Statutory Interpretation

‘Judges should apply the law and not concern themselves with interpreting statutes. The
plain meaning is always the best meaning.’ Discuss.

Answer

The British Constitution has been formed through sources, which have contributed a fair

share of their legal rules to formulate the Legal System of the UK. The most important of

these sources is the Statutes, which are, in other words, the Acts of Parliament. They’re

what one calls Primary Sources, above whom, there is no law. All the other sources and

laws come below the Acts of Parliament. Hence, the proper interpretation of the statutes

that the Parliament has put forward is of crucial importance because if the Parliament's

intentions are not properly interpreted, problems within the State’s governing machinery

and other institutions may arise. Furthermore, there will be public criticism. The prior

statements can be summed better through the words of Tindal CJ, where he mentioned

the central function of the Acts of Parliament, stating that these provisions are mainly

put forward by the Parliament to be interpreted according to their intentions. The

judiciary is responsible for giving effect to the Parliament’s intentions. They’re the ones

who hold the right to interpret the laws put forward by the Parliament, and only they can

apply their legal and analytical expertise to do so.

However, as significant as it is to interpret the Parliament’s intentions behind a particular

law properly, such tasks are equally difficult to overcome. There is a plethora of reasons

behind this. The primary reason points towards the natural restrictions that a language

may provide. While judges do a splendid job of interpreting the Statutes, oftentimes,

they are presented with situations that involve deciphering the meanings of certain

words or phrases. This is because the meaning of a sentence or a word may change

according to the context and the way it has been used. The meaning can also change

depending upon the intention of the individual saying it, which is, in this case, the

Parliament. Naturally, the court cannot fully be aware of the Parliament’s intentions.

Hence, interpretation becomes difficult during such circumstances. Lastly, the meanings

of the words applied in a Statute at a specific time may not have a similar meaning or

similar usage in later times. Numerous Statutes have been formed in the 19th and 20th

centuries, because of which interpretation has presented a fair deal of hurdles.

Another noteworthy reason is that it isn’t always certain that the judges would come to

the same interpretation while scrutinizing a statutory law. This can be attributed to the

human brain, which interprets various materials, and languages, in this instant,

differently for everyone. Hence, where a judge may say that the statutory law is white,

the other will not necessarily support this idea. Francis Bennion also presented an

additional spectrum of problems to the process of statutory interpretation in his book

Statute Law (1990). One of the first problems he mentioned was of the ellipsis, in
which, the draftperson leaves out certain words from the text due to the perception that

the interpretator would know what is implied here. This can add further confusion in

some situations. Further, the usage of broad terms can also consist of multiple

meanings. For instance, the natural perception of the term Vehicle includes cars and

trucks. However, what else can it include? Although rarely, there are certain cases

where the material facts are such that the act becomes unclear as to its boundaries.

The case of R v Maginnis (1987) is a noteworthy example here, which was regarding

the issue of the ‘supply’ of drugs. Here, Lord Keith, Lord Brandon, Lord Mackay and

Lord Oliver altogether agreed on applying the literal rule, though it could be argued that

the judgment was unjust since the defendant had no intention of supplying the drug. It

was merely of a friend who had to pick it up at a later time. Lord Goff supported this

viewpoint, stating that it would not be sensible to concur such a situation to be held as

an act of a ‘supply of drugs’. Other problems include the change in societal values that

can influence the meaning of the language used in the statutes.

Considering the amount of problems that arise for the judiciary during their interpretation

process, it was decided to come up with a few methods that would make the process

relatively efficient and smoother. One of these rules was known as the Literal Rule,

which gained popularity during the 18th and 19th centuries, particularly when the

Principle of Parliamentary Sovereignty became more prominent in the British

Constitution. The Literal Rule states that the judiciary will strictly contain themselves to

the language used in the statute during their interpretation. This means that the judiciary
must refrain from deterring to their own interpretation or even to analyze the purpose of

the act. Rather, they must take the Act ‘as it is’, literally and grammatically.

There has always been a debate where the judiciary has been criticized for being

involved in the law-making process to some extent. This can mainly be attributed to the

Common Law mechanism of the UK’s Legal System. However, many believe that the

main role of the judiciary is to interpret the laws put forward by the legislation, the

Parliament, and apply those laws after they are given effect. Unlike the other rule of

interpretation, the golden rule, this idea is prominent in the literal rule since the power of

interpretation according to one’s legal knowledge and expertise had been taken away

from the judges during the usage of this rule. There was no concept of scrutinizing the

context of the Act or the problems that the legislation aimed to solve. Hence, the role of

the judiciary during the period of literal rule was only confined to recognizing the

meaning of the words and phrases used in a particular act and giving effect to it.

To describe the extremity of situations where this rule was upheld, Lord Esher stated

that it is the court’s responsibility to interpret the words of the Act clearly, hinting towards

the language. He went on further to state that although there may arise linguistic

absurdity, the court should not be concerned with it as it is not their responsibility. Lord

Diplock, in the case of Duport Steels Ltd v Sirs and Others (1980) also presented his

viewpoints on the Literal Rule. According to him, the members of the judiciary should

not be deterred from giving an Act its meaning according to the language used, and
also, to not present fancied interpretations where the Act has no unambiguity, just

because, in their opinion, there would be unjust consequences.

Practically, there are numerous cases where the Literal Rule has been applied, and

where some problems during interpretation had befallen the court at the time. One such

example can be taken from R v Maginnis (1987), where a problem arose with the

interpretation of the Misuse of Drugs Act, during which the judiciary was divided as to

what the term “supply” meant. During the case of R v Brown (1996), there also came

an instance where the judges were divided regarding the interpretation of the Statute.

The case in reference was particularly related to the Data Protection Act (1984). In

another case, Fisher v Bell (1960), there came an issue regarding the Restriction of

Offensive Weapons Act 1959. Here, the Divisional Court adhered to the Literal Rule,

and so it was held that Mr Bell had not kept the knives for sale.

To conclude, the literal rule, since it was initiated during a time when the Parliament

became the superior authority in the UK, aimed the interpretation techniques to declare

its authority. Hence, the judiciary was virtually given no role in the interpretation

process, and all they had to do was give effect to the law per the language used. It was

also supported by many because it explicitly gave the power of law-making to the

Parliament, while the judiciary’s objective was strictly restricted to the literal

interpretation. Hence, this played a vital role in establishing the fundamental principle of

Parliamentary Sovereignty. However, there were multiple critics regarding this mode of
interpretation due to its unjust nature in exceptional circumstances. Due to this, the

Golden Rule was adopted, which can be said to be an extension of the Literal Rule,

where, if the plain meaning cannot be used, the Judiciary can resort to other meanings

of the Act to avoid and eradicate absurdity or confusion.

Q. ‘When seeking the “mischief” an Act of Parliament is aimed at, the judge must
focus on fulfilling Parliament’s intentions.’ Explain the so-called “mischief rule”
and discuss whether this rule and other approaches to statutory interpretation
can be said to achieve Parliament’s intentions.

Answer

The British Constitution has been formed through sources, which have contributed a fair

share of their legal rules to formulate the Legal System of the UK. The most important of

these sources is the Statutes, which are, in other words, the Acts of Parliament. They’re

what one calls Primary Sources, above whom, there is no law. All the other sources and

laws come below the Acts of Parliament. Hence, the proper interpretation of the statutes

that the Parliament has put forward is of crucial importance because if the Parliament's

intentions are not properly interpreted, problems within the State’s governing machinery

and other institutions may arise. Furthermore, there will be public criticism. The prior

statements can be summed better through the words of Tindal CJ, where he mentioned

the central function of the Acts of Parliament, stating that these provisions are mainly

put forward by the Parliament to be interpreted according to their intentions. The

judiciary is responsible for giving effect to the Parliament’s intentions. They’re the ones
who hold the right to interpret the laws put forward by the Parliament, and only they can

apply their legal and analytical expertise to do so.

To achieve this outcome, multiple judicial techniques have been developed that focus

on interpreting the statute put forward by the Legislature. The oldest of these techniques

of Statutory Interpretation is the Mischief Rule, which originated from the famous case

of Heydon (1584). According to this rule, the judiciary must focus on the legislation, in a

way that allows them to see what ‘mischief’, otherwise evil, was aimed to be eradicated

from the Common Law. The aspect of Common Law is present here because this rule

was introduced at a time where the principles of Parliamentary Sovereignty had not

taken its root within the British Constitution, and so, the Common Law was the primary

source of legislation. Hence, one could say that this is a technique where both principles

from the Primary Sources, namely the Statute and the Common Law are contrasted

with each other, unlike the other commonly used techniques of Statutory Interpretation,

the Literal and the Golden Rule. Furthermore, there can also be seen a broader

discretion to the judiciary in this rule, again, unlike its counterparts, where there is a

rather narrow scope of discretion. To achieve the purpose of Mischief Rule, the

members of the judiciary must follow a set of principles (Hayden [1584]). These

principles include a set of four questions, allowing the judiciary to aware themselves

with the context behind the Act, the problems it aimed to eradicate, the steps taken in

doing so, and the reason behind adopting such methods of resolution.
There have been numerous noteworthy cases where the judiciary has used this rule,

although it can be argued that the stepping stone has initially been the literal rule, after

which the ‘shift’ occurred towards the Mischief rule if the Literal rule was held to be

ambiguous. The classic case here is Smith v Hughes [1960], which was fundamentally

related to the Street Offences Act 1959. According to this rule, solicitation by a

prostitute ‘in the street’ was to be held offensive, however, the defendants had done so

through private premises (windows). The courts, instead of applying the Literal rule,

which was rather unjust in this case, used the Mischief rule. It was held that the

defendants were liable because the ‘mischief’ that was aimed to be eradicated was

solicitation in public places. Here, even though the prostitutes were not in a public place,

there actions were publicly displayed. Such reasoning was also adopted by Lord

Parker CJ, who was one of the judges in the case in reference. Another case that

discusses the functioning of the Mischief Rule is the case of Corkery v Carpenter

(1951), which concerned the Licensing Act 1872. The defendant was found in a drunken

state, carrying their bicycle in public. According to the 1872 Act, this was offensive.

However, there had been no prior mention of a ‘bicycle’ within the Act itself. At such a

circumstance, the court approached this problem with the Mischief Rule, and scrutinized

the ‘evil’ which the Act aimed to eradicate, which, in this case, was using transport in a

drunken state. Hence, the courts found the defendant guilty under the application of the

Mischief Rule, with respect to the Licensing Act 1872.

The main advantages that can be understood from the case laws above is that the

Mischief rule allows the judiciary to interpret the Statutes in a way that closes the
loopholes in Law. As mentioned earlier, the eradication of a ‘mischief’ or ‘evil’ present in

former Common Law that the Statute Law aims to eradicate. However, there have been

numerous criticisms to this rule as well. Firstly, the aspect of a broader discretion to the

members of the judiciary. This can be held to be an overusage of power from the judicial

departments, something which directly conflicts with the fundamental principles of the

British Constitution, the Seperation of Powers. Furthermore, the rule also allows the

judiciary to give effect to the Statutes in a way that does not necessarily have to fully

comply with the plain meaning put forward in a particular Act, thereby conflicting with

the principles of Parliamentary Sovereignty. Another issue with the Mischief Rule is that

it can make a lawful act, unlawful, through the shift in interpretation. As seen earlier in

Smith and Corkery, the use of a Literal Rule would have made the act on the

defendants’ part ineligible for an offense.

For cases where the Mischief Rule fails to achieve the Parliament’s intentions, the

judiciary has developed other techniques for Statutory Interpretation, including the

Literal Rule and the Golden Rule. As mentioned earlier, case-laws show that the initial

approach of the courts has been the adoption of the Literal Rule, hence it would be

discussed first. The Literal Rule gained popularity during the 18th and 19th centuries,

particularly when the Principle of Parliamentary Sovereignty became more prominent in

the British Constitution. The Literal Rule states that the judiciary will strictly contain

themselves to the language used in the statute during their interpretation. This means

that the judiciary must refrain from deterring to their own interpretation or even to

analyze the purpose of the act. Rather, they must take the Act ‘as it is’, literally and
grammatically. Under this rule, there was no concept of scrutinizing the context of the

Act or the problems that the legislation aimed to solve, nor ‘slightly’ changing the

meaning of the language used in an Act to eradicate absurdity. Hence, the role of the

judiciary during the period of literal rule was only confined to recognizing the meaning of

the words and phrases used in a particular act and giving effect to it.

To describe the extremity of situations where this rule was upheld, Lord Esher stated

that it is the court’s responsibility to interpret the words of the Act clearly, hinting towards

the language. He went on further to state that although there may arise linguistic

absurdity, the court should not be concerned with it as it is not their responsibility. Lord

Diplock, in the case of Duport Steels Ltd v Sirs and Others (1980) also presented his

viewpoints on the Literal Rule. According to him, the members of the judiciary should

not be deterred from giving an Act its meaning according to the language used, and

also, to not present fancied interpretations where the Act has no unambiguity, just

because, in their opinion, there would be unjust consequences. Practically, there are

numerous cases where the Literal Rule has been applied, and where some problems

during interpretation had befallen the court at the time. One such example can be taken

from R v Maginnis (1987), where a problem arose with the interpretation of the Misuse

of Drugs Act, during which the judiciary was divided as to what the term “supply” meant.

During the case of R v Brown (1996), there also came an instance where the judges

were divided regarding the interpretation of the Statute. The case in reference was
particularly related to the Data Protection Act (1984). In another case, Fisher v Bell

(1960), there came an issue regarding the Restriction of Offensive Weapons Act 1959.

Here, the Divisional Court adhered to the Literal Rule, and so it was held that Mr Bell

had not kept the knives for sale.

However, it has been argued that the Literal Rule may be unjust in exceptional

circumstances because the strict adherence to the language used in an Act may lead to

absurdity or confusion in some cases. The previous case-laws that have been

discussed is evident of this, where, the members of the judiciary have been divided

regarding a judgment on multiple occasions. Furthermore, the strict adherence to the

language used in a particular Act, although upholding the fundamental principles of

British Constitution, like the Parliamentary Sovereignty, leads to the law becoming

stagnant. In cases where the Literal Rule has failed to fulfill the Parliament’s intentions,

the courts may opt. to use the Mischief Rule or the Golden Rule. Since the former has

been discussed in prior paragraphs above, the topic of discussion presently would be

the Golden Rule.

The Golden Rule can be said to be an extension of the Literal Rule, where, the plain

language used in an Act would be followed, unless there is a likelihood of abdusrdity

being caused by the implementation of the plain language used in the Act. In such

cases, the judiciary has the right to modify the wordings used in the Act up-to a limit

where the confusion or absurdity is eradicated. A similar definition was put forward by
Lord Wensleydale in the case of Grey v Pearson (1857). Unlike the Literal Rule, which

can also be seen as a precursor of this technique of Statutory Interpretation, the courts

comparatively have a broader scope of discretion to analyze and interpret the laws put

forward by the Parliament. Case laws that include the application of this rule include the

case of R v Allen (1872), which was concerned with bigamy under the Offences

Against a Person Act (1861). The courts here used the Golden Rule to give extension

and a further scrutinization to S.57 of the Act to clear the issue of bigamy. The case of

Adler v George (1964) can be used as a classical example, which was concerned with

Section 3 of the Official Secrets Act (1920). Here too, the courts used the Golden Rule

to clear the misconception and absurdity created by the word ‘vicinity’ due to the

adoption of the Literal Rule.

From the discussions above, it can be seen that the Golden Rule is an efficient

approach where the interpretation of the Act is rather absurd due to the adoption of the

literal meaning of the words. This was also seen in the above cases, where , if the literal

rule was used, there would have been unjust circumstances, followed by successive

confusions. It is to be noted here that a judgment passed by a court becomes a

case-law. Hence, this would be detrimental to the law overall. Furthermore, it can be

seen that the Golden Rule has acted as an aid to overcome loopholes in the Law

created due to the Literal Rule or drafting errors. On the other hand, however, there are

disadvantages to this rule as well. It can be seen that the broader scope of discretion

provided to the judiciary due to the right to bend the meanings of the words used in the

Act directly goes against the fundamental principles of the British Constitution, the

Separation of Power. Furthermore, it also contrasts with the principle of Parliamentary

Sovereignty due o the judiciary’s ability to deter from the original meaning of the Act and

slightly changing it to avoid absurdity. This can be seen to give the judiciary an

additional power to rather ‘modify’ the Parliament’s intentions, in some cases. Lastly, the

usage of this technique is of no betterment in cases where the Act holds no ambiguity,

the case of the London and North Eastern Railway v Berriman (1946) is a classical

example in this regard.

To conclude, the interpretation of Statute is a complex task where the courts have to

adopt multiple techniques to achieve the Parliament’s intentions. From the discussions

above, it can be rightfully said that there is not one technique that is perfectly suited to

meet the Parliament’s intentions and to give an efficient effect to the Acts passed on.

This is due to the fact that each technique or method of interpretation presents a set of

advantages and disadvantages. Instead, a blend of techniques, or specific techniques

for particular cases is rather suitable, whereby according to the context and the case

facts, the Act can be efficiently scrutinized with the help of either of the

above-mentioned modes of Statutory Interpretation (the Literal Rule, the Golden Rule

and the Mischief Rule.)