A2 Law – Additional Work – Essay SS1

Ali Hassan (October 2006).

In Source 1 (Special Study Materials) the author suggests that the main problem with statutory interpretation is that "the intention of Parliament must be established primarily from the words used by Parliament".

Compare the literal and purposive approaches to statutory interpretation in light of the above statements.

Introduction:

As well established within English Law, a judge’s role is primarily to interpret, and give effect to the words and clauses used in statutes.  However situations indefinitely arise where either words or phrases are challenged for being ambiguous, or there simply lacks sufficient statute law to cover a certain situation.  This essay concerns the former, and the varying methods in which judges attempt to decide upon a statute’s effect in a just manner.

The Literal Rule:

Traditionally preferred since Victorian eras and fiercely opposed by modern-thinking judges such as Lord Denning, the literal rule accepts no responsibility for mistakes or omissions made on the part of Parliament.  Its basic ethos is to literally apply every word or phrase of a given act to the respective case, regardless of absurdities caused.

• Examples of judge’s disinterest in a cases absurdity include the case of R v Judge of the City of London Court (1892), in which Lord Esher commented: “If the words of an Act are clear then you must follow them even if they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity.”
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• Similarly, in Whitely v Chappel 1868, a defendant was found not guilty for ‘impersonating any person entitled to vote’, as the person impersonated was dead, and therefore, in the literal meaning of the word, not entitled to vote.  This rigid adherence to Parliament’s exact wordings has been criticised for its ignorance of Parliament’s intention, or the purpose behind an act. 
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• The case of Cheeseman v DPP (1990) shows the literal rule as still preferred in the appeal courts, even though the result may have been absurd:  The defendant was convicted for “wilfully and indecently exposing his person in a street to the annoyance of passengers” contrary to the Town and Country Planning Act 1847.  The facts of the case involve police officers specifically stationed in a public lavatory due to earlier complaints, the defendant convinced the Queen’s Bench Divisional Court that they therefore were not ‘passengers’ under the meaning of the word at the time, and as required by the Act.  The appeal was allowed.
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• The literal rule exemplifies a strict conformity to Richard Ward’s statement as sourced above, with regard to words ‘used’ by Parliament within statutes; a contrasting rule, however, is increasing in popularity, which can also make use of the words spoken in Parliament when the legislation was being debated.
• The Purposive Approach
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• The first thing to note is the term ‘approach’ in the place of ‘rule’, the purposive approach is first and foremost effected to allow flexibility and sound reasoning when trying to discover Parliament’s aim.  Essentially, a Purposive Approaching judge looks at the purpose of the act, the general mischief it was intended to outlaw, and whether the defendant reasonably falls within such outlawed circumstances.
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The approach contrasts the source statement above, as it may give way for the words used by Parliament, by ‘filling in the blanks’ of the statute.  For example in R v Registrar General ex parte Smith (1990) a patient of Broadmoor Psychiatric Hospital, who had previously murdered twice wished to see his birth certificate.  Under the Adoption Act 1976 he was entitled to, and fulfilled all of the requirements to do so.  However the judge refused to allow him access, for fear of putting the patient’s mother at risk of murder.  The court commented, “Parliament could not have intended to promote serious crime”.  Thus accepting that quite literally the Act allowed the claimant access, but also that he [the judge] was willing to look past that, to the purpose of the Act.  The purpose of the Act was to allow adopted children to locate lost family and re-gain a sense of identity, not, evidently, to put mothers at unnecessary risk from mentally unstable patients.

A purposive approach toward the case of Cheeseman would argue against the relevance of whether the police officers were ‘passengers’, if the defendant is still essentially ‘wilfully and indecently exposing his person in the street’, what is the relevance of the officer’s position as bystanders, when the purpose of the Act was to outlaw such behaviour?

External Aids:

Since Pepper v Hart (1993) the use of Hansard has been allowed as a disambiguating extrinsic aid.  The initial idea, foreran by Lord Denning was accepted by 6 out of 7 judges in the House of Lords.  So the words spoken [in the House of Commons] in the creation of legislation can be used to establish Parliament’s intentions and aid a purposive approach, but are they not bias?  Although as a basic rule of thumb the comments made are usually those of the party proposing the legislation (as the opposition’s main intentions may be to slate the proposal) it can still be assumed that the originating party are likely to ‘talk up’ the benefits, with the use of spin, and therefore create a bias interpretation to be made in court.

The purposive approach is also beneficial, as although not established directly from the ‘words used by Parliament’ it allows European Law to seamlessly integrate with ours, a process which is ever increasing.  Treaties, Directives and Regulations are written in multiple languages so have to be ‘slightly bendy’, as Lord Denning said of the Treaty in Bulmer v Bollinger (1974): “It lays down the general principles.  All in sentences of moderate length and commendable style.  But it lacks precision.  It uses words and phrases without defining what they mean.  An English lawyer would look for and interpretation clause, but he would look in vain.  There is none.  All the way through the Treaty there are gaps and lacunas.  These have to be filled in by the judges.”

Conclusion

The traditional and rigid Literal Rule has the advantage of a precise and ‘completely fair’ law, within which non-elected judges are given no room to manoeuvre, however difficulties arise when presented with a case that may produce an absurd or even sinister result (Whitely v Chappel, R v Judge of the City of London Court), and the judge is given no room to avoid it.  For these reasons, the Purposive Approach may be used to ‘bridge gaps’ in legislation and avoid otherwise guilty defendants finding loopholes in the law.  I also believe it will allow for more development of the law, and reduce the wasting of Parliament’s already wasted time having to draft and re-draft similar pieces of legislation to cope with the exceptional cases.  Our system of precedent is highly regarded as successful around the world and for that reason I would trust the judges to interpret statutes with regard to their own views on what Parliament intended, not merely ‘what they have said’.

Ali Hassan (October 2006).