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This report will investigate and analyse the way in which legislation is communicated between Parliament and the Judiciary, whilst showing the methods in which it is interpreted in relation to a particular situation. There are four rules which can apply when interpreting legislature, which are the literal; golden; mischief and purposive. Each of these shall be critiqued showing the benefits and limitations of each by real life examples.
Within the UK constitution, it shows parliamentary sovereignty, this is where parliament has supreme legal authority within the country, meaning it can create or end any law (Parliament.uk 2018). It is within this democratic society where the separation of powers occurs. This refers to the idea that major institutions should be functionally independent, and that no individual should have powers that exceed these offices. For this reason, the branches taken to be are the executive, the legislative and the judiciary, all of which remain completely separate to guard against tyranny and preserve liberty (Benwell and Gay, 2011). Parliament does seek to avoid loopholes and ambiguity when drafting statutes, but it is impossible to make all legislation entirely clear, due the countless circumstances that can arise under any one legislative provision. Although, a problem surrounding the interpretation of legislation is that a word can have more than one meaning, also the contect may not help. For example, the words ‘season’ can mean winter, summer etc; or to add salt and pepper to a meal; which when put into practice may allow for slightly different interpretation between cases. The literal, mischief and golden rules are perfect examples of how legislation is interpreted, and how judges are given a level of flexibility with their interpretation of the legislation. However, the flexibility in itself causes inconsistency, which does lend uncertainty to the process (Greenberg, 2018). A lot of work goes into the drafting of a statute by specialist draftsmen who advise the Government in a similar way to a lawyer advising a client. These draftsmen purposefully used language that is as definitive as possible to reduce the risk of uncertainty. There is a lot of consultation with relevant government departments and often a public consultation process as well. The draft bill will then be subject to parliamentary scrutiny which includes a number of stages; first reading; second reading; committee stage, report stage; third reading and finally royal assent (gov.uk 2013). It is within this process that as much ambiguity will be removed as possible.
When the judiciary is faced with a piece of legislation created by parliament, it is the courts job to interpret the statute and apply the law as they felt parliament intended it using the facts of the case before them. The first rule developed to assist with this interpretation is the ‘literal rule’, this is the first rule to be applied to most UK law, but not EU law. “The literal rule gives all the words in a statute their ordinary and natural meaning even if this leads to a ‘manifest absurdity’” as stated by Lord Esher in R v City of London Court Judge (1892). This rule requires the judge to give each of the words in the statute their natural and ordinary dictionary meaning and it should be applied without seeking to make sense of the statute. This may make the case seem contrary to the rules of parliament, but not always, as seen in Whitley v Chappel (1868). It was within this case that the defendant assumed the identity of a man whom was deceased in order to use that persons vote. A statute made it an offence to “impersonate any person to vote”. It is within this statute using the literal rule that a judge interpreted that a person must be living in order to be entitled to vote. The use of this rule then found the defended to be acquitted of the offense. This case shows that an absurdity did in fact occur, although under different circumstances the defendant could have been found guilty. Another controversial case where the literal rule was used is R v Bassett (2008), this case is centred around the Sexual Offences Act 2003 (SOA) and the act of ‘voyeurism’. The defendant disguised a small video camera and took it into a swimming pool changing room where he filmed a man taking a shower which is prohibited under section 67 of the SOA. In particular, section 68-1a it states “the person’s genitals, buttocks or breasts are exposed or covered only with underwear” (Legislation.uk 2018). It was found by the court of appeal that only women’s breasts can be regarded as ‘private parts’, whereas the male chest cannot. It was because of this finding and that the man was in an open shower, not a private one using the literal rule, he was acquitted of all charges. The two cases in question have been used to show how the use of the literal rule can create an absurdity and allow for loopholes in certain statutes. However, the major benefit of this rule is that a judge can determine exactly what Parliament meant when passing the legislation and allows for certainty in the law.
The second rule is the ‘golden rule’, this is a slight modification of the literal rule. This rule is defined by Lord Wensleydale in Grey v Pearson (1857), who stated “the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no farther”. There are two taken whilst applying the golden rule, these being the narrow and broad approach. The narrow approach is applied when a word or phrase is capable of more than one literal meaning. This approach allows the judge to use the meaning which is obviously relevant to avoid the absurdity. This can be seen in R v Allen (1872), the defendant was charged with the offence of bigamy under the Offences Against the Person Act 1861 section 57. This section as stated on Legislation.uk (2018) says “whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an offence”. The defendant argued that it was not possible to be legally married twice, as any attempt to marry in such circumstances would not be recognised as a valid marriage, therefor it was impossible to married twice. The interpretation of the word ‘marry’ was pivotal in this case, with the court having to decide if the literal sense was to be used, meaning to become legally married to another person, or it meaning to go through a marriage ceremony. To avoid an absurd result, the court applied the golden rule and determined it to mean to go through a marriage ceremony and the defendants conviction was upheld. The broach approach is applied when there is only one literal meaning, but by applying that one literal meaning would cause an absurdity. An example of this can be seen in the case of Adler v George (1964), in which the defendant was charged under the Official Secrets Act 1920 with the offense of obstructing a member of the armed force in the vicinity of a prohibited place. The defendant argued that he was actually inside the prohibited place, as opposed to within the vicinity. In the literal sense, the vicinity does not include inside, meaning if the literal rule would have been applied the court would have found him to be not guilty. The court therefor used the golden rule to interpret the phrase ‘in the vicinity’ to include ‘inside’ a prohibited place as to avoid an absurdity. As can be seen from these cases, it allows the court to make sensible decisions and prevents Parliament from having to pass amending legislation. This is clearly shown in the R v Allen (1872) case where the loopholes were closed and the decision was conforming with that of Parliament. The consequences of the golden rule, although it seem relatively sensible on the face of it, leads to ‘judicial law-making’. When courts decide cases based on their interpretation of the statute they can technically change the law, this can then become a precedent that binds future courts under the doctrine of stare decisis (Steinman, 2004).
The mischief rule, is the oldest of the rules and involves the use of context to indicate the legislature intent. Lindsey MR said in in Mayfair Property Co, Re, Bartlett v Mayfair Property Co (1898), ”in order to properly interpret any statute it is as necessary now as it was when Lord Coke reported Heydon’s Case to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief”. The mischief rule is applied to find out what ‘mischief’ Parliament was trying to counteract. The key rules within the mischief rule come from Hayden’s case (1584), the first of which is the courts consider the common law before the act was passed and then identifying what was wrong with the law. The court will then have to decide how parliament intended to improve the law through the statute in question. Once the mischief Parliament had been aiming to remedy had been identified it will then be applied to the case in question. A common example of the mischief rule being applied was with Smith v Hughes (1960), where the defendants were prostitutes being charged under the Street Offenses Act 1959 which made in an offence a person to loiter or solicit in a street or public place for the purpose of prostitution. In this case the defendants were soliciting from private premises through windows or balconies and could be seen by the public. The literal and golden rule show that they were not soliciting in a public place. Under the use of the mischief rule, the mischief Parliament was trying to stop was streetwalking and prostitution, which is in correspondence of the actions of the defendant. Through this interpretation of the law it allowed Parliaments aim to be fulfilled. This rule allows for a far greater degree of judicial law-making as it allows the judge to interpret what Parliament was trying to put right with the previous law. Judges may even misinterpret facts which may effectively change laws simply based on what the judge thinks; if the golden rule is seen as going against the principles of democracy and the separation of powers then the mischief rule most definitely does. Although this rule does allow judges to close loopholes in the law at set a precedent, is this form of judicial lawmaking allowed. Do you adhere to the separation of powers and apply the literal rule whilst accepting absurd results, which will evidently move to a point in time where it is not parliament making your law, contributing towards a difficult balancing act.
The purposive approach is applied to all European law before the literal rule, it is driven by the European Communities act 1972. With this approach the court is not just looking for the gap within the previous law, like that of the mischief rule, it is intended for making a decision as to what they felt Parliament wants to accomplish. A case where this is found Pickstone v Freemans plc (1998), where the defendant brought a claim against her employer under the Equal Pay Act 1970. Under the literal approach it was decided that it would have the UK in breach of its treaty obligations to give effect to an EU directive. It was therefor decided that using the purposive approach, the defendant would have the right to equal pay. Seen as a more modern version of the mischief rule, this it shares both the same pro’s and con’s.
The Human Rights Act 1998 (HRA) has a profound impact on the English legal system, with the enforcement of section C, which states “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights” (Legislation.uk 2018). The case of Ghaidan v Godin-Mendoza (2004) is a high profile case regarding the interpretation of the Rent Act 1977 following the Human Rights Act 1998.
The case of Ghaidan v Godin-Mendoza (2004) was concerned with the interpretation of the Rent Act 1977 following the Human Rights Act 1998. The Rent Act 1977 creates protected tenancies which give tenants very favourable rights, including in practice low rents. Under the legislation the protected tenancy passes on the death of the protected tenant to the surviving spouse living in the house or the person living with the protected tenant ‘as his or her wife or husband’. Before the Human Rights Act 1998 was passed this was interpreted by the House of Lords as not including homosexual relationships. In the Ghaidan appeal, it was successfully argued that the 1977 Act had to be interpreted, following the Human Rights Act 1998, in a way that did not discriminate against homosexuals.
The case of Attorney-General’s Reference No. 4 of 2002; Sheldrake v DPP (2004) involved two separate appeals which were considered together because they raised the same legal issue. They were concerned with whether the imposition of a legal burden on a defendant to prove that they had not committed an offence breached the presumption of innocence protected in Article 6 of the European Convention. The House of Lords concluded that the relevant legislation did not breach the European Convention and in reaching this conclusion it considered its role in interpreting statutes following the Human Rights Act 1998.
- Benwell, R. and Gay, O. (2011) The Separation of Powers. Parliament and Constitution Centre.
- Parliament.uk (2018) Parliament’s authority. Available from: https://www.parliament.uk/about/how/role/sovereignty/ [Accessed 20 December 2018].
- Gov.uk (2013) Legislative process: taking a Bill through Parliament. Available from: https://www.gov.uk/guidance/legislative-process-taking-a-bill-through-parliament
- [Accessed 14 December 2018].
- Greenberg, D. (2018) Statutory Interpretation – A Pragmatic Approach. Statute Law Review, 39 (3), 351-354.
- R. v. City of London Court Judge (1892) 1 QB 273
- Whitely v Chappel (1868) LR 4 QB 147
- R v Bassett (2008) EWCA Crim 1174
- Legislation.uk (2018) Sexual Offences Act 2003. Available from: https://www.legislation.gov.uk/ukpga/2003/42/section/68 [Accessed 21 December 2018].
- Grey v Pearson (1857) HL Cas 61
- R v Allen (1872) LR 1 CCR 367
- Legislation.uk (2018) Offences Against the Person Act 1861. Available from: https://www.legislation.gov.uk/ukpga/Vict/24-25/100/section/57 [Accessed 21 December 2018 ].
- Adler v George (1964) 2 QB 7
- Steinman, A. (2004) A Constitution for Judicial Lawmaking
- Mayfair Property Co. Bartlett v. Mayfair Property Co. (1898) 2 Ch. 28
- Heydons Case (1584) EWHC Exch J36
- Smith v Hughes (1960) 1 WLR 830
- Pickstone v Freemans plc (1989) AC 66
- Legislation.uk (2018) Human Rights Act 1998. Available from: https://www.legislation.gov.uk/ukpga/1998/42/section/3 [Accessed 26 December 2018].
- Link with doctrine of presedent.
- Article on The Impact of Human Rights on the UK Legislative Process
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