The constitutional significance of legislation is themoment where parliament as the Crown, voice of the Lords, and ‘common’ peoplewhere in the moment of unity, make their own law. This is also known asParliament Supremacy. Hence only parliament can make law. Judiciary however arethe judges and courts that interprets and applies the law and statutoryinterpretation is the approach of interpreting the law. When the courts come toapply this general will of the ‘crown in parliament’ to the particular facts ofthe case, they must try to be faithful to the words, but also they must’translate’ them so that they are meaningful in the context. Where there is ambiguity, uncertainty or absurdity, the lawhas developed a number of techniques or approaches of reading and understandingstatutes called rules. Some judges prefer to use one rule while the otherprefers another, however to provide certainty of law once an interpretation isapplied it will then form a precedent for similar cases in the future tofollow. The first and most common rule isthe literal rule sometime known as the dictionary rule.
It uses theordinary, natural and literal meaning’ of words – even if this would lead to anunfair result. For example Whitely vChappell (1868) where defendant was found not guilty when he impersonated adead person to vote. The statue made it an offence to impersonate any personentitled to vote. This was because according to the literal rule ‘a deadperson’ was not entitled to vote. This has created an absurd result becauseclearly the intention of parliament for the statute is to preventing electoral malpractice.
However, Lord Esher in R v Judge of the City of London Court (1892) said ‘ifthe words of an act are clear then you must follow them even if they lead to amanifest absurdity. The court has nothing to do with the question whether thelegislature has committed an absurdity.’ An excellent example would be Hastings Borough Council(Appellant) v Manolete Partners Plc (Respondent) 2016 where there was arestriction of public access to Hasting Pier. The claimant pursue compensationfor lost business. Section 106 of the BuildingAct 1984 (“the 1984 Act”), requires compensation to be paid for loss to abusiness resulting from emergency action, but only where the owner or occupierof the premises has not been in default. There are minor rules which assist the meaning of words andphrases. These rules are Expressio unius exclusio alterius(the mention of onething exclude others) , Noscitur a sociis (a word known by a company it keeps)and legal presumptions.
The golden rule is an improved version of the literal rule.It is first interpreted by the literal meaning however the courts are allowedto avoid interpretation which would cause absurdity to the result. Thereare two application of the golden rule. Firstapplication would be the narrow application where judges can only interpretpossible meanings of the word when there are more than one literal meaning. Thisallow the judge to apply the meaning to avoid absurdity. To illustrate, thecase Adler v George (1964) where defendant made an offence by obstructing Hermajesty Forces ‘in the vicinity’ of a prohibited place according to theOfficial Secrets Act 1920. The defendant argued that they were not guilty dueto the literal meaning of the act which did not state if anyone was liable ofthe act but only apply to people ‘ in the vicinity’. The court found thedefendant guilty as it would be absurd if those causing an obstruction outsidethe prohibited place were guilty not anyone inside was not.
The secondapplication would be the wider application where the words have only one clearmeaning but the meaning would lead to a repugnant situation. When thishappens the court will invoke the golden rule to modify the words in thestatute to avoid this problem. An example would be Re Sigworth (1935) where theson murdered his mother hence her properties will automatically inherited byher next of kin which is her son according to the Estate Act 1925. First of allthe words in the statute was clear but it would be absurd for the son toinherit the properties after murdering his mother. Hence, the court decided notto use the literal rule but the golden rule in order to prevent an unjust resultand repugnant situation. The son was not entitled to inherit the properties.
Theconsequences of this rule would be judicial law making where the judge makingthe decision could changes the law especially when the broad approach is used. However,the only person who can change the law is parliament. Mischief rule promotes the purpose of the law as it allows judgesto look back at the gap in the law which the act was designed to cover. Inother words, it is to make sure the parliament’s will is followed through. InSmith v Hughes (1960) where six women was charged in offense of the StreetOffences Act 1959 which states that it is an offense for common prostitute toloiter in a public place for the purpose of prostitution.
However, all the sixwomen argued since they were indoors, they were not in a public place.Nevertheless, Lord Parker rebutted the arguments in relation of the mischief aimedin the act. The problems with mischief rule are the risk of judicial law makingwhere judges try to fill the gaps of law with their own view. It can also leadto uncertainty of law, where different judges prefer different rules, it wouldbe impossible for lawyers to predict and advise on the case. The purposive approach is the rule that goes beyondthe mischief rule. This rule let judges decide what they believe the parliamentis trying to achieve.
It is driven by the European Communities Act 1972. Besides that, there are also aids to find parliament’sintention. The intrinsic (material within the act) for example the title of theact. The extrinsic aid (material outside the act) for example law commissionreports, international conventions. Last but not least the use of Hansard.
Hansard is the official report of what has been said in parliament when the Actwas debated. However, Hansard was criticized as not reliable and debated amongjudges/