Natasha Mohideen LLB (UOL)

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STATUTORY INTERPRETATION 2

 Rules of language – ejusdem generis, expressio unius exclusio alterius, noscitur a

sociis
 Intrinsic aids to interpretation – preamble, long and short titles, headings,
schedules, marginal notes, interpretation sections
 Extrinsic aids to interpretation – previous Acts on the same topic, earlier case
law, the historical setting, dictionaries of the time, Hansard, reports of law
reform bodies, international treaties
 The impact of European Union law and of the Human Rights Act 1998 on
statutory interpretation

 Interpreting European legislation

Section 2(4) of the European Communities Act 1972 provides that all parliamentary legislation
(whether passed before or after the European Communities Act) must be construed and applied
in accordance with European law.
The case of R v Secretary of State for Transport, ex parte Factortame (1990) makes it clear
that the English courts must apply European law which is directly effective even if it conflicts with
English law, including statute law.
At a national level, the UK Parliament will repeal the European Communities Act 1972 (discussed
on p. 131), removing the automatic incorporation of European law into UK law. The European
Parliament and European Court of Justice will stop having any direct power over the courts and
Parliament in the United Kingdom. In terms of what will become of current EU legislation, the UK
has introduced the European Union (Withdrawal) Act 2018, which will repeal and replace existing
law within the UK that gives effect to EU law, but it appears that relevant EU law will indeed be
absorbed into domestic law. For instance, sections 2 and 3 of the Act convert all delegated and
direct EU legislation into domestic law.
In June 2018 the European Union (Withdrawal) Act 2018 was passed. This essentially states that
the European Communities Act 1972 will be repealed on exit day but, pursuant to s. 2 of the Act,
all UK law that derived from its membership of the EU since 1973 will be retained and effectively
converted into domestic law. This is in order to ensure some continuity while the UK uncouples
from the EU.

 Aids to Interpretation
Whichever approach the judges take to statutory interpretation, they have at their disposal a range
of material to help.
Some of these aids may be found within the piece of legislation itself, or in certain rules of
language commonly applied in statutory texts – these are called internal aids. Intrinsic aid

Others, outside the piece of legislation, are called external aids.

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Since 1998, a very important new external aid has been added in the form of the Human Rights
Act 1998.

 Internal aids ( looking at the statute itself)

The literal rule and the golden rule both direct the judge to internal aids, though they are taken
into account whatever the approach.
These are matters within the statute itself that may help to make its meaning clearer. The court
can consider the long title, the short title and the preamble, if any.
Older statutes usually have a preamble which sets out Parliament’s purpose in enacting that
statute.
Modern statutes either do not have a preamble or contain a very brief one. For example, the Theft
Act 1968 states that it is an Act to modernize the law of theft. The long title may also explain briefly
Parliament’s intentions.
The other useful internal aids are any headings before a group of sections, and any
Schedules attached to the Act. There are often also marginal notes explaining different sections
but these are not generally regarded as giving Parliament’s intention as they will have been
inserted after the parliamentary debates and are only helpful comments put in by the printer.
Explanatory notes
Acts passed since the beginning of 1999 are provided with explanatory notes, published at the
same time as the Act

Rules of language
Developed by lawyers over time, these rules are really little more than common sense, despite
their intimidating names. As with the rules of interpretation, they are not always precisely applied.
Examples include:
Ejusdem generis. General words which follow specific ones are taken to include only things of
the same kind. For example, if an Act used the phrase ‘dogs, cats and other animals’ the phrase
‘and other animals’ would probably include other domestic animals, but not wild ones.
Expressio unius est exclusio alterius. Express mention of one thing implies the exclusion of
another. If an Act specifically mentioned ‘Persian cats’, the term would not include other breeds
of cat.
Noscitur a sociis. A word draws meaning from the other words around it. If a statute mentioned
‘cat baskets, toy mice and food’, it would be reasonable to assume that ‘food’ meant cat food, and
dog food was not covered by the relevant provision.

Presumptions
The courts will also make certain presumptions or assumptions about the law, but these are only
a starting point. If the statute clearly states the opposite then the presumption will not apply and
it is said that the presumption is rebutted.
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These presumptions include the following.

● Statutes do not change the common law.

● The legislature does not intend to remove any matters from the jurisdiction of the courts.

● Existing rights are not to be interfered with.

● Laws which create crimes should be interpreted in favour of the citizen where there is ambiguity.
● Legislation does not operate retrospectively: its provisions operate from the day it comes into
force, and are not backdated.
● Statutes do not affect the Monarch.

● Statutes are ‘always speaking’

It is always open to Parliament to go against these presumptions if it sees fit – for example, the
European Communities Act 1972 makes it clear that some of its provisions are to be applied
retrospectively.
But, unless the wording of a statute makes it absolutely clear that Parliament has chosen to go
against one or more of the presumptions, the courts can assume that the presumptions apply.

Some indication of the weight which judges feel should be attached to presumptions can be seen
in the case of L’Office Cherifien des Phosphates Unitramp SA v Yamashita-Shinnihon
Steamship Co Ltd ( The Boucraa ) (1994), which concerned the presumption against
retrospective effect. The House of Lords stated that the important issue was ‘simple fairness’: if
they read the relevant statute as imposing the suggested degree of retrospective effect, would
the result be so unfair that Parliament could not have intended it, even though their words might
suggest retrospective effect?

explanatory notes

statute

presumptions rules of
language

Statutes do not change the common law.

In other words, it is assumed that the common law will apply unless Parliament has made it plain
in the Act that the common law has been altered.
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An example of this occurred in Leach v R [1912] AC 305, where the question was whether a wife
could be made to give evidence against her husband under the Criminal Evidence Act 1898.
Since the 1898 Act did not expressly say that this should happen it was held that the common law
rule that a wife could not be compelled to give evidence still applied. If there had been explicit
words saying that a wife was compellable then the old common law would not apply.
This is now the position under s80 of the Police and Criminal Evidence Act 1984, which expressly
states that in a crime of violence one spouse can be made to give evidence against the other
spouse.
A presumption that mens rea is required in criminal cases

The basic common law rule is that no one can be convicted of a crime unless it is shown that they
had the required intention to commit it. In Sweet v Parsley [1970] AC 132 the defendant was
charged with being concerned with the management of premises which were used for the
purposes of smoking cannabis. The facts were that the defendant was the owner of premises
which she had leased out and the tenants had smoked cannabis there without her knowledge.
She was clearly ‘concerned in the management’ of the premises and cannabis had been smoked
there, but because she had no knowledge of the events she had no mens rea.
The key issue was whether mens rea was required; the Misuse of Drugs Act 1971 did not say
there was any need for knowledge of the events. The House of Lords held that the defendant was
not guilty as the presumption that mens rea was required had not been rebutted.

Statutes do not affect the Monarch

‘The Crown’ in this presumption means the state. This is an important presumption since the
Crown occupies a great deal of land, for example all bases for the armed forces.
The Occupiers’ Liability Act expressly applies to the Crown: if it did not then the Crown would be
exempt from liability for any breach in respect of the duties of an occupier.
The Crown is also the employer of a large number of people. Acts in respect of employment, such
as the Equal Pay Act 1970, the Health and Safety at Work etc Act 1974 and discrimination law all
state that the Crown is expressly bound.
Where a statute does not expressly state that the Crown is bound, then the Crown may not
be bound even where a statute has been passed for the benefit of the public.
Lord Advocate v Dumbarton District Council [1990] 1 All ER 1; It was decided to build an
improved security fence for a submarine base. In order to do this, part of a public road had to be
closed during the construction. Normally, planning permission from the local Council is needed
before a road can be closed. It was held that this did not apply to the Crown, so the Crown did
not need planning permission.
Legislation does not operate retrospectively: its provisions operate from the day it comes into
force, and are not backdated.
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This means that no Act of Parliament will apply to past happenings; each Act will normally only
apply from the date it comes into effect.

However, since this is only a presumption, Parliament can enact legislation with a retrospective
effect if it expressly states this in the Act. There are very few Acts where Parliament has stated
that there is retrospective effect. Examples are the War Damage Act 1965 and the War Crimes
Act 1991.
However, there are some Acts where it has been held that it is a necessary implication that the
Act is retrospective in effect. Example R v Field 2002, The Court of Appeal had to decide whether
s.28 of the Criminal Justice and Court Services Act 2000 applied in respect of offences committed
before the Act came into force.
They held that it did as the purpose of the Act would be seriously undermined if a disqualification
order could only be made in respect of offences committed after the Act came into force.
Statutes are ‘always speaking’

The courts have developed a presumption that ‘statutes are always speaking’, which means they
have to be interpreted in the modern-day legal context, rather than being fixed with the same
meaning they had when they were originally passed.
For example, s. 72 of the Highways Act 1835 was passed before bicycles had been invented, but
in Taylor v Goodwin (1879) the High Court held that the statute should be interpreted as
applying to bicycles because they could come within the concept of a ‘carriage’ and the defendant
was liable for the ‘furious driving of a bicycle’ on a pavement.
There are two aspects of the ‘always speaking’ principle. The first is that courts must interpret and
apply a statute to the world as it exists today. The second is that the statute must be interpreted
in the light of the legal system as it exists today.

 External aids

The mischief rule directs the judge to external aids.

These are matters which are outside the Act and it has always been accepted that some external
sources can help explain the meaning of an Act.

These undisputed sources are:

 previous Acts of Parliament on the same topic;

 the historical setting; A judge may consider the historical setting of the provision that is
being interpreted, as well as other statutes dealing with the same subjects.
 earlier case law;
 dictionaries of the time. - These may be consulted to find the meaning of a word, or to
gather information about the views of legal academics on a point of law.
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So far as other extrinsic aids are concerned, attitudes have changed. Originally the courts had
very strict rules that other extrinsic aids should not be considered; however, for the following three
aids the courts’ attitude has changed.

These three main extrinsic aids are:

1. Hansard – the official report of what was said in Parliament when the Act was debated.
2. Reports of law reform bodies such as the Law Commission which led to the passing
of the Act; Legislation may be preceded by a report of a Royal Commission, the Law
Commission or some other official advisory committee.
The House of Lords stated in Black Clawson International Ltd v Papierwerke
Waldhof-Aschaffenburg AG (1975) that official reports may be considered as evidence
of the pre-existing state of the law and the mischief that the legislation was intended to
deal with.
3. International Conventions, Regulations or Directives which have been implemented
by English legislation. - Treaties and international conventions can be considered when
following the presumption that Parliament does not legislate in such a way that the UK
would be in breach of its international obligations.

The Use of the Hansard.

Until 1992 there was a firm rule that the courts could not look at what was said in the debates in
Parliament. Some years earlier, Lord Denning had tried to attack this ban on Hansard in Davis v
Johnson [1978] 1 All ER 1132, which involved the interpretation of the Domestic Violence and
Matrimonial Proceedings Act 1976. He admitted that he had indeed read Hansard before making
his decision.
This was in the Court of Appeal and when the case was appealed to the House of Lords, it
disapproved of Lord Denning’s view

Lord Scarman explained the Lords’ reasons by saying:

‘Such material is an unreliable guide to the meaning of what is enacted. It promotes confusion, not
clarity. The cut and thrust of debate and the pressures of executive responsibility … are not always
conducive to a clear and unbiased explanation of the meaning of statutory language.’

In 1993, the case of Pepper v Hart overturned the rule against consulting Hansard, and
such consultation is clearly now allowed.

Pepper (Inspector of Taxes) v Hart (1993) ;

Teachers at an independent school were having their children educated at a reduced rate, which
was a taxable benefit based on the ‘cash equivalent’ of the reduction. Under s 63 of the Finance
Act 1976, ‘cash equivalent’ could be interpreted as either the additional cost of providing the
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reduction to the teachers or the average cost of providing the schooling to the public and the
teachers.

In its decision, the House of Lords referred to statements made by the Financial Secretary to the
Treasury during a parliamentary stage, which showed that the intention was to tax employees on
the basis of the additional cost to the employer of providing the concession.
The decision in Pepper v Hart was confirmed in Three Rivers District Council v Bank of
England (No. 2) (1996), which concerned the correct interpretation of legislation passed in order
to fulfil obligations arising from an EC directive.
In R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath
Holme Ltd (2001), the House of Lords gave a restrictive interpretation of the application of
Pepper v Hart.
The applicant was a company that was the landlord of certain properties. It sought judicial review
of the Rent Acts (Maximum Fair Rent) Order 1999, made by the Secretary of State under s. 31 of
the Landlord and Tenant Act 1985
On the use of Hansard to interpret the intention of Parliament, the House of Lords pointed out
that the case of Pepper v Hart was concerned with the meaning of an expression used in a
statute (‘the cost of a benefit’). The Minister had given a statement on the meaning of that
expression. By contrast, the present case was concerned with a matter of policy, and in particular
the meaning of a statutory power rather than a statutory expression.
In Wilson v Secretary of State for Trade and Industry (2003) the House of Lords again gave
a restrictive interpretation to Pepper v Hart. It held that only statements in Hansard made by a
Minister or other promoter of legislation could be looked at by the court; other statements recorded
in Hansard had to be ignored.
Although it is now clear that Hansard can be referred to in order to find evidence of parliamentary
intention, there is still much debate as to how useful it is, and whether it can provide good evidence
of what Parliament intended.

Below are three key arguments in favour of using Hansard to assist statutory interpretation.
Usefulness - Lord Denning’s argument, advanced in Davis v Johnson, was that to ignore it
would be to ‘grope in the dark for the meaning of an Act without switching on the light’. When such
an obvious source of enlightenment was available, it was ridiculous to ignore it – in fact Lord
Denning said after the case that he intended to continue to consult Hansard, but simply not say
he was doing so.
Other jurisdictions - Legislative materials are used in many foreign jurisdictions, including many
other European countries and the US
Media reports - Parliamentary proceedings are reported in newspapers and on radio and
television. Since judges are as exposed to these as anyone else, it seems ridiculous to blinker
themselves in court, or to pretend that they are blinkered.
Below are four key arguments against the use of Hansard;
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Lack of clarity - The House of Lords, admonishing Lord Denning for his behaviour in Davis v
Johnson, and directing that parliamentary debates were not to be consulted, stated that the
evidence provided by the parliamentary debates might not be reliable; what was said in
the cut and thrust of public debate was not ‘conducive to a clear and unbiased explanation
of the meaning of statutory language’.
Time and expense- Their Lordships also suggested that, if debates were to be used, there was
a danger that the lawyers arguing a case would devote too much time and attention to ministerial
statements and so on, at the expense of considering the language used in the Act itself.
Parliamentary intention - The nature of parliamentary intention is difficult, if not impossible, to
pin down. Parliamentary debates usually reveal the views of only a few members and, even then,
those words may need interpretation too.
This was noted and criticised in Pepper v Hart which said that the use of the hansard gives pre-
eminence to the Government Minister’s interpretation of the statute and ignores any dissenting
voices by opposition MPs.

However, this criticism has been partly tackled by the House of Lords in Wilson v Secretary of
State for Trade and Industry (2003). The House stated that the courts must be careful not to
treat the ministerial statement as indicative of the intention of Parliament, nor should the courts
give a ministerial statement, whether made inside or outside Parliament, determinative weight.
The House emphasised that the will of Parliament is expressed in the language used in its
enactments.

‘Although it is now clear that Hansard can be referred to in order to find evidence of parliamentary
intention, there is still much debate as to how useful it is’, Discuss.

(Elliott and Quinn (2012) English Legal System (13th edn). )

Answer plan

➜ 1. Briefly explain what Hansard is and that until the decision in Pepper v Hart, courts were not
permitted to use it as an aid to statutory interpretation.

➜ 2. Discuss the main arguments in favour of and against the use of Hansard as an aid to
interpretation.

➜ 3. Explain the decision in Pepper v Hart.

➜ 4. Consider how the courts have refined the decision in Pepper v Hart in subsequent cases.

➜ 5. Conclude upon the extent to which the courts make appropriate use of Hansard as an aid to
interpretation.

Points that can be included in the essay:

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(1). Introduction ; define hansard, say its an extrinsic aid … Pre 1978: Rule was that the courts
cannot look at Hansard to help in statutory interpretation ….

(2). Lord Denning especially argued strongly for the use of Hansard as an aid to interpretation,
and indeed made use of it in Davis v Johnson [1978], although he was heavily criticised for doing
so by the House of Lords.

(2). The principal reason advanced for the use of Hansard rests upon the assumption that allowing
judges to consult debates from the time when a provision was approved by parliament may be
helpful in assisting them to clarify its intended meaning.

Lord Denning adopted such reasoning in Davis v Johnson, where he commented that to ignore
things said in parliament would be to ‘grope in the dark for the meaning of an act without
switching on the light’. As Lord Griffiths acknowledged in Pepper v Hart, the courts now adopt a
purposive approach when interpreting statutes.

(2). The following arguments in favour of admitting Hansard prevailed in Pepper v Hart;

• It might be the case that the very question of interpretation at issue was considered by
Parliament (and would therefore be in Hansard) – why should the judges be blind to this?

• Looking at Hansard increases the chances of identifying the mischief in an Act, and
provides the necessary context and intention for the purposive approach.

• Academic textbooks will often refer to Hansard in pursuing a legal argument – so why
not allow such references in the courts?

• Strict control over allowing reference to Hansard would keep legal costs at a reasonable
level.

(2). However, although a prima facie case can be made for the utility of Hansard to judges, there
are grounds to be cautious about the extent to which it assists in ascertaining the purpose
underlying a particular provision. ( disadvantages)

In Pepper (Inspector of Taxes) v Hart (1993) whilst the merits of allowing an extrinsic aid such as
Hansard to be referred to was highlighted, particular concern was expressed about the practical
difficulties associated with it, such as the time, effort and expense that legal practitioners might
have to incur as a result of searching for useful references in the record of debates.

Constitutional concerns about threats to the mutual respect between Parliament and the
judiciary were also raised, as was the point that parliamentary debates were perhaps more likely
to produce confusion, rather than clarity

statements in parliament do not always provide a clear perspective of the intended objective of
legislative provisions, a point commented on by Lord Scarman in Davis v Johnson.
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A further objection to the use of Hansard is that it increases the time and expense spent on
litigation. this was mentioned by Lord Steyn in a 2001 article where he suggested that much of
appellate courts’ work is now more concerned with the interpretation of documents than
examining precedents.

(3). the House of Lords, in ruling that judges could use Hansard as an aid to interpretation in Pepper
v Hart, seems to have recognised that, whereas it may prove useful in some circumstances;

the House ruled that, for Hansard to be consulted, the provision in question must be
ambiguous, obscure or result in an absurdity if given its literal meaning,

the material relied upon must consist only of statements of the minister or promoter
sponsoring the legislation, and that such statements must be clear.

thus, it could be consulted in only a limited range of circumstances, in which a clear

ministerial statement would shed light on the appropriate application of an unclear
provision.

(4). Hansard was referred to in several subsequent cases, beginning with Warwickshire County
Council v Johnson [1993].

The contract case of Stevenson v Rogers (1999), which interpreted the words ‘in the course of a
business’ in provisions of the Sale of Goods Act 1979 as applying to a fisherman who sells his boat,
and thereby determined the boundaries of a business sale, provides an example of Hansard being
used to resolve an ambiguity that had plagued the courts for years in cases relating to similar
legislation.

More recently, Hansard was used to show that licensing legislation passed in the 1960s had
intended to place the responsibility of alcohol licences on specific individuals rather than on
corporate bodies, thus supermarkets could not be prosecuted as ‘persons’ for breaches of this
area of law (London Borough of Haringey v Marks & Spencer plc (2004)).

However ,the courts entertaining doubts over the utility of Hansard in deciphering/reflecting the
intention of parliament has become more apparent in subsequent cases where they have
restricted its usage. For example, in Melluish (Inspector of Taxes) v BMI (No. 3) [1995], it was held
that only ministerial statements at the time of the statute’s passage can be considered, and not
anything said subsequently about the purpose of the act,

and in R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme
[2001] 2 aC 349, it was ruled that only statements pertaining to the meaning of a statutory
provision could be consulted, and not those relating to matters of policy.

the clear implication of recent case law is that use of Hansard as an aid to interpretation should
be the exception rather than the rule. this was reinforced in Wilson v Secretary of State for Trade
and Industry [2003]

In Jackson and Others v Her Majesty’s Attorney-General (2005), the Law Lords again approved the
use of Hansard as an aid to statutory interpretation. They said:... It would be unfortunate if Pepper
v Hart were now to be sidelined. The Pepper v Hart ruling is sound in principle, removing as it did
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a self-created judicial anomaly. There are occasions when ministerial statements are useful in
practice as an interpretive aid, perhaps especially as a confirmatory aid.’

(4). In conclusion, the quotation bears much truth. While Hansard may prove very useful to courts
in certain circumstances, in assisting them to interpret the underlying intention behind specific
statutory provisions, there are limitations to the extent to which it can provide them with reliable
means of ascertaining the purpose of a provision, and thus should not be regarded as foolproof.
the problems associated with the use of Hansard appear to have been recognised in the approach
of the courts since Pepper v Hart, as they have attached much caution to Hansard’s use by
restricting the circumstances in which recourse may be had to it as an aid to statutory
interpretation. While it can be useful to the courts, it should not be assumed that this will always
be so, hence the restrictive approach of the courts which consider its use as being exceptional
rather than the norm.

Define what a hansard is.

An example of extrinsic aids that judges use to

interpret laws, a hansard is an official report of what
was said in Parliament when an Act is being debated on.

Position as to the use of the hansard as an extrinsic aid to interpretation prior to the case of Davies v
Johnson

There was a firm rule that courts could not look at

Position laid down in Pepper v Hart

Arguments put forward in Pepper v Hart as to why the use of the hansard should be allowed for reference
for interpretation purposes
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As per Pepper v Hart what were the circumstances in which the hansard can be used

State the advantages and disadvantages of using the Hansard

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q. Describe the approaches and tools available to judges for statutory interpretation. Discuss
whether these give judges too much power.

Band 5 [20–25] Candidate gives a clear and very detailed explanation of the approaches, rules of language
and aids to interpretation with detailed and wide ranging illustrations. Candidate evaluates the issues of
judicial power within the question well, covering the differing effects of the various approaches in
particular.

Intro; James Spigelman, when he was Chief Justice of the Supreme Court of New South Wales, stated
that ‘the law of statutory interpretation has become the most important single aspect of legal practice.
Significant areas of law are determined entirely by statute. No area of the law has escaped statutory
modification’.

Interpreting the meaning of legislation is not always straightforward and, in some cases, the judges are
called upon to interpret the legislation in accordance with existing law and rules of ‘statutory
interpretation’.

Statutory interpretation may be required where complexity and uncertainty arises as to how the law
applies in a given situation since sometimes the written law is not always clear.

Typical problems include a failure within legislation to cover a specific point; ambiguity as to its meaning;
drafting errors; new legal developments; and changes in the use of language. Some statutes date back to
the 18th century and use words which now have a very different meaning today. OR refer to Bennion

The rules or principles of statutory interpretation may be found in two sources: in statute law and in
common law. The common law also provides aids to interpretation in the form of developed rules of
language and long established presumptions. Further, judges have access to a set of intrinsic and extrinsic
aids to help them in their interpretation of statutes

The common law ‘rules’ are, however, more accurately termed ‘approaches’, as they are not fixed. The
judges are free to choose which approach to adopt, depending on the facts of the cases before them.

Body of the essay; explain well the 3 common law rules of interpretation. Give a case and specify 2
advantages and 2 disadvantages to each rule.
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Also talk about the intrinsic aids and extrinsic aids ( not too detailed so that you don’t run out of time)

Refer to the Hansard as well , again not too detailed , be brief.

Refer to rules of language

Talk about the presumptions

New Paragraph; address this part of the question ‘Discuss whether these give judges too much
power.’
According to the doctrine of the separation of powers, parliament makes the law and the role of the
judiciary is simply to apply the law to the cases that come before them. Unelected judges do not, and
should not, become involved in law-making, which is the constitutional preserve of the democratically
elected

Firstly, historically, a great deal of our law is and always has been case law, made by judicial decisions.
Contract and tort law are still largely judge-made.

Even though statutes have later been passed on these subjects, and occasionally Parliament has
attempted to embody whole areas of common law in statutory form, these still embody the original
principles created by the judges.

Secondly, the application of law, whether case law or statute, to a particular case is not usually an
automatic matter. Terminology may be vague or ambiguous, new developments in social life have to be
accommodated, and the procedure requires interpretation as well as application.

While it is often said that this process involves the judiciary attempting to discover the intention of
parliament, which would imply that the judiciary seeks to avoid playing the role o f ‘lawmaker’ when
interpreting statutes, the reality is that there is a series of different approaches to statutory interpretation
which a court might take, with radically different outcomes in terms of a statutory pro vision’s practical
application.

For example, whereas literally interpreting statutory provisions may be appropriate in many cases,
applying a literal approach to some statutory provisions may result in the court giving a provision an
absurd meaning that parliament clearly did not intend it to have. For example, Fisher v Bell [1960]

The so-called ‘rules of interpretation’ are not rules at all, but different approaches. Judges do not
methodically apply these rules to every case and, in any case, the fact that they can conflict with each
other and produce different results necessarily implies some choice as to which is used.

There is choice too in the relative weight given to internal and external aids, and rules of language, and
approaches have varied over the years.

The idea that statutory interpretation is an almost scientific process that can be used to produce a single
right answer is simply nonsense. There is frequently room for more than one interpretation and judges
must choose between them. For clear evidence of this, there is no better example than the litigation
concerning Augusto Pinochet, the former head of state of Chile.
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The important point to note is that in both hearings of the above mentioned case the Lords were
interpreting the same statutory provisions, yet they came up with significantly different verdicts. Because
of the way it was reopened, the case gives us a rare insight into just how imprecise and unpredictable
statutory interpretation can be, and it is hard to resist the implication that if you put any other case
involving statutory interpretation before two separate panels of judges, they might well come up with
different judgments too.

Since judges do have some freedom over questions of statutory interpretation, there are a number of
theories that influences the decisions they make.

Dworkin: fitting in with principles - If there are two possible interpretations of a word or phrase, the judge
should favour the one that allows the provision to sit most comfortably with the purpose of the rest of
the law and with the principles and ideals of law and legality in general

Sir Rupert Cross suggests that the courts can read in words that are necessarily implied, and have a limited
power to add to, alter or ignore words that would otherwise make a provision unintelligible, absurd,
totally unreasonable, unworkable or completely inconsistent with the rest of the Act.

Griffith (1997) claims that, where there is ambiguity, the judiciary choose the interpretation that best suits
their view of policy. An example of this was the ‘Fares Fair’ case, Bromley London Borough Council v
Greater London Council (1982).

Case law is replete with examples of situations in which the judiciary have effectively rewritten the law
through their development of common law principles, particularly in order to accommodate societal
changes. For example, the landmark case of R v R [1991] overturned a century of acknowledged precedents
to establish that a man could commit the offence of rape against his wife.

More recently, in R v Dica [2004] the Court of Appeal determined that a person could be criminally liable
for recklessly infecting someone with HiV.

In both cases, a legal position is declared by the court that had not previously been assumed to exist,
without any legislation having been enacted by parliament to change the law.