo warranto, 145 test for, 166
types of, 169
 Index 235

Revised statutes, 192 Sovereignty

Rhodesia Assent and, 17
retrospectivity in, 77-78 errors, rectification of, and, 95
Rights of man, 91-92 repeals and, 179-180
Royal assent, Special statutes, 192
see ASSENT Speeches
Royal Commissions, 17 Parliament and, 99-100
interpretation aid as, 105 Sri Lanka
Royal prerogative, 92 separation of powers in, 58
Scandinavia statutes in
travaux preparatoires in, 99 declarations on validity of, in, 57-58
Schedules retroactive, 58
forms in, 25 Standing Committee on
function of, 24-25 Delegated Legislation, 95
Henry VIII clauses in, 157 Standing Committees, 15
repeals contained in, 140 stare decisis,
treaties texts of, in, 106 see PRECEDENT
Sections, functions of, 23-24 Statements by ministers, 110,
Select committees, 112-113,
reports 115-116
interpretation aids as, 105-106 Statute Book
Semantics, 10 definition of, 1
ambiguity of, 42-43 Statute Law Revision, 140
Sentences Statutes
modifiers of, 42 alteration of, 129-138
Separation of powers Assent to, 16-18
intention of Parliament and, 55, 90 circumstances of
interpretation of enactment of, 82
legislation and, 54 classification of, 189-193
judges and, 56 common law, distinguished
legislative history and, 100-101 from, 1-2
natural rights and, 92 conflicts between, 179-180
Sri Lanka in, 58 definition of, 1-2
travaux preparatoires and, 107 equity, distinguished from, 1-2
‘Shall’, 30-35 interpretation aid as, 99
enacting verb as, 30-31 legislative history of, 94
mandatory nature of, 31 motives behind, 2
meaning of, 30 obsolete, 58-59
obligatory nature of, 132 parts of,
right of appeal and, 30 see BILLS
Short titles, 19-20 phrases in,
South Africa ‘as enacted in this Act’, 156
Acts of Explanation in, 77-78 ‘shall not be questioned’, 151-152
constitution of, 58 previous,
presumption of prospective nature of, 180-181
conformity with, 133-138 purpose of, 186-187
English law and, 59 same subject matter on, 184-185
human rights in, 133-138 subsequent,
interpretation in, 69-71 see Subsequent Acts
retrospectivity in, 77 whole Acts
statutes, declarations on ambiguity in, 182
validity of, 58 maxim on, 182
Sovereign immunity, 173 meaning and spirit of, 59-62
236 Index

Statutory instruments, legal language in, 9

see REGULATIONS legislative intent in, 101
Subsequent Acts, 74-78 State legislation, invalidity of, in, 57
Consolidation Acts and, 75 Vagueness
construction and, 75 generic character of words and, 38-39
language and, 75-78 Validity of legislation
legislative declarations and, 76-77 Assent and, 17
Parliamentary expositions and, 76-77 constitutions under, 17
Surplusage, 177 Courts, declarations on, 52-58
Sussex Peerage Case, Rule in Sri Lanka in, 57
literal rule in, 81-82 United States in, 57
mischief rule in, 86 regulations of, 159
Taxation Vested rights
Pepper v Hart, rule in, and, 108-114 presumption against
reasonableness of legislation on, 121 interference with, 121-123, 167
Territorial application reasonableness and, 121
presumption against application White Papers
outside jurisdiction and, 176-177 Pepper v Hart, rule in, and, 112-113
Time limit clauses, 152-155 policy formulation and, 2
Titles of legislation refusal to consult, 97
announcement of, 14 Words, 25-28
long, 19-20 See also LANGUAGE, ‘AND OR OR’,
ambiguity of, 19-20 ‘MAY’, ‘SHALL’
nature of measure ambiguity of, 38, 42-43
indicated in, 20 clarity of, 82
short, 19-20 colour and context of, 39-41
function of, 19-20 consistency of, 119-120
travaux preparatoires definition of, 85-86
interpretation, aids to, as, 97-99, dictionaries and, 73-74
106-108 emotional responses to, 41
France in, 99 ‘free’, meaning of, 73-74
Scandinavia in, 99 ‘includes’, meaning of, 68
separation of powers and. 107 instability of, 43-44
United States in, 101 maxims on, 182-183, 185, 186
Treaties morphemes and, 25-26
conformity of legislation with, 173 same meaning, presumption of, 176
incorporation of, into national law, 173 vagueness of, 38-39
interpretation of, 98, Zimbabwe
106-108 constitution, presumption of
schedules, texts of treaties in, 106 conformity with, 136-138
Trinidad and Tobago
constitutional ouster
clauses and, 163-164
United States
Bill of Rights, 1
Congress, 1, 50
constitution
conformity of legislation
with, in, 130
legal language in, 9
intention in, 50
interpretation in
extrinsic aids to, 97-99, 105