The Problems Associated With Statutory Interpretation Of Legislation Law Essay
To explain the resources and the presumptions that judges may use in their interpretation of legislation it essential to first illustrate what is statutory interpretation and to face some of the most important problems. To appreciate the full nature of the statutory interpretation this essay must evaluate the literal and purposive approaches. In addition is important to argue what are the aids to construction, the meaning of intrinsic assistance and extrinsic assistance and where the change between these aids consists. Than this essay will submit all the different types of presumptions that are operated by judges and the rule of language that is one of the most important in the interpretation of legislation.
The process in which the legislation makes law is statutory interpretation. Sometimes the words of a statute have a right meaning and are easy to understand but sometimes they are uncertain and this is a problem that judges must resolve. Interpreting legislation and language have many problems. The judges to apply legislation they first must interpret it. The legislation has a problem in the certainty of the language. Some words have more to than one meaning or that meaning can change depending on the context. But legislation creates problems also in the mode of communication. The legislation must be general to  apply in the way that it can be applied in different circumstances and is no need to detail it in a particular one. The legislation is badly drafted that is why that is most of the times is meaningless. So the role of the judges is to make legislation effective to achieve the aim it has. There are two ways that the judges determine the meaning of a statute. These are the literal approach and the purposive approach. The literal approach is restrictive. It deals with the establishment of the meaning of the words or the aim of Parliament. The judges are limited to construe the meaning of the words of legislation. This approach is used in the English legal system. The purposive approach is not restrictive. It deals with the purpose behind the legislation in the way to give effect to that purpose. This is used in the EU and especially in the civil law system. There are three rules of statutory interpretation that are: The literal rule deals with the fact that words must be in their ordinary grammatical meaning. This makes law more certain but the words have only one meaning and many times it leads to absurd results or unjust decisions. The second one is the Golden rule that choose the best interpretation of vagueness words and avoid an absurd result. But this rule can be used only in limited situations. The last one is the Mischief rule looks at the gap in the law prior to the Act and interprets law to suppress the mischief. It is very flexible and leads to just results but it can make law uncertain.
The aids construction can be categorized as intrinsic and extrinsic. The intrinsic aids are the definition within the statute. These definitions help to make the meaning clearer. The judges to understand the meaning of a part of statute must know the entire statute. The long or short title is used for guidance but the title doesn’t lead to a clear statement that’s why is necessary to know all the text of the Act. The long title is the proper name that can be a whole page and short title that is a common name that makes references. Another feature is the preamble that is an introduction for what Act is about. We can refer to it to make sense of the main text. Some statutes contain headings and side notes. For example
3DPP v Schildkamp (1969) provides authority for the use of the former as an aid to interpretation. The side notes are only helpful comments that don’t give the intention of Parliament. Finally is the punctuation that deals with the structure of the language and gives a clear meaning to the sentence. This is very important because a small mistake can change the whole meaning of the sentence.
The extrinsic aids are things outside such as dictionaries, textbooks or earlier statutes. For example judges use dictionaries to find the meaning of non legal words. They use textbooks to refer to some points of law that are not very clear or they use earlier statutes to determine the precise mischief. Other extrinsic sources are academic writings, Law commission reports and Hansard. Hansard book was not allowed by the courts at the case of Davis v Johnson (1978) but this changed in the case Pepper v Hart (1993). They may refer to this book where the legislation was uncertain and leads to an absurd decision, where the statements of the case relied upon are clear or where the material relied in more than one statement by a minister. In this case the court allowed referring to Hansard to determine the intention of the statute. This resource was only in the context of mischief rule as a method to find the mischief that the legislation is aimed. So the judges can use the Hansard only in particular circumstances but their main role is to interpret the legislation as it stands.
The courts also start with certain presumptions. The presumptions are operate against the alteration of common law that means even the Parliament is sovereign the common law must not change when the Parliament wants. If there is no intention of Parliament to enact the legislation than the statute does not alter the common law. If there are different interpretation than the one that will maintain the common law situation is the preferred interpretation. Secondly they are in favour of the requirement of a mental element in criminal offences. This deal with the fact that when a criminal act is done, the person that committed it, that is guilty, has not been in a good state of mind. They have to prove that all his mental elements have not been in a normal state.
This is known as means rea and includes intention, gross negligence, recklessness, inadvertence or knowledge of a state of affairs. The consequences of a criminal offence are very serious and this is the reason why the judges must know and be sure if the person that is going to be convicted is in a right mental state. On the other hand in traffic accidents for example there is no need to prove that the defendant had a particular attitude. These are known as strict liability offences. Sometimes the courts must decide if is necessary for the defendant to have a mental element for the offence they are accused. In Sweet v Parsley (1970) a women that rented a house in Oxford Street but she didn’t go there usually was accused for the use of smoking cannabis but she assumed that has no idea that the house was being used in this way. The House of Lords did not convict her until they prove that the purpose of the premises was used for smoking cannabis. The third presumption is against the retrospective effect. This deals with the conduct of the people that convicted a crime in earlier stage when a certain law did not exist to band them to do that action but exists now so they have to be convicted in a retrospective effect. For example the fox hunting is illegal but even this wasn’t before anyone that participated in this event during the last five year is prosecuted. The forth presumptions is against deprivation of liberty that explains that the aim of Parliament is not to deprive a person liberty unless there are clear provisions for a punishment. The fifth one is against application to the Crown. If the legislation does not contain a clear statement than it is not applied to the Crown. The sixth presumption is against breaking international law in the way that legislation must give effect to the international obligations.
The last presumption is known as the rule of language and is the most important. This presumption is in favour of words taking their meaning from the context in which they are used. The ejusdem generis is applied in situations when in a list of general words these words are interpreted in the context of the list. There must be at least two specific words in a list for operating this rule. The expresio unius est exlusio alterius is the rule that excludes others expression because has only one. The things in the list are covered by legislation when the general words do not exist. This is called noscitur sociis. In the ERC v Frere (1969) the House of Lords decided which two of possible meanings of the word interest was preferred by the reference to the word’s location within a statute.
In summary the resources and the presumptions that judges use in the interpretation of legislation are helpful in the mode of communication to understand the right meaning of the words. The language is the key feature that is important to be clear and not ambiguous in interpreting the legislation. There are many vagueness of the language that creates a difficulty in deciding a case therefore is essential for the judges to have a good knowledge of the language that is submitted in the case. Same words have different meanings and the court must be able to find the proper word that fits with the context because in this circumstance a mistake can lead to an unjust decision that can be a grater consequence.
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