The K-Zone: statutory interpretation

This acticle examines some of the reasons why interpretation is always going to be necessary; that is, why it is impossible -- or at least hightly impractical -- to frame legislation in a way that admits of only one reading in any given case. It then describes the contentional, `textbook' principles of statutory interpretation, and suggests that these are far less rigidly applied than some authors would have us believe. We will then look at the differences between interpratative approaches that tend towards a literal reading, and those that tend to be purposive. Since any purposive approach requires some source of authority outside the specific words of the legislation itself, we then consider where these sources may be found. Finally, we consider some modern syntheses of the various tranditional approaches. An appendix provides some of the more important conventional guidelines that are applied in most cases.

The need for statutory interpretation

There are many trivial ambiguities in ordinary English phrasing that are unproblematic in everyday speach, but troublesome in legal contexts. For example, if an Act makes it an offence to remove ``direction signs'' from the public highway, is it an offence to remove only one sign, or is the use of the plural significant? In this case, we can reasonably assume that the legislators intended to include the appropriation of a single direction sign, but this is an interpretation, not a logical analysis.

Trivial linguistic issues like this are now handled by the InterpretationAct1978. It states a number of elementary grammatical presumptions such as, for example, the equivalence of masculine pronous (`he', `his') and feminine ones, and the equivalence between singular terms and plurals. More specific rules state that, for example `land' is to be construed as including buildings on land. Of course all these presumptions are rebutable, often by definitions in the statutes themselves.

If I hear the word `chairman' used in everyday speach I assume that it may be being used of a woman. Therefore, if I wrote the word `chairman' myself I would tend to assume that my readers would make the same assumption. But what reason do I have for making this assumption? In statute, where the TheftAct1968 says that a person commits theft if ``...he dishonestly appropriates..., common-sense would suggest that this does not limit stealing to men, but should the same interpretation be applied to, for example, the use of the words `man' and `he' in the definition or Rape? In general, for brevity or similicity the writer of the legislation will work on the understanding that he (there it is again...!) and the reader have assumptions in common. The older the leglislation, the less likely this is to be the case. Only the simplest of these problems are covered by the rules in the Interpretation Act.

In Adler v George ([1964] 2 QB 7) a conviction was challenged on the basis of what was an obvious miswording in the Official Secrets Act (1920). This Act made it an offence to obstruct a member of the armed forces ``in the vicinity of'' particular locations, but not actually ``in'' those locations. The defendant was actually inside an Air Force base at the time of the incident, which he clained was beyond the literal scope of the act. While it is fairly clear that this case exposes a defect in the drafting of the statute, not all such defects are so obvious. Frequently courts hasve to decide whehter statutes really mean what they purport to mean, or are simply badly worded.

The problem here is that space precludes a complete listing of all the entities to which a particular provision may apply. Typically the drafter will give a couple of examples and then a phrase such as ``...and other similar items''. In a particular case it may be necessary to decide whether a particular item is a member of the class to which the passage applies. In AllenVEmmersonAndOthers1944, for example, the issue was whether the phrase ``theatres and other places of public entertainment'' applied to a fun-fair. There are now conventions governing the interpretation of generalizations, as will be discussed below.

The circumstances of the current case may be such that the legislators could never have envisaged them and made legislative provision. For example, the licensing of broadcasting apparatus is still largely controlled by the WirelessTelegraphyAct1949, but we now have mobile telephones and digital television, things almost inconceivable half a century ago.

Statutes frequently make use of terms that are impossible to define. For example, how often and frequently must a person do something for it to be `repeated'? What exactly makes an act `malicious' in terms of the OffencesAgainstThePersonAct1861? What is a `reasonable' man? These terms are used to reduce the possibility of a defendent evading a criminal charge on a technicality, by claiming that his behaviour falls outside the narrow scope of a definition, but this does mean that they have to interpreted in each specific case.

The conventional view of statutory interpretation

This simply means giving the text its ordinary, everyday meaning, and applying it exactly as written. This rule came into prominence in the 18th century. Parliament was becoming increasingly significant as a source of law, usurping the common law and the Royal prerogative. Until this time, the courts had tended to regard statutes as a device to plug holes in the common law. The increasing role of Parliament meant that courts tended to treat the exact wording of Acts as the voice of the legislature, and were disinclined to look elsewhere for sources of law. The rule itself is well expressed by Tindal CJ in the Sussex peerage Case ([1844] 11 Cl;Fin 85): "... the only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver."

Although a strict application of the literal rule is no longer in favour, and judges are often heard to say that it is no longer of overwhelming significance, it remains trues that English courts are more literal in their approach that those in most other jurisdictions.

The usual cited authority for this approach is Lord Wensleydale in Grey v Pearson (1857) 6 HL Cas 1: "... the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity ... in which case the ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency but no farther." However, even in the widely-cited Tindal definition of the literal rule (see above) it was quietly recognized that it would not always be applicable: ``If the words of the statute are in themselves precise and unambiguous...'' Probably the most famous application of the golden rule is R v Allen (1872), a case of bigamy. The wording of the legislation at the time defined bigamy as being married more than once. Since the second attempt at marriage would be void it would be impossible, on such a definition, to commit bigamy. In this case it was held that bigamy meant to go through the ceremony of marriage a second time.

Note that the principle is to divert from the literal interpretation on as far as is necessary to avoid absurdity.

Of the three textbook rules, the use of the `mischief rule' was favoured by the Law Commision (reporting in 1969), and represents a somewhat more purposive approach to interpretation. The rule itself is venerable; the name is taken from HeydonsCase [(1584) 3 Co Rep 7a], and in outline says that the job of the judge is to determine what defect in the common law the statute set out to remedy. A broader, and more usual, reading is that the judge should apply what is ascertained to be the intention of parliament.

It is often believed that these traditional rules form a progression, to be applied in the order listed above in any given case. So, if a strict literal interpretation leads to absurdity, and the golden rule leads to something that is clearly outside the overall context of the act, a court can apply the mischief rule. The problem with this position is that there is little evidence that it corresponds to reality. In 1963 the Law Commision reported that the nature of the `absurdity or inconsistency' that would allow the golden rule to be applied was not properly defined; in practice, absurdity was usually taken to mean inconsistency with the spirit of the enactment. This means that the golden rule and the mischief rule are merely slight variants on one another.

Courts don't always apply the mischief rule even when the `mischief' is clear, and it would be plainly sensible to do so. For example, in FisherVBell1961 the prosecution of a shopkeeper for displaying flick-knives for sale failed because the wording of the RestrictionOfOffensiveWeaponsAct1951 used the term `offer for sale'. An offer for sale has the sense that if it is accepted a contract is formed then and there. Displaying goods in a shop is widely understood not to form an offer for sale in such terms: it is merely an `invitation to treat'. The court expressed dismay that it could not find according to the clear intention of Parliament, and declined to apply the mischief rule. In the longer term, it could be argued, this was the right decision, because the statute was ammended less than a year later to correct the defect in wording.

Shortly after this case, the opposing view was taken by Parker CJ in Adler v George (discussed above): ``I am quite satisfied that this is a case where no violence is done to the language by reading the words "in the vicinity of" as meaning "in or in the vicinity of".''

What distinguishes these two cases that makes one subject to the mischief rule and not the other?

The reality is that it is difficult to predict the interpretative approach that a court will adopt in a particular case. As early as 1938, Willis wrote

``... a court invokes whichever of the rules produces a result that satisfies its sense of justice in the case before it. Although the literal rule is the one most frequently referred to in express terms, the courts treat all three as valid and refer to them as occasion demands, but, naturally enough, do not assign any reason for choosing one rather than another.'

(Willis, J Statute interpretation in a nutshell, 1938, 16 Can Bar Rev 1).

There may even be cases that a judge picks an interpretative principle that allows an outcome that accords with his own view, even where he otherwise favours a different standpoint. For example, we see Lord Denning -- famous for his purposive interpretation -- put his weight behind the literal rule in RCN v DHSS [(1980) AC 800]: ``Emotions run so high on both sides that I feel that we as judges must go by the very words of the statute - without stretching it one way or the other - and writing nothing in which is not there.''

Literal and purposive approaches

Justifications offered for strict literal interpretation include:

• it encourages careful drafting of legislation, as legislators know that their words will be read strictly;
• it allows judges to be seen as non-political, as they don't have to interpret according to policy;
• it accords well with the notion of ParliamentarySupremacy. If judges are encouraged to read statutes too freely this may be seen as a usurpation of the powers of the elected representatives of the people (in fact, this happens anyway).

• Because it essential that the wording of the statute includes some generalizations, their application to a particular object or situation may be difficult to determine. For example, in AllenVEmmersonAndOthers1944 the point in question was whether the term ``theatres and other places of public entertainment'' should apply to a fun-fair. The Act itself was unhelpful on this point.
• The wording may be unamiguous, but contradictory or absurd. In R v Allen (1872), a case of bigamy, the wording of the legislation at the time defined bigamy as being married twice. Since the second attempt at marriage would be void it would be impossible, on such a definition, to commit bigamy. The wording of the legislation was perfectly clear, but absurd.
• It offers little protection against the exploitation of technical loop-holes. For example, in Whitley v Chappell ([1868] 4 LRQB 147), it was held that as a dead person was not entitled to vote, impersonating a dead person did not constitute impersonating a person entitled to vote.
• It does not allow the court to extend common-sense to specific cases whose factors were not envisaged by the legislature. For example, in R v Harris (1836) it was held that a man who had bitten another man's nose off was not guilty of an offense that required him to "stab, cut or wound". A strict application of expressio unius est exclusio alterius meant that things related to stabbing, cutting or wounding, but not those specific acts, had to be excluded.

• Purposive approaches allow the courts to given effect to the intention of Parliament, even when the exact words don't allow for this.
• An acceptance of purposive intepretation allows the court to seek authority outside the exact words of the statute; such an approach is not only forbidden until a literal reading, it would be meaningless.

There has been a great deal of debate about the constitutional impact of the increased use of purposive interpretation. Mostly this centres on the non-elected nature of the judiciary, and clearly these concerns are reasonable (but beyond the scope of this article). Such problems came to a head in Magor and St Mellons RDC v Newport Corporation (1950), in which Lord Denning said

"We sit here to find out the intention of Parliament and carry it out by filling in the gaps rather than by destructive analysis."

On appeal, Lord Simmons called this

"... a naked usurpation of the legislative function under the thin guise of interpretation."

Apart from the this, the main contention is that purposive interpretation favours short-term justice over long-term legislative stability. For example, in Fisher, if the court had applied the mischief rule and ruled that Mr Bell could be convicted of an offence for displaying flick-knives in his shop window, this would have been in accord with the intentions of Parliament. It would also have been seen by most people as the `just' outcome (who wants to see flick-knives for sale in the High Street?) However, it could be argued that this would have set a precedent to the effect that displaying goods for sale consitituted an `offer for sale' (the precise wording of the Act at the time). Apart from overturning an important principle of contract law, this would lead to problems in future cases. In most cases, we presume, `offer for sale' should have its established meaning. In holding to the literal rule, the court decision forced Parliament to ammend the wording of the Act very rapidly, so in the long term a more stable outcome was achieved.

Sources of interpretative guidance

On the whole, these are uncontentious.

• The long title, preamble (where included), headings, footnotes a sidenotes relevant to a passage are all valid.
• It is not yet clear whether the short title of an Act could be used to resolve doubt.
• Other parts of the Act can be used to determine the overall context of the legislation.

There is much more debate about which of these is admissible.

• Dictionaries, etc., may be used to provide authority for the specific meanings of words used in the statute. It is not all that unusual for a `battle of dictionaries' to arise, with both sides finding dictionary definitions that support their own cases.
• The stated opinions of particular experts may be used to resolve points that involve `accepted practice' and the like. This is particular relevant in property conveyancing, where statutes tend not to define procedures, assuming they will be developed by professionals.
• Other statutes may be consulted if they are in pari materia, that is, they concern related matters. Some statutes make express provision for this. In principle, the Human Rights Act (1998) as a matter of statute is in pari materia with everything.
• For application of the `mischief rule', the reports of Royal Commissions, Law Commissions, etc., may be consulted for information about the current state of law or the `mischief' that is to be remedied. However, such a report cannot be taken as indicative of the intention of Parliament, as Parliament is free to reject the findings of the report, or accept them only with qualification.
• If it is presumed that Parliament does not seek to legislate in contravention of international law, it follows that treaties, etc., are sources of authority (but see Marchiori below).
• Since Parliamentary debates are mostly a matter of public record, it might be assumed that records of such debates would be excellent guides to statutory interpretation. However, for a long time the courts refused to refer to such materials. This principle was discussed and upheld in Davis v Johnson (1979), which stated that Parliamentary materials may be used in the same sense as other context-establishing words (like the preamble), but not as a guide to construction of specific passages. However, this restriction was definitively overturned in PepperVHart1993; the current position is that courts may refer to, for example, Hansard where the intention behind a statute is unclear.

Current views on statutory interpretation

``The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.''

However, courts are still expected to keep in high regard the literal meaning of legislation, and only divert from it where to do so would give effect to the intention of Parliament, not to the moral, ethical or social views of the judges (and this is really what distinguishes the modern `contextual' approach from that of Denning, who was quite prepared to to a moral line on legislation). The use of a variety of sources to infer the context of legislation, including the intention of Parliament, and then to intepret the legislation as literally as possible within this context, is often referred to as the `contextual approach' in Sir Richard Cross's influential (1995) textbook on this subject. It has been approved by a number of House of Lords judgements that have considered the issue.

It remains to be seen what the effect will be of the HumanRightsAct1998 which says that, as far as practicable, statutes are to be read in a way which is compatible with the European Convention on Human Rights. This provision gives much more discretion to judges than has previously been the case, as this Act has such wide-ranging provisions.

Appendix: interpretative conventions and presumptions

• Statutes remain law until they are repealed by Parliament. Sometimes this creates absurdities like AshfordVThornton1818 (right to trial by combat), and PrinceErnestOfHanoverVAttorneyGeneral1957, and Parliament normally moves to repeal such legislation rather quickly.
• The principle of ejusdem generis applies if the passage can be so read; that is, where a statute provides a list like `X, Y, and similar Zs', then it will only apply to an item not on the list if it really is of the class Z. For example, `cats, dogs, and other pets' probably excludes lions (as not being pets), but it is not clear whether `cats, dogs, and other animals' would include lions (see the specific entry for EjusdemGeneris for more details).
• The principle of expressio unius est exclusio alterius (``the expression of one is the exclusion of others'') applies. So, for example, ``land and coalmines'' does not include slate mines, because if that meaning were intended that clause would have been ``land and mines''.
• Statutes are assumed not the alter the common law, unless this is stated explicitly. Of course, many statutes are created specifically to alter the common law, and the `mischief rule' relies for its effect on this fact.
• Statutes are assumed not to violate international law; however, if the wording is clear a court cannot disapply a statute even if it is in flagrant violation (e.g., RVEnvironmentAgencyExParteMarchiori2002).
• Unless a specific power is conferred, the court cannot refuse to apply a particular piece of legislation on the grounds that it is unlawful (i.e., conflicts with other legislation) or is in breach of a treaty. This is merely an expression of the doctrine of ParliamentarySupremacy.
• Unless it is explicitly stated, it is presumed that legislation does not create StrictLiability offences, or otherwise impose penalty without fault.
• Unless it is explicitly stated, it is presumed that the common-law defences of Self-defence, Duress, etc., remain applicable to new offences.
• Statutes are not binding on the Crown unless stated. By `Crown' here is meant the executive agencies of government and includes not only ministers but also the management of public bodies like the NHS.
• Unless expressly stated, it is assumed that actions carried out under the authority of legislation can be challenged in the courts. Even where it is expressly stated to the forbidden, courts have shown a willingness to subject executive actions to scrutiny.
• It is presumed that legislation does not interfere with rights to private property; where it does, it is assumed that there is an intension to compensate individuals that have been lawfully deprived of their property.
• It is presumed that legislation does not grant arbitrary discretion to public individuals.
• It is presumed that legislation does not act retrospectively, that is, an act that was legal in the past does not become liable to criminal charges if the law changes in the future.
• If a consolidating Act is worded clearly and unambiguously, then wording of the Acts it replaces are not allowed to cast doubt on its interpretation.

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