Exam (elaborations)
Statutory Interpretation: how the law is interpreted by judiciary
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An extrinsic aid which has been viewed positively is Hansard, which helps judges with the purposiveapproach. It gives the entire debate of Parliament on the statute in question. It is also word for word. This
means that not only can the minister or promoters statements be found, but also the discussion and questions
that led to the statement. In Midland Electricity (2001) where Lord Phillips in his judgment said that reference
to Hansard had ‘immediately made clear what had previously been obscure’. This is an advantage because it
is available for most modern Acts of Parliament to find what Parliament stated was their intention when
passing the Act.
Hansard: Confusing
However, a disadvantage is that Hansard is not always easy to follow. For example, In R v Deegan the CoA
was concerned with the meaning of ‘folding pocket knife’. When referring to Hansard it was found that the
statements made by the minister in the debate were not clear. Furthermore, the word in question may not
have even been discussed in the debate. This is a disadvantage as it can lead to more uncertainty as to the
interpretation of a term.
Dictionaries: useful for the literal rule
An advantage of using Dictionaries is that they are useful for the literal rule. For example, in the case of
Vaughan v Vaughan where the common understanding of the term ‘molest’ was much narrower than the
dictionary meaning of the term. This is an advantage because it is a quick and easy method of interpreting the
law.
Interpretation Act 1972: Limited
A disadvantage of the Interpretation Act 1972 is that it is limited. Where more technical terms used in an Act
of parliament have not been given a definition section, the Interpretation Act 1972 can provide very little help.
This is a disadvantage because it can often fail to provide the certainty needed to interpret an Act.
Law Commission reports: Not always accepted in full
A disadvantage of Law Commission Reports is that they may not be accepted in full. It may be that
Parliament accepts some, but not all of the changes which were proposed by the Law Commission. Parliament
may even make different changes than what was proposed. This is a disadvantage as Parliament’s intention is
not the same as in the report so this could lead to confusion and uncertainty.
International law: Avoid mistranslation
An advantage of international laws is that they can be used to avoid mistranslation into English Law. In
Fothergill v Monarch Airlines the House of Lords considered the original convention when interpreting a piece
of UK legislation passed to implement the EU law. This is an advantage because the true meaning can be
considered.
Judicial Precedent
Judicial precedent refers to the source of law where past decisions of the judges create law for future judges to
follow. This source of law is also known as case law.
The doctrine of judicial precedent is based on the maxim ‘stare decisis’. This Latin phrase means ‘stand by the
decided’. This means that when judges are applying the law they should follow the decisions of previous
judges.
Key Elements of Judicial Precedent: The Court Hierarchy
For the system of judicial precedent to work a structured court hierarchy is needed so that judges know which
decisions they are bound to follow.
From the top the hierarchy starts with the European Court of Justice, the Supreme Court, the Court of Appeal
(Criminal and Civil Divisions), the Divisional Courts and then the inferior courts; the Crown Court, Magistrates
Court, High Court and County Court.
Decisions from the courts at the top are binding on all the courts below, meaning that the courts at the bottom
must follow the decisions from the courts above.
, The CJEU is not bound by its own decisions.
The Supreme Court has inherited the powers given to the House of Lords through the practice statement in
1966. This allows this court to depart from its own previous decisions ‘when it appears right to do so’. This
was the case in Herrington v BRB where social and physical changes meant the court considered that the
previous precedent under Addie v Dumbreck should be ignored, creating a new precedent that a duty of care
should be owed to trespassers. In R v Shivpuri the court used the practice statement powers to avoid the
previous decision of Anderton v Ryan as this law was considered to be incorrect.
In the Court of Appeal the two divisions are not bound by one another. However, each division is bound by its
own decisions. That is unless one of the Young exceptions apply.
● Firstly, if a decision has been made per incuriam, meaning in error, this was the case in Williams v
Fawcett where the binding precedent had been made based on a misunderstanding of County Court
rules.
● Second, the court will have to depart from its own decision where a later Supreme Court case has
overruled it. This was the case in Family HA v Jones.
● Also, the court will have to depart from its own decisions where there are two conflicting Court of
Appeal decisions. In R v Parmenter the CoA chose to follow their decision of R v Savage, effectively
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