Q.

‘The courts have used different approaches to statutory

interpretation at times but none of them can rightly be
called rules and all of them would be better described as
self-imposed conventions.’ Explain the different approaches
that the courts have used in interpreting statutes and
discuss the legal status of these approaches.

Answer: The orthodox approach to statutory interpretation by the judiciary has been to
utilize three techniques known respectively as ‘the literal rule’, ’the golden rule’ and ‘the
mischief rule’. More recently the courts have increasingly employed a more holistic,
purposive style. When interpreting domestic legislation judges are under no obligation to
use a specific approach and even regarding the EU law. Before passing the EU Withdrawal
Act, courts were free to employ whatever technique they wished, provided it was subject to
the principle of the supremacy of EU law; Europeans Communities Act 1972(ECA). However,
the courts are obligated, when giving the effect to legislation, to ensure that it is compatible
with ECHR under the provisions of Human Rights Act 1998 (HRA), often forcing the courts to
employ the more European ‘purposive rule’.

A literalist approach to statutory interpretation or ‘the literal rule’ necessitate the court
applying the everyday definition of words to Parliaments language. A judge applying this
approach will have greater concern for linguistics than for the broader purpose of the
relevant legislation. Lord Esher described this style as following the words of an act “even if
they lead to a manifest absurdity”. An example of the literal rule is displayed in the case of R
v Maginnis where there lordships were in disagreement over the meaning of the phrase
“with intent to supply” in the context od alleged supply of drugs. The majority held that
that the defendant who had returned a friends drugs package to him was guilty of intending
to supply drugs under the Misuse of Drugs Act 1971, whereas the dissenting Lord Goff
opined:” I certainly cannot conceive of myself using the word ‘supply’ in this context in
ordinary speech”. Arguably there is an obligation on judges to utilize this approach to
interpretation as it is the safest way to ‘give effect’ to the intent of Parliament. As Tindal CJ
in the Sussex Peerage Claim (1884) expressed; “The only rule for the construction of Acts of
Parliament is that they should be constructed according to the intent of Parliament which
passed the Act”. Moreover, justices in Duport steel cautioned against veering away from
‘giving effect to the plain meaning unambigious statutory words’ as it may amount to the
court unnecessarily making law. However, there is no legal obligation to specifically employ
‘the literal rule’ when interpreting domestic law.

‘The Golden Rule’ explores beyond the literalist method, where such a approach would yield
an ‘absurd’ result. Lord Wensleydale illustrated this analytical style when advocating that
“the grammatical and ordinary sense of words are to be adhered to, unless that would lead
to some absurdity, or some inconsistency with the rest of instrument, in which case, the
grammitcal and ordinary sense of words may be modified so as to avoid absurdity and
inconsistency, but no further”. Accordingly, ‘the golden rule’ is merely a last report
dependant on the utilization of the ‘literal rule’ producing an ‘absurd’ result. Lord
Simon(Stock v Frank Jones Ltd)established formal protocol for departure from the literal
rule, such as instances of “clear and gross anomalies”. Sir Ruport Cross grappled with
definition of ‘absurdity’ or ‘anomaly’ and concluded that ‘absurdity’ does mean something
wider than irreconcilability with the rest of instrument. An instance of use of golden rule is
illustrated in Adler v George where the literal wording of the offence to obstruct Her
Majesty’s forces ‘in the vicinity’ of a prohibited place under the Official Secrets Act 1920
was extended to convict somebody protesting inside a prohibited place, (an airbase). It was
clear that conviction related to someone causing obstruction near the airbase and not
someone obstructing the actual airbase would constitute in absurdity. Although, the Golden
Rule is not independent of the Literal rule and will be explored where necessary.

The mischief rule is the oldest aid to statutory interpretation. The approach that judges take
under this method was set out in Heydon’s Case (1584) and requires them to consider what
the common law before the act was. They must then contemplate the ‘defect’ or ‘mischief’
that was provided by the law and consequently the nature of the provided statutory
remedy. The mischief rule was applied in Smith v Hughes (1960) where a prostitute in a
house tapped on the window to attract pedestrians’ attention. Under interpretation was s.1
of the Street Offences Act 1959 which states; “It shall be an offence for a common prostitute
to loiter or solicit in a street or public place”. The accused argued she was not ‘in the street’.
Lord Parker CJ, instead of adopting a literalist style considered what ‘mischief’ the Act aimed
to remedy and concluded that “it was an Act intended to clean up the streets, to enable
people walk along the streets without being molested by common prostitutes”, thereby
founding the accused guilty.As submitted earlier, as regards the literal and golden rules, the
mischief rule is not a methodology that courts are duty-bound to follow. Where it is
argueable that is one of the optimal ways to faithfully give effect to parliamentary intent as
it looks at the broader purpose of the Act, judges are just as free to employ the literal rule as
the mischief rule.

The purposive rule is even broader in its attitude to interpretation. Where the mischief rule
is rigidly bound by the criteria in Heydon’s Case,courts taking a purposive approach are free
to cogitate over the ‘spirit of the act’ and Parliament’s intention in passing it. Judges
employing this method are at liberty to read word into or out of the Act where they deem it
necessary. An early proponent of purposive interpretation was the Lord Denning who
declared in Magor & St Mellons RDC v Newport corporation (1950): “We do not sit here to
pull the language of Parliament to pieces and to make nonsense of it. We sit here to find out
the intention of Parliament and we do this better by filling in the gaps and making sense of
the enactment than by opening it up to destructive analysis”. Although at the time, Denning
LJ was accused by contemporaries such as Lord Simonds in the (Magor case) of “a naked
usurpation od the legislative function”, the judiciary in recent years has become increasingly
comfortable using the purposive approach. This was illustrated in Pepper v Hart where the
House of Lords accepted that they would consider extraneous material, controversially
including Hansard, that has bearing on the background to the legislation in order to give
effect to the ‘true purpose’ of the legislation. As with the other aforementioned rules,
judges are not obliged to use a particular method of interpretation vis-a-vis domestic
legislation. However, the position is ambiguous when considering European law or that of
the ECHR as enshrined in the HRA 1998.
In the light of the EU Withdrawal Act, the UK is no longer bound by EU law but is worth
considering what interpretive duties were imposed on the UK judiciary by s.2(4) of the ECA
before it was repealed. Under s.2: “any domestic legislation enacted after 1972 will be
construed and have effect subject to “European Community Law”.The difficulty in achieving
this was that where English Legislation drafting is precise and exacting, EU is broad,
imprecise and merely expresses general principles , aims and purposes.
S.3 of the HRA establishes the ‘interpretive obligation’: “So far it is possible to do so, primary
legislation and subordinate legislation must be read and given effect in a way which is
compatible with the Convention Rights”. Lord Steyn in R v A (2001) contended that under
s.3 “it will sometimes be necessary to adopt an interpretation which linguistically may
appear strained. The techniques to be used will not only involve the reading down of
express language in a statute, but also the implication of provisions. A declaration of
incompatibility is a measure of last resort. It must be avoided unless plainly impossible to do
so.” Prima facie, Parliament is not obliged to exercise any particular one of the methods
discussed. However, upon the closure inspection and in light of Lord Steyn’s statement and
the fact that declarations of incompatibility are a ‘last resort’, it would appear that when the
more orthodox approaches to interpretation fail to achieve compatibility with ECHR, the
courts are legally bound to purposively interpret legislation under s.3.

In conclusion, when interpreting domestic legislation in isolation, judges are free to persue
any interpretive approach they see fit in giving effect to Parliament’s intent. Where use of
the literal rule may give way to ‘absurdities’, they see other approaches available to the
courts such as the golden rule articulated by Lord Wensleydale. While membership of the
EU has strongly influenced the way UK courts interpretated statute both during and after
membership as evinced by the ruling in Pepper v Hart, the ECA 1972 never imposed a
specific method of statutory analysis. Conversely, under the HRA 1998, judges are obliged to
interpret statute in a way that is ECHR-compatible, and in order to avoid making a
declaration on incompatibility, judges will feel bound to adopt the more creative,
teleological method of analysis espoused by Lord Denning and others.