ELS & CONSTITUTIONAL LAW – COURSE SUMMARY
TOPIC 1: THE ELS & STATUTORY INTERPRETATION
Four main sources of English law: (i) case law; (ii) UK legislation; (iii) retained EU Law; (iv) ECHR.
a) Statute: primary source. – ambiguities as to meaning of legislation may arise: Corkery v
Carpenter: whether the word ‘carriage’ included a bicycle.
Rules of construction: these ‘rules’ are not binding, they are different methods of approaching the
interpretation of statutes. There are three rules of construction:
—> The Literal Rule:
This rule stipulates that words must be given their plain, ordinary and literal meaning.
Sussex Peerage Case: “If the words of the statute are in themselves precise and unambiguous, then no more
can be necessary than to expound those words in that natural and ordinary sense.”
Problems with the rule:
Danger that a particular interpretation may be contrary to the will of Parliament;
Whitely v Chappell: D pretended to be someone who was on the voters’ list but who had died. He was
charged with impersonating ‘a person entitled to vote’, but was found not guilty —> the person he
impersonated was dead, and on a literal construction of the relevant statutory provision, the deceased
was not ‘a person entitled to vote’.
London &North Eastern Railway Co v Berriman: a railway worker’s widow was denied
compensation because her husband was killed when oiling points and this was ‘maintaining’ the line
not ‘re-laying or repairing it’.
—> The Golden Rule:
Adaptation of the literal rule: where there are two meanings to a word or words, they should be given their
ordinary meaning as far as possible, but only to the extent that they do not produce an absurd or totally
obnoxious result. – Grey v Pearson.
Adler v George: a literal interpretation would have meant that the offence could only be committed if the
obstruction occurred outside the base and not within its grounds. Clearly, this would not serve the purpose of
the Act, which was to protect such military bases.
The rule may be used in two ways:
Narrow sense:
a) Jones v DPP: if a word is capable of more than one meaning, you can choose between those
meanings, ‘but beyond that you must not go’.
b) R v Allen: ‘Whosoever, being married, shall marry another person during the life of the
former husband or wife ...’ shall commit the offence of bigamy.’ —> The court interpreted the
word ‘marry’ as meaning ‘going through the ceremony’ of marriage to avoid an absurd result.
Wider sense:
a) To avoid a result which is obnoxious to principles of public policy, even where words have
only one meaning.
b) Re Siasworth: son had murdered his mother. Under intestacy rules, the son would have
inherited his mother’s residuary estate as her ‘issue’ (child). —> judges effectively wrote into
the Act that the ‘issue’ would not be entitled to inherit where he had killed the deceased.
c) Info Europe Ltd v First Choice Distribution: HL stated that words could be added to a
statute to resolve an obvious drafting error. – HL added a right of appeal from the High Court
to the Court of Appeal, despite the absence of any such appeal in the statute. — used a
combination of golden rule and purposive approach.
—> The Mischief Rule:
The mischief rule requires the interpreter of the statute to ascertain the legislator’s intention.
The court considers what ‘mischief’ or defect in the existing law the statute was intended to remedy using a
four-stage test:
(a) What was the law before the statute was passed (ie the common law)?
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, (b) What was the ‘mischief and defect’ which was not remedied by the existing law?
(c) What remedy did Parliament propose to put it right?
(d) What is the true reason for the remedy?
Royal College of Nursing v DHSS: s 1(1) of the Abortion Act 1967 provided that it would be not an offence
‘if a pregnancy is terminated by a registered medical practitioner [ie a doctor]’. – HL majority reversed the
Court of Appeal’s judgment, relying on the mischief rule.
Parliament had passed the 1967 Act to remedy the unsatisfactory and uncertain state of the law, to
broaden the grounds on which it was legal to perform abortions, and to ensure that abortions were
performed with proper skill in hygienic conditions.
—> An abortion is lawful where the termination is prescribed and initiated by a medical practitioner
who remains in charge of it, and is carried out pursuant to their instructions by qualified nursing staff.
—> The Purposive Approach:
The judges look at the reasons why the statute was passed and its purpose, even if it means distorting the
ordinary meaning of the words. – widely used in EU.
During the UK’s membership of the EU, the European Communities Act 1972 required UK courts to adopt a
purposive approach in construing EU related legislation and in particular UK provisions that implemented EU
law.
Lister v Forth Dry Dock and Engineering Co Ltd: statute provided that a transfer shall not terminate the
contract of any person employed ‘immediately before the transfer’. —> HL read in the additional words ‘or
would have been so employed if he had not been unfairly dismissed before the transfer’ for a reason connected
with the transfer. This was necessary to achieve the purpose of the EU Directive, which was to protect the
employees on the transfer of a business.
*** Courts must interpret legislation bearing in mind the purposive approach and mischief rule are often
interchangeable and would yield the same result. If a judge is construing EU law or human rights they must
use the purposive approach but otherwise the judge might equally be using the mischief rule.
The impact of the Human Rights Act 1998 on principles of statutory interpretation:
Section 3 of the Human Rights Act 1998 provides that ‘so far as it is possible to do so, primary and
subordinate legislation must be read and given effect in a way which is compatible with the Convention
rights’.
If the court cannot achieve this, it may make a declaration of incompatibility pursuant to s 4 of the 1998 Act.
R v A (No 2): whether s 41 of the Youth Justice and Criminal Evidence Act 1999 (ie. circumstances in which a
D on trial for rape may question his victim in the witness box) was compatible with a defendant’s right to a
fair trial under Article 6 of the ECHR.
The trial judge refused to allow the defendant to question the complainant about their continuing
relationship on the basis that to do so was prohibited by s 41(3)(b).
HL gave s 41(3)(b) a very different meaning from the one intended by Parliament when it was drafted.
*** in case of ambiguity:
Use mischief rule to look backwards at the root of the problem;
Use purposive approach to look forwards at the aim of the legislation.
NB. Can only change language of statute using the purposive approach.
Rules of Language: general principles that judges may apply when they read a statute.
—> Noscitur a sociis (recognition by associated words):
means ‘known by the company it keeps’. That is to say that a word derives meaning from surrounding words.
Pengelly v Bell Punch Co Ltd: as all the other words were used to indicate passage, a floor used exclusively
for storage did not fall within the Act.
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, —> Eiusdem generis (of the same kind of nature):
If a general word follows two or more specific words, that general word will only apply to items of the same
type as the specific words.
(1) Are there general words following a list of specific words?
(2) If so, what type are the specific words?
(3) Interpretation: any new item will be included in the statute only if it is of the same type as the
specific words.
Wood v Commissioner of Police of the Metropolis: Section 4 of the 1824 Act made it an offence to be armed
with ‘any gun, pistol, hanger, cutlass, bludgeon or other offensive weapon’ with intent to commit a serious
offence. - The issue was whether a piece of broken glass fell within the scope of ‘other offensive weapon’. —
> Held: interpretation: broken glass is not of the same type as it was neither made nor adapted for causing
injury to a person. It is not enough that an item has the potential for such use.
Powell v Kempton Park Racecourse: whether s 1 of the Betting Act 1853, which prohibited the keeping of a
‘house, office, room or other place’ for the purpose of betting, applied to Tattersall’s Ring, which was an
outdoor area at the racecourse. The court said it did not, as the specific places were all indoors.
—> Expressio unius est exclusio alterius (expressing one thing excludes another):
‘To express one is to exclude others’; therefore mention of one or more specific things may be taken to
exclude others of the same type.
R v Inhabitants of Sedgley: poor rate levied on occupiers of ‘lands, houses and coal mines’ under the Poor
Relief Act 1601 could not be levied on owners of other types of mine.
R v Secretary of State for the Home Department: used to exclude the father of an illegitimate child from
rights under the immigration law at the time, because the definitions section specifically mentioned the mother
alone.
Aids of interpretation:
—> Intrinsic aids (the use of the statute itself):
The statute must be read as a whole, and the words read in context (note the overlap with ‘rules of language’).
Any words which have been debated by Parliament and are thus part of the statute are legitimate aids.
Therefore, the long and short titles, preamble (not commonly found in modern statutes), punctuation and
headings may be used.Marginal notes are not debated in Parliament and therefore are not normally used.
Chandler v DPP: the court decided that in s 1 of the Official SecretsAct 1911, ‘espionage’ included sabotage,
and declined to use the marginal note which read ‘spying’ as an aid.
—> Extrinsic aids (aids outside the statute itself):
Interpretation Acts: The Interpretation Acts give definitions of words commonly found in legislation. For
instance, s 6 of the Interpretation Act 1978 states that, in all legislation, the masculine includes the feminine,
and the singular includes the plural unless indicated otherwise.
Dictionaries: can be referred to when a word has no specific legal meaning. – particularly relevant to literal
approach.
Other statutes: could either be earlier statutes replaced by the current statute, or any other statute.
Hansard: although all Parliamentary debates about the statute in the House of Commons and the House of
Lords are recorded in Hansard, generally a court cannot refer to this explicitly as an aid to interpretation.
However, over time there was some relaxation of this strict rule: Pepper v Hart: courts could refer to
Parliamentary material recorded in Hansard if:
a) the statute is ambiguous or obscure, or its literal meaning leads to an absurdity; and
b) the material consists of clear statements by a Minister or other promoter of the Bill.
the rule in Pepper v Hart applies to statements made by ministers responsible for guiding legislation
through Parliament, not statements by backbench MPs.
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, Presumptions: certain (rebuttable) presumptions are applied in interpreting legislation. These include:
Against alteration of the common law: Unless the statute expressly states an intention to alter the common
law, the interpretation which does not alter the existing law will be preferred.
Against the retrospective operation of statutes: Where an Act of Parliament becomes law, a presumption arises
that it will apply only to future actions. – ie. Some legislation (War Crimes Act) is retrospective.
Against criminal liability without guilty intention (mens rea): When creating new criminal offences,
Parliament does not always define the mens rea required. In these cases, the presumption will be applied. -
Sweet v Parsley: D acquitted as she had no knowledge that her tenants were growing cannabis in her rented
house.
Against deprivation of the liberty of the individual: any ambiguity in a penal or criminal statute will be
interpreted in favour of the citizen.
Against deprivation of property or interference with private rights.
Against binding the Crown: unless clearly stated otherwise, legislation is presumed not to apply to the Crown.
Against ousting the jurisdiction.
Principles of interpretation:
1. Start with a rule of construction (initially the literal rule) —> 2. Watch out for the purposive rule,
specifically in retained EU law or ECHR law, but also of more general application; —> 3. Support it with
rules of language, especially if a list is involved, and aid to interpretation; —> 4. Keep presumptions in mind.
Crown v Goodwin: This case is about a type of jet ski called a Waverunner. Many jet skis are ridden by one
person like a motorbike. A waverunner is similar, but large enough to accommodate several people. The case
turns on the question, was this type of jet ski a ship?
The importance of Statutory Interpretation:
Even though this is a common law jurisdiction, no court may overrule any statute. A court can do no more
than interpret it.
Who exactly is involved in the creation of an Act of Parliament?
Minister: Usually a Government Minister will promote a Bill. They or their department will formulate the
policy. – It’s they who conceived the Act. The Act eventually passed will have been amended greatly
from the Bill the minister originally submitted to Parliament.
Draftsmen: The Parliamentary draftsmen will then try to put that policy into concise legal language. -
The draftsmen are the people who write the words of the statute at every stage from Bill to Act.
MPs in Committee: The Bill spends a considerable time being discussed in detail by MPs in committee.
The MPs deliberations reveal why the Bill is changed before it becomes law. — But their deliberations
are politically motivated, and perhaps are not appropriate as a source of assistance in statutory
interpretation.
MPs in House: The Bill is voted upon by both Houses of Parliament at various stages.
o MPs debate the Bill in the House of Commons. Their contributions often explain why the Bill is
changed before it becomes law. Their speeches are politically motivated.
The Queen: Finally it’s the Queen who formally assents to the Bill, and it’s at that moment that it
becomes an Act. – A monarch has not vetoed legislation since Queen Anne in 1707.
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TOPIC 2: THE DOCTRINE OF PRECEDENT
A proposition stated in one case is binding in a later case if it is:
a) a proposition of law;
b) part of the ratio decidendi of a case;
c) decided in a court whose decisions are binding on the present court; and
d) there are no relevant distinctions between the two cases.
A case must be decided in the same way as an earlier one if its material facts (ie those which are legally
relevant) are the same. The part of the earlier case which is potentially binding is called the ratio decidendi.
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