Statutory Interpretation Advantages and disadvantages of the rules of interpretation

Statutory Interpretation

Advantages and disadvantages of the rules of interpretation

Advantages of the literal rule

• Parliamentary supremacy is respected• Judges given a restricted role• Law making left to those who are elected for

law making• Application of literal rule can highlight to

parliament problems with an act – Fisher v Bell – invitation to treat now treated in the same way as offers for sale

Disadvantages of the literal rule

• Absurd results• Unjust results – LNER v Berriman (1946)• Does not always give effect to the intention of

parliament – they would not want absurd results

• Where a dictionary definition gives two meanings, the literal rule will not work

• Requires the assumption that draftsmen will always do their job perfectly

Advantages of the golden rule

• Prevents absurd and unjust results – Re Sigsworth

• More likely than the literal rule to have produced a result intended by parliamant

Disadvantages of the golden rule

• No clear definition of what amounts to an absurd result – therefore unpredictable

• Makes it difficult for lawyers to advise clients whether or not to pursue a case

• Too much power given to judges• Michael Zander calls it a ‘feeble parachute’

Advantages of the mischief rule

• Avoids absurd and unjust outcomes – McMonagle

• Promotes flexibility• How parliament intended it – smith v hughes• Law Commission calls it a ‘rather more

satisfactory approach’ – preferred approach

Disadvantages of the mischief rule

• Too much power to an unelected judiciary• Is it the job of a judge to update legislation? –

Abortion Act 1967• Can be hard to discover the original mischief –

search old law• Difficult to identify precise intention of

parliament• Out of date – 16th century

Advantages of the purposive approach

• Consistent with EU approach• Gives effect to parliament’s intentions• Denning states that it is “preferable to

destructive analysis”• Avoids absurd and unjust results• Flexible• Parliament's intention

Disadvantages of the purposive approach

• Too much power to unelected jury• Judicial decisions based on policy – Fitzpatrick

v Sterling Housing Association

Advantages of the ejusdem generis rule

• No requirement for draftsmen to write an exhaustive list of everything included

• Adadpt to changes in society

Disadvantages of the ejusdem generis rule

• Not always predictable what judges will consider to be of the same category as the specific words – Kensington and Chelsea LBC ex p Kihara (1996)

• Allows for judicial law making

Advantages of the noscitur sociis rule

• No need for draftsmen to foresee every particular circumstance

• Adapt to unforeseen circumstances

Disadvantages of the noscitur sociis rule

• Offends the separation of powers – judicial law making

• Unpredictable outcomes due to scope for judicial discretion

Advantages of the exclusio alterius rule

• A finite list is provided• More predictable• Lawyers can advise due to this• Respects separation of powers

Disadvantages of the exclusio alterius rule

• Rigidity• No scope for future changes• Possible unfair and unjust outcomes

Advantages of the intrinsic aids

• Long title can remind judges of what they are trying to achieve – mischief/purposive approach – Black-Cawson (1975)

• Preamble, objectives or puposes sections help when applying mischief/purposive approach

• Schedules help understand the provisions of an act – easy to reference

• Definition section helps with interpreting words

Disadvantages of the intrinsic aids

• Doubt as to whether punctuation should be taken into account – wasn’t used prior to 1850

Advantages of the extrinsic aids

• Dictionaries help when using literal approach• Referring to acts can help with interpreting

mischief• Commission reports help when applying

mischief/purposive approach• Hansard is a very useful tool – Davis v Johnson• Explanatory notes use more accessible

language

Disadvantages of the extrinsic aids

• Dictionaries do not help when looking at parliament’s intention

• Interpretation Act is limited in scope and not very technical or specialised

• Commission reports can be erroneous – Anderton v Ryan

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