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Approach:

The restrictions on interpretation arise on account of the rules of interpretation, impact on

parliamentary sovereignty and separation of powers between judiciary and legislature.

In Duport Steels Ltd & Others v Sirs & Others1 (“Duport Steels Case”), the subjective
test approach restricts the judges to the ordinary meaning of unambiguous words
expressed in the statute.

Lord Denning’s reference to objective test approach of Lord Wilberforce in Express

Newspapers Ltd v MacShane and another2 (“MacShane Case”) takes us to a broader
interpretation, where judges go for open-ended expressions to ascertain how far
Parliament intended to go. This raises the question of Common Law interpretation and
Stare Decisis principles.

Judicial activism through the objective test approach infringes parliament sovereignty and
separation of powers between judiciary and legislature.

The summary concludes that judiciary is restricted to the words in statute, so long as the
words are plain and unambiguous. In such cases the judges cannot interpret law other
than what is expressly stated therein and the only way forward is for the Parliament to set
right any perceived lacunae.

Role of judiciary in statutory interpretation and difficulties in ascertaining the

meaning:

1
Duport Steels Ltd & Others v Sirs & Others [1980] 1 All ER 529 - Butterworths Direct Online Service
[Accessed 16 July 2004].

2
Express Newspapers Ltd v MacShane and another [1980] All ER 65 - Butterworths Direct Online Service
[Accessed 16 July 2004].

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“The court has the function of authoritatively construing legislation, i.e., determining its
legal meaning so as is necessary to decide a case before it. This function is exclusive to
the court and a meaning found by any other person …is always subject to the
determination of the court”.3

A statute to be effective will have be properly read and understood. With the variety of
statute-users, there are many matters, which may cause them difficulty. F.A.R. Bennion
(Statute Law 1990) has identified a number of factors that may cause doubt while
interpreting statutes such as Technique of ellipsis: Refraining from using certain words
assuming that they are necessarily implied; Using a broad term (of wide meaning) and
leave it to the user to judge what situations fall within; Politic uncertainty – use of
ambiguous words deliberately, where a provision is politically contentious or where
departments wish to minimise the risk of legal challenge; Unforeseeable developments;
There may be a printing error, drafting error or another error 4. Overall Bennion states that
“it is extremely common for draftsman to produce a text which raises doubt
unnecessarily”.

The Interpretation Act 1978; Definition sections in modern statutes by including meaning
of words and phrases; and Explanatory Notes in new Acts since 1999 help judges to some
extent in interpretation.

Rules of Interpretation:

The judges face considerable problems in the interpretation of the statutes. The problems
are constant and recurring and sometimes even cause controversy. While interpreting
statutes, when problems of construction arise, judges have to use their skills to resolve
them. Judges have taken different stances in respect of statutory interpretation.

3
Halsbury’s Laws of England – Statutes-5-Statutory Interpretation- (1) Role of court-1369. Role of court in
interpretation. [Butterworths Direct Online Service Accessed on 20th June 2004]

4
S.H. Bailey and M.J. Gunn., (1996). Smith & Bailey on the Modern English Legal System.
London:Sweet & Maxwell (pp 351-354).

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When interpreting the statutes, the courts often say that they are trying to interpret the
true intention of legislature. If a court finds it difficult to determine whether a particular
situation comes within the words of the statute or not, the probability is that the
legislature did not foresee it. Therefore in such cases, it can be argued that the courts are
not in a position to ascertain the intention of Parliament, but add a fringe meaning. The
process of interpretation is indistinguishable from the legislation and the judge becomes a
legislator5.

The attitude of judiciary to legislation has changed with the passage of time. Three
general approaches to statutory interpretation each originating at different stages of legal
history are the ‘Literal Rule’, ‘Golden Rule’ and ‘Mischief Rule’. The preference of one
rule over the other will vary with each case.

The Literal Rule:

6
This rule states that the simple words, which are precise and unambiguous, should be
given their obvious everyday meaning by the courts. It is founded on the assumption that
the words chosen by the Parliament in the Act clearly show its intentions in passing the
Act. The words must be given their plain, literal or ordinary meaning.

The objective of the court is to identify the intention of Parliament as expressed in the
words used through what was said and not what it might mean. This approach should be
used even if it produces absurdity or hardship and in this case the remedy lies with the
Parliament in setting right the position in amending the statute. The literal rule does not
call upon a judge to consider the consequences of the interpretation.

5
Glanville Williams., (1999). Learning the Law, Delhi: Universal Law Publishing Co. Pvt. Ltd., under
special arrangement with Sweet & Maxwell Ltd., UK (pp99-100).
6
James A. Holland & Julian S. Webb., (2003). Learning Legal Rules . Oxford: Oxford University Press (pp
212-213).

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“the only rule for the construction of the 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” 7.

8
The general rule is that the judges are bound by the words of a statute when these words
clearly govern the situation before the court. The words must be applied with nothing
added or nothing taken away. The general principle is that “the court can neither extend
the statute to a case not within its terms though perhaps within its purpose (the casus
omissus) nor curtail it by leaving out a case that the statute literally includes, though it
should not have”. Lord Diplock9 expressed the point as follows:

“where the meaning of the statutory words is plain and unambiguous it is not for judges
to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning
because they consider that the consequences of doing so would be inexpedient, or even
unjust or immoral”. He also said that even if the omission from the plain and
unambiguous statute was inadvertent – and that if Parliament had foreseen the casus
omissus, it would have certainly adopted a course of action other than the literal
interpretation of stature – then the plain (and probably contrary to Parliament’s intention)
interpretation shall be followed and “if this be the case, it is for Parliament, not the
judiciary, to decide, whether any changes should be made to the law as stated in the Act”.
Hence the mischief rule can only be used when there is some ambiguity and the court
should not invent fancied ambiguity to apply the mischief rule.

Tindal CJ in the Sussex Peerage Case (1844) 11 CI & Fin 85

8
Op.Cit Glanville Williams (pp 102-103)
9

Duport Steels Ltd & Others v Sirs & Others [1980] 1 All ER 529 (p541)

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10
What is a real ambiguity and what is a fancied ambiguity? In Richard Thomas &
Baldwins Ltd. V. Cummings, a workman injured his finger while adjusting a machine
after removing the fence. Was the employer in breach of statute, which required all
machinery to be fenced while in motion? The House of Lords chose to give the word ‘in
motion’ a secondary meaning of ‘mechanical propulsion’ in Factories Act for the House
did not believe that Parliament intended to cover the particular situation. Applying Lord
Diplock’s logic, it could be argued that is improper to do this if the meaning of the statute
is plain and such reasoning by the House of Lords is invention of a ‘fancied ambiguity’.

“The law recognises a doubt over the meaning of an enactment as ‘real’ only where it is
substantial, and not merely conjectural or fancied – Duport Steels Case” 11.

Even though Literal rule restricts the judicial activism of the judges, this is preferred
because this reduces the risk of judges interfering with Parliament’s approach. If judges
do not strict to the literal meaning and start rewriting law according to moral grounds,
then there will be no certainty and everyone will try to see whether he could succeed with
a favourable judgement. People are entitled to follow statutes as they are and they should
not have to speculate as to Parliament’s intention.

In Fisher v Bell12 it was held placing a knife on display is not the same as offered for sale
and hence not an offence.

In Whiteley v Chappell13 the defendant pretended to be someone who had recently died in
order to use that person’s vote. As dead people cannot vote, the defendant was held not to
have committed offence.

10

Richard Thomas & Baldwins Ltd. V. Cummings [1955] A.C. 321

11

Halsbury’s Laws of England – Statutes-5-Statutory Interpretation- (2) Legislative Intention and Legal
Meaning-1374. Doubt as to the legal meaning.

12
Fisher v Bell [1960] 3 All ER 731.
13

Whiteley v Chappell (1868) LR4 QB 147.

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Other cases are “oiling points” was maintaining railway line and not “relaying or
repairing” for claiming compensation14; a car park was not a road and no insurance cover
available since it was applicable for injury on road15.

Subjective test approach:

With respect to the claim whether a person has acted “in furtherance of trade dispute”
pursuant to Section 13(1) of the Trade Union and Labour Relations Act 1974 (“Act”),
according to Lord Diplock, this section is clear and unambiguous requiring subjective test
in applying simple meaning to the words.

He refers to MacShane case16. “In the light of express reference to the ‘person’ by whom
the act is done and the association of ‘furtherance’ with ‘contemplation’ (which cannot
refer to anything but the state of mind of the doer of the Act) it is in his view, clear that
‘in furtherance’ too can only refer to the state of mind of the person who does the act, and
means ‘with the purpose of helping one of the parties to a trade dispute to achieve their
objectives in it”.

For the reasons state above, Lord Diplock said17 “the true interpretation of ….Acts, the
test is purely subjective; i.e. provided that the doer of the act honestly thinks at the time
he does it that it may help one of the parties to a trade dispute to achieve their objectives
and does it for that reason, he is protected by the section”.

Under subjective test, it was not necessary for the person doing the act to prove that it
was reasonably capable of achieving this object. The belief of the doer of the act need not

14
London & North Eastern Railway v Berriman [1946] AC 278.
15
Cutter v Eagle Star Insurance [1998] 4 All ER 417.
16
Express Newspapers Ltd v MacShane and another [1980] All ER 65 (p72).
17
Duport Steels Ltd & Others v Sirs & Others [1980] 1 All ER 529 (p541)

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be wise and it need not take account of the damage it will cause to innocent and
disinterested third parties. Nor the need the benefit deriving from the act be proportional
to the damages it causes.

The objective test approach can be to some extent said to be a combination of golden rule
and mischief rule, though leaning more towards the mischief rule. The distinction
between these two rules becoming very thin in the minds of some judges, it could be
argued that both the rules are subsumed within a general purposive approach.

Golden Rule:

In Stock v Frank Jones (Tipton) Ltd18, Lord Simon advocated departure from literal rule
only when: there is clear and gross anomaly; Parliament could not have envisaged the
anomaly and would not have accepted its presence; the anomaly can be obviated without
detriment to the legislative intent; and the language of the statute allows for such
modification.

In Re Sigsworth19: The Administration of Estates Act 1925 provides for the next of kin to
benefit from the estate of a deceased. The court held that where the kin killed his mother,
intestate, he was not entitled to the estate applying the principle of law that no one should
benefit from his own wrong.

Other examples are the word “marry” could also mean a person who “goes through
ceremony of marriage” to avoid a married person marrying again on the ground that the
law regarded the second marriage invalid 20; Obstructing “in the vicinity of” a prohibited
place held to include “near” or “in the place”21.

18
Stock v Frank Jones (Tipton) Ltd [1978] ICR 347; [1978] 1 ALL ER 948.
19
Re Sigsworth [1935] Ch. 89
20

R v Allen (1872) LR 1CCR 367

21

Adler v George [1964] 2 QB 7.

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Mischief Rule:

This is also known as the Rule in Heydon’s Case22, which defined it. The courts look at
the state of the former law in order to discover the mischief in it, which the present statute
was designed to remedy. This is to be done by first defining the problem the Act was
meant to remedy and then choosing the interpretation, which best deals with the problem.

The mischief rule like the golden rule stresses the need to interpret the statute to give
effect to its objectives. Mischief rule has a narrower application in that it can be applied
purely in the context of identifiable common law status quo which existed prior to the
Act and thus courts are required to consider: What was the common law before making
of the Act? What was the mischief and defect for which the common law did not
provide? What remedy did Parliament intend to provide? and what was the true reason
for that remedy;

23
Smith v Hughes Held that prostitutes soliciting from balcony guilty of soliciting ‘ in a
street or public place for the purpose of prostitution’, because the mischief aimed at was people
being molested or solicited by prostitutes.

Royal College of Nursing v DHSS24. Held by House of Lords that abortions completed by
nurses without the presence of doctors during second part of the procedure was lawful
since the mischief aimed at was to curtail back street operations.

Other examples: Bicycle considered as carriage when the person who was drunk was in
charge of a bicycle on the highway25. The mischief was aimed at drunken persons on
highway in charge of carriage.
22

Heydon’s Case (1584) 3 Co Rep 7a

23
Smith v Hughes (1960) 2 All ER 859.
24

Royal College of Nursing v DHSS (1981) 1 AII ER 545

25

Corkery v Carpenter [1951] 1 KB 102.

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Purposive Approach:

The purposive approach is similar to the mischief rule but the emphasis is on the
intention of the legislature than the defect in the previous law. The literal or grammatical
meaning will be compared with readings based on a purposive approach.

This approach will “promote the general legislative underlying the provisions”26.

“the purposive approach to construction now adopted by courts in order to give effect to
true intentions of the legislature”27.

e.g., It was held that a complainant who suffered racial abuse at work could claim for
racial discrimination from the employers. The Court of Appeal applied purposive
approach and held the acts were committed in course of employment as any other
interpretation would run counter to s32 of Race Relations Act 197628.

This approach can be adopted where the true intention of the Parliament is found and this
would lead to rewriting law by judges.

Objective test Approach:

Lord Denning MR refers to the objective test of Lord Wilberforce in the Duport Steels
Case and for a better understanding let us see Lord Wilberforce’s Objective test in
MacShane Case29.
26
Per Lord Denning MR in Notham v London Borough of Barnet [1978] WLR 220.
27

Per Lord Browne-Wilkinson in Pepper (Inspector of Taxes) v Hart [1993] AC 593.

28

Jones v Tower Boot Co Ltd [1997] 2 All ER 406

29

Express Newspapers Ltd v MacShane and another [1980] All ER 65 (pp 67-70)

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Lord Wilberforce said that in cases of industrial disputes having strong feelings, to make
immunity depend on the state of mind of a party to which only he can testify is not
perfect, for a person may perfectly have a genuine feeling that something is practical
while it is not. It cannot be enough for someone to depose in general terms, which cannot
be probed, that he has a trade dispute in mind.

While Lord Wilberforce30 agrees the words must be given their natural meaning and the
courts must not approach them with a disposition to cut them down. “But it is always
open to courts, indeed their duty, with open-ended expressions such as those involving
cause, or effect or remoteness, or in the context of very Act, connection with to draw a
line beyond which the expression ceases to operate. This is simply the common law in
action. It does not involve the judges in cutting down what Parliament has given; it does
involve them in interpretation in order to ascertain how far the Parliament intended to
go”.

Objective test involves necessarily, finding some connection between the action taken, or
proposed, and the result and to that extent is a test based on remoteness 31, referring to the
results affecting third parties not connected with the dispute.

Question of Remoteness– should it then be a Common Law approach?

Lord Denning MR32 raises the question of remoteness of some acts in furtherance of trade
dispute and refers to Lord Wilberforce in MacShane Case.

30
ibid (p 70)
31

ibid (p70)
32

Duport Steels Ltd & Others v Sirs & Others [1980] 1 All ER 529 (pp 536 & 537)

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Lord Denning MR33 refers to Associated Newspapers Group Ltd. v Wade 34, where the
court of appeal granted an injunction because the act was too remote to be considered in
furtherance of trade dispute and this was neither overruled or said to be erroneous by the
House of Lords. He cites what was said in this case: when trade unions choose not to
cause damage or loss to employer himself but to innocent third persons, who are not
parties to the dispute the act done may be so remote from the dispute itself, it cannot be
considered as being done ‘in furtherance’ of it. When strikers choose to picket, not their
employer’s premises, but the premises of innocent third persons, not parties to the
dispute, it is unlawful. It is called secondary picketing and unlawful at common law and
is so remote from dispute that there is no immunity in regard to it.

Countering this argument, Lord Scarman35 said, that in the case of statute law, the judges
must be obedient to the will of Parliament. Further the stare decisis rule applies as firmly
to Statute law as it does to the formulation of common law and equitable principles.

These are discussed under residuary discretion in granting injunctions and stare decisis
principles.

Residuary discretion in granting injunctions based on cause and effect and

remoteness:

Lord Denning MR36 raises the issue of residuary discretionary powers while granting
injunctions. He refers to the way, how this was considered by the House of Lords in NWL
Ltd v Woods37, (“Woods Case”) and MacShane Case. In both these cases, he said, it did
not mean that the likelihood of success is to be the paramount or sole consideration in
granting an injunction; there are other matters to be considered. In particular, damage to
33
ibid 536
34

Associated Newspapers Group Ltd. v Wade [1979]1 WLR 697 (p713)

35

Duport Steels Ltd & Others v Sirs & Others [1980] 1 All ER 529 (p 551)
36
ibid (pp 537-538)
37

NWL Ltd v Woods NWL Ltd v Nelson and another [1979] 3 All ER 614

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employers or to the public or even to the nation can be considered in considering whether
to grant or refuse an injunction.

Lord Diplock’s view38 was that the courts are concerned with the literal meaning and “If
the national interest requires that some limits should be put on the use of industrial
muscle, the law as it stands must be changed and this, effectively and constitutionally can
be done by Parliament and not by judges”.

Judicial Precedent:

A statement of law made by a judge in a case can become binding on later judges and
such pronouncements (called precedents) are followed by judges in decided cases where
the facts or point of law are sufficiently similar. This is based on the principle of ‘ stare
decisis’, whereby lower courts are bound to apply the legal principles set down by the
superior courts in earlier cases. For example, the High court must follow decisions of the
Court of Appeal, which must follow decisions of House of Lords.

Donoghue v Stevenson39 the House of Lords held that a manufacturer owed a duty of care
to the consumers that products are safe. This rule was followed in Grant v Australian
Knitting Mills Ltd.40 when a compensation was paid to a claimant affected by chemicals
in some underwear he bought causing him dermatitis.

For a Stare Decisis principle to be followed, it must have formed the ratio decidendi of
the case (the reasoning behind the decision). The reasoning must be a matter pertaining
to law than a factual decision.

38

Duport Steels Ltd & Others v Sirs & Others [1980] 1 All ER 529 (p 547)
39

Donahue v Stevenson [1932] A.C. 562

40

Grant v Australian Knitting Mills Ltd.[1936] A.C. 85

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Duport Steels Case followed MacShane Case on the test, whether an act was done ‘in
furtherance of trade dispute’ was a subjective one and Woods Case that it was highly
probable that union members claim to immunity would succeed at trial and that the nature
and gravity of strike extended to the private sector was not so serious as the bring the
case within an exceptional category in which case an injunction would be granted.

Lord Scarman41 said “And the keystone of stare decisis is loyalty throughout the system
to decisions of the court of appeal and this House. The Court of Appeal may not overrule
a House of Lords Decision (referring to the House of Lords Decision MacShane Case and
Woods Case).

Parliamentary sovereignty and separation of powers:

42
“The sovereignty of Parliament is the expression of legal sovereignty in the United
Kingdom. It was described as “the very keystone of the constitution” by AV Dicey, the
Victorian jurist most associated with the doctrine. His formulation is the starting point for
much modern discussions of sovereignty43

“the principle of Parliamentary sovereignty means neither more or less than this, namely,
that Parliament thus defined has, under the English constitution, the right to make or
unmake any law whatever; and further that no person or body is recognised by the law of
England as having a right to override or set aside the law of Parliament”

Constitutionally the judges have no powers to question the validity of legislation. In

Pickin v British Railways Board44, if an Act had been obtained in breach of parliamentary

41
Duport Steels Ltd & Others v Sirs & Others [1980] 1 All ER 529 (p 551)
42

Barry K Winetrobe, Home Affairs Section, House of Commons Library, The Human Rights Bill [HL], Bill
119 of 1997-98: Some constitutional and legislative aspects. Research Paper 98/27 13 February, 1998 (pp8-
9).
43
AV Dicey, (1965), An Introduction to the Law of Constitution.
44
Pickin v British Railways Board (1974) AC 765

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procedure, it was for Parliament, and not the courts, to investigate the matter. Lord
Campbell in Edinburgh & Dalkeith Railway v Wauchope45: No court of Justice can
enquire 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.

46
The three basic and essential functions in the administration of a state are the legislative,
executive and judicial. The idea of separation of powers is not to have all the three
functions in the same hands or exercised by one person or institution as it may result in
despotism, absolutism or arbitrary government.

47
“In practice the very act of judicial interpretation can be perceived as or tantamount to
judicial law-making thus leading to the recurring debate of battle between the judges and
parliament. The judicialisation of highly controversial political and social issues can
often be seen to put judges ‘in conflict’ with Ministers and Parliament. In some
situations the judges will step back and state that a particular matter should be settled not
by the courts but by political means in such circumstances they will often employ
‘separation of powers’ language as the explanation of or justification for their decision,
especially when it is a matter of statutory interpretation.”

“The classic example is the Duport Steels Case, where when Lord Denning in court of
Appeal granting the injunction being concerned about the ‘disastrous effect on the
economy and well-being of the country’, the House of Lords was clearly alarmed at the
Court of Appeal’s reasoning, based not so much on statutory interpretation as on
extraneous political/social motives”.

45
Edinburgh & Dalkeith Railway v Wauchope (1842) 7 cl. & F 710
46

Semple Piggot Rochez www.spr-law.com Chapter 1, CPE, General Principles – Separation of Powers
47

Op.Cit Barry K Winetrobe, P6

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Lord Diplock48 “… it cannot be too strongly emphasised that the British Constitution,
though largely unwritten, is firmly based on the separation of powers … Under our
Constitution it is Parliament’s opinion that is paramount.”

Lord Scarman49 said judge must be obedient to the will of Parliament as expressed in its
enactments. In this field Parliament makes and unmakes the law and the judge’s duty is to
interpret and apply the law, not to change it to meet the judge’s idea of what justice
required.

Summary:

Court of Appeal did not consider itself restricted to the words and engaged in judicial
activism suggesting that it is common law in action and it does involve judiciary to
ascertain how far the Parliament intended to go. Lord Denning MR seemed to regard his
function not as obedience to Parliament, nor to House of Lords precedent but to broader
principles of justice and common law. The times summarised Lord Denning’s judgement
as “Good Justice but bad Law”.

Lord Diplock’s views are full of allusions to the separation of powers, the judicial duty of
obedience to Parliament and impropriety of usurping the legislative function and
accordingly, the House of Lords can be considered to be restricted to a great extent by the
words of the statute.

48
Duport Steels Ltd & Others v Sirs & Others [1980] 1 All ER 529 (p 541)
49
ibid (p551)

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I would conclude this essay with what Lord Edmund-Davies50 said, “the outcome of
granting immunity (in untold harm to industrial enterprises not concerned with a trade
dispute, to the employees of such enterprises, to members of the public and the nation
itself) is unpalatable to many but, what should be equally clear is that the provision is not
the work of the judge but of Parliament and it is to Parliament alone that those who find
this state of law insupportable may now appeal”.

50

ibid (p548)

Bibliography

www.lawteacher.net [Accessed on 7 August, 2004]

http://www.unjustis.co.uk/SubWebs/lawf0013/P%27SOV699.HTM [Accessed on 24 July, 2004] – Lecture

on judges and Parliament.

http://www.parliament.the-stationer-office.co.uk/pa/Id200203/Idjudgmt/jd030227/inrep-2.htm [Accessed
on 16 July, 2004] – Judgements – In re P (a minor by his mother and litigation friend)

UK Law Online – the source of English Legal System http://www.leeds.ac.uk/law/hamlyn/sls.htm

[Accessed on 28 April, 2004]

General Principles: Separation of Powers – Chapter 1 Semple Piggot Rochez, London

Judges and Judicial Reasoning – the doctrine of precedent Chapter 4 Semple Piggot Rochez, London

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