sources of law statutory interpretation. what do you need to know? why we need statutory...
TRANSCRIPT
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Sources of Law
Statutory Interpretation
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What do you need to know?• Why we need statutory interpretation• How each rule works• You should know at least two cases for each rule• The strengths and weaknesses of each rule• The difference between the mischief rule and the
purposive approach• What approach is used most • The rules of language• Presumptions• Intrinsic aids• Extrinsic aids (particularly when Hansard can be used)• The impact of the Human Rights Act 1998
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Common mistakes
• Not using the source• Only using the source – not knowing any other cases• Not answering the question asked• In question B only applying one rule or approach to each
situation• Not answering part of a question• Getting intrinsic and extrinsic aids muddled• Not being able to distinguish the rules of language• Lack of detail• Lack of discussion and comment for AO2
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How to avoid these mistakes• Revise thoroughly• Answer the questions asked• Apply all three rules or both approaches to
each situation in question B• Refer to the source throughout your answer –
you can refer to line numbers you do not have to write out chunks of source
• Use a highlighter to highlight the source for each question
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The Literal Rule
• The natural meaning of a word• Whitely v Chappell (1869)• Berriman (1946)• Fisher v Bell (1960)
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Strengths and criticisms
• Strengths• Simple – just give words their normal meaning• Courts do not need to guess what parliament
meant• Normally works fine• Criticisms• Can lead to unfair and illogical decisions• Zander – mechanical and divorced from the
realities of language
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The Golden Rule
Two approaches• Narrow- If there are two possible
meanings choose the the most sensible
• R v Allen (1872)
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The broad approach
• Re Sigsworth
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Strengths and weaknesses
• Safety net for the literal rule• But hardly ever used• Judges don’t like telling parliament
they are being absurd• Broad approach is really judges
making up law
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The Mischief Rule
• Heydon’s Case (1584)1.What was the common law before the
act2. What was the mischief the common law
did not deal with3. What was the remedy parliament came
up with4. The reason for the remedy – suppress
the mischief and advance the remedy
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Cases
Smith v Hughes (1960)
Royal College of Nursing(1981)
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Strengths and criticisms
• Finds the meaning that seems to be what parliament intended
• Looks at the reason for the law• Can be used to extend the meaning of
an act to fit new situations• Needs the use of extrinsic aidsSo cases might be more expensive and
time consuming
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The Purposive Approach
• Magor and St Mellons v The Newport Corporation (1950)
• Royal College of Nursing• How does it differ from the mischief rule• DPP v Bull
• The European approach• Purposive approach has to be used for European law
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Rules of Language
• Ejusdem Generis
• Noscitur a sociis
• Expressio unius est exclusio alterius
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Presumptions
• A presumption against a change in the common law
• A presumption that mens rea is required in criminal cases
• A presumption that the crown is not bound by any statute
• A presumption that legislation does not act retrospectively
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Aids to interpretation
Intrinsic aids• Short title• Long title• Preamble• Headings• Interpretation section
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Extrinsic Aids
• Previous Acts of Parliament• The Historical setting• Earlier case law• Dictionaries of the time• Hansard• Reports of law reform bodies• International conventions, treaties, or
european law
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The use of Hansard
• Davis v Johnson(1979)• Hansard was not allowed to be used • What were the reasons?• Pepper v Hart (1993)• Limited use permitted. What are the
circumstances it is allowed?• What are the advantages and
disavantages of using Hansard?
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The Human Rights Act 1998
• S 3 All legislation should be read and given effect in a way that is compatible with the European Convention on Human Rights.