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UNIVERSITY OF LONDON

SUBJECT: COMMON LAW REASONING AND INSTITUTION

ESSAY TITLE: “The Human Rights Act has revolutionised the way in which judges interpret statutes.”

STUDENT REGISTRATION NUMBER: 111210996

EXAM CANDIDATE NUMBER: 110513

Statutes historically comprised a small portion of the law in the English legal system. The rules

of presumption on statutory interpretation adopted in England owe their unique character to the

changing constitutional balance between King, Parliament and senior judges. The governing

idea for the judiciary for many years was that it was best to leave the common law alone and

that statutes were not to be passed unless absolute necessary and legislation was to be

interpreted strictly. One attempt was to interpret the statutes in a narrow and literal form, thus

ensuring the scope of the statute was kept as narrow as possible. The situation has now

change, commentators now talk of purposive approach to interpretation and the age of literal

interpretation may have ended in the late 1960s. The Human Rights Act presents a new chapter

to construe legislation as to make it as far as possible in line with the HRA, if not to declare it as

incompatible. R v Harris the defendant bit off his victim's nose, the statute made it an offence 'to

stab cut or wound' the court held that under the literal rule the act of biting did not come within

the meaning of stab cut or wound as these words implied an instrument had to be used.

Therefore, the defendant's conviction was quashed.

Bennion (1990) has identified a number of factors that may cause doubt in interpreting a

statutory provision- (a) Ellipsis: the drafter refraining from using certain words that be regards as

implied automatically, (b) Broad terms with wide meaning are often use (e.g. vehicle clearly

covers motor cars, buses, motor cycles), (c) The meaning of statutory expression may change

over time – e.g. does family include common law spouse, does father refers to biological or the

social father, (d) Deliberate uncertainty. Drafters may deliberate use ambiguous word e.g.

where provision is politically contentious unforseeable development, (f) Inadequate use of

words, (g) Printing errors and drafting errors.

Basically there are three approaches to statutory interpretation. These are the Literal, Golden

and Mischief Rule. A general purposive approach also operative , each rule originated in

different stage of legal history and these are not really ‘rules’ but approaches to interpretation.

The ‘classic’ modern account of the role of these ‘rules’ was given in 1938 by J. Willis in an

article entitled ‘Statutory Interpretation in a nutshell (16 Can Bar Rev 1). Most recently Sir

Rupert Cross has suggested that the English approach involves a progressive analysis rather

than a choice among alternative rules. The Judge first consider the ordinary meaning of words

in general context of statute then moves in to consider other possibilities where ordinary

meanings leads to absurd result. This is known as the unified contextual approach and is

supported by dicta in the House of Lord decisions. In case of doubt or difficulty judges often say

it is necessary to discover the ‘intention of the parliament’ (this is the purposive approach).

The literal rule states that the words used in statute must be given their plain, ordinary or literal

meaning. The literal rule encourages precision in drafting and likely to produce result closest to

the meaning intended by Parliament. It avoids the danger of statutes being effectively re-written

by judges. However, judges have excessively emphasised the literal meaning of statutory

provisions without giving due weight to their meaning in wider context. The literal rule is the

most clearly restrictive of the ‘rules’ it is in a sense conservative. In 1982 Lord Esher said in R v

the Judge of the City of London Court (19892) 1 QB 273 that if the words a statutes were clear,

they must be followed even if the result is not sensible, and even if it is absurd and unjust.

Sometimes it clearly seems that the judges want to show that Parliament creates stupidities in

the law when it over legislates. Thus, in 1884 Lord Bramnwell said that if Parliament created

such absurdities then it was the job of the Parliament to alter the words and not the courts. In

Whitelely v Chappel (1868) 1 WLR 565 statute made it an offence for anyone during election to

impersonate another person who was entitled to vote. The defendant impersonated a dead

person and the court found him not guilty since it used the narrow literal rule because a dead

person was not entitled to vote.

At times, the golden rule expressed as Lord Wensleydale’s golden rule. The words of Parke B

(who became Lord Wensleydale) in the case of Becke v Smith (1836) 2 M&W 191 are often

quoted: It is a very useful rule in the construction of statute to adhere to the ordinary meaning of

the words used, and to the grammatical construction, unless that is at variance with the intention

of the legislature to be collected from the statute itself, or leads to any manifest absurdity or

repugnance, in which case the language may be varied or modified so as to avoid such

inconvenience, but no further. This interpretation was expressively adopted in the case of

Mattison v Hart (1854) 15 CB 357. In essence it states that literal approach should be followed

until it produces absurdity, There are other problems with absurd such as does it mean

inconsistent with other provisions in the same act or absurd for other reason. The 1969 Law

Commission said that the rule provides no clear means to text absurdity and did not favour it.

Apart from that mischief rule was illustrated in Heydon’s Case (1584) 3Co Rep 7a , “What was

the common law before the making of the act”? What was the mischief and defect for which the

common law did not provide? What remedy the parliament has resolved and appointed to cure

the disease of the commonwealth? True reason for the remedy , the office of the judge is

always to make such construction as shall suppress the mischief, and advance the remedy, and

to suppress subtle inventions and evasions for continuance of the mischief, and pro private

commodo, and to add forces and life to the cure and remedy according to the true makers of the

Act. The rule is rule is the oldest of the rules dating from a time when the judges had much

influence over the contents of the act and where the position of the parliament was not as

powerful as it is today.. The mischief rule does not allow the court to re-write the Act. In Smith v

Hughes (1960) 2 All ER 859; a prostitute taping the window soliciting for customer was not

contravening Street Offences Act 1959. Seaford Courts Estates Ltd v Asher (1950) Denning had

argued that: ‘We sit here to find out the intention of Ministers and of Parliament and carry it out,

we do this better by filling in the gaps and making sense if the enactment than by opening it up

to destructive criticism. Viscount Simmonds said it appears to me a naked usurpation of the

legislative function under the thin guise of interpretation .If a gap is discovered, the remedy lies

in amending the act.

The purposive approach encourages the judge to look for the spirit of the act and to read words

into or out of the act when this is necessary. There is no need to wait for absurdity before the

judge begins to operate in this way and no need to consider existing common law. A clear

statement on this approach comes from Denning LJ in Seaford Court Estates Ltd v Asher

(1950) 2 All ER 1236 . Lord Denning’s Approach was severely criticised. Viscount Simmonds in

Magor & St Mellons RDC v Newport Corporation (1952) AC 189 said in Denning LJ’s views are

naked usurpation of the legislative function. In 1980 Lord Scarman said in a lecture that ‘on-one’

would dare to choose the literal rather than a purposive construction’ of a statute. Although

judges frequently refer to the concept of purposive statutory construction, this approach should

be used carefully and in any case will often produce the same result as literal interpretation.

There are few sections under Human Rights act which affects the way judges interpret statute.

Under s.3(1) of Human Rights Act 1998, the court may not disapply legislation. The court may

merely issue a ‘declaration of incompatibility’ which gives rise to a power to take remedial

action. Will this blur boundary between interpretation and amendment of status.In R v Y House

of Lords held that Youth Justice and Criminal Evidence Act 1999 s.41 should be interpreted so

that it is compatible with article 6(1) Right to Fair Trial even though a literal interpretation would

indicate that complainants must be protected in court from questions concerning their sexual

history when they alleged rape. However, under s.3(2)(b) states the declaration wil not affect the

validity of the statute, its continuining operation or enforcement. According to s.4(6) does not

affect the validity of the provision that must continue to be applied unless and until it is applied

by parliament. The case then must be decided according to the meaning of the words under the

traditional rules of interpretation.

In conclusion , it has being argued that Human Rights Act has revolutionised the way in which

judges interpret satutes. Basically, principles to Human Rights Act are not totally foreign to

English law but it’s a part of our constitution to protect citizens right and freedom. The Human

Rights Act 1998 has had an effect on all cases where there is an issue of human rights. Section

3 of the HRA 1998 states that an Act must be read and given effect in a way that is compatible

with the European Convention of Human Rights. If a court finds that a provision in incompatible

it may make a declaration of incompatibility however this does not affect the validity, continuing

operation or enforcement of the provision of which it is given and is not binding on the parties to

the proceedings in which it is made. Lady Justice Arden states ‘The UK is a relative newcomer

in the field of statutory interpretation and human rights. But it is clear, even from domestic law

developments thus far, that human rights require a fresh approach to some of the established

ideas and concepts of statutory interpretation. Moreover, there is plenty of scope for the courts

to develop further the approach to the interpretation of legislation where human rights are

involved.' This shows that Human Rights Act does change the way judges make law by giving a

further approach in interpreting cases involving human rights.

The impact of the Human Rights Act and in particular sections 3 and 4 has not been as marked

as was expected, however it has resulted in a number of seminal judgments as in the Venables

case, and in a number of legislative alterations as in the case of the Gender Recognition Act

2004. However, the number of declarations of incompatibility has remained relatively low and

this can be attributed to the non-retrospective affect of the provisions and the courts

unwillingness to make such a declaration .Fundamentaly, judges are not empowered to strike

down the legislation that is incompatible because this would usurp fundamental constitutional

principle namely separation of power and parliamentary supremacy.

According to Francis Bennion, section 3(1) of Human Rights Act 1998 the compatible

construction rule should be taken as requiring the enactment in question to be construed

according to the development method, thus bringing in wider European System of purposive

construction. So, it does not provide a third party method, it drastically alters existing methods

which guides statutory interpretation to re-open all precedents.

Therefore, with this in mind, section 3 of the requires the UK's domestic courts to construe

legislation in the context of European Convention rights as they stand at the time of the

judgement, so the meaning of statutes may change as interpretations of European Convention

rights change over time. At this point of view, it has given effect to the statutory interpretation.

BIBLIOGRAPHY

1) Article: The Language of Statutes: Laws and their interpretation

Author: Lawrence M.Solan

Sources: Dawsonera (Dawson Books)

Publisher: University of Chicago Press

2) Article: HRA 1998 (section 3) Interpretation of legislation

Sources: Justis Human Rights

Citation: 42

3) Article: Human Rights

Author: Daniel Greeberg

Sources: Westlaw. UK.

4) Article: ‘What interpretation is ‘possible’ under s.3(1) of Human Rights Act 1998?’

Author: F.A.R. Bennion

Sources: Public Law Spring (pp.77-91)

Publication List: 2000.011

5) Article: Statutory Interpretation

Author: Smith & Bailey

Sources: Law Teacher

Publisher: English Legal System

6) Article: Reading down legislation under HRA

Author: Richard A Edwards

Sources: Wiley Online Library

Publisher: Legal Studies (volume 20)

7) Article: Section 3 of Human Rights Act 1998

Sources: Wikipedia

8) Article: Statute interpretation in a Nutshell

Author: J Willis

Sources: Hein Online

9) Article: The interpretation of UK Domestic Legislation in the Light of European

Convention on human Rights Jurisprudence

Author: E Rt Hon Lady Justice

Sources: Statute Law Review

Citation: Volume 25, Issue 3,pp.165-179,2004.

10) Article: Literal and purposive techniques of legislative interpretation,some European

Community and English Common Law perspectives.

Author: I Mc Leod-Brook J

Sources: Hein Online