(p. 115) 4. The interpretation of statutes
By the end of this chapter you should:
● understand how problems of statutory interpretation may arise;
● know and understand the constitutional role of the courts in relation to statutory interpretation;
● be able to explain the nature and content of the ‘rules’ of statutory interpretation;
● appreciate the various approaches to the discovery of the intention of Parliament as expressed in the words of an Act of Parliament and the courts’ use of a contextual and purposive approach to interpretation;
● be aware of the role of internal and external aids to interpretation of an Act of Parliament;
● be able to analyse the reasons for the rules and aids and their effectiveness in determining legislative intent;
● be capable of evaluating the impact of the United Kingdom’s (UK) membership of the European Union (EU) and the enactment of the Human Rights Act 1998 upon the process of statutory interpretation.
An issue often reported in the newspapers is that of parents taking their children out of school during term-time to go on holiday. In Isle of Wight Council v Platt  UKSC 28, Mr Platt had sought permission from the head-teacher to take his daughter out of school during term time. His request was refused. Despite the refusal, Mr Platt took his daughter out of school and went on holiday, with the result that his daughter missed seven school days. In consequence, the local authority issued a fixed penalty notice under the Education Act 1996 requiring Mr Platt to pay £60. As this sum was not paid within twenty-one days, the penalty increased to £120. The increased sum was not paid, so the local authority sought to prosecute Mr Platt before the Isle of Wight magistrates’ court under s.444(1) Education Act 1996. By this subsection, a parent is guilty of an offence ‘if a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school’. The issue before the court was a simple question: had the child failed to attend ‘regularly’ at school? The court thus had to determine the meaning of ‘regularly’. There are three broad meanings which may be given to the word ‘regularly’:
1. Evenly spaced, as in ‘I attend school every Monday’;
2. Sufficiently, as in ‘I have attended 95 per cent of classes’;
3. In accordance with rules, as in ‘I have to attend every day as required, unless excused’.
In this case, the magistrates’ court found in favour of Mr Platt, basing its decision on the child’s percentage attendance outside the dates of the absence, which amounted to 90.3 per cent. The court adopted the second interpretation of ‘regularly’, i.e. to mean sufficiently. An appeal by way of case stated was made to the Divisional Court of the Queen’s Bench Division, which agreed with the decision of the magistrates’ court. The Divisional Court certified a point of law of general public importance to be heard on appeal in the Supreme Court. The Supreme Court had to decide what was meant by ‘fails to attend regularly’ in s.444(1) Education Act 1996.
This case presents an excellent example of a problem that requires the process of statutory interpretation. Lawyers and judges have to be able to identify the meaning of the words in an Act of Parliament. This process raises several questions. When words have contested meanings, how is the final and decisive meaning to be identified? Should one look at the meaning of the words as written down, or should one also consider the intention of those persons that essentially drafted those words into the Act? If the latter, what do you think the court is permitted to consider in the search for the ‘intention’ of Parliament? In this chapter, you will learn much more about how courts decide the meaning of words in legislation. You will also discover what the UKSC decided in the case of Platt later on in the chapter. However, in the meantime, consider the following questions:
● Consider the word ‘regularly’? What would your definition of the word be, and to what degree do you think it depends on the context in which you are saying it?
● Imagine you are one of the UK Supreme Court judges hearing this case. What arguments do you think the local authority are likely advance? You may want to think about the consequences of a policy that would permit holidays during term time.
● Do you agree with the magistrates’ court in finding for Mr Platt? Or are you persuaded by any alternative arguments that might help you find in favour of the local authority.
(p. 117) Introduction
At its most basic level, the interpretation of statutes is about the problem of communication. It is about the limits of the language we use and the words that we use to convey what we mean. There are several perspectives that need to be considered in the process of interpretation. The words used in a statute are drafted to convey a particular meaning, that is, the intention behind the words used. Who are the words aimed at and what does the person reading the words take them to mean? What do the words actually used say and are those words capable of bearing only one meaning? Ideally, the words used will clearly express the intention of the maker of the legislation, and that intention will be clearly communicated to the person reading the words of the statute. However, that is not always the case and problems of interpretation arise when words do not convey the intention clearly. The chapter begins by considering two frequent problems with interpreting language in statutes.
4.1 Problems of language
There are two problems that frequently arise in the process of statutory interpretation. First, that the language used in a statute is vague or ambiguous; secondly, that new situations may arise that were unforeseen at the time the legislation was drafted and passed.
Vague or ambiguous language
Words may be vague, particularly when describing an abstract concept rather than a physical entity. For instance, the word ‘obscenity’ is difficult to precisely describe, as is an inherently vague word such as ‘reasonable’. In other cases, physical words that describe objects or structures can also be vague. For example, what is the definition of a ‘building’? Is there a finite list of attributes that a building must have? Alternatively, what attributes must or ought a building to have? Would a static caravan on a brick foundation constitute a ‘building’?
Ambiguity arises when words have more than one possible meaning. A word may be used in its ordinary sense or in a technical sense. For example, in Fisher v Bell  1 QB 394, it had to be decided whether a display of goods, in this case a flick knife, in a shop window was an ‘offer’. This was because an Act expressly prohibited someone to ‘offer for sale or hire’ certain offensive weapons. The ordinary dictionary definition would probably encompass someone making something available for sale, as in placing goods in a shop display for purchase. However, the technical legal meaning of offer from the law of contract is as follows: a party makes a proposal, containing terms which are certain, together with an intention to be bound by the terms, which will become binding should the party to whom the proposal is addressed accept the proposal. In other words, technically an offer is an attempt at making a binding contract and, in this case, placing an item in a shop window is not to make an offer, but to an invite a potential purchaser to make an offer. On this occasion, the Court in Fisher v Bell decided that Parliament had used the word in its technical legal sense so that a shopkeeper had not made an offer in displaying the flick knife in a shop window (see 4.3.1).
In Royal College of Nursing of the United Kingdom v Department of Health and Social Security  AC 800, the Court had to consider the meaning of s.1(1) of the Abortion Act 1967. This section provides that ‘a person shall not be guilty of an offence under the law relating to abortion (ss.58 and 59 Offences Against the Person Act 1861) when a pregnancy is terminated by a registered medical practitioner’. At the time that the Act was passed, the main method of abortion was surgical and thus required a doctor; by 1980, the most common method was medical induction (injecting a chemical fluid into the womb to trigger premature birth of the foetus) which could be carried out by a nurse. In the light of this latter procedure, the House of Lords was asked to consider whether s.1(1) of the Abortion Act 1967 protected a non-registered medical practitioner—a nurse who, under the instructions of a registered medical practitioner—a doctor—effectively caused the abortion by introducing into a mother’s womb an abortifacient fluid. Put another way, the question was whether Parliament in s.1(1) intended to prohibit nurses from conducting this new method of abortion.
By a 3:2 majority, the Court decided no. The majority decided that the creation of the Act was motivated by legalising and preventing back-street and unsafe abortions. In light of this aim—described in the Act as to amend and clarify the law relating to ‘termination of pregnancy’, the intention was to ensure that abortions were carried out in safe and hygienic conditions. Doctors and nurses were part of a treatment team and thus the latter were permitted to conduct the procedure. It is, however, worth noting some of the risks of taking such an approach to interpretation. Lord Wilberforce, in a dissenting opinion, said (at p.822):
When a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take, under the law of this country; they cannot fill gaps; they cannot by asking the question ‘What would Parliament have done in this current case—not being one in contemplation—if the facts had been before it?’ attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself.
How a court interprets a statute when faced with a situation that was unforeseen by Parliament at the time of the passage of an Act, ultimately, depends upon the nature of the legislation. For instance, it can depend on whether the Act is designed to be highly certain and restrictive in that area, or it is designed to be more flexible and liberal. Note that Lord Wilberforce’s statement as to how to approach this problem of the unforeseen development was approved by the House of Lords in Fitzpatrick v Sterling Housing Association Ltd  1 AC 27.
A similar problem was also seen in R (Quintavalle) v Secretary of State for Health  2 AC 687 (see later at 4.3.5).
Test your understanding of this section by answering the self-test questions here.
To begin, a number of preliminary questions need to be addressed in order to understand the process of statutory interpretation. These questions also highlight some of the complexity and uncertainty of the process. This section address three significant preliminary questions.
First, in interpreting a statute, consider what are the courts precisely being asked to do? The primary task of the courts is to search for and give effect to the intention of Parliament (or the legislature) as found in the words of the statute. Lord Watson, in Salomon v Salomon  AC 22, said (at p.38):
‘Intention of the Legislature’ is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although (p. 120) there has been an omission to enact it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.
This quotation emphasises the relationship between parliamentary intention and the words used in the statute; whatever Parliament’s intention might or might not have been, the exact words used in the statute must be capable of bearing such a meaning.
The task for a court is to search for the true meaning of what Parliament has said. However, there are limits on how a court may interpret a statute. In Jones v DPP  AC 635, Lord Reid said the words of a statutory provision were only to be given a meaning that they could reasonably bear; in the event of a word being ambiguous, a court could choose between the meanings. In general terms this principle continues to apply but it would now need to be read subject to s.3 of the Human Rights Act 1998 (see 7.2).
Secondly, is there a clear method for ascertaining the purpose of Parliament? You will find that there is no certain way of ascertaining the purpose of Parliament and in searching for such purpose the courts are asked to make choices between rival interpretations. The argument as to what is the ‘correct interpretation’ of a statutory provision is aided by use of the so-called ‘rules’ of statutory interpretation. As Lord Reid explained in Maunsell v Olins  AC 373, 382, ‘they are not rules in the ordinary sense of having binding force. They are our servants not our masters.’ The rules of statutory interpretation are used as aids to construction but may operate inconsistently, as different rules may point to different answers (for an example, see the case study on Coltman v Bibby  2 AC 276 at 4.3.6).
It is thus clear that the rules of statutory interpretation are not to be followed slavishly; they are helpful tools in the search for the intention of Parliament, but their use is not certain to provide a ‘right answer’. The rules may be used to support arguments as to the meaning of a statute, but as the courts are not bound by the rules, which rule or rules are to apply is ultimately a choice for the court’s judgment. It is worth pointing out that the rules of statutory interpretation also may be employed in the interpretation of contracts, wills, and other legal documents, so do not compartmentalise this topic as solely a part of your studies on English Legal System module. These rules can have a broader application in the law. One last observation: the statements made by the courts concerning how to interpret statutes are not strictly binding in term of the doctrine of precedent sense, but they are obiter dicta (see 5.4).
Thirdly, if it is discovered that the words of a statute do not clearly communicate the intention or purpose of Parliament, from where is such intention to be considered and identified? This raises the issue of what a court can consult beyond the four corners of the precise statute. Rules have been developed as to what may and may not be considered in seeking the intention and purpose of Parliament.
The rules of statutory interpretation are techniques for finding the true meaning of a statute, but do not comprise a system, application of which will ultimately produce the ‘right’ answer.
Test your understanding of this section by answering the self-test questions here.
(p. 121) 4.3 The approach to statutory interpretation
Traditionally, students begin their learning of statutory interpretation by understanding three essential rules: the literal rule, the golden rule, and the mischief rule.
4.3.1 The literal rule
The literal rule concentrates upon the words of the statute. Meaning is to be ascertained by application of the rules of grammar and the finding of dictionary definitions. It is the usual starting point in the process of interpretation. As Lord Diplock said in Duport Steels Ltd v Sirs  1 WLR 142, 157, ‘the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was and to give effect to it.’ At its most extreme, an application of the literal rule only considers the words of the statute in the search for the intention of Parliament.
The literal rule operates on the assumption that the meanings of words and sentences are clear, which, of course, is quite often not the case. It is also apparent that sometimes the words of a statute and the perceived purpose of a statute may be at odds. The literal rule is now deemed to be out-dated and has largely been succeeded by the more contextual approach to interpretation (see later at 4.3.5). However, consider whether the literal approach has any role to play in the interpretation of statutes? Do you think it is a useful starting point for a judge?
A classic example of the literal rule is the case of Fisher v Bell  1 QB 394. As outlined earlier, this case concerned a shopkeeper who displayed in his shop window a flick knife with a ticket stating: ‘Ejector knife—4s’. The Restriction of Offensive Weapons Act 1959 s.1, provided that ‘[a]ny person who manufactures, sells or hires or offers for sale or hire’ a flick knife shall be guilty of an offence. The prosecution argued that the knife was offered for sale in contravention of the Restriction of Offensive Weapons Act 1959. The defendant said that no such offer had been or was being made.
(p. 122) It was held by the Divisional Court of the Queen’s Bench Division that an offer had not been made. The Court gave the word ‘offer’ a technical legal meaning by reading the statute against its meaning in the general law of contract. The Act was therefore not contravened and no offence was committed. Lord Parker CJ said that under the ordinary law of contract the display of an article with a price on it in a shop window is merely an ‘invitation to treat’ and not a legal offer for sale, the acceptance of which would constitute a binding contract. In addition, there was no indication in the statute that Parliament had intended that the word ‘offer’ in the 1959 Act should have a meaning other than the one supplied by the general law of contract. In consequence, the defendant was not guilty of the offence charged.
See 4.6.2, ‘Presumptions of legislative intent in cases of doubt or ambiguity’.
The case may be viewed as an example of the literal rule. Alternatively, it may be seen, as Cross argues in Statutory Interpretation (p.73), ‘as an example of the presumption that penal statutes should be strictly construed in favour of the accused’. In other words, in cases where there is doubt about the law and its criminalisation of conduct, the starting point should be that the person accused is given the benefit of any doubt.
Of course, one might criticise the approach taken because it might be said to go against the purpose and thrust of the Act—to restrict the sale and supply of offensive weapons. It is interesting to note that the 1959 Act was later amended by the Restriction of Offensive Weapons Act 1961, the offence in s.1 being expanded to include where a person ‘exposes … for the purpose of sale’ a flick knife.
4.3.2 The golden rule
The classic statement of this rule is to be found in the words of Lord Wensleydale in the case of Grey v Pearson (1857) 6 HL Cas 61, 106 (note that this case concerned the interpretation of a will, but the rule also applies to statutes). The golden rule may be used where a literal interpretation of the words of a statute leads to an absurdity or to an inconsistency or repugnance with the rest of the statute. The inference drawn is that the meaning discovered by an application of the literal rule cannot, in reality, have been intended by Parliament. When applicable, Lord Wensleydale said, the grammatical and ordinary sense of the words of a statute may be modified to avoid absurdity, inconsistency, or repugnance. In deciding how to avoid the absurdity or inconsistency the court will look at Parliament’s purpose in passing the legislation.
Adler v George  2 QB 7 illustrates how the golden rule may be used. By s.3 of the Official Secrets Act 1920 it is an offence for a person ‘in the vicinity of any prohibited place’ to obstruct any member of Her Majesty’s forces. The defendant, Adler, had entered a Royal Air Force station, a prohibited place, and obstructed a member of Her Majesty’s forces, and was convicted by magistrates. On appeal, the defendant contended that no offence could be committed as the defendant was in the prohibited place and not, as s.3 provides, ‘in the vicinity of any prohibited place’. It was argued that literally, ‘in the vicinity of’ meant ‘near’ or ‘close to’, but did not mean (p. 123) ‘in’ or ‘on’. Lord Parker CJ rejected this interpretation and said that s.3 was designed to prevent interference with Her Majesty’s forces when performing duties relating to security of prohibited places. Viewed against this purpose it would be absurd that an offence was created by obstructing near a prohibited place and not within the place itself. His Lordship said that the words ‘in or’ may be inserted before ‘in the vicinity of any prohibited place’. Clearly, it was strange that the more serious offence, obstructing in the prohibited place, was omitted while an offence of obstruction near the prohibited place was created. No doubt this anomaly convinced the Court that the intention of Parliament must have been to cover both situations.
It can be seen that Lord Parker CJ refers to absurdity to indicate that the words of the statute cannot wholly reflect the intention of Parliament and so words may be necessarily ‘read into’ the statute. This is particularly so having regard to the context of the Act, which is designed to prevent interference with members of Her Majesty’s forces in respect of a prohibited place. His Lordship, in this sense, is having regard to the purpose of s.3 of the Act.
Perhaps ironically, Lord Wensleydale in Grey v Pearson does not indicate what is precisely meant by ‘absurdity’ or ‘inconsistency’. Is there a particular threshold when something definitively becomes absurd or inconsistent? Similarly, he gives no clear indication as to the method to be followed when one encounters an absurd or inconsistent outcome. His Lordship was also somewhat cryptic when he said: ‘the grammatical and ordinary sense of the words may be modified.’ Does this mean that the words of the statute must be capable of bearing an alternative meaning, and the golden rule simply indicates that the meaning that does not lead to absurdity or inconsistency is to be favoured? Or, more radically, does the rule allow for the reading in or ignoring of words expressly written into the words of the Act? Adler v George offers an illustration of judges reading words in to the statute. Consider the constitutional implications of this. Remember, under the theory of the separation of powers, Parliament makes the law and a judge must not legislate but only interpret and apply those statutes. Do you think Lord Parker and his application of the golden rule crosses this constitutional boundary?
4.3.3 The mischief rule
The mischief rule is one of some antiquity. A classic formulation of the rule is to be found in Heydon’s case (1584) 3 Co Rep 7a, 7b, where it was said:
And it was resolved by them that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:
1. What was the common law before the making of the Act,
2. What was the mischief and defect for which the common law did not provide,
(p. 124) 3. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth, and
4. The true reason of the remedy;
and then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy.
As seen from the above, the courts were to interpret an Act so as to suppress the mischief and give effect to the remedy. However, the problem with this approach relates to the words of an Act and the extent to which it was permissible for a court to give a meaning to the words used that they were not capable of bearing. Additionally, the rule assumes that legislation is ‘only designed to deal with evil and not to further a positive social purpose’ (The Interpretation of Statutes, Law Commission (Report No. 21) 1969). While it is evident that the courts have embraced the notion of a purposive approach to interpretation (see page 125), nonetheless references to ‘mischief’ are still to be found in the judgments of the courts. For an example of the use of the mischief rule see Royal College of Nursing of the United Kingdom v Department of Health and Social Security  AC 800, a case considered at the beginning of this chapter.
The mischief rule is also illustrated by the following case. In Smith v Hughes, prostitutes in a house sought to attract the attention of men passing in the street by beckoning from balconies or tapping on windows. Under s.1(1) of the Street Offences Act 1959 it was ‘an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution’. It was argued on behalf of the defendant prostitutes that a balcony was not ‘in a street’ or ‘public place’, nor was tapping on a glass window from within a house. The defendants were convicted by magistrates and appealed to the Divisional Court of the Queen’s Bench Division.
The problem was that the Act did not make clear where the prostitute had to be when the solicitation took place. Lord Parker referred to the mischief of the 1959 Act, which was well known, as a measure ‘intended to clean up the streets’ and to enable people to walk without being solicited by prostitutes. Against this background it mattered not that the prostitutes were indoors or on balconies; the solicitation was projected into the street and was aimed at a person walking in the street, and fell within s.1(1) of the Street Offences Act 1959. The defendants’ conviction was upheld.
Who decides upon the formulation of the ‘mischief’? Which materials may a judge rely upon in determining the ‘mischief’ of a statute? You may find this useful to contemplate when you consider the later discussion on aids to interpretation, either inside the Act of Parliament or outside the Act of Parliament. Identifying a mischief may also require its own exercise in interpretation too because, for instance, the mischief might not be clear, may not attract firm agreement and there may well be more than one mischief.
(p. 125) Purposive approach—Heydon’s case and the purposive approach contrasted
Strictly speaking, it is possible to differentiate between the rule in Heydon’s case and what is known as a purposive approach, i.e. a rule that looks more squarely at the aim and purpose underlying the statute and that permits looking inside and outside the Act to discover that purpose (although there are limits in how far one can go beyond the words of a statute and in terms of the external aids that can be relied on; these will be considered later). The rule in Heydon’s case was stated at a time when the role of Parliament was different—Parliament met infrequently and its supremacy had not been established, so the courts were more willing to go beyond the words of the statute to ‘suppress the mischief and advance the remedy’. In ascertaining the mischief, the courts tended to look only within the four corners of the statute itself and not to external sources. Otherwise, it is fair to say that whether one calls it the mischief rule or the purposive rule/approach, the difference in method and outcome is not likely to be substantial. One way of thinking about it is that the purposive approach necessarily encompasses the mischief rule—it is a slightly expanded form of the rule.
4.3.4 Application of the literal, golden, and mischief rules
The problem encountered with application of these three rules, that is, the literal, golden, and mischief rules, was the question of which rule was to be applied in any given situation. Professor John Willis, in ‘Statute Interpretation in a Nutshell’ (1938) 16 Can Bar Rev 1, said: ‘a court invokes whichever of the rules produces a result that satisfies its sense of justice in the case before it.’ The literal rule was the one most frequently referred to by the courts expressly, but all three rules were valid and reference could be made to them as the situation demanded; however, no justification was given by the courts for their use, or indeed any indication given of the circumstances of when each rule was to be employed. See Diagram 4.1 giving an overview of the approaches to statutory interpretation.
The obvious shortcomings of this situation—excessive literalism and the lack of a systematic approach—led to calls for legislative reform in this area. In 1969 the Law Commissions produced a report, The Interpretation of Statutes, which proposed that ‘a limited degree of statutory intervention is required in this field … to clarify, and in some respects to relax the strictness of, the rules which … exclude altogether or exclude when the meaning is unambiguous, certain material from consideration’. No legislation was ever passed in response to this report but since then, academic writers have sought to make sense of the mass of conflicting obiter dicta comments by judges. Foremost in seeking to systematise have been Sir Rupert Cross and Francis Bennion, in separate books both entitled Statutory Interpretation. Their success may be measured by the frequent references made to their work by the courts. An approach identified by Cross is considered next.
(p. 126) 4.3.5 The unified contextual approach
Sir Rupert Cross felt that judges in practice used a combination of these rules in interpreting any one statutory provision. He called this a unified contextual approach and it broadly reflects a purposive approach to interpretation. He described it as follows (at p.49):
1. The judge must give effect to the [grammatical and] ordinary, or, where appropriate, the technical meaning of words in the general context of the statute; he must also determine the extent of general words with reference to that context.
2. If the judge considers that the application of the words in their grammatical and ordinary sense would produce a result which is contrary to the purpose of that statute, he may apply them in any secondary meaning that they are capable of bearing.
3. The judge may read in words which he considers to be necessarily implied by words which are already in the statute and he has a limited power to add to, alter or ignore statutory words in order to prevent a provision from being unintelligible or absurd or totally unreasonable, unworkable, or totally irreconcilable with the rest of the statute.
4. In applying the above rules the judge may resort to certain aids to construction and presumptions …
5. The judge must interpret a statute so as to give effect to directly applicable European Community law, and, in so far as this is not possible, must refrain from applying the statutory provisions which conflict with that law.
See further 4.8 ‘Interpretation of legislation and the Human Rights Act 1998’.
To these points there must now be added a sixth, arising out of s.3 of the Human Rights Act 1998. In the 1998 Act, it is provided that a judge must interpret and give (p. 127) effect to primary legislation and subordinate legislation, in so far as it is possible to do so, in a way which is compatible with the Convention rights.
In considering the words of a statute, the courts must consider the context in which they are being used. Lord Simon, in Maunsell v Olins  AC 373, at p.391, explained:
Statutory language, like all language, is capable of an almost infinite gradation of ‘register’—i.e., it will be used at the semantic level appropriate to the subject matter and to the audience addressed (the man in the street, lawyers, merchants, etc.). It is the duty of a court of construction to tune in to such register and so to interpret the statutory language as to give to it the primary meaning which is appropriate in that register (unless it is clear that some other meaning must be given in order to carry out the statutory purpose or to avoid injustice, anomaly, absurdity or contradiction). In other words, statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances.
This makes the point that the intended meaning of words depends upon the circumstances in which they are used. Words may have an ordinary meaning or a technical meaning. See, for example, Fisher v Bell  1 QB 394. The aids to construction both internal and external to an Act, which are explained later in the chapter, help to establish the context of an Act. Lord Simon also explains that if the primary meaning to be given to the words do not fulfil the statutory purpose or would otherwise lead to injustice, anomaly, absurdity, or contradiction then a secondary meaning may be given if the words are capable of bearing such meaning.
See ‘Explanatory Notes’ in 4.4.2.
In a contextual approach to interpretation, the appreciation of the purpose of the Act is essential. Again, the internal and external aids to interpretation may be consulted to establish such purpose. In R v Montila  1 WLR 3141, the House of Lords, in a single opinion delivered by Lord Hope, said (at p.3151): ‘it has become common practice for their Lordships to ask to be shown the Explanatory Notes when issues are raised about the meaning of words used in an enactment.’
Statements by the House of Lords suggest that a contextual and purposive approach to the interpretation of statutes is to be adopted. Lady Hale in R (on the application of Black) v Secretary of State for Justice  UKSC 81, stated: ‘The goal of all statutory interpretation is to discover the intention of legislation … in light of their context and their purpose.’ Earlier still, Lord Steyn, in R (Quintavalle) v Secretary of State for Health  2 AC 687, more cautiously said (at p.700): ‘nowadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context, e.g. social welfare legislation and tax statutes may have to be approached somewhat differently.’ In this respect, Lord Steyn is advocating that a more cautious approach may be required in certain areas of social or economic policy because a broad interpretation may lead to unintended economic and social consequences. See Bell, J. and Engle, G. Cross Statutory Interpretation, pp.180–3.
The following cases give examples of the application of the contextual and purposive approach.
(p. 128) In R v Z (Attorney General for Northern Ireland’s Reference)  UKHL 35,  2 AC 645, Z and others were charged under s.11(1) of the Terrorism Act 2000 with belonging to a proscribed organisation, the Real Irish Republican Army (the ‘Real IRA’). By s.3(1) of the Act, ‘an organisation is proscribed if (a) it is listed in Sch.2, or (b) it operates under the same name as an organisation listed in that schedule’. Schedule 2included the Irish Republican Army (the IRA), but did not include the ‘Real IRA’. The question for the House of Lords was simply whether the ‘Real IRA’ was a proscribed organisation.
It was argued on behalf of Z that the words used by Parliament had not made clear an intention to proscribe the ‘Real IRA’; the organisation was not included in Sch.2, nor did the ‘Real IRA’ fall within s.3(1)(b) as it had a different name, separate membership, and different aims from the IRA. Reliance was also placed on the principle of legal policy that any doubt in a penal statute should be resolved in favour of a defendant, as seen in Tuck & Sons v Priester (1887) 19 QBD 629. It can be seen that Z’s argument was based upon a literal interpretation of the Terrorism Act 2000, supported by a presumption of legislative intent.
However, Lord Bingham said (at p.655):
[T]he interpretation of a statute is a far from academic exercise. It is directed to a particular statute, enacted at a particular time, to address (almost invariably) a particular problem or mischief. As was said in R (Quintavalle) v Secretary of State for Health  2 AC 687, 695 para 8: ‘The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.’
His Lordship concluded that in approaching the issue in the present case, the historical context was of fundamental importance. Looking at the legislation passed prior to and including the Terrorism Act 2000, the common object, with a limited exception, was the suppression of Irish terrorism. Parliament had previously enacted statutes mindful of the IRA having split into two groups—the Official IRA and the Provisional IRA—and used the general label ‘the Irish Republican Army’ for the purposes of proscription. This approach employed a blanket term ‘to embrace all emanations, manifestations and representations of the IRA, whatever their relationship to each other’. The Terrorism Act 2000 was enacted against this background, of which Parliament must have been aware.
Lord Woolf agreed with Lord Bingham, and, applying the approach of reading s.3 not only in the context of the Act as a whole but also in the light of the situation which led to its enactment, said (at p.660): ‘there can be no doubt and any other view would be absurd, that the words of s.3 and Sch.2 were intended to include the Real IRA which was the most active of the different organisations at the time of enactment.’ All of their Lordships agreed that the ‘Real IRA’ fell within the term ‘the IRA’, although they differed in their reasoning.
(p. 129) The case illustrates the purposive approach to interpretation with express reference made to the object of the Terrorism Act 2000. The process of identifying Parliament’s intention was reinforced by considering the absurdity that would result if the ‘Real IRA’, an active terrorist organisation at the time of enactment, were not included within the scope of that intention.
Another example of the purposive approach to interpretation is seen in R (Quintavalle) v Secretary of State for Health  2 AC 687. This case raised the issue of an unforeseen development. As previously outlined, the question that often arises is: could legislation be applied to a development that was unknown at the time of the passage of an Act? The Human Fertilisation and Embryology Act 1990 was passed against a background of fast-moving scientific developments. Under the Act a statutory licensing authority was established to regulate the creation of human embryos outside the human body. Importantly, at the time of enactment it was thought that a human embryo could only be created by a process of fertilisation.
Later scientific developments allowed the creation of a human embryo by cell nuclear replacement (CNR), a process not involving fertilisation. By s.1(1), ‘(a) embryo means a live human embryo where fertilisation is complete, and (b) references to an embryo include an egg in the process of fertilisation, and, for this purpose, fertilisation is not complete until the appearance of a two cell zygote’, and by s.1(2) it was stated that the Act applies only to the ‘bringing about the creation of an embryo outside the human body’. The House of Lords was asked whether an embryo created by CNR fell within the regulatory scheme established by the 1990 Act. It was argued that by defining ‘embryo’ by reference to fertilisation, Parliament excluded embryos created by CNR. However, Lord Bingham, having considered the background to the 1990 Act, said that embryos created by CNR were subject to regulation.
His Lordship reasoned that the Act was directed to the creation of human embryos outside the human body and Parliament clearly could not have intended to distinguish between embryos on the basis of method of creation given the state of scientific knowledge in 1990. Lord Millett, relying in part upon the long title to the Act, ‘an Act to make provision in connection with human embryos and any subsequent development of such embryos’, said (at p.708):
Parliament intended to make comprehensive provision for the protection of human embryos however created, and that the failure of particular provisions to capture embryos produced by a process not involving fertilisation is not because Parliament intended to leave them unregulated but because Parliament did not foresee the need to deal with them.
In the light of the purpose behind the Act, s.1(1)(a) had to be read as directed to live human embryos created outside the body, irrespective of their manner of creation. Consequently, the words ‘where fertilisation is complete’ in s.1(1)(a) were interpreted as not being an essential part of the definition of an embryo, but referring to the time at which an embryo became such. Was this interpretation consistent with the guidance of Lord Wilberforce (see 4.1)?
(p. 130) Lord Bingham posed and answered the following questions:
● Did live human embryos created by CNR fall within the same genus of facts as those to which the expressed policy of Parliament had been formulated? His Lordship answered yes, as the embryos were similar and both forms were in need of regulation given the purpose of the Act.
● Was the operation of the 1990 Act to be regarded as liberal and permissive in its operation or restrictive and circumscribed? While considering this to be ‘not an entirely simple question’, his Lordship considered that the purpose of the Act required the regulation of ‘activities not distinguishable in any significant respect from those regulated by the Act’.
● Was the embryo created by CNR different in kind or dimension from that for which the Act was passed? In his Lordship’s view, given the reasons for the legislation, that is, to address difficult moral, religious, and scientific issues relating to human embryos, the answer was no.
Lord Steyn said (at p.703): ‘in order to give effect to a plain parliamentary purpose a statute may sometimes be held to cover a scientific development not known when the statute was passed. Given that Parliament legislates on the assumption that statutes may be in place for many years, and that Parliament wishes to pass effective legislation, this is a benign principle designed to achieve the wishes of Parliament.’
Can this statement of Lord Steyn be reconciled with the comments made by Lord Wilberforce (see 4.1) in Royal College of Nursing of the United Kingdom v Department of Health and Social Security  AC 800? Why did the majority of the House of Lords in the Royal College of Nursing case disagree with the decision reached by Lord Wilberforce?
Let us return to another case that we mentioned in this chapter’s Talking Point on p.116. The Supreme Court, in Isle of Wight Council v Platt  UKSC 28, had to decide what was meant in s.444(1) Education Act 1996 by the words ‘fails to attend regularly’. In the end, the UKSC found for the school and the local authority.
Source: UK Supreme Court
Lady Hale, having reviewed the section in its historical context, rejected two possible interpretations of ‘regularly’: ‘at regular intervals’, and ‘sufficiently frequently’. She preferred an interpretation of regularly as ‘in accordance with the rules prescribed by the school’. ‘Sufficiently frequently’ was rejected as it ran counter to the purpose (p. 131) of the Education Act 1944, which was to ‘increase the scope and character of compulsory state education’. Other features of the Act pointed to an intention to restrict the excuses for non-attendance. Furthermore, an interpretation of ‘regularly’ as ‘sufficiently frequently’ was too uncertain to found a criminal offence. Finally, there were, in Lady Hale’s opinion, good policy reasons against the desirability of such an interpretation, for example the disruptive effect on the pupil’s education, the potential disruption to other pupils’ education, and the impact upon the effective management of a school. In conclusion, Lady Hale said the above reasons also pointed towards the correct interpretation being ‘in accordance with the rules prescribed by the school’. She said that any argument that a single absence without leave or acceptable excuse would lead to criminal liability, could be managed by a sensible prosecution policy.
You may also want to reflect on the following fundamental question. To what extent does a purposive approach allow the courts to depart from the words of a statute? If the courts do so, is that justifiable? The cases generally disclose that the courts, within very narrow limits, are willing to read words in and out as stated in Cross’s third point. We discussed this a little earlier and we can briefly reflect on this next.
Reading words in and Reading words out
Cross, in point three, said that judges may read words into a statute when the words are necessarily implied, in light of words already present in the statute. This was seen in Adler v George  2 QB 7, discussed earlier.
Cross said that a judge, using the yardstick of a statutory provision being absurd or unintelligible or totally irreconcilable with the rest of the statute, has a limited power to add to, alter, or ignore statutory words. In McMonagle v Westminster City Council  2 WLR 823, the House of Lords ignored words contained in the Local Government (Miscellaneous Provisions) Act 1982 as amended by the Greater London Council (General Powers) Act 1986. The appellant had been convicted of knowingly using premises as a ‘sex encounter establishment’ without a licence. ‘Sex encounter establishment’ was defined, inter alia, as ‘(c) premises at which entertainments which are not unlawful are provided’ (emphasis added). It was argued on behalf of the appellant that the prosecution had to prove the activities at the appellant’s premises were not unlawful; that is, that the activities were not so indecent in character as to amount to a common law offence.
Lord Bridge said that the purpose of the 1982 Act was to control sex establishments and that a literal interpretation of the words would have the effect of frustrating this purpose. To avoid this construction, his Lordship treated the words ‘which are not unlawful’ as the product of poor draftsmanship, and unnecessary. Usually effect must be given to every word of a statute, but if no sensible meaning can be given to a word or phrase and it frustrates the object of the legislation then such may be disregarded.
(p. 132) It is important to consider how far courts may depart from the wording of an Act of Parliament in the process of interpretation and whether the courts are consistent in this practice. Remember, of course, that when legislation’s compatibility with the European Convention on Human Rights (ECHR) is in question, the courts, by s.3 of the Human Rights Act 1998, are under a duty to interpret and give effect to legislation to ensure such compatibility, in so far as it is possible to do so. This raises the same question about how far the courts are able to depart from the strict wording of the Act. This will be discussed later but for now, you can appreciate how statutory interpretation operates in practice by looking at a case in much closer detail.
4.3.6 The rules of statutory interpretation in action
The case of Coltman v Bibby  2 AC 276 illustrates how the rules of statutory interpretation may be employed to determine the intention of Parliament.
The facts of the case were that Leo Coltman died when a ship of some 90,000 tons in which he worked, called the Derbyshire, sank. Damages were sought by the claimants, who were administering the estate of Coltman, from the defendant employers, Bibby Tankers Ltd. Under s.1(1) of the Employer’s Liability (Defective Equipment) Act 1969, should an employee suffer personal injury in the course of his employment because of a defect in equipment provided by an employer, for the purposes of the employer’s business, and the defect is due to the fault of a third party (for example, a manufacturer that supplied the equipment), then the injury is attributable to the negligence of an employer. The employer would be vicariously liable to the employee even if the fault was of the third party, and the employer would have a right to proceed against the third party to recover damages.
The case illustrates the difficulties that arise over the use of definitions in statutes: the House of Lords had to decide whether a ship was ‘equipment’ for the purposes of the Employer’s Liability (Defective Equipment) Act 1969. If it was, the defendants would be liable to pay damages to the estate of Leo Coltman.
A starting point when considering the meaning of words in a statute is to see if Parliament has provided definitions of the terms used. These may sometimes be found in the section where the term is used or in the Interpretation section which is located at the end of a Part of an Act or at the end of an Act. The Employer’s Liability (Defective Equipment) Act 1969 provided in s.1(3) that ‘in the section “equipment” includes any plant and machinery, vehicle, aircraft and clothing … “personal injury” includes loss of life’.
The High Court held that the ship was ‘equipment’, whereas the Court of Appeal, by a majority, decided that it was not. The case was appealed to the House of Lords.
It is helpful to consider the arguments put forward by both sets of counsel before the House of Lords.
(p. 133) Arguments for the claimants
● There is no exhaustive definition of ‘equipment’ in the Act; note that s.1(3) uses the word ‘includes’, not ‘means’. Parliament has used wide words and a ship therefore falls within the meaning of ‘equipment’ or ‘plant’ or ‘vehicle’.
● Equipment’ is provided ‘for the purposes of the employer’s business’, which is wider than providing equipment to a particular employee for use in the course of his work.
● The purpose of the Act is to protect employees who are injured due to defective equipment when that fault is attributable to the fault of a third party and not an employer.
● The 1969 Act applies to hovercrafts, and for the purposes of taxation legislation a ship is treated as ‘plant’.
● Given that Parliament has used wide words and has not expressly excluded ships from the definition of ‘equipment’, ships ought to be included; to arrive at any other interpretation would create absurd anomalies—for example, a cross-Channel hovercraft is covered by the 1969 Act, but a cross-Channel ferry would not be so covered.
Arguments for the defendants
● The ordinary use of the word ‘equipment’ is something with which a person or thing is ‘fitted out’. Support for this meaning is to be found in the Oxford English Dictionary.
● The claimants conceded that a factory or a hotel could not be ‘equipment’. A large ship is like a factory, a place where an employee works. Liability attaches to ‘equipment’ within a factory or ship but not to the structure of the factory or ship.
● For the purposes of the Occupiers Liability Act 1957 and the Factories Act 1961, a ship is within the definition of ‘premises’.
● ‘Equipment’ must be read in its context, particularly in the light of the word ‘provided’ which means ‘supplied or furnished for use’. An interpretation which suggests that a ship is provided to the crew surely cannot be correct.
● Section 1(3) extends the ordinary meaning of ‘equipment’ to cover, for example, ‘aircraft’ and ‘plant’ that would not normally be covered. The meaning of ‘plant’, defined by the Oxford English Dictionary as ‘[t]he fixtures, implements, machinery, and apparatus used in carrying out an industrial process’, is not apt to include a ship. The same is true of ‘vehicle’, as a means of conveyance on land. If the word ‘vehicle’ was given a wider meaning, as encompassing any form of conveyance, so as to include a ship, then it would also cover an aircraft; however, Parliament has included an aircraft expressly, but made no mention of a ship. ‘The Act is drafted in terms of inclusion, and anything not within the words of inclusion are excluded sub silentio—excluded by silence.’
(p. 134) The reasoning in the House of Lords
Lord Oliver delivered the leading opinion, with which the other Lords agreed, finding that the ship was indeed ‘equipment’.
His Lordship first pointed to the mischief behind the 1969 Act that employees in the course of their employment may be injured by defective equipment provided by an employer. While the employer at common law might not have been negligent in supplying the defective equipment, an employee might not be able to claim against the third person supplying the employer with such, as the third person may no longer be traceable, or be insolvent (have no money), or have ceased to trade. Parliament in consequence imposed a vicarious responsibility on an employer for defective equipment, making the employer liable to an employee, with the employer then having a right of action against the third party. The purpose of the Act, said Lord Oliver, was to be found in the long title to the Act: ‘to make further provision with respect to the liability of an employer for injury to his employee which is attributable to any defect in equipment provided by the employer for the purposes of the employer’s business; and for purposes connected with the matter aforesaid.’
The word ‘equipment’ had to be read in its context of ‘equipment provided by his employer for the purposes of the employer’s business’. To carry on business, a ship owner clearly needs ships; it is no misuse of language to say that these are the equipment of the business.
The analogy with a factory was rejected as a small boat would be ‘equipment’—for example, a powerboat used for water-skiing training—so the size of the vessel and the fact that it also accommodates crew is not a justification to exclude it from falling within the definition of ‘equipment’.
A major argument that stood in the way of a ship being ‘equipment’, in his Lordship’s view, was the need to read s.1(1) subject to s.1(3). ‘Equipment’ in s.1(1) may be given a wide meaning, but s.1(3) indicated how far the definition may extend, that is, ‘equipment’ includes ‘any plant and machinery, vehicle, aircraft and clothing’; the extended meaning does not include vessels and this must be deliberate, given the enumeration of what ‘equipment’ includes. Lord Oliver rejected this argument, saying that s.1(3) was not restrictive as it used the word ‘includes’ and the items in the list are for the purpose of clarification. The use of the word ‘any’ in s.1(3) indicated, in the light of the purpose of the Act, that ‘it should be widely construed so as to embrace every article of whatever kind furnished by the employer for the purposes of his business’.
Lord Oliver concluded (at p.300):
The omission is certainly curious but I find myself entirely unpersuaded that there can be deduced from it an intention to cut down the very wide meaning of ‘equipment’ in subsection (1) which is indicated both by the legislative purpose of the statute and by the width of the clarifying definition.
As the expression ‘plant and machinery’ includes machinery installed or affixed to a ship, it would be absurd if an employer were liable for injury caused by defects in (p. 135) such machinery, but not for injury caused by defects in the structure of the ship itself. If this approach were to be adopted, problems of demarcation would arise. Equally, to exclude all vessels of whatever size would seem to run counter to the purpose of the Act. Undoubtedly, some vessels must be ‘equipment’ of a business; for example, a dredger. If some vessels are ‘equipment’, then there is no justification for seeking to distinguish between vessels of different sizes.
As can be noted, his Lordship used various techniques to justify his decision that a ship was ‘equipment’ for the purposes of the Employer’s Liability (Defective Equipment) Act 1969. An application of the literal rule was not possible as there was clearly an uncertainty caused by ss.1(1) and 1(3). Reference was made to the mischief and purpose of the Act and the various absurdities that would arise if vessels were not included in ‘equipment’. The nature of definitions was considered and the use of the word ‘includes’ in s.1(3) meant that there was only a partial definition of ‘equipment’, which did not cut back the meaning of this word as used in s.1(1).
We encountered the case of Royal College of Nursing of the United Kingdom v Department of Health and Social Security  AC 800 earlier. To briefly refresh the facts, this case concerned the Abortion Act 1967. When the Act was passed, the method of abortion was surgical and carried out by doctors, but by the early 1970s another method of abortion, medical induction, had replaced the need for surgery and was now commonly carried out by nurses. With this advance in abortion techniques, actions by a nurse became the effective cause of an abortion. Under the wording of the Act under s.1(1)—that referred to it not being an offence when a ‘termination of pregnancy [is] carried out by a registered medical practitioner’, the question was whether it was lawful for nurses to be inducing an abortion. The majority of the House of Lords arrived at a decision in favour of the interpretation placed on the 1967 Act by the DHSS and that it was lawful for nurses to conduct the procedure. In doing so the House of Lords employed the mischief rule to identify the intention of Parliament.
Read the case. In light of what you know now, including the details of the relevant rules, did the majority of the House of Lords go beyond the expressed intention of Parliament? Should the issue have been left to Parliament to resolve? What would have been the consequences had the House of Lords declared that it was not lawful for nurses to be involved in the termination of pregnancies by this procedure?
Test your understanding of this section by answering the self-test questions here.
4.4 Aids to construction
In construing the words of a section of an Act the court may encounter ambiguity or uncertainty, or the provision may appear pointless. In such a situation a court may consult other parts of an Act as guides to the intention of Parliament or, within limits, go outside the Act in search of such intention. Table 4.1 identifies the aids to construction. (p. 136)
Table 4.1 Aids to construction of statutes
Internal aids to construction—found within an Act of Parliament
External aids to construction—found within an Act of Parliament
Interpretation Act 1978
Side or marginal notes
Statutes in pari materia
4.4.1 Aids to construction found within an Act of Parliament
The features of an Act that may be used as aids to construction are: the long title, the preamble (if an Act has one), the short title, cross-headings, side or marginal notes, and punctuation. Lord Reid, in DPP v Schildkamp  AC 1, said that although punctuation, side or marginal notes, and cross-headings are not the product of anything done in Parliament (they are not capable of being amended by Parliament and are put in a statute by Parliamentary Counsel) (at p.10), ‘it may be more realistic to accept the Act as printed as being the product of the whole legislative process, and to give due weight to everything found in the printed Act.’
It is necessary to understand how legislation is made in order to follow the courts’ approach to the internal aids to construction. The long title, preamble, and short title all may be amended by Parliament during the passage of a bill, but they do not create rules of law.
The marginal or side notes are part of a bill not for the purposes of debate, but for ease of reference. They are included by Parliamentary Counsel, who is responsible for the drafting of a bill. While they cannot be amended by Parliament, they are a feature of a bill and ultimately part of the resulting Act of Parliament.
What is important is that all the internal aids are part of the context of the Act and may be used to inform the reader of the purpose of an Act, but they are not the enacting words of the statute, that is, the words of the sections, and therefore must carry less weight. What do you think are the appropriate limits for the use of internal aids?
It is important to appreciate the limits within which these aids operate. In Figure 4.1 you will find an annotated statute which indicates the various features of an Act of Parliament. (p. 137) (p. 138) (p. 139) (p. 140)
(p. 141) The long title
This gives an indication of the purpose of an Act. In R v Bates  2 All ER 842, Donovan J said that upon reading the words of a section, should doubt or ambiguity arise, then the long title may be consulted as an aid to resolving the doubt or ambiguity. However, if the words of the section make a meaning clear, the long title cannot be used to restrict such meaning.
Preambles are rarely seen in modern statutes but were more common in older statutes. Where a preamble exists it may set out the reasons for the passing of the statute. It may be consulted as part of reading the statute as a whole. Viscount Simonds said in AG v Prince Ernest Augustus of Hanover  AC 436 (at p.461):
So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use ‘context’ in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, [see later at 4.4.2] and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy.
Once again the indication is that the courts are able to read beyond the words of a statute to establish the circumstances surrounding the making of the legislation. So a preamble may inform a court’s reading of the words of an Act, but it cannot be used to cut down the plain meaning of the words.
The short title
The short title, while being part of an Act, is of limited interpretative value as it is merely a brief way of referring to an Act. Indeed, the short title may be positively misleading. For example, the Unfair Contract Terms Act 1977 does not cover all potentially unfair terms of a contract and its scope extends beyond contract terms to non-contractual notices also.
These are to be found above a section or group of sections; they are there to help the reader find their way around an Act. A cross-heading may be consulted when the words of a section are ambiguous or unclear. However, in the light of a more contextual approach to the construction of statutes, it would appear (by analogy with Explanatory Notes and marginal and side notes) that ambiguity is not necessary to permit the use of cross-headings; see later R (Westminster City Council) v National Asylum Support Service  1 WLR 2956 and R v Montila  1 WLR 3141.
(p. 142) Side or marginal notes
So called because they originally appeared in the margin to an Act, side or marginal notes signpost the content of a specific section. Since 2001, the note is placed in bold above the section to which it relates. As an aid to construction, a side note may be used in considering what the purpose of the section is and the mischief it sought to address, but it cannot be used to restrict the clear meaning of a section ascertainable from its words. In R v Montila  1 WLR 3141, the House of Lords said that as side notes are included for ease of reference and not for debate before Parliament, they are to be accorded less weight; nonetheless, they provide a context for the examination of an Act.
An example of the use of side or marginal notes is seen in Tudor Grange Holdings Ltd v Citibank NA  3 WLR 750. In this case the claimants under a contract with the defendant bank alleged a breach of contract. This claim was contractually settled. The claimants later alleged that the settlement of the claim was subject to a test of reasonableness by reason of s.10 of the Unfair Contract Terms Act 1977.
Section 10 provides:
A person is not bound by any contract term prejudicing or taking away rights of his which arise under, or in connection with the performance of, another contract, so far as those rights extend to the enforcement of another’s liability which this Part of this Act prevents that other from excluding or restricting.
It was argued by the claimants that the terms of the contractual settlement by its terms took away certain rights under the first contract with the defendant bank.
The High Court decided that Parliament never intended s.10 to apply to settlements of claims. In arriving at this conclusion, Browne-Wilkinson VC looked for the mischief behind the section and relied, in part, upon the marginal note which said: ‘Evasion by means of secondary contract’. This indicated that s.10 was aimed at the use of exemption clauses in secondary contracts to evade the control of Part 1 of the 1977 Act, which read:
[A] contract to settle disputes which have arisen concerning the performance of an earlier contract cannot be described as an evasion of the provisions in the Act regulating exemption clauses in the earlier contract. Nor is the compromise contract ‘secondary’ to the earlier contract.
This case is considered later in the chapter when considering Law Commission reports as an example of an external aid to construction.
(p. 143) 4.4.2 Aids to construction found outside an Act of Parliament
Since 1999, Explanatory Notes accompany a bill introduced by a government minister during its parliamentary passage. The Explanatory Notes are updated during this time and are published along with the new Act. They seek to explain the impact of the legislation in layman’s terms and may be used as an aid to construction of the statute. In R (on the application of S) v Chief Constable of South Yorkshire  1 WLR 2196, Lord Steyn said that, although Explanatory Notes are not approved by Parliament, they may cast light on the context of the statute and the mischief at which it is aimed.
The Explanatory Notes thus give the context of an Act and an indication of what the Act is intended to achieve and may be consulted. They may be used even in the absence of an ambiguity, as it is permissible to read an Act of Parliament in its context. See the opinion of Lord Steyn in R (Westminster City Council) v National Asylum Support Service  1 WLR 2956 (at p.2959): ‘[i]n so far as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible aids to construction’ (emphasis added). Lord Steyn also indicated that Explanatory Notes may be accorded greater weight than Law Commission reports or government Green or White Papers, as there is a closer connection between the Explanatory Notes and the proposed legislation than with pre-parliamentary materials.
Interpretation Act 1978
This Act is important, but its title promises more than it actually delivers. It deals with details. Some examples serve to illustrate what it does.
1. Section 4 indicates that an Act comes into force either: (a) when provision is made for it to come into force on a particular day; or (b) if there is no such provision then on the day the Act receives royal assent. In each case, the Act is in force from the beginning of the day on which it comes into force.
2. Section 6 provides that unless a contrary intention appears in an Act:
● where words used in an Act refer to the masculine gender they also include the feminine gender and vice versa;
● words appearing in the singular include the plural and words in the plural include the singular.
Before a bill is presented to Parliament and it then passes into law it may have been preceded by a royal commission, Law Commission, or other official committee report. Such reports may have explored problems in existing law or considered remedying perceived (p. 144) injustice. To what extent may such pre-parliamentary materials be used in the process of construction? It was said by the majority of the House of Lords in the Black Clawson case  AC 591, that pre-parliamentary materials could be consulted to ascertain the state of the law before the Act and the mischief at which the Act was directed. However, the recommendations contained in a report, the draft bill, and any comments thereon cannot be used in ascertaining the meaning of the words used in an Act.
Lord Reid said that as the courts (at that time) did not consult Hansard in ascertaining the intention of Parliament then, with stronger reason, the courts should ‘disregard expressions of intention by committees or royal commissions which reported before the Bill was introduced’. Now it is permissible for the courts to use Hansard (see the next section), should the courts be able to consult the recommendations in a report as an indication of the intention of Parliament? See Lord Simon’s opinion in the Black Clawson case that a draft bill and commentary annexed to a draft bill could be used to establish parliamentary intent. His Lordship said (at p.651):
To refuse to consider such a commentary, when Parliament has legislated on the basis and faith of it, is for the interpreter to fail to put himself in the real position of the promulgator of the instrument before essaying its interpretation. It is refusing to follow what is perhaps the most important clue to meaning. It is perversely neglecting the reality, while chasing shadows. As Aneurin Bevan said: ‘Why read the crystal when you can read the book?’ Here the book is already open: it is merely a matter of reading on. Certainly, a court of construction cannot be precluded from saying that what the committee thought as to the meaning of its draft was incorrect. But that is one thing: to dismiss, out of hand and for all purposes, an authoritative opinion in the light of which Parliament has legislated is quite another.
Obviously this must be read subject to the warning that Parliament might not have followed the recommendations of the committee in which case they will be of little or, more likely, no interpretative value.
An illustration of the use of pre-parliamentary materials is seen in Tudor Grange Holdings Ltd v Citibank NA  Ch 53. Browne-Wilkinson VC, in seeking the mischief of the Unfair Contract Terms Act 1977, consulted the second report on exemption clauses of the Law Commission on Exemption Clauses (1975) (Law Com No. 69). He commented (at p.66):
This report was the genesis of the Act of 1977. The report is wholly concerned with remedying injustices which are caused by exemption clauses in the strict sense. So far as I can see, the report makes no reference of any kind to any mischief relating to agreements to settle disputes.
This allowed him to conclude that the Act was not seeking to control contractual settlements of disputes, and as outlined earlier, strengthening his interpretation of s.10.
(p. 145) Parliamentary materials—Hansard
For many years the courts refused to allow the use of Hansard—the official record of parliamentary debates—as an aid to construction of an Act of Parliament. This practice was confirmed by the House of Lords in Davis v Johnson  AC 264. However, the refusal to do so was heavily criticised on the basis that an obvious source of elucidating Parliament’s intention was being unnecessarily ignored.
In the case of Pepper v Hart  AC 593, the House of Lords, consisting of seven law lords, decided by a majority of 6 to 1 that Hansard could be used as an aid to interpretation. However, the Lords in the majority recognised the limits to the use of such materials. Hansard is only to be used within the following limits:
[F]irst, the legislation must be ambiguous or obscure or a literal interpretation would lead to an absurdity; second, the statement or statements relied on were made by the minister or other promoter of a Bill, together if necessary with such other Parliamentary material as is necessary to understand such statements; and third, the statements relied upon are clear.
A literal interpretation of legislation is not possible where the words used are ambiguous or uncertain, so another meaning may be sought by reference to clear statements made in Parliament by the promoter of the legislation. Reference may be made to Hansard where the material identifies the mischief behind the Act or the legislative intention behind the unclear language used. The House of Lords further seemed to indicate that reference to Hansard would only be permitted where Parliament addressed the very issue that a court was being asked to decide. In this regard, the use of Hansard should have its limits.
The leading opinion of Lord Browne-Wilkinson and the dissenting opinion of Lord Mackay illuminate the reasons for and against the use of Hansard in the interpretation of a statute. In essence the argument is, on one side, a matter of principle, that is, that access to parliamentary words may throw light on the mischief behind a statute or the legislative intent; this is as opposed to, on the other side, considerations of cost, uncertainty in the parliamentary words themselves, and even problems of access to Hansard.
Hansard is a controversial external aid to interpretation. Be prepared to evaluate the reasons for and against the use of Hansard. In this respect, you will want to consider the cases subsequent to Pepper v Hart. How useful has Hansard been in those cases? Note that Lord Mackay’s comments were delivered before the power of the internet was apparent. Nonetheless, consider whether having lawyers poring over Hansard will lead to increased costs and whether it is definitively more likely to help find the ‘correct’ answer. Are there other risks associated with consulting Hansard that might lead to constitutionally dubious results (think of who sits in Parliament and whose statements will be more likely to be relied on).
(p. 146) The debate over the legacy of Pepper v Hart has continued. Lord Steyn, writing extra- judicially (‘Pepper v Hart: A Re-examination’ (2001) 21 OJLS 59), has said that in his view, Pepper v Hart has substantially increased the costs of litigation to ‘very little avail’. His Lordship also argued that the decision may have led to a change in the behaviour of the executive, encouraging the making of statements in Parliament as to the government’s intention behind the introduction of legislation. The courts are aware of the constitutional risk of relying on and then interpreting the government’s intention when, in fact, they should be interpreting that of Parliament’s. In Evans v Amicus Healthcare  3 WLR 681, Thorpe and Sedley LJJ said (at p.685):
In the absence of any intractable ambiguity of the sort contemplated in Pepper v Hart, it seemed at first sight an endeavour by the department of state responsible for drafting the legislation to introduce its own intentions as an aid to construction, something which is no more permissible in the construction of legislation than it is in the construction of contracts.
It is important to evaluate how the rule that permits Hansard to be consulted has worked in practice, as seen in the subsequent case law.
The case of Pepper v Hart raised a problem that had been considered during parliamentary debates leading to the passing of the Finance Act 1976, and the minister had given a clear answer to the issue that had come before the courts. So the uncertainty in the meaning of the Finance Act 1976 was resolved by looking at the legislative history of the Act. It was fortunate that Hansard provided a clear answer. Another example of Hansard being used to successfully support a particular interpretation of a legislative phrase was seen in Stevenson v Rogers  QB 1028. In R v JTB  UKHL 20, Hansard was used when the House of Lords decided that the defence of doli incapax for children between the ages of ten and fourteen had been abolished by s.34 of the Crime and Disorder Act 1998. Lord Philips accepted that that conclusion could not be reached from the words of s.34 but once extrinsic aids were considered (e.g. the pre-legislative materials such as the consultation and White Papers, and the statements made in Parliament), the intention of Parliament became much clearer. However, the rule in Pepper v Hart specifies that Hansard may only be used where the legislation is ambiguous or obscure, the statements to be relied upon are those of ministers or other promoters of a bill, and the statements are clear. It may be observed that in R v JTB, first, the legislation was not ambiguous and secondly, the statements made in Parliament during the passage of the Crime and Disorder Act 1998 were not clear. See further Francis Bennion, ‘Mens Rea and Defendants Below the Age of Discretion’  Crim LR 757, where the use of Hansard is criticised. In R (on the application of Jamar Brown (Jamaica)) v Secretary of State for the Home Department  UKSC 8, the Supreme Court reiterated the need for clear ministerial answers to questions in Parliament before the courts should admit statements under Pepper v Hart.
The opinions of the judiciary, particularly in the House of Lords, are divided on how Hansard is to be used. In Jackson v Attorney General  1 AC 262, the difference (p. 147) was apparent in the opposing views of Lords Nicholls and Steyn. Lord Nicholls, restating an opinion given in R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme  2 AC 349, said that it was permissible to consult clear ministerial statements in Hansard to discover the purpose that the words in a statute are seeking to achieve. In contrast, Lord Steyn sought to limit the operation of Pepper v Hart when he said (at p.301):
[It] should be confined to the situation which was before the House in Pepper v Hart. That would leave unaffected the use of Hansard material to identify the mischief at which legislation was directed and its objective setting. But trying to discover the intentions of the Government from ministerial statements in Parliament is constitutionally unacceptable.
Reliance was placed upon the opinion of Lord Hope in Spath Holme, where he said (at p.408):
[T]he decision in Pepper v Hart should be confined to cases where the court is concerned with the meaning that is to be given to the words used in legislation by Parliament. It would be contrary to fundamental considerations of constitutional principle to allow it to be used to enable reliance to be placed on statements made in debate by ministers about matters of policy which have not been reproduced in the enactment. It is the words used by Parliament, not words used by ministers, that define the scope within which the powers conferred by the legislature may be exercised.
The use of Hansard may be contrasted with another method of discovering parliamentary intention, that of the golden rule. According to the golden rule, it may be argued that Parliament cannot have intended a meaning where it leads to absurdity. Such an approach is inferential, not direct, whereas Hansard, in Pepper v Hart, provided direct evidence of what was meant by s.63(2) of the Finance Act 1976. Consider other ways in which the intention of Parliament may be identified.
The case law seems to suggest that it is rare that Hansard will be determinative of a question of interpretation. In R (Quintavalle) v Secretary of State for Health  2 AC 687, Lord Hoffmann said: ‘As it is almost invariably the case when such statements are tendered under the rule in Pepper v Hart, I found neither of assistance.’ Again, in R v Clinton  EWCA Crim 2, Lord Judge CJ said: ‘[e]ven on the most generous interpretation of Pepper (Inspector of Taxes) v Hart … the debates did not reveal anything which assisted in the process of legislative construction.’ However, his Lordship explained that the construction reached by the court was consistent with the views expressed in Parliament during the passage of the legislation.
(p. 148) Where a criminal statute is ambiguous then Hansard will not be used to extend the scope of criminal liability created by the statute; a defendant is to receive the benefit of the ambiguity: see Massey and Another v Boulden and Another  1 WLR 1792. This principle is supported by the comments of Lord Phillips LCJ in Thet v DPP  EWHC 2701, who said: ‘[i]f a criminal statute is ambiguous, I would question whether it is appropriate by the use of Pepper v Hart to extend the ambit of the statute so as to impose criminal liability upon a defendant where, in the absence of the parliamentary material, the court would not do so. It seems to me at least arguable that if a criminal statute is ambiguous, the defendant should have the benefit of the ambiguity.’ It may be further noted that Hansard was of no value in Thet v DPP as the statement by the minister indicated that the meaning of ‘reasonable excuse’ in the Asylum and Immigration (Treatment of Claimants) Act 2004 was best ‘left to the circumstances of each individual case’ and that ultimately it was for the courts to decide!
Statutes in pari materia
Sometimes there will be a number of statutes on the same subject area. These are known as statutes in pari materia. Hence, should the words of a statute be uncertain or ambiguous, a court may consider as an aid to construction other statutes which are in pari materia. Unfortunately, it is not clear when statutes are, in fact, in pari materia. As a starting point, judges will first look to Acts that are on the same subject before considering the validity of another Act of Parliament in helping to interpret the particular provision.
In R v Wheatley  1 WLR 144, the Court of Appeal was asked to decide whether the definition of ‘explosive substance’ in the Explosive Substances Act 1883 should be construed with the assistance of the Explosives Act 1875. The Court looked to the long titles to the Acts and noted that the 1875 Act dealt with ‘explosive substances’ and the 1883 Act was ‘to amend the law relating to explosive substances’. The 1883 Act was evidently intended to amend the 1875 Act. Section 9(1) of the 1883 Act provides that ‘explosive substance shall be deemed to include …’ but the list in the section did not provide a complete definition and it was taken to be simply expanding the existing meaning of ‘explosive substance’. Section 3 of the 1875 Act, however, gave a definition of ‘explosive’ (referring to gunpowder, nitro-glycerine, and dynamite amongst others). In the light of this, the Court was convinced that both Acts were in pari materia and therefore when construing the 1883 Act it was permissible to use the definition in the 1875 Act.
An illustration of where statutes were considered not to be in pari materia was seen in Stevenson v Rogers  QB 1028, where the phrase ‘in the course of a business’ in the Unfair Contract Terms Act 1977 and in the Sale of Goods Act 1979 was given different meanings.
(p. 149) Dictionaries
It is permissible to consult a dictionary if the meaning of a word used in a statute is unclear. Obviously, if a statute defines a word then that is the definition to be used. However, dictionaries are to be treated with caution. In Customs and Excise Comrs v Top Ten Promotions Ltd  1 WLR 1163, Lord Upjohn said (at p.1171):
It is highly dangerous, if not impossible, to attempt to place an accurate definition on a word in common use; you can look up examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition. The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of common sense and everyday usage the known, proved or admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament.
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4.5 Rules of language
These rules give an indication of the intention behind the use of words. They are really rules relating to grammar. It is important to note the limits to their operation. You will find the rules of language illustrated in the following sections.
4.5.1 Expressio unius est exclusio alterius rule
Under this rule the mention of one or more things of a particular class excludes silently all other members of the class. A classic example of the use of the rule is seen in the interpretation of the following phrase: ‘land, houses and coalmines’. The word ‘land’ potentially includes mines. However, the express inclusion of the word ‘coalmines’ in the phrase must be taken to mean that no (other) mines are intended to be included.
The limits of the rule were explained in Galinski v McHugh (1989) P & CR 359. In this case, the claimant landlord wished to serve a notice under s.4 of the Landlord and Tenant Act 1954 on the defendant tenant. This was done by serving the notice on solicitors who were representing the defendant. The defendant claimed that this service was invalid and relied on s.4(1) of the 1954 Act which requires notice ‘to be given to the tenant.’ The landlord relied on s.66(4) of the Act, which deals with service of notices and incorporates s.23 of the Landlord and Tenant Act 1927, which provides, inter alia, ‘in the case of a notice to a landlord, the person on whom it is to be served shall include any agent of the landlord duly authorised in that behalf’. Put another way, this meant that service could include the landlord authorising an agent to serve it on the tenant, and that by analogy, the landlord serving the (p. 150) notice on the defendant’s solicitor was sufficient. However, it was argued by the defendant, using the expressio unius est exclusio alterius rule, that as s.66(4) indicated expressly that a notice to a landlord could be served on any agent of the landlord, but did not explicitly mention service on an agent of a tenant (in this case the defendant’s solicitor), such latter service was excluded.
The Court of Appeal held that the expressio unius rule was no more than an aid to construction, and it may not operate where it is possible to explain an express inclusion on grounds other than an intention to exclude other categories. Parliament may have made an express reference to service on a landlord’s agent as landlords are more likely to have agents than tenants are, and furthermore tenants may be accustomed to dealing with the agents of landlords. In light of this, an express reference to agents of tenants was unnecessary, and s.66(4) did not expressly prohibit other modes of service. In summary, Parliament did not intend for notices to tenants to exclusively be served upon them personally.
4.5.2 Ejusdem generis rule
Where general words follow specific words which form a class (or a genus) then the general words are to be read in light of the specific words. The rule only applies where the specific words form a class. For example, Lord Simon, in a debate in the chamber of the House of Lords, said if an animal transportation measure applied to ‘calves, lambs and other animals’, the general words ‘other animals’ taken out of context could cover the whole of the animal kingdom. But this is not the intention of Parliament, as the specific words refer to the young of farm animals and are meant to cover, say, kids and foals. The rule was applied in Powell v Kempton Park Racecourse  2 QB 242, in which the House of Lords were asked to consider whether an outdoor betting stall was illegal. In reference to the relevant Act, the Betting Act 1853, the relevant prohibited places were ‘house, office, room or other place for betting’. The Court decided that the provision did not include open-air spaces, as the class—the specific list of places—were all indoors.
In Massey and Another v Boulden and Another  1 WLR 1792, the Court of Appeal had to decide whether a village green fell within s.34(1)(a) of the Road Traffic Act 1988, which prohibited the driving of a motor vehicle, without lawful authority, on ‘any common land, moorland or land of any other description, not forming part of a road’. It was decided that the specific words ‘common land’ and ‘moorland’ did not create a class, and therefore ‘land of any other description’ was sufficiently wide to encompass a village green. In this case, one might also argue that the general words (‘or land of any other description’) are so general that it need not be read in the light of the specific words, but can simply be given its natural meaning.
4.5.3 Noscitur a sociis rule
Simply put, words derive their meaning from, and so must be read subject to, the context in which they appear. As Viscount Simonds said in AG v Prince Ernest Augustus (p. 151) of Hanover  AC 436, ‘words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context.’ An example of the rule is seen in Pengelley v Bell Punch Co. Ltd  1 WLR 1055, where the Court of Appeal had to determine the meaning of s.28(1) of the Factories Act 1961. Section 28(1) provided:
All floors, steps, stairs, passages and gangways shall be of sound construction and properly maintained and shall, so far as is reasonably practicable, be kept free from any obstruction and from any substance likely to cause persons to slip.
The Court was asked if it was permissible to store boxes on a factory floor. The word ‘floors’ had to be read in context of the other words ‘steps, stairs, passages and gangways’, which indicated places used for the purposes of passage. However, in light of the word ‘obstruction’, which means to block or make impassable, s.28(1) was referring to floors used for the purposes of movement and did not generally apply to all ‘floors’. So factory floors could be used to store materials.
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4.6 Presumptions of statutory intent
Cross identifies two types of presumption, although there is a tendency for these to merge into each other. First, there are presumptions of general application, such as when Parliament legislates against the background of constitutional and administrative principles; secondly, there are presumptions of legislative intent in cases of doubt or ambiguity as to the words in an Act.
4.6.1 Presumptions of general application
These presumptions apply even if there is no ambiguity in the text of the legislation. They assume that a statute is drafted against the background of legal principles and thus allow for brevity on the part of the draftsman. Cross comments (at p.166) that the ‘presumptions of general application not only supplement the text, they also operate at a higher level as expressions of fundamental principles governing both civil liberties and the relations between Parliament, the executive and the courts’. The presumptions have also been explained in terms of a principle of legality; this principle protects both procedural safeguards and substantive basic or fundamental rights. See R v Secretary of State for the Home Department, ex parte Simms  2 AC 115. However, the principle only has prima facie force and can be displaced by clear unambiguous words of a statute. See R v Secretary of State for the Home Department, ex parte Pierson  AC 539 at pp.587–90, for Lord Steyn’s explanation of the basis of presumptions of general application and a number of examples. These examples include (i) that decision makers acting under statutory powers should exercise their discretion reasonably and that bodies and tribunals should act in accordance with natural justice (i.e. honour the principles of a fair and impartial hearing), and (p. 152) (ii) the presumption that a criminal offence-creating statute ought to be construed as requiring the element of mens rea (see Sweet v Parsley  AC 132 and R v Sally Lane and John Letts  UKSC 36) and this would apply when the statute was silent and/or ambiguous.
4.6.2 Presumptions of legislative intent in cases of doubt or ambiguity
Presumption of intent may also be employed when a statute is unclear or so ambiguous that the intention of Parliament cannot be established. The following are examples of such presumptions.
Presumption in relation to penal statutes
If a penal statute is ambiguous, then the presumption of intent is that the statute should be strictly construed so as to avoid criminal liability. Lord Esher MR, in Tuck & Sons v Priester (1887) 19 QBD 629, 638, stated:
If there is a reasonable interpretation which will avoid the penalty in any particular case we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections.
A good illustration of how this presumption operates was seen in Hobson v Gledhill  1 WLR 215. Section 1(1) of the Guard Dogs Act 1975 provides that:
A person shall not use or permit the use of a guard dog at any premises unless a person (‘the handler’) who is capable of controlling the dog is present on the premises and the dog is under the control of the handler at all times while it is being so used except while it is secured so that it is not at liberty to go freely about the premises. (emphasis added)
The section contains an ambiguity which relates to when the exception applies. Two possible meanings are apparent:
(a) there is no offence if there is always a handler, capable of controlling the dog, on the premises where a dog is being used and the dog is under the control of the handler unless the dog is secured; or
(b) there is no offence if there is a handler capable of controlling the dog where a dog is being used and the dog is under the control of the handler or when there is no handler on the premises but the dog is nevertheless secured.
In relation to meaning (a), the exception applies only to the words ‘and the dog is under the control of the handler at all times while it is being so used’, whereas for meaning (b), the exception applies to all of the preceding words of the paragraph.
Having understood the ambiguity, the question for a court is how to resolve the problem. Lord Widgery CJ, in the Divisional Court of the Queen’s Bench Division, (p. 153) said (at p.219) that he was unable to say ‘which of the solutions canvassed was the intention of Parliament, and the right course in those circumstances is to favour the citizen’. Peter Pain J said (at p.218), in favouring meaning (b), that ‘one comes to the rule that a penal statute, where there is an ambiguity, should always be construed in favour of the citizen who may find himself the subject of the penalty’. This restricted duty placed on the citizen was consistent with the mischief which Parliament was seeking to address, that is, dogs should be secured so that persons entering premises, whether lawfully or not, would be able to remove themselves from the area of attack by a dog.
Presumption against the retrospective operation of a statute
It is a fundamental principle of any legal system that a citizen should be able to discover the law and be able therefore to avoid the consequences of breaking the law. If an Act of Parliament is retrospective this may mean that a citizen has broken laws at a time when the law did not exist. While Parliament is able to pass legislation that does have retrospective operation, in order to do so clear words must be used. Should Parliament not make this intention clear, the presumption is that no retrospective effect was intended.
Presumption against ousting the jurisdiction of the courts
Should a statute seek to exclude the jurisdiction of the courts then the words used must be clear; such provisions will be construed strictly so as to preserve the jurisdiction of the courts. In Anisminic Ltd v Foreign Compensation Commission, s.4(4) of the Foreign Compensation Act 1950 provided that the ‘determination by the commission of any application made … shall not be called in question in any court of law’. The House of Lords, by a majority, said that while a valid determination of the commission could not be questioned, s.4(4) did not prevent the courts from inquiring whether an order of the commission was made on the basis of a misconstruction of their jurisdiction. The judgment would not be a ‘determination’ within s.4(4) and therefore the courts could declare it a nullity.
This case was analysed in considerable detail in R (Privacy International) v Investigatory Powers Tribunal  UKSC 22. In this case the majority upheld a common law presumption against ousting the jurisdiction of the High Court. The presumption applied to quash a legally erroneous decision of the Investigatory Powers Tribunal (a tribunal that can examine the conduct of the Security and Intelligence Services). The drafting of s.67(8) of the Regulation of Investigatory Powers Act 2000 did not prevent a determination that was legally invalid, whether by jurisdiction or another error of law, from being judicially reviewed by the High Court. Lord Carnwarth added that only the most clear and explicit terms in the statute could have excluded such jurisdiction.
(p. 154) Presumption against Parliament being in breach of international law
The UK may enter into treaties with other sovereign states which have effect in international law, but do not become part of UK domestic law (remember that, to incorporate treaty obligations into domestic law, Parliament would have to pass an Act to that effect). Should an Act of Parliament be ambiguous it is presumed that Parliament does not intend to be in breach of its international obligations.
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4.7 Interpretation of legislation and the EU
First, this topic is considered in further detail in Chapter 6. However, to offer a brief summary, by enacting the European Communities Act 1972, the judiciary’s flexibility in interpretation was significantly reshaped. By s.2(4) of the Act, ‘any such provision as might be made by Act of Parliament …’ shall be construed as to comply with binding EU law. The most famous discussion of this provision was by Lord Bridge in the case of R (Factortame Ltd) v Secretary of State for Transport  UKHL 7, where a domestic Act of Parliament—the Merchant Shipping Act 1988—had to be effectively disapplied.
The UK is therefore bound to implement European Union law (at least while the UK remains a member of the EU). This means that domestic legislation (whether primary or secondary) must be passed in order to implement, say, EU directives. The courts must then adopt a purposive approach when interpreting this legislation, using the directive as an aid to interpretation. In Litster and Others v Forth Dry Dock Co Ltd and Another  1 AC 546, 559, Lord Oliver, when considering domestic regulations made to implement a directive, said:
[I]f the legislation can reasonably be construed so as to conform with those obligations, obligations which are to be ascertained not only from the wording of the relevant directive but from the interpretation placed on it by the Court of Justice of the European Communities, such a purposive construction will be applied even though, perhaps, it may involve some departure from the strict and literal application of the words which the legislature has elected to use.
As can be seen, the courts may only give effect to the purpose of a directive where domestic legislation is reasonably capable of bearing the meaning to be given to it.
The case of Robertson v Swift  UKSC 50 illustrates a purposive interpretation of domestic legislation in the light of a European Council directive. Briefly, the facts concerned a contract which was made following an inquiry for removal services by a consumer, Robertson, to Swift, who ran a removals business. Subsequently, Swift called at Robertson’s house and a written contract for removal services was concluded there.
Later Robertson, having paid a deposit, sought to cancel the contract orally and then posted a letter of cancellation to Swift before the removal date. Swift responded (p. 155) by seeking to claim cancellation charges under the cancellation provisions in the written contract, and refused to return the deposit.
The case fell to be decided under the Cancellation of Contracts made in a Consumer’s Home, or Place of Work etc. Regulations 2008 (now since replaced by the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013). Under the 2008 Regulations, reg. 7(1) gave a consumer the right to cancel a contract within a cancellation period (seven days) and reg. 7(2) required a trader to give a consumer written notice of his right to cancel the contract. By reg. 7(6): ‘A contract to which these Regulations apply shall not be enforceable against the consumer unless the trader has given the consumer a notice of the right to cancel and the information is in accordance with this regulation.’ Regulation 8(1) provided that if a consumer serves a cancellation notice within the cancellation period the contract is cancelled, and by reg. 10(1), on cancellation, any sum paid by a consumer is recoverable.
The Court of Appeal decided that the 2008 Regulations did apply. However, although the contract was not enforceable against Robertson (by virtue of reg. 7(6)), as no written notice of the consumer’s right to cancel had been given by Swift, Robertson (under reg. 7(2)) was not entitled to cancel the contract, so the contract remained in being and the deposit could not be recovered. This decision was appealed to the Supreme Court.
The Supreme Court stated that the correct approach to the interpretation of the Regulations was that a national court was to interpret domestic legislation, ‘so far as was possible, in the light of the wording and the purpose of directive in order to achieve an outcome consistent with the objective pursued by the directive’ (Schulte v Deutsche Bausparkasse Badenia AG (Case C-350/03)  1 CMLR 11 , CJEU). The purpose of the Directive (Council Directive (85/577/EEC)) was the enhancement of consumer protection. Lord Kerr, relying on Martín Martín v EDP Editores SL (Case C-227/08)  2 CMLR 27 CJEU, said (at ):
To hold that the consumer did not have the right to cancel because the trader had not served written notice of the right to cancel would run directly counter to the overall purpose of the Directive in ensuring that a consumer has the opportunity to withdraw from a contract without suffering significant adverse consequences … But if the right to cancel could be effectively nullified by a failure (or refusal) of a trader to give written notice of the right to the consumer, this would create a considerable gap in the level of protection that the Directive sought to provide.
Lord Kerr said that the question of entitlement to cancel, in the absence of a written notice from a trader, informing of a right to cancel, had been decided by the Court of Justice of the EU in Heininger (Case-481/99)  2 CMLR 42  and E Friz GmbH v Carsten von der Heyden (Case C-215/08)  3 CMLR 23 –; a consumer can exercise a right of cancellation at any time in the absence of a notification of such a right by a trader.
(p. 156) Could this result be achieved under the 2008 Regulations? Lord Kerr said that the 2008 Regulations should be given a purposive interpretation both under EU and domestic law. It was accepted by the Supreme Court that the word ‘within’ in regs 7(1) and 8(1) could be read as meaning ‘at any time prior to the expiration of’ the cancellation period. So the cancellation period would either expire seven days after the consumer received notice of the right to cancel from the trader or, should no such notice be served, as in the present case, there would be no expiration and the consumer would remain free to cancel.
In consequence, the failure by Swift to give notice to Robertson of the right to cancel did not prevent Robertson from cancelling, as he had done. The Court confirmed that, ‘a failure by a trader to give written notice of the right to cancel does not deprive a consumer of the statutory right to cancel under regulation 7(1) of the 2008 Regulations. Dr Robertson was therefore entitled to cancel the contract as he did by his letter … He is therefore entitled to recover his deposit of £1000.’
The issue in the Robertson case arose out of a gap in the wording of the 2008 Regulations. Lord Kerr confirmed (at ) that ‘a purposive construction is one which eschews a narrow literal interpretation in favour of one which is consonant with the purpose of the relevant legislation, in this case, the comprehensive protection of the consumer in the event of the cancellation of the contract’. Here, by using the Directive and the supporting case law of the Court of Justice of the EU, the Supreme Court was able to interpret the 2008 Regulations to ensure the purpose was achieved.
The approach to the interpretation of EU law is similar to the approach under s.3 of the Human Rights Act 1998 in relation to the ECHR. See Vodafone 2 v Commissioners for Her Majesty’s Revenue and Customs  Ch 77; Robertson v Swift  UKSC 50,  1 WLR 3438; and Lock v British Gas Trading Ltd  EWCA Civ 983.
What happens, however, if the UK fails to implement the directive (in other words, there is no domestic implementing legislation)? The answer is that the UK courts are nevertheless still obliged to adopt a purposive approach to any pre-existing domestic legislation that may exist in the same subject area, again using the directive as an aid to interpretation.
Such a situation occurred in Webb v EMO Air Cargo (UK) Ltd  1 WLR 49. The claimant was employed initially to replace a pregnant employee during her taking a period of maternity leave, but was to continue to be employed after the return of that employee. Shortly after commencing her employment the claimant found that she too was pregnant and her employer dismissed her. Her claim under s.1 of the Sex Discrimination Act 1975 was rejected by an industrial tribunal, the Employment Appeal Tribunal, and the Court of Appeal. On appeal to the House of Lords, the claimant (p. 157) argued that the 1975 Act should be interpreted purposively using the Equal Treatment Directive (Directive 76/207). The dilemma for the claimant was that this directive was adopted in 1976 subsequent to the enactment of the Sex Discrimination Act 1975.
Lord Keith stated that a UK court would have to interpret domestic legislation in any area subject to a directive in a way which accords with the purpose of the directive ‘if that can be done without distorting the meaning of the domestic legislation’. His Lordship added, relying on Marleasing SA v La Comercial Internacional de Alimentacion SA (Case 106/89)  ECR I-4135, that this approach applied whether the domestic legislation was passed before or after the relevant directive. The important point is that domestic law must be capable of bearing the meaning which accords with the purpose of a directive; if not, then it is for Parliament to legislate, not for the courts to arrive at a construction which the words will not bear. Before determining the claimant’s appeal, a ruling concerning the Equal Treatment Directive was sought from the European Court of Justice. The Court of Justice ruled that the Directive precluded a dismissal in the claimant’s circumstances on the grounds of pregnancy. In Webb v EMO Air Cargo (UK) Ltd (No. 2)  1 WLR 1454, the House of Lords decided that ss.1(1)(a) and 5(3) could be interpreted in a way which was consistent with the Directive.
The Consumer Rights Act 2015 makes reference to ‘good faith’ in s.62(4), but does not indicate what the term means. (Note that this provision had previously been part of a statutory instrument, the Unfair Terms in Consumer Contracts Regulations 1994, that did expressly indicate the factors that were to be considered in assessing good faith.) It is permissible to consult the recitals to Directive 93/13 on Unfair Terms in Consumer Contracts  OJ L95/29 in order to gain guidance on this term. The recitals provide:
[I]n making an assessment of good faith, particular regard shall be had to the strength of bargaining positions of the parties, whether the consumer had an inducement to agree to the term and whether the goods or services were sold or supplied to the special order of the consumer; whereas the requirement of good faith may be satisfied by the seller or supplier where he deals fairly and equitably with the other party whose legitimate interests he has to take into account.
See Director General of Fair Trading v First National Bank plc  1 AC 481.
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4.8 Interpretation of legislation and the Human Rights Act 1998
The Human Rights Act 1998 places a duty upon the courts to interpret legislation to ensure compatibility with the ECHR. Section 3(1) of the Act provides:
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect to in a way which is compatible with the Convention rights.
(p. 158) The subsection applies to all legislation, existing and future. The use of the word ‘possible’ gives rise to some uncertainty: how far may the courts depart from the wording of legislation in seeking to achieve compatibility? Parliament envisages that some legislation may not be compliant and by s.4 a court may make a declaration of incompatibility, so there is a limit to the judicial task under s.3(1).
Where a legislative provision is ambiguous then the court must choose the meaning which is compatible with Convention rights. However, it is not necessary for there to be ambiguity for s.3 to apply, as was seen in R v A  1 AC 45, where words were read into s.41 of the Youth Justice and Criminal Evidence Act 1999 to ensure compliance with a defendant’s right to a fair trial under Article 6 of the ECHR. This is a departure from the traditional approach to statutory interpretation where the task is to discover the meaning of legislation from the words used by Parliament.
The main question to be answered is: to what extent are the courts constrained in their task under s.3 by the words used in legislation? This question was considered in Ghaidan v Godin-Mendoza  UKHL 30 and is discussed in further detail at 7.2.
Source: Oxford University Press
● The role of a judge in interpreting a statute is to discover and give effect to the intention of Parliament. However, the concept of intention of Parliament is difficult to determine.
● The principles of statutory interpretation are not binding rules but simply tools that the courts may use to identify and locate the intention of Parliament.
● The traditional approach to interpretation consists of three distinct ‘rules’ of statutory interpretation: the literal rule, the golden rule, and the mischief rule.
● Arguably, the traditional rules are of limited value and have generally given way to a contextual and purposive approach.
● A court may read the whole of an Act of Parliament, but not every part of an Act carries equal weight and value in interpreting particular provisions.
● The sections of an Act express the intention of Parliament and are paramount; the aids to construction cannot be used to give the words of a section a meaning they cannot bear, except in limited circumstances (subject to the operation of s.3 of the Human Rights Act 1998).
(p. 159) ● Internal aids—the long title, preamble, cross-heading, marginal or side notes, punctuation—may be used to establish the context and purpose of an Act but they cannot be used to restrict the clear meaning of the words of a section.
● External aids may be consulted subject to the limits to their use. These aids are outside of an Act and include: Explanatory Notes; the Interpretation Act 1978; pre-parliamentary materials; parliamentary materials—Hansard; statutes on the same subject area; statutes in pari materia; and dictionaries.
● One of the external aids—the use of Hansard—is complex and controversial. Hansard ought only to be used within the following limits:
(a) The legislation must be ambiguous or obscure or a literal interpretation would lead to an absurdity;
(b) The statement or statements relied on were made by the minister or other promoter of a bill;
(c) The statements relied upon are clear.
● Presumptions are used as a last resort should an Act prove to be wholly unclear or ambiguous. These are presumptions of legislative intent and can either be of general application or may apply when statutory provisions are ambiguous or unclear.
● The courts of the UK are to construe domestic legislation in any area subject to an EU directive in a way which accords with the purpose of the directive if that can be done without distorting the meaning of the domestic legislation.
● The Human Rights Act 1998 has changed the role of the courts in interpreting legislation when issues of Convention rights are raised. Under s.3, the courts may go beyond the words of the legislation in seeking to ensure the Act is complaint with Convention rights.
1 Why is it misleading to refer to the ‘rules’ of statutory interpretation?
2 Using authority, define and explain the literal rule, golden rule, and mischief rule.
3 What is meant by the purposive approach to statutory interpretation and explain a case where it was applied?
4 Using examples, contrast and analyse the value of internal and external aids to interpretation.
5 Critically evaluate the permission, as established in Pepper v Hart, to use Hansard as an external aid to construction?
6 What is the impact on statutory interpretation of: (a) the UK’s membership of the EU; (b) the Human Rights Act 1998?
(p. 160) Sample question and outline answer
The use of Hansard as an aid to statutory interpretation is fraught with difficulty. The courts have not found it a useful guide to the interpretation of statutes. Discuss.
This question raises three main issues: first, when Hansard can be used as an aid to statutory interpretation; secondly, whether using Hansard is fraught with difficulties (this requires an evaluation of the basis for its use); thirdly, the experience of the courts in cases subsequent to Pepper v Hart.
In Pepper v Hart it was stated by Lord Browne-Wilkinson that the rule against the use of Hansard should be relaxed so as to permit reference to parliamentary materials in the following circumstances: first, the legislation must be ambiguous or obscure or a literal interpretation would lead to an absurdity; secondly, the statement or statements relied on were made by the minister or other promoter of a bill, together with such other parliamentary material as is necessary to understand such statements; thirdly, the statements relied upon are clear.
The House of Lords was setting out a limited relaxation of the rule against the use of Hansard in the interpretation of statutes. Indeed, Lord Bridge suggested that Hansard should only be used where Parliament has considered the very issue of interpretation which the court faces and the minister has provided a clear answer to that issue. That was the very situation in Pepper v Hart. The reason for the limited approach was to ensure legal certainty.
An argument against the relaxation of the rule excluding the use of Hansard was that the costs of litigation would increase with the increased workload of consulting Hansard. One of the main difficulties is convincing a court that the conditions laid down in Pepper v Hart have been satisfied. It should be noted that even the judges are not in agreement as to how Pepper v Hart is to be interpreted: see, for example, Jackson v Attorney General and the criticisms made by Bennion on the reasoning in R v JTB.
The case law subsequent to Pepper v Hart does not present a clear picture as to the value of Hansard as an aid to interpretation. Some cases demonstrate the use of Hansard, for example, Warwickshire County Council v Johnson  AC 583. In this case the House of Lords used Hansard to interpret s.20(1) of the Consumer Protection Act 1987. Under s.20(1) it was an offence to give a misleading price indication ‘in the course of any business of his’. Here an employee of an electrical retailer was found by the Divisional Court to have given a misleading statement ‘in the course of [a] business of his’. It was argued on the employee’s behalf that s.20(1) was ambiguous. The House of Lords agreed and resolved this issue by looking at the clear words of the minister in Parliament, which indicated that the intention of (p. 161) the statute was not to cover individual employees but to cover the ‘business’ of an employer. Equally, in Stevenson v Rogers Hansard was employed successfully.
However, there is a considerable case law which shows circumstances where Hansard has been of no assistance. In R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme the House of Lords refused to permit the use of Hansard, as the statute, the Landlord and Tenant Act 1985, was not ambiguous, obscure, or giving rise to absurdity, nor were the statements made by ministers in Parliament clear. Indeed, certain judicial comments suggest that Hansard is rarely of use: see Lord Hoffman’s remarks in R (Quintavalle) v Secretary of State for Health. Usually Hansard may not be used, where a criminal statute is ambiguous, to extend the scope of criminal liability created by the statute: see Massey and Another v Boulden and Another and Lord Phillips in Thet v DPP. There is also some caution adopted when relying on Hansard because of the risk that it may obscure the intention of Parliament with the intention of the government.
While the use of Hansard does give rise to difficulties, including what the precise limits of its operation are, it has been used by the courts as an aid to the interpretation of statutes in some cases. The problems encountered by the courts revolve around whether the conditions for Hansard’s use have been met. It would seem that in the case law subsequent to Pepper v Hart the courts have sought to limit the use of Hansard.
If you want to fully appreciate how the rules of statutory interpretation apply in practice then read the leading cases. Nothing will replace the value of doing so. In particular, we would recommend you pay attention to the arguments raised by counsel in advancing the competing arguments about interpretation.
● Bell, J. and Engle, G. Cross Statutory Interpretation, 3rd edn, Oxford University Press (1995)Find this resource:
This book, albeit dated and prior to recent cases, is still one of the classics of statutory interpretation. It is described as a ‘short, systematic introduction to the general principles of statutory interpretation’ and includes coverage of the history, traditional rules, the aids and the presumptions.
● Bennion, F. Statutory Interpretation, 7th edn, LexisNexis (2019)Find this resource:
This is an advanced and exhaustive reference text and is the leading work on interpretation. Primarily for practitioners, it explains the detailed range of factors that the courts would consider in deciding the meaning and effect of all types of legislation. We would recommend referring to this cautiously and only to the extent that you are pursuing an advanced understanding of the law.
● Katzmann. R. A. ‘Judging Statutes’ Oxford University Press (2016)Find this resource:
This is a very concise book by an American Judge of the US Court of Appeals for the Second Circuit. In it he deftly summarises a range of challenges faced by the American judiciary (p. 162) in interpreting Acts of Congress, including the approach taken to legislative history. There is an excellent discussion of the broad purposive approach as adopted across the Atlantic alongside the more restrictive ‘textualist’ approaches to interpretation favoured by some judges. This is a good read if you want a comparative and more global understanding of the process of statutory interpretation.
● Kavanagh, A. ‘Pepper v Hart and Matters of Constitutional Principle’ (2005) 121 LQR 98Find this resource:
This article examines the constitutional reasons against the use of Hansard in the process of interpretation and argues in favour of the courts giving greater effect to the intention as precisely enacted in the words of a statute.
● Millett, Lord. ‘Construing Statutes’ (1999) 20 Stat LR 107Find this resource:
In this short article Lord Millett concisely considers the problems surrounding the discovery of the meaning of legislation as well as the arguments against the ruling in Pepper v Hart.
● Sales, Lord Justice. ‘Modern Statutory Interpretation’ (2017) 38 Stat LR 125Find this resource:
Now a Justice of the Supreme Court, Lord Sales analyses the relationship between Parliament and the courts’ function in interpreting Acts of Parliament. It offers an excellent chronological background to the interpretation of statutes over time and contains an excellent discussion of the constitutional themes at play when the courts undertake statutory interpretation.
● Steyn, Lord. ‘Pepper v Hart: A Re-examination’ (2001) 21 OJLS 59Find this resource:
This is a must read for those of you who want to develop a more detailed analysis of the arguments surrounding the use of Hansard. Lord Steyn also highlights a range of legal and practical consequences of the decision in Pepper v Hart before providing his own constitutional analysis and solution to the problem.
● Twining, W. and Miers, D. How to Do Things with Rules, 5th edn, Cambridge (2010)Find this resource:
Although a little dated, this is still an excellent and insightful textbook that critically explores the context, method, and system of statutory interpretation. It includes coverage on both the impact of EU membership and the effect of the HRA 1998 on issues of interpretation.
● Vogenauer. S. A Retreat from Pepper v Hart? A Reply to Lord Steyn (2005) 25(4) OJLS 629Find this resource:
This article is an incredibly detailed reply to Lord Steyn’s article (included above). It seeks to show how the House of Lords embarked on a retreat from its landmark decision in Pepper v Hart and attempts to refute the reasons advanced in support of the retreat. In addition, it argues that the alternative solution proposed by Lord Steyn creates both conceptual and practical difficulties.
Test your understanding of this chapter by answering the end-of-chapter questions here.