Rule and Approaches used by Judges when Interpreting an Act of Parliament
The statutory interpretation might be necessary in the case of complexity and when uncertainty concerning the Acts made by Parliament is required. The complexities that might occur as a result of an Act of Parliament include the "what section provides" and "within the provision" complexities. As a result of these complexities, the judges are called upon to interpret the Acts of Parliament before becoming laws to clear the mischief concerning such acts of parliament. When the judges interpret the acts of parliament, it makes the public have trust in such enacted laws. There are several instances that might be necessitating the interpretation of an Act of Parliament. The instances include the failure of legislation to cater for a particular point which is of interest to the public. The judges may also be required to interpret an Act of Parliament because there might be a broad term that has been applied by the parliament that brings ambiguity before the public. Furthermore, if there is an error that requires for new changes it might also necessitate the judges to interpret the Act before it becomes a law. What is more, if there is a change of language used while drafting the Act, then judges will be required to interpret it to make it clear to the public (Leitch 2000). In some other cases, the Act of Parliament might create an ambiguity where the Act has more than one meaning, and it might cause a dispute when it becomes law. If the Act is not interpreted in its prior stages, then it might affect the outcome of a case depending on which meaning it has been applied.
Historically, several statutes which date back to 18th century and are still applicable in the current world use jargons that have a different meaning as far as the current developments are concerned. An example is the case of Cheeseman V.DPP that occurred in the year 1990 where the ambiguous word “passengers” was necessary to the case. Therefore, while interpreting the Acts of Parliament, judges apply several rules and approaches.
Interpretation of Acts is normally left to the discretion of the judge. The parliament of 1978 passed the Interpretations Act that assists the judges to effectively interpret the Acts of Parliament. The Act sets out general rules and approaches that courts apply to interpret the Acts set by parliament. The rules and approaches set out in the Interpretation Act provide a good framework for the courts to interpret an Act of Parliament accordingly. According to the Interpretation Act of 1987, these rules and approaches have been developed: Literal Rule, Golden Rule, and Mischief Rule (Great Britain 2007). These rules and approaches have been significantly applied since time immemorial to effectively interpret the Acts of Parliament.
The Literal Rule
The rule is also referred to as the plain rule or the ordinary meaning rule. According to this rule, the courts are tasked with the responsibility of giving statute's words their intended meaning regardless of whether the results are sensitive or not. The courts may apply the rule regardless of the outcome of its application so long as the court has applied the rule to its fullest. In most cases, the rule is applied by the orthodox judges. These judges believe that their responsibilities bestowed to them by the constitution are curtailed by the Acts of Parliament. Lord Diplock Duport in the year 1980 said that the courts might be willing to interpret and apply to the laws to produce good results but due to the limitation of the Acts enacted by Parliament, the outcome of their application might then be affected (Hix, 2002). However, judges are afraid of being seen as making laws instead of the legislative arm of the government as bestowed to them by the constitution.
According to the limitation of this, the judges are, therefore, restricted to what is called the black letter of the law. A case was seen during the interpretation of the case of 1984 in the East and West India Dock, where the Human Fertilization and Embryology Authority Act resulted in ambiguity. As a result of the misinterpretation of the Act, Diane Blood was denied the right of getting insemination from the sperm of her death husband (Pound, 2008). The interpretation of the Human Fertilization and Embryology Authority requires that the sperm donation only takes place if there is consent of the donor. The case of Diane therefore, was not successful because her husband had already died.
Advantages of the Literal Rule
The approach is important because it ensures that the public take their laws at their face value.
The rule allows the citizens to get clearly acquainted with the Acts enacted by the Parliament, their meaning and their application in different situations to produce best results.
Furthermore, the approach gives the citizens the opportunity to know the consequences that befall them in case they go against the Acts enacted by the Parliament.
The approach also guarantees the interpretation to ensure that there is a separation of powers according to the arms of government. Lord Diplock argued that the literal rule is important as it clearly gives the separation of powers as far as arms of government are concerned. This, in turn, reduces the challenges that are associated with the collision of the arms of government.
Disadvantages
Words contained in an Act enacted by the Parliament may contain meanings that are not obvious, and therefore, judges might not apply them appropriately, and this might affect the outcome of the case. The literal rule assumes that a particular word has a plain meaning which is not always the same. Thus, it might be difficult for the judges to apply the word in a particular case appropriately. Some words which are assumed to have obvious meaning might have numerous meanings as the language is inherently equivocal.
The mischief rule has only one consideration, and this is problematic as it might not always be deterministic of the issue. Therefore, the mischief rule has been criticized as not assisting very much. It is because the parliament might not decide to do something different to influence the mischief rule.
The mischief rule also does not provide for purposive approach. Therefore, there is a concern in the legislation to remedying the rule to promote the positive economic, social and political objectives.
Golden Rule
The Golden rule also refers to the British rule. Where the parliament processes the results that circumvent instead of being applied, then the golden rule will be applicable. Lord Wensleydale argued that while interpreting the Acts of Parliament, the mischief rule should be applied but incase where the parliament has an intention of producing laws that circumvent rather than applied; then the golden rule should be applied to interpret such Acts, and this will eliminate the absurdity. According to the golden rule, words are given their literal meanings unless in cases where a word seems to result in absurdity.
The court then chooses among the meanings of a particular word and if the meaning is apparent, then the court is advised to adopt the meaning. However, in cases where the word seems to result into a problem; the court is bestowed with the right to modify the meaning of the word to eliminate the occurrence of the problem. An example of the golden rule is the case of Re Sigsworth (1935) where a woman was murdered by her son (Leitch 2000). According to the literal rule, the next of kin who was the son was supposed to inherit the estate of her mother. However, the golden rule could not allow him to benefit from his act of killing her mother. Where the literal rule would have resulted into absurdity, the golden rule has been applied to avoid such absurdity.
Advantages of Golden Rule
Golden Rule is important because it respects the words that are enacted by the Parliament except in some situations and such cases it avoids the problem by applying the literal meaning of the word.
The rule grants the court an opportunity to choose the meaning of the word that is highly sensible in case the word has more meanings in a particular statute or Act.
In cases where the literal rule might result in repugnant situations, the golden rule is applied to interpret such situations.
Disadvantages of the Golden Rule
The golden rule lacks guidelines as when it can be applied.
It is only used in rare cases especially where the literal rule is seen to result in absurdity, and this limits the application of the golden rule.
According to the golden rule, cases are based on the judge’s decision rather than the law in that what seems absurd to one judge might not be absurd before another judge.
It makes it difficult for the lawyers to advise their clients as it is not clear when to apply the golden rule.
Mischief Rule
The mischief rule and approach is the final rule of statutory interpretation. According to this rule, a judge tries to determine the legislator’s intention in what is called the defect and mischief. This is done through what the statute is set to remedy and what ruling will effectively produce as a remedy. According to Barons of the Court Exchequer in Heydon’s Case (1854) the interpretation of an Act of Parliament is guided by four aspects (Hix, 2002):
The common law before making the Act of Parliament
The defect and mischief for which the common law fail to provide
The remedy adopted by the parliament to resolve and cure the absurd
The reason for the remedy and the responsibility of the judges interpreting the Act of Parliament
The mischief rule has applied the purposive approach by relying on the external sources which are common to the law. The approach has been taken into consideration by the mainland Europe and its jurisdictions. The mischief rule has been in existence for over a century, and judges now have the ability to determine the true intention of the parliament. An example is given in the case of Lord Wilberforce in Royal College of Nursing where an abortion case was declared valid because the judges argued that law condemning abortion was not effective during that time (Gifford & Salter, 2006).
Advantages of Mischief Rule
The rule eliminates unjust and absurd results
It gives judges an opportunity to effect the remedy that the parliament decided to cure
It gives an opportunity the law to change the society by developing it.
There is flexibility in the law
Disadvantages
The rule is not strict as the judges might bring their prejudices while interpreting the law
It gives judges an opportunity to re-write statue law which is the responsibility of the parliament
Mischief rule creates a crime after the event occurs
The rule fails to uphold parliamentary supremacy
References
Alsop, V. 2007. The mischief of impositions:, or, An antidote against a late discourse, partly preached at Guild-Hall Chappel, May 2, 1680. called, The mischief of separation. London: Printed for Benj. Alsop, at the Angel and Bible in the Poultrey, over against the Stocks-Market.
Gifford, D. J., & Salter, J. R. 2006 . How to understand an act of Parliament. London: Cavendish Pub.
Great Britain. 2007. Interpretation of legislation [H.L.]. A bill intituled an act to make provision for certain additional matters to be considered and principles to be applied in interpreting acts of Parliament and other instruments. Cambridge [England: Proquest LLC.
Leitch, W. A. 2000. Interpretation and the Interpretation Act 1978. Statute Law Rev, 1(1), 5-13. doi:10.1093/slr/1.1.5
Palmer, E. 2008. The golden rule. New York: St. Martin's Press.
Mitzenmacher, M., 2007. Tight thresholds for the pure literal rule. DEC/SRC Technical Note 1997, 11.
Bugrara, K.M., Pan, Y. and Purdom, Jr, P.W., 1989. Exponential average time for the pure literal rule. SIAM Journal on Computing, 18(2), pp.409-418.
Hix, S., 2002. Constitutional agenda-setting through discretion in rule interpretation: why the European Parliament won at Amsterdam. British Journal of Political Science, 32(02), pp.259-280.
Pound, R., 2008. Common law and legislation. Harvard Law Review, 21(6), pp.383-407.
Ewing, K.D., 1999. The Human Rights Act and Parliamentary Democracy. The Modern Law Review, 62(1), pp.79-99.
