SOURCES OF LAW

It is certainly true, as the experience of the previous Conservative administration in the UK demonstrated, that governments with small majorities, if not actually in a minority, have to be circumspect in the policies they pursue through parliament. The fact that the elections of 1997 and 2001 returned the Labour Party to power, with much larger majorities than even they expected, once again raised the prospect of an over-powerful executive forcing its will through a politically quiescent parliament. Even the large vote against the war with Iraq in March 2003 was not sufficient to derail the will of the executive. One outstanding example where the previous government could not secure an overall majority was in relation to the vote on the proposal in the Terrorism Bill 2006 for the extension of the period of detention of suspected terrorists from 28 to 90 days.

The establishment of the coalition government clearly involves an increase in fissile tendencies, as the government faces not only the difficulty of controlling members of more than one party, but faces the much harder task of holding together two discrete memberships with sometimes incompatible political views. In response to this perceived potential difficulty one of the first decisions taken by the coalition was to introduce the constitutionally controversial Fixed-term Parliaments Act 2011. The stated purpose of this Act is to provide for five-year fixed-term parliaments. It actually fixes the date of the next General Election at 7 May 2015, although it allows the Prime Minister some leeway to alter the date by up to two months before or after that date. It also provides only two ways in which an election could be triggered before the end of the five-year term:

• if a motion of no confidence is passed and no alternative government is found;

• if a motion for an early General Election is agreed either by at least two-thirds of the House or without division.

The government generates most of the legislation that finds its way into the statute book, but individual Members of Parliament may also propose legislation in the form of Private Members’ Bills.

There are in fact three ways in which an individual Member of Parliament can propose legislation:

• through the ballot procedure, by means of which 20 backbench Members get the right to propose legislation on the 10 or so Fridays in each parliamentary Session specifically set aside to consider such proposals;

• under Standing Order 39, which permits any Member to present a Bill after the 20 balloted Bills have been presented;

• under Standing Rule 13, the 10-minute rule procedure, which allows a Member to make a speech of up to 10 minutes in length in favour of introducing a particular piece of legislation.

Of these procedures, however, only the first has any real chance of success and even then success will depend on securing a high place in the ballot and on the actual proposal not being too contentious. Examples of this include the Abortion Act 1967, which was introduced as a Private Member’s Bill to liberalise the provision of abortion, and the various attempts that have subsequently been made by Private Members’ Bills to restrict the original provision. In relation to particular reforms, external pressure groups or interested parties may very often be the original moving force behind them. When individual Members of Parliament are fortunate enough to find themselves at the top of the ballot for Private Members’ Bills, they may well also find themselves the focus of attention from such pressure groups proffering pre-packaged law reform proposals in their own particular areas of interest.

The decision as to which government Bills are to be placed before parliament in any Session is under the effective control of two Cabinet committees:

• the Future Legislation Committee determines which Bills will be presented to parliament in the following parliamentary Session;

• the Legislation Committee is responsible for the legislative programme conducted in the immediate parliamentary Session. It is the responsibility of this Committee to draw up the legislative programme announced in the Queen’s Speech, delivered at the opening of the parliamentary Session.

Green Papers are consultation documents issued by the government, which set out and invite comments from interested parties on particular proposals for legislation. After considering any response, the government may publish a second document in the form of a White Paper, in which it sets out its firm proposals for legislation.

3.3.2 THE LEGISLATIVE PROCESS

Parliament consists of three distinct elements: the House of Commons with 650 directly elected members; the House of Lords with 777 unelected members (the government announced the creation of an additional 54 peers in November 2010); and the monarch. The Parliamentary Voting System and Constituencies Act 2011 reduces the future number of MPs to 600. The Act also provided for a referendum on an alternative voting system, which was rejected in May 2011. A draft Bill to reform the composition of the House of Lords will be considered further at 3.3.2.1.

Before any legislative proposal, known at that stage as a Bill, can become an Act of Parliament, it must proceed through, and be approved by, both Houses of Parliament and must receive the Royal Assent. The ultimate location of power, however, is the House of Commons, which has the authority of being a democratically elected institution.

A Bill must be given three readings in both the House of Commons and the House of Lords before it can be presented for the Royal Assent. It is possible to commence the procedure in either House, although money Bills must be placed before the Commons in the first instance.

When a Bill is introduced in the Commons, it undergoes five distinct procedures:

• First reading. This is purely a formal procedure in which its title is read and a date set for its second reading.

• Second reading. At this stage, the general principles of the Bill are subject to extensive debate. The second reading is the critical point in the process of a Bill. At the end, a vote may be taken on its merits and, if it is approved, it is likely that it will eventually find a place in the statute book.

• Committee stage. After its second reading, the Bill is passed to a standing committee whose job it is to consider the provisions of the Bill in detail, clause by clause. The committee has the power to amend it in such a way as to ensure that it conforms with the general approval given by the House at its second reading. Very occasionally, a Bill may be passed to a special standing committee which considers the issues involved before going through the Bill in the usual way as a normal standing committee. Also, the whole House may consider certain Bills at committee stage. In general, these are Bills of constitutional importance, such as the House of Lords Bill, which proposed the reformation of the Upper House in 1999. Other Bills that need to be passed very quickly and certain financial measures, including at least part of each year’s Finance Bill, are also considered by the committee of the whole House.

• Report stage. At this point, the standing committee reports the Bill back to the House for consideration of any amendments made during the committee stage.

• Third reading. Further debate may take place during this stage, but it is restricted to matters relating to the content of the Bill; questions relating to the general principles of the Bill cannot be raised.

When a Bill has completed all these stages, it is passed to the House of Lords for its consideration. After consideration by the Lords, the Bill is passed back to the Commons, which must then consider any amendments to the Bill that might have been introduced by the Lords. Where one House refuses to agree to the amendments made by the other, Bills can be repeatedly passed between them but, as Bills must usually complete their process within the life of a particular parliamentary Session, a failure to reach agreement within that period might lead to the total loss of the Bill. However, in 1998, the House of Commons Modernisation Committee agreed that, in defined circumstances and subject to certain safeguards, government Bills should be able to be carried over from one Session to the next, in the same way that Private and Hybrid Bills may be. The first Bill to be treated in this way was the Financial Services and Markets Bill 1998–99, which the House agreed to carry over into the 1999–2000 Session after a debate on 25 October 1999. The effect was to stay proceedings on the Bill in standing committee at the end of the 1998–99 Session and to carry it over into the next Session, when the committee resumed at the point in the Bill it had previously reached. In October 2004, a contested vote in the Commons made the carry-over process a permanent Standing Order of the House.

The Parliament Acts

Given the need for legislation to be approved in both Houses of Parliament, it can be seen that the House of Lords has considerable power in the passage of legislation. However, the fact that it was never a democratically accountable institution, together with the fact that until 2005 it had an in-built Conservative party majority reflecting its previous hereditary composition, meant that its legislative powers had to be curtailed. Until the early years of the twentieth century, the House of Lords retained its full power to prevent the passage of legislation. However, Lloyd-George’s Liberal budget of 1909 brought the old system to breaking point when the House of Lords originally refused to pass it. Although the budget was eventually passed after a General Election in 1910, a second election was held on the issue of reform of the House of Lords. As a result of the Liberal victory the Parliament Act of 1911 was introduced, which removed the House of Lords’ power to veto a bill. As a matter of interest, the 1911 Act also reduced the maximum lifespan of a parliament from seven years to its current five years and specifically retained the House of Lords’ power to block any attempt to prolong the lifetime of a parliament. The Parliament Act of 1911 reduced the power of the Lords of the ability to delay a bill by up to two years. In 1949 the Parliament Act of that year further reduced the Lords’ delaying powers to one year, but it is significant that the 1949 Act was itself only introduced through the use of the previous Parliament Act of 1911.

Since 1949 the delaying powers of the House of Lords have been as follows:

• a ‘Money Bill’, that is, one containing only financial provisions, can be enacted without the approval of the House of Lords after a delay of one month;

• any other Bill can be delayed by one year.

Only four substantive acts have been passed into law without the consent of the House of Lords:

• The War Crimes Act 1991

• The European Parliamentary Elections Act 1999

• The Sexual Offences (Amendment) Act 2000

• The Hunting Act 2004.

The last piece of legislation, the Hunting Act, was introduced to prohibit the hunting of mammals with dogs and was particularly designed to outlaw the tradition of fox-hunting.

Jackson v HM Attorney General (2005)

The appellants argued that the 1949 Act was itself invalid on the basis that it did not receive the consent of the House of Lords, and the Parliament Act 1911 did not permit an Act such as the 1949 Act to be enacted without the consent of the House of Lords. Thus, although the Hunting Act gave rise to the case, the essential underlying issue related to the validity of the 1949 Act, which in turn depended on the effect of the 1911 Parliament Act. As Lord Bingham put it, ‘The merits and demerits of the Hunting Act, on which opinion is sharply divided, have no bearing on the legal issue which the House, sitting judicially, must resolve.’

In its reading of the Parliament Acts, the Court of Appeal concluded that under the 1911 Act the House of Commons had the power to make a ‘relatively modest and straightforward amendment’. The Court of Appeal went on to conclude that the Parliament Act of 1949 was within that ambit, as an example of a ‘relatively modest’ amendment, as was the Hunting Act. However, the Court of Appeal raised doubts as to the power of the House of Commons, acting without the agreement of the House of Lords, to make changes ‘of a fundamentally different nature to the relationship between the House of Lords and the Commons from those which the 1911 Act had made’. Thus the Court of Appeal raised the fundamental constitutional question relating to the ultimate power of the House of Commons.

Once again an augmented nine-member panel of the House of Lords was required to deal with these fundamental constitutional issues. In doing so, the House of Lords unanimously held that the reasoning of the Court of Appeal could not be sustained. In reaching that conclusion the House of Lords rejected the argument that the Parliament Act of 1911 was an exercise in the delegation of powers from parliament to the House of Commons, which could not later be used to extend those powers. Rather as Lord Bingham stated:

The Royal Assent is required before any Bill can become law. There is no constitutional rule requiring the monarch to assent to any Act passed by parliament. There is, however, a convention to that effect, and refusal to grant the Royal Assent to legislation passed by parliament would place the constitutional position of the monarchy in jeopardy. The procedural nature of the Royal Assent was highlighted by the Royal Assent Act 1967, which reduced the process of acquiring Royal Assent to a formal reading out of the short title of any Act in both Houses of Parliament.

An Act of Parliament comes into effect on the date of the Royal Assent, unless there is any provision to the contrary in the Act itself. It is quite common either for the Act to contain a commencement date for some time in the future, or for it to give the appropriate Secretary of State the power to give effect to its provisions at some future time by issuing statutory instruments. The Secretary of State is not required to bring the provisions into effect and it is not uncommon for some parts of Acts to be repealed before they are ever in force.

A current example of this is the massive, and hugely complex, Criminal Justice Act (CJA) 2003. As yet not all of its provisions have come into effect, and full implementation will only take place over an extended timescale, if at all. One instance of this, which raises a number of issues that will be considered further in various sections of this book, relates to the provisions of s 43 of the CJA, which provides for the prosecution of certain serious and complex fraud cases to be conducted without a jury. Unusually, by virtue of s 330(5) of the CJA, any statutory instrument seeking to bring s 43 into force requires an affirmative resolution of both Houses of Parliament. Following the failure of the Jubilee extension fraud cases the government announced its intention to implement s 43, and to that end a draft commencement order was produced. However, in July 2007 the House of Lords effectively killed off a Fraud (Trials without a Jury) Bill by postponing its consideration for six months and subsequently it never re-appeared. Section 111 of the Protection of Freedoms Bill 2010–2011 proposes the repeal of s 43 of the CJA.

A more recent example of this failure to implement legislative provisions may be seen in the Equality Act 2010, one of the last pieces of legislation passed by the previous government. Although the new coalition Home Secretary and Minister for Women and Equalities brought most of the provisions into effect through commencement orders, she let it be known that she would not do so with all its provisions and certainly not s 1 of the Act, which imposed a duty on public bodies to have due regard when making strategic decisions to reducing the inequalities of outcome that result from socio-economic disadvantage. In response critics accused her of rendering the Act ‘virtually toothless’.

3.3.2.1 Reform of the House of Lords

The most controversial aspect of the White Paper was the relatively small proportion of directly elected members it proposed, especially when compared with the large proportion of members who would be nominated rather than elected. The government faced much criticism, even from its own MPs, with regard to this suggestion and set up a joint committee of both Houses of Parliament to consider the course of future reform. Somewhat surprisingly, that committee made no recommendation and merely listed seven possible options for determining the membership of a reformed House of Lords. The options were:

• a fully appointed house;

• a fully elected house;

• 80 per cent appointed, 20 per cent elected;

• 80 per cent elected, 20 per cent appointed;

• 60 per cent appointed, 40 per cent elected;

• 60 per cent elected, 40 per cent appointed;

• 50 per cent appointed, 50 per cent elected.

Even more surprisingly, in February 2003, the House of Commons voted against all of the options and thus failed to approve any of them. The closest vote, for an 80 per cent elected house, fell narrowly by 284 votes against to 281 in favour.

The coalition government’s policy on reform of the House of Lords faced the problem of combining the two parties’ manifesto proposals; the Conservatives preferring a ‘mainly-elected second chamber’, and the Liberal Democrats a ‘fully-elected second chamber’. In May 2011 the government published a White Paper and Draft Bill containing proposals for a smaller, reformed House of Lords. The White Paper and draft Bill provide for the powers of the reformed House of Lords to remain the same. Key proposals contained in the draft Bill include:

• a reformed House with 300 members, each eligible for a single term of three parliaments;

• elections using the single transferable vote (STV), electing a third of members each time with elections normally taking place at the same time as General Elections;

• multi-member electoral districts, to be drawn up independently based on national and county boundaries;

• a continuation of the presence of Bishops of the Church of England in the House of Lords, but reducing their number from 26 to 12;

• a transition staggered over the course of three electoral cycles.

The draft Bill suggests a reformed House of Lords with 80 per cent of elected members (240), with the remaining 20 per cent (60 members) appointed independently to sit as cross-benchers. However, the White Paper sets out the case for a 100 per cent elected chamber. The draft Bill and White Paper are currently being scrutinised by a Joint Committee composed of 13 peers and 13 MPs. It is expected that legislation will be introduced during 2012 and the first elections will take place in 2015.

3.3.3 THE DRAFTING OF LEGISLATION

In 1975, in response to criticisms of the language and style of legislation, the Renton Committee on the Preparation of Legislation (Cmnd 6053) examined the form in which legislation was presented. Representations were made to the Committee by a variety of people ranging from the judiciary to the lay public. The Committee divided complaints about statutes into four main headings relating to:

• obscurity of language used;

• over-elaboration of provisions;

• illogicality of structure;

• confusion arising from the amendment of existing provisions.

It was suggested that the drafters of legislation tended to adopt a stylised archaic legalism in their language and employed a grammatical structure that was too complex and convoluted to be clear, certainly to the layperson and even, on occasion, to legal experts. These criticisms, however, have to be considered in the context of the whole process of drafting legislation and weighed against the various other purposes to be achieved by statutes. The actual drafting of legislation is the work of parliamentary counsel to the Treasury, who specialise in this task. The first duty of the drafters must be to give effect to the intention of the department instructing them, and to do so in as clear and precise a manner as is possible. These aims, however, have to be achieved under pressure, and sometimes extreme pressure, of time. An insight into the various difficulties faced in drafting legislation was provided by a former parliamentary draftsman, Francis Bennion, in an article entitled ‘Statute law obscurity and drafting parameters’ ((1978) British JLS 235). He listed nine specific parameters which the drafter of legislation had to take into account. These parameters are as follows:

• Legal effectiveness. This is the need for the drafters to translate the political wishes of those instructing them into appropriate legal language and form.

• Procedural legitimacy. This refers to the fact that the legislation must conform with certain formal requirements if it is to be enacted. For example, it is a requirement that Acts be divided into clauses, and Bills not assuming this form would not be considered by parliament.

• Timeliness. This refers to the requirement for legislation to be drawn up within particularly pressing time constraints. The effect of such pressure can be poorly drafted and defective provisions.

• Certainty. It is of the utmost importance that the law be clearly set down so that individuals can know its scope and effect and can guide their actions within its provisions. The very nature of language, however, tends to act against this desire for certainty. In pursuit of certainty, the temptation for the person drafting the legislation is to produce extremely long and complex sentences consisting of a series of limiting and refining sub-clauses. This process in turn, however, tends merely to increase the obscurity of meaning.

• Comprehensibility. Ideally, legislation should be comprehensible to the layperson, but given the complex nature of the situation that the legislature is dealing with, such an ideal is probably beyond attainment in practice. Nonetheless, legislative provisions certainly should be open to the comprehension of the Members of Parliament who are asked to vote on them, and they certainly should not be beyond the comprehension of the legal profession who have to construe them for their clients. Unfortunately, some legislation fails on both these counts.

• Acceptability. This refers to the fact that legislation is expected to be couched in uncontentious language and using a traditional prose style.

• Brevity. This refers to the fact that legislative provisions should be as short as is compatible with the attainment of the legislative purpose. The search for brevity in legislation can run counter to the wish for certainty in, and acceptability of, the language used.

• Debatability. This refers to the fact that legislation is supposed to be structured in such a way as to permit it, and the policies that lie behind it, to be debated in parliament.

• Legal compatibility. This refers to the need for any new provision to fit in with already existing provisions. Where the new provision alters or repeals existing provisions, it is expected that such effect should be clearly indicated.

A consideration of these various desired characteristics shows that they are not necessarily compatible; indeed, some of them, such as the desire for clarity and brevity, may well be contradictory. The point remains that those people charged with the responsibility for drafting legislation should always bear the above factors in mind when producing draft legislation, but if one principle is to be pursued above others, it is surely the need for clarity of expression and meaning.

3.3.4 TYPES OF LEGISLATION

Legislation can be categorised in a number of ways. For example, distinctions can be drawn between the following:

• Public Acts, which relate to matters affecting the general public. These can be further subdivided into either government Bills or Private Members’ Bills.

• Private Acts, on the other hand, relate to the powers and interests of particular individuals or institutions, although the provision of statutory powers to particular institutions can have a major effect on the general public. For example, companies may be given the power to appropriate private property through compulsory purchase orders.

• Enabling legislation gives power to a particular person or body to oversee the production of the specific details required for the implementation of the general purposes stated in the parent Act. These specifics are achieved through the enactment of statutory instruments. (See below, at 3.5 for a consideration of delegated legislation.)

Acts of Parliament can also be distinguished on the basis of the function they are designed to carry out. Some are unprecedented and cover new areas of activity previously not governed by legal rules, but other Acts are aimed at rationalising or amending existing legislative provisions.

• Consolidating legislation is designed to bring together provisions previously contained in a number of different Acts, without actually altering them. The Companies Act of 1985 was an example of a consolidating Act. It brought together provisions contained in numerous amending Acts that had been introduced since the previous consolidation Act of 1948. The new Companies Act 2006 also consolidated some previous legislation passed since the 1985 Act, but as it also contains previous common law provisions it may also be seen as an example of the next category.

• Codifying legislation seeks not just to bring existing statutory provisions under one Act, but also looks to give statutory expression to common law rules. The classic examples of such legislation are the Partnership Act of 1890 and the Sale of Goods Act 1893 (now 1979).

• Amending legislation is designed to alter some existing legal provision. Amendment of an existing legislative provision can take two forms:

(i)    a textual amendment is one where the new provision substitutes new words for existing ones in a legislative text or introduces completely new words into that text. Altering legislation by means of textual amendment has one major drawback, in that the new provisions make very little sense on their own, without the contextual reference of the original provision they are designed to alter;

Neither method of amendment is completely satisfactory, but the Renton Committee on the Preparation of Legislation favoured textual amendments over non-textual amendments.

So far attention has focused on the procedure through which the legislature makes law, but once it has come into being the law has to be applied and given effect, and ultimately that is the role of the judges. Parliament might have said what the law is; the task for the judges is to make sense of parliament’s words.

3.4.1 PROBLEMS IN INTERPRETING LEGISLATION

The accepted view is that the constitutional role of the judiciary is simply to apply the law. The function of creating law is the prerogative of parliament. As will be seen, such a view is simplistic to the extent that it ignores the potential for judicial creativity in relation to the operation of the common law and the doctrine of judicial precedent. Equally, however, it ignores the extent to which the judiciary have a measure of discretion and creative power in the manner in which they interpret the legislation that comes before them.

Section 3.3.3 has already considered the general difficulties involved in drafting legislation from the point of view of the person carrying out the drafting; equally, however, it has to be recognised that determining the actual meaning of legislation presents judges with a practical difficulty. In order to apply legislation, judges must ascertain the meaning of the legislation, and in order to ascertain the meaning, they are faced with the difficulty of interpreting the legislation.

Before considering the way in which judges interpret legislation, it is pertinent to emphasise that, in spite of the best endeavours of those who draft legislation to be precise in communicating the meaning of what they produce, the process of interpretation is inescapable and arises from the nature of language itself. Legislation can be seen as a form of linguistic communication. It represents and passes on to the judiciary what parliament has determined the law should be in relation to a particular situation. Legislation, therefore, shares the general problem of uncertainty inherent in any mode of communication. One of the essential attributes of language is its fluidity; the fact that words can have more than one meaning and that the meaning of a word can change depending on its context. In such circumstances, it is immediately apparent that understanding is an active process. Faced with ambiguity, the recipient of information has to decide which of various meanings to assign to specific words, depending upon the context in which they are used.

Legislation therefore involves an inescapable measure of uncertainty that can only be made certain through judicial interpretation. To the extent, however, that the interpretation of legislative provisions is an active process, it is equally a creative one, and inevitably it involves the judiciary in making law through determining the meaning and effect to be given to any particular piece of legislation. There is a further possibility that has to be considered: that judges might actually abuse their role as necessary interpreters of legislation in such a way as to insinuate their own particular personal views and prejudices into their interpretations, and in so doing misapply the legislation and subvert the wishes of the legislature.

3.4.2 APPROACHES TO STATUTORY INTERPRETATION

Having considered the problems of interpreting language generally and the difficulties in interpreting legislation in particular, it is appropriate to consider in detail the methods and mechanisms that judges bring to bear on legislation in order to determine its meaning. There are, essentially, two contrasting views as to how judges should go about determining the meaning of a statute – the restrictive, literal approach and the more permissive, purposive approach:

1. The literal approach

The literal approach is dominant in the English legal system, although it is not without critics, and devices do exist for circumventing it when it is seen as too restrictive. This view of judicial interpretation holds that the judge should look primarily to the words of the legislation in order to construe its meaning and, except in the very limited circumstances considered below, should not look outside of, or behind, the legislation in an attempt to find its meaning.

2. The purposive approach

European Union (EU) legislation tends to be drafted in the continental, civil law, manner. Its detailed effect, therefore, can only be determined on the basis of a purposive approach to its interpretation. This requirement, however, runs counter to the literal approach that is the dominant approach in the English system. The need to interpret such legislation, however, has forced a change in that approach in relation to EU legislation and even with respect to domestic legislation designed to implement Community legislation. Thus, in Pickstone v Freemans plc (1988), the House of Lords held that it was permissible, and indeed necessary, for the court to read words into inadequate domestic legislation in order to give effect to EU law in relation to provisions relating to equal pay for work of equal value. (For a similar approach, see also the House of Lords’ decision in Litster v Forth Dry Dock (1989) and the decision in Three Rivers DC v Bank of England (No 2) (1996), considered below at 3.4.4.2.)

3.4.2.1 The purposive approach and updating construction

It has to be recognised that for some time there has been a move away from the overreliance on the literal approach to statutory interpretation to a more purposive approach. As Lord Griffiths put it in Pepper v Hart [1993] 1 All ER 42 at 50:

Such a shift has been necessitated, to no little degree, by the need for the courts to consider matters that were not within the original contemplation of parliament at the time when the legislation was passed, but which have since been brought into play by the effect of technological advances. As Lord Steyn in R (Quintavalle) v Secretary of State for Health [2003] 2 All ER 113 at 123 put it:

That process may be traced through a number of controversial cases starting with Royal College of Nursing of the United Kingdom v Department of Health and Social Security (1981) (considered in detail at 3.4.3). In his minority judgment Lord Wilberforce in that case had expressed the view that ([1981] AC 800 at 822):

In other words, Lord Wilberforce thought that legislation may not be construed so as to cover new states of affairs, if the new construction required the court to fill gaps, or to ask what parliament would have done in relation to situations that it could not have had any knowledge of, and hence were outside the ambit of the actual text of the legislation.

However, the court could use a purposive reading to extend the law to new situations where one of two things applied:

(i) the genus of subject matter encompassed the new subject matter; or

(ii) parliament’s purpose was clear and an extended reading was necessary to give effect to it.

Given that Lord Wilberforce actually decided that the Royal College of Nursing case was not one in which the court should use the purposive approach, it is perhaps not a little ironic that his exposition of the appropriate circumstances under which the courts can adopt a purposive approach has been generally accepted, and, in many cases, used to extend the application of statutes in a way that he himself might very well not have agreed with.

An organisation opposed to cloning and embryo experimentation, the Pro-Life Alliance, contested a statement from the government that therapeutic cloning research was permitted under the HFE Act 1990, subject to licensing by the regulatory authority, the Human Fertilisation and Embryology Authority (HFEA). The Alliance sought a declaration that the authority had no power to license such research on the grounds that an embryo created by cell nuclear replacement did not fall within the statutory definition of ‘embryo’. The argument for the Alliance was that as cloned embryos created by CNR were never fertilised, as commonly understood, they could not be subject to the Act and, more importantly for them, the HFEA could not have any authority to license any such activity.

At first instance the declaration sought by the Alliance was granted ‘with some reluctance’, the judge saying that the government’s argument to have the statute take account of new technology involved ‘an impermissible rewriting and extension of the definition’. However, the Court of Appeal set aside the declaration, which decision the House of Lords subsequently confirmed, holding that the purposive interpretation argued for by the government did not require the court to assume the mantle of legislator. In so doing both Lord Bingham and Lord Steyn referred to the importance of a purposive approach in enabling the courts to give effect to the intention of parliament in areas where legislative provisions need to be considered in the context of rapid scientific and technological change.

In deciding Quintavalle, the House of Lords based its decision on Lord Wilberforce’s comments in Royal College of Nursing case, which in the opinion of Lord Bingham ‘may now be treated as authoritative’. In so doing the House of Lords held that embryos created by CNR, notwithstanding the fact that they were unfertilised, were within the same ‘genus of facts’ as embryos created naturally or fertilised in vitro. In putting Lord Wilberforce’s proposition into operation, the House of Lords held that CNR organisms were, in essence, sufficiently like other embryos to be considered as belonging to the same ‘genus of facts’. Parliament could not rationally have been assumed to have intended to exclude such embryos from the regulation; consequently, the fact of fertilisation was not to be treated as integral to the s 1 definition. Consequently, they were subject to the control of the HFE Act 1990 and the HFEA could authorise research using such embryos.

In reaching his decision, Lord Bingham considered the purpose and procedure of statutory interpretation and concluded that ([2003] 2 All ER 113 at 118):

With regard to the specific question of whether words in statutes should retain their original meaning, or whether they may be interpreted in the light of contemporary social factors, Lord Bingham concluded that legislation is akin to a living text, the meaning of which speaks differently as the social context in which it speaks changes. In his view (at 118):

The impact of the preference for the purposive approach over the literal one may be seen in R v Z and others (2005) in which four men were charged with being members of a proscribed organisation contrary to s 11(1) of the Terrorism Act 2000. Schedule 2 of the Act listed the organisations proscribed under the Act. It referred to the IRA but did not specifically mention the ‘Real IRA’, which the men were allegedly members of. At first instance the judge found no case to answer, but following a reference by the Attorney-General for Northern Ireland, the Northern Ireland Court of Appeal disagreed, concluding that it was the intention of the legislature to include the ‘Real IRA’ within the term ‘the IRA’ and that the legislation therefore had to be construed in such a way as to include that organisation.

In the House of Lords, counsel for the accused argued that the task of the court was ‘to interpret the provision which parliament has enacted and not to give effect to an inferred intention of parliament not fairly to be derived from the language of the statute’. The House of Lords rejected that argument, holding that the historical context of the legislation was of fundamental importance. It decided that all the Westminster and Stormont statutes were directed towards the elimination of Irish-related terrorism and that the general approach in legislation had been to proscribe the IRA, using that title as a blanket description that ‘embraced all emanations, manifestations and representations of the IRA, whatever their relationship to each other’.

The effect of Pepper v Hart (1993), permitting access to Hansard, will be considered at 3.4.4.2 below, but for the moment, it is still the case that the judges remain subject to the established rules of interpretation of which there are three primary rules of statutory interpretation, together with a variety of other secondary aids to construction.

3.4.3 RULES OF INTERPRETATION

In spite of the content of the preceding section, it is still necessary to consider the traditional and essentially literally based approaches to statutory interpretation. What follows in this and the following two sections should be read within the context of the Human Rights Act (HRA) 1998, which requires all legislation to be construed in such a way as, if at all possible, to bring it within the ambit of the European Convention on Human Rights (ECHR). The effect of this requirement is to provide the judiciary with powers of interpretation much wider than those afforded to them by the more traditional rules of interpretation, as can be seen from R v A (2001), considered above at 2.5.1.2. However, to quote Lord Steyn further in this particular context ([2001] 3 All ER 1 at 16):

Nonetheless, where the HRA is not involved, the courts still have to interpret legislative provisions. The three traditional rules of statutory interpretation are as follows:

1 The literal rule

Inland Revenue Commissioners v Hinchy (1960) concerned s 25(3) of the Income Tax Act 1952, which stated that any taxpayer who did not complete their tax return was subject to a fixed penalty of £20 plus treble the tax which he ought to be charged under the Act. The question that had to be decided was whether the additional element of the penalty should be based on the total amount that should have been paid, or merely the unpaid portion of that total. The House of Lords adopted a literal interpretation of the statute and held that any taxpayer in default should have to pay triple their original tax bill.

In R v Goodwin (2005) the rider/driver of a jet-ski in the sea off Weymouth, crashed into another jet-ski, causing serious injuries to the rider/driver of the other machine.

The defendant was prosecuted under s 58 of the Merchant Shipping Act 1995, which makes it an offence for ‘the master of … a United Kingdom ship’ negligently to do any act which causes or is likely to cause serious injury to any person. Section 313 of the Act defines a ship as including every description of vessel ‘used in navigation’. At first instance it was decided that a jet-ski was a ship for the purposes of the Merchant Shipping Act 1995 and as a result the defendant pleaded guilty.

On appeal, however, the Court of Appeal quashed his conviction, deciding that a jet-ski is not ‘used in navigation’ for the purpose of travel from one place to another and as s 58 only applies to sea-going ships and the jet-ski was used only used within the port of Weymouth, it could not really be described as ‘sea-going’.

2 The golden rule

This rule is generally considered to be an extension of the literal rule. In its general expression, it is used in circumstances where the application of the literal rule is likely to result in what appears to the court to be an obviously absurd result. The golden rule was first stated by Lord Wensleydale in Grey v Pearson (1857), but its operation is better defined by the words of Lord Blackburn in River Wear Commissioners v Adamson (1877) as follows:

It should be emphasised, however, that the court is not at liberty to use the golden rule to ignore, or replace, legislative provisions simply on the basis that it does not agree with them; it must find genuine difficulties before it declines to use the literal rule in favour of the golden one. How one determines or defines genuine difficulty is of course a matter of discretion and, therefore, dispute. As Lord Blackburn’s definition makes clear, the use of the rule actually involves the judges in finding what they consider the statute should have said or provided, rather than what it actually did state or provide. As will be seen below, the justification for this judicial activity is based on that extremely wide, amorphous, not to say spurious, legal concept: public policy. However, such a justification immediately raises the questions of the judges’ understanding of, and right to determine, public policy, which will be considered in the next section of this chapter.

It is sometimes stated that there are two versions of the golden rule:

(a)    The narrow meaning This is used where there are two apparently contradictory meanings to a particular word used in a legislative provision or the provision is simply ambiguous in its effect. In such a situation, the golden rule operates to ensure that preference is given to the meaning that does not result in the provision being an absurdity. An example of the application of the golden rule in this narrow sense is Adler v George (1964). The defendant had been charged, under the Official Secrets Act 1920, with obstruction in the vicinity of a prohibited area, whereas she had actually carried out the obstruction inside the area. The court preferred not to restrict itself to the literal wording of the Act and found the defendant guilty as charged.

(b)    The wider meaning This version of the golden rule is resorted to where, although there is only one possible meaning to a provision, the court is of the opinion that to adopt such a literal interpretation will result in Lord Blackburn’s ‘inconsistency, absurdity or inconvenience’. The classic example of this approach is to be found in Re Sigsworth (1935), in which the court introduced common law rules into legislative provisions, which were silent on the matter, to prevent the estate of a murderer from benefiting from the property of the party he had murdered. Just as it was contrary to public policy to allow a murderer to benefit directly from the proceeds of his offence, so it would equally be contrary to public policy to allow the estate of a murderer to benefit from his offence. However, the public policy issue becomes less certain when one realises that there was actually no question of the murderer benefiting directly in this case, as he had committed suicide. In that light, the decision can be seen as punishing those who would have benefited on his death for an offence that they had nothing to do with – effectively cutting them out from what had been a legitimate expectation before the murder. In October 2003, the Law Commission recommended a change in the rule in Sigsworth and proposed a change in the law to allow children to inherit from grandparents who have been murdered by the children’s father or mother. As the report states, the law should penalise killers, not their children. Its provisional view was that the law should operate as though the killer had died, allowing the children to inherit the property.

Another example of this approach is found in R v National Insurance Commissioner ex p Connor (1981), in which the court held, in spite of silence in the actual legislation, that Connor was not entitled to a widow’s pension on the grounds that she had been the actual cause of her widowed status by killing her husband. Once again, when taken at face value, the decision in Connor appears perfectly justifiable on the grounds of public policy as the court stated, but appears less so when it is pointed out that Connor was actually found guilty of manslaughter and sentenced merely to a two-year period of probation.

Subsequent to the Connor case, the Forfeiture Act 1982 was passed, giving courts the discretionary power to ignore the rule of public policy that precludes a person who has unlawfully killed another from acquiring a benefit as a consequence of the killing. The Act does not apply in relation to murder, but nonetheless it does give the courts discretion to mitigate the effects of the rule applied in Connor where they are of the opinion that the circumstances of the case merit it. Thus, in Dunbar v Plant (1997), the Court of Appeal held that the forfeiture rule applied to the survivor of a suicide pact who had abetted the death of her partner. The court, however, applied the Forfeiture Act to permit her to benefit from his share in their jointly owned house and to claim against his life insurance policy.

In deciding whether or not to make use of the Forfeiture Act, the courts will look at the behaviour of both the killer and the person killed, so it might be expected that it would be used in relation to cases where the killing has been as a result of long-term abuse or some other mitigating circumstances. However, as the introduction of the public policy rule was itself a product of the common law, so the courts have in any case felt free to distinguish and limit the strict application of the rule in Connor (see, for example, Re K (Deceased) (1985)).

3 The mischief rule

At one level, the mischief rule is clearly the most flexible rule of interpretation, but in its traditional expression it is limited by being restricted to using previous common law rules in order to decide the operation of contemporary legislation. It is also, at least somewhat, paradoxical that this most venerable rule, originally set out in Heydon’s Case (1584), is also the one which most obviously reveals the sociopolitical nature of judicial decisions.

In Heydon’s Case, it was stated that in making use of the mischief rule, the court should consider the following four things:

The example usually cited of the use of the mischief rule is Corkery v Carpenter (1950), in which a man was found guilty of being drunk in charge of a ‘carriage’, although he was in fact only in charge of a bicycle. A much more controversial application of the rule is to be found in Royal College of Nursing v DHSS (1981), where the courts had to decide whether the medical induction of premature labour to effect abortion, under the supervision of nursing staff, was lawful. In this particularly sensitive area, whether one agrees with the ultimate majority decision of the House of Lords in favour of the legality of the procedure or not probably depends on one’s view of abortion. This fact simply serves to highlight the sociopolitical nature of the question that was finally determined by the House of Lords under the guise of merely determining the legal meaning of a piece of legislation.

3.4.3.1 The relationship of the rules of interpretation

It is sometimes suggested that the rules of interpretation form a hierarchical order. On that basis, the first rule that should be applied is the literal rule, and that rule only cedes to the golden rule in particular circumstances where ambiguity arises from the application of the literal rule. The third rule, the mischief rule, it is suggested, is only brought into use where there is a perceived failure of the other two rules to deliver an appropriate result. On consideration, however, it becomes obvious that no such hierarchy exists. The literal rule is supposed to be used unless it leads to a manifest absurdity, in which case it will give way to the golden rule. The immediate question this supposition gives rise to is – what is to be considered as an absurdity in any particular case, other than the view of the judge deciding the case? The three rules are contradictory, at least to a degree, and there is no way in which the outsider can determine in advance which of them the courts will make use of to decide the meaning of a particular statute. Many may welcome the fact that the courts have moved towards a more explicitly purposive approach as outlined previously and as was recommended by the Law Commission report in 1969. It has to be recognised, however, that such a shift in approach provides the judiciary with additional power in relation to determining the meaning and effect of legislation. Cynics might say that such change merely makes overt the power that the judiciary always had, but previously exercised in a covert way.

3.4.4 AIDS TO CONSTRUCTION

In addition to the three main rules of interpretation, there are a number of secondary aids to construction. These can be categorised as either intrinsic or extrinsic in nature:

3.4.4.1 Intrinsic assistance

Intrinsic assistance is derived from the statute, which is the object of interpretation; the judge uses the full statute to understand the meaning of a particular part of it. The title, either long or short, of the Act under consideration may be referred to for guidance (Royal College of Nursing v DHSS (1981)). It should be noted, however, that a general intention derived from the title cannot overrule a clear statement to the contrary in the text of the Act.

It was a feature of older statutes that they contained a preamble, which was a statement, preceding the actual provisions of the Act, setting out its purposes in some detail and to which reference could be made for purposes of interpretation. Again, however, any general intention derived from the preamble could not stand in the face of express provision to the contrary within the Act.

Whereas preambles preceded the main body of an Act, schedules appear as additions at the end of the main body of the legislation. They are, however, an essential part of the Act and may be referred to in order to make sense of the main text.

Some statutes contain section headings and yet others contain marginal notes relating to particular sections. The extent to which either of these may be used is uncertain, although DPP v Schildkamp (1969) does provide authority for the use of the former as an aid to interpretation.

Finally, in regard to intrinsic aids to interpretation, it is now recognised that punctuation has an effect on the meaning of words and can be taken into account in determining the meaning of a provision.

3.4.4.2 Extrinsic assistance

Extrinsic assistance, that is, reference to sources outside of the Act itself, may on occasion be resorted to in determining the meaning of legislation – but which sources? Some external sources are unproblematic. For example, judges have always been entitled to refer to dictionaries in order to find the meaning of non-legal words. They also have been able to look into textbooks for guidance in relation to particular points of law, and in using the mischief rule, they have been able to refer to earlier statutes to determine the precise mischief at which the statute they are trying to construe is aimed. The Interpretation Act 1978 is also available for consultation with regard to particular difficulties. Unfortunately, its title is somewhat misleading, in that it does not give general instructions for interpreting legislation, but simply defines particular terms that are found in various statutes.

Each of these procedures provides a potential source from which a judge might discover the specific purpose of a piece of legislation or the real meaning of any provision within it. The question is, to which of these sources are the courts entitled to have access?

Historically, English courts have adopted a restrictive approach to what they are entitled to take into consideration. This restrictive approach has been gradually relaxed, however, to the extent that judges are allowed to use extrinsic sources to determine the mischief at which particular legislation is aimed. Thus, they have been entitled to look at Law Commission reports, Royal Commission reports and the reports of other official commissions. Until fairly recently, however, Hansard literally remained a closed book to the courts, but in the landmark decision in Pepper v Hart (1993), the House of Lords decided to overturn the previous rule. The issue in the case was the tax liability owed by teachers at Malvern College, a fee-paying school. Employees were entitled to have their sons educated at the school while paying only 20 per cent of the usual fees. The question was as to the precise level at which this benefit in kind was to be taxed. In a majority decision, it was held that where the precise meaning of legislation was uncertain or ambiguous or where the literal meaning of an Act would lead to a manifest absurdity, the courts could refer to Hansard’s reports of parliamentary debates and proceedings as an aid to construing the meaning of the legislation.

The operation of the principle in Pepper v Hart was extended in Three Rivers DC v Bank of England (No 2) (1996) to cover situations where the legislation under question was not in itself ambiguous but might be ineffective in its intention to give effect to some particular EC directive. Applying the wider purposive powers of interpretation open to it in such circumstances (see 3.4.2 above), the court held that it was permissible to refer to Hansard in order to determine the actual purpose of the statute. The Pepper v Hart principle only applies to statements made by ministers at the time of the passage of legislation, and the courts have declined to extend it to cover situations where ministers subsequently make some statement as to what they consider the effect of a particular Act to be (Melluish (Inspector of Taxes) v BMI (No 3) Ltd (1995)).

It is essential to bear in mind that Pepper v Hart was not intended to introduce a general purposive approach to the interpretation of non-European Community legislation. Recourse to Hansard is to be made only in the context of the mischief rule, as a further method of finding out the mischief at which the particular legislation is aimed.

Consequently, it can be seen that the initial and primary role of the judge is to interpret the legislation as it stands and only, in limited circumstances, to have recourse to Hansard to look for enlightenment as to the meaning of the Act, and even then it must be done with circumspection.

3.4.5 PRESUMPTIONS

In addition to the rules of interpretation, the courts may also make use of certain presumptions. As with all presumptions, they are rebuttable. The presumptions operate:

• Against the alteration of the common law. Parliament is sovereign and can alter the common law whenever it decides to do so. In order to do this, however, parliament must expressly enact legislation to that end. If there is no express intention to that effect, it is assumed that statute does not make any fundamental change to the common law. With regard to particular provisions, if there are alternative interpretations, one of which will maintain the existing common law situation, then that interpretation will be preferred. In R (Rottman) v Commissioner of Police (2002), the claimant was arrested on a warrant issued under the Extradition Act 1989, and the police searched his house and seized various items that they believed to be evidence. The House of Lords affirmed the legality of this search and seizure. The common law power to search an arrested person’s premises was not extinguished in relation to extradition offences by the Police and Criminal Evidence Act (PACE) 1984. According to Lord Hutton, while that Act clearly replaced the pre-existing common law in relation to domestic offences, it made no reference to extradition offences and so must be supposed to have left the common law intact in relation to them.