Statutory interpretation is the process by which courts and judges give meaning to enacted legislation and consequently apply it to a particular case. In the English as well as the Wales legal system, the doctrine of separation of powers prevails whereby Parliament is the supreme law maker. The Executive is charged with the responsibility of implementing the legislation as passed by Parliament while the Judiciary is the final arbiter which interprets legislation as enacted by Parliament. Thus, in tandem with the doctrine of separation of powers, the courts must keep within their ambit and ensure they do not arrogate to themselves legislative powers while interpreting statutes. Indeed, the courts in most of the cases seek to ascertain the intention of Parliament while interpreting legislation so as to give effect to the meaning as envisaged by parliament.
It is in recognition of this fact that the courts must not usurp powers of the legislature, being guardians of the law, that the case for statutory interpretation becomes even the more onerous. A number of factors pose a challenge to statutory interpretation for the courts. One, ambiguous words may be used in the drafting of legislation and this may call for interpretation to clear the ambiguity . A typographical error or any other error in drafting can pose challenges as are unforeseen developments that occur and making existing legislation as enacted, inadequate. Also, the draftsman may fail to use certain words that he deems to be implied in the particular legislation and this may not be so implied from the context of the judges. Similarly, a broad phrase with wide meaning may be used leaving judges with the task of grappling with where the meaning lies. It is these challenges amongst others that necessitate statutory interpretation while at the same time ensuring that the legislation serves its purpose-that of ensuring justice prevails. The Statutory Interpretation Act of 1978 seeks to achieve this end by defining a number of common words and expressions and providing that they are to be so applied unless there is an express provision to the contrary in a particular legislation .
In discharging this mandate bestowed by the law, the courts have a wide array of powers and resources at their disposal wherein they draw from. A number of rules of statutory interpretation also known as the canons of construction have been put in place to aid the judges in interpretation. In addition, there exists the purposive approach as advanced by some judges and the European Court of Justice . More so, there are intrinsic and extrinsic aids that also assist judges in the interpretation of statutes.
I shall now examine these powers available to the judges by way of rules of interpretation. One of the rules is the literal rule which demands no more than giving the statute its literal meaning as it can be gleaned from the wording. The courts here tend to take a narrow and strict view of the wording in a statute and creative interpretation is not countenanced. This rule was applied in the case of Fisher v Bell. The literal rule is meritorious to the extent that it recognizes parliament as the lawmaker and encourages accuracy in the drafting of legislation. In addition, it eliminates the difficulties that other users of the statute would have to contend with, in trying to grapple with how the judges may rewrite the same legislation. Nonetheless, the rule per se has inherent flaws . As illustrated by the Fisher v Bell case, it could result to an injustice being occasioned owing to the indeterminacy of the clear intention of parliament. This has the effect of negating the very purpose of the existence of such legislation. The rule also ignores the shortcomings of language and tends to place undue weight on literal meaning of words which is akin to trying to attain the near-impossible act of perfection in draftsmanship.
Well cognizant of the limitations of the literal rule in some instances, courts also have the power to apply the golden rule in interpretation so as to cure the absurdity that would otherwise result if the ordinary meaning of the wording were to be adhered to . It is usually applied where the wording is ambiguous and it would be absurd to read the wording in its plain meaning. This relaxation of the literal rule was applied to satisfactory results in Adler v George.
The third rule of interpretation available to the judges is the mischief rule as espoused in the Heydon’s Case (1584) 3 Co Rep 7. The reason of the development of the rule was not to supplant the earlier rules that were there but to complement them by way of covering their inadequacies. Whilst interpreting a statute, the rule behooves judges to examine the common law in existence before the enactment of the statute. They are then to explore the defect and the mischief for which the common law did not provide . Then, they need to seek the remedy that parliament appointed to cure the defect and consequently make an interpretation that will suppress the mischief and advance the remedy sought. This was so applied in the case of Smith v Hughes where the defendants contended that they had committed no offence after having been found soliciting for prostitution from a balcony. The Street Offences Act proscribed solicitation of prostitution on the streets and they argued that the balcony was not a street for the purposes of the Act for the offence to lie. The judges, while applying the mischief rule, found them guilty holding that the mischief sought to be curbed was that of solicitation and convicted them accordingly. It did not matter that the offence was committed in the balcony or the streets as provided in the law.
Amongst the several powers attendant to the courts in interpreting statutes is the purposive approach which has been influenced by the European approach. Purposive construction is that which seeks to promote the general legislative purpose underlying the provisions of the relevant legislation. This approach was indeed adopted by the House of Lords in the case of R v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-life Alliance),2003 concerning the question whether the Cell Nuclear Replacement in human reproduction as a result of technological advancement was covered by the 1990 Act. The court applied a purposive approach and held it was so included though the advancement was not in place at the time of enactment of legislation holding that parliament intended to subsume all such advancement.
It is instructive that the wide powers that judges enjoy in statutory interpretation are meant, and meant only to secure justice and ascertain the intention of parliament and not to encroach on the legislative power of parliament. Similarly, there are the inevitable instances where judges end up making law in the process of interpretation .
In the quest to ascertain the ever elusive intention of the law maker, courts also now enjoy powers to have reference to parliamentary debates vide the Hansard to understand the context in which a particular legislation was enacted. This is so in instances where the law is ambiguous and such parliamentary material clearly sheds light on the mischief in question. This was laid down in the case of Pepper v Hart (1992). However, this reference to the Hansard is not without limitation . It is limited to statements made by a Minister or a promoter of an enactment, so as to avoid subversion of the will of Parliament as expressed through legislation.
In addition, the breadth of powers enjoyed by courts extends to the internal aids in the particular statute. The long title of a statute can give a general objective of the statute as is the recitals in preamble where a mischief sought to be suppressed is described as well as the scope of the particular legislation. The short title, headings, side-notes and punctuation are also some of the internal aids to interpretation. The external aids to interpretation include the historical setting of the particular enactment that is subject to interpretation . Dictionaries and other literary sources is also a valuable guide for the meaning of certain statutory words as are other statutes in similar phraseology. Treaties, international conventions and official reports preceding the enactment of a particular legislation can also be had regard to, albeit with abundant caution.
Within this context of statutory interpretation, courts also give due regard to a number of presumptions such as presumption against changes in common law, against retrospective operation, against ousting the jurisdiction of the courts and interference with vested rights.
Judicial precedent
The doctrine of judicial precedent is employed in the English and Wales legal system and refers to the phenomenon of deciding like cases the same way. Cases which are substantially similar in facts and legal issues to be determined in the same way with a previous decision of a superior court. Judicial precedent is based on the doctrine of stare decisis which literally means let the decision stand. This principle has long come to be regarded as the cornerstone of the development of common law in the English legal system. It has been extolled for its certainty, consistency and predictability. Another argument advanced in support of the doctrine is enabling lawyers to advise their client on the legal position . It therefore follows that a judge of a lower court while interpreting a statute is bound by a prior decision of a superior court in the event that there are similar legal issues or of fact.
The upshot of this is that judicial precedent acts as a guide for judges whilst interpreting statutes in the exceptional cases where similar issues have been canvassed before a superior court and a ruling rendered. In such instances, the judge of the lower court usually has no room to depart from such precedent. It can however be said that this inflexibility could hamper the development of the law as well as statutory interpretation.
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