Statutory Interpretation 3

Starter

The Queens Speech –

http://news.bbc.co.uk/democracylive/hi/house_of_lords/newsid_8364000/8364950.stm

What do you think? How many Bills are to be introduced?

Objectives

1. To understand what internal and external aids of interpretation are

2. To understand the Purposive Approach

Mischief

This is the oldest rule and was first used in Heydon’s Case in 1584.

In this case it was held that the court should consider 4 things:

What the common law was before the Act was passedWhat the mischief was that the Act was designed to remedyThe remedy proposed in the ActThe reason for the remedy

Mischief

Lord Denning spoke of filling the gaps that Parliament had left inadvertently, but his view was too radical for most judges to

follow.

Mischief

Jones v Wrotham Park Settled Estates (1980)Lord Diplock said that the mischief rule should not be used in all cases, but only when the following circumstances apply: The mischief can be seen clearly from the Act It was apparent that Parliament had overlooked the problem The words required to be added could be identified with a high degree of certainty.

Mischief

Royal College of Nursing v DHSS (1981)The Abortion Act 1967 said that pregnancies had to be “terminated by a registered practitioner”. Because of advances in medical techniques, part of the process was being carried out by nurses, under the supervision of a doctor.

House of Lords argued the mischief was backstreet abortions and that the Act simply required that abortions be carried out under medical supervision.

Advantages and Disadvantages of the Mischief Rule

Advantages Disadvantages

It allows judges to “fill in the gaps” when Parliament had left something out.

Finding the intention of Parliament is not easy, even if Hansard is used. It only shows the intention of government

It allows judges to interpret statutes in the light of changing social, economic and technological circumstances.

They may not be such a thing as “the intention of Parliament” so trying to find it out serves no purpose other than promoting litigation between parties

It also allows the court to look at Hansard, so that the words o the minister bringing the bill before Parliament can be considered

It could lead to confusion because judges could change the meaning of what an Act says.

In 1969, the Law Commission proposed that the mischief rule should be the only rule used.

It gives too much power to judges. It should be Parliament that makes any changes.

Activity

1. From Heydon’s Case, what four things should the courts consider when applying the mischief rule?

2. From Jones v Wrotham Park, what limits are placed on when the mischief rule should be used?

3. Identify 2 cases that illustrate the mischief rule being used.

4. How might the use of the mischief rule save time in Parliament? What criticism could be made of this argument?

Check your understanding

List all the words you associate with Statutory Interpretation

Now use these words to write an explanation as to what Statutory

Interpretation is.

The Purposive Approach

This is a modern version of the mischief rule, but takes it further by not just looking at the evil or mischief that Act was designed to put right, but looking for the purpose of the Act.

The Law Commission described it as looking for the “positive social purpose of the legislation”

The Purposive Approach

Pepper v Hart (1993)

Lord Griffiths noted:“The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears on the background against which the legislation was enacted”

The Purposive ApproachAdvantages Disadvantages

It fits in better with what is done in Europe.

It gives too much power to judges.

It seems more sensible to look at the whole purpose of the Act rather than just at the evil it was designed to put right

Finding the intention of Parliament is not easy, even if Hansard is used.

Using the purposive rule could lead to confusion because judges could change the meaning of what an Act says.

Exam Practice

Answer the practice exam question.

Work on your own – you have 35 minutes to complete it.

Mark your partners

Using the mark scheme mark your partners work.

Complete the Worksheet

Work through the worksheet and complete all the cases.