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"The Literal method is now completely out of date. It has been replaced by the approach which Lord Diplock described as 'purposive' approach … In all cases now in the interpretation of statutes we adopt such a construction as will 'promote the general legislative purpose underlying the provision' "

Per Lord Denning MR in Nothman v London Borough of Barnet [178] 1 All ER 14, 146.

Discuss the above statement, with references to decided cases.

Introduction

Cheap University Papers on "The Literal method is now completely out of date. It has been replaced by the approach which Lord Diplock described as 'purposive' approach … In all cases now in the interpretation of statutes we adopt such a construction as will 'promote the general leg

Lord Denning's statement above has been a contentious one and has led to many debates in the legal environment. The main issue in the above statement is one of Statutory Interpretation and Parliamentary Sovereignty. Various methods, rules, approaches and practices are used to interpret legislation. There is nothing unusual in the process of interpretation as it is the ordinary function of the courts to give meaning to statutory provisions.[1] However when the wording used in a statute is not clear this leads to problems. These problems are then left to the Judges to determine.

In order to understand the various problems the Judges face in interpreting statutory provision, these 'problems' will be described briefly. Particular attention will be given to the literal method and the purposive approach. Subsequently, I will also very briefly describe other methods or 'tools' of interpretation briefly so as to provide a clear overview of Statutory Interpretation. The role of judges will be discussed as well.

In matters of statutory interpretation, the strict constitutional view is that the role of a judge is interpretive only. The role of the judges in relation to statutes is to interpret them. This means that they have to give meaning to the words used in the statutes. If there are any uncertainties or ambiguities in the words used to interpret the statute it is the judges function to resolve the uncertainties and ambiguities. The question that has to be addressed is the boundaries within which judges should remain in order to interpret statutes sensibly whilst at the same time accepting the fact that Parliament is the supreme law making body.

The English language is such that even Englishmen who are highly experienced lawyers, known as Parliamentary Counsel find it very difficult to construct a whole piece of legislation without some ambiguity in its wordings. Particular problems that can arise are now discussed below first.

Problems

Ambiguity in a statute can arise when a word used can have two or more meanings. By using an ambiguous word, the person or persons (draftsman) may give a statute a meaning opposite to that which Parliament intended. For example, in Fisher v Bell [161] 1 QB 4, under the Section 1 of Restriction of Offensive Weapons Act 15 it was an offence to 'offer for sale' an offensive weapon. The defendant had displayed flick-knifes for sale in his shop-window. He was charged with offering these for sale. However, in contract law when goods are displayed in a shop, they are not in fact being offered for sale but are an 'invitation to treat'. The defendant, therefore had not committed an offence. The purpose of the Act had been defeated by careless drafting.

Even unambiguous words may need interpretation as in Section (1) of the Race Relations Act 176. Section of the Act (as amended) provides

(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description."

In Anyanwu v South Bank Student Union [001] UKHL 14 HL a student alleged that the university aided the students union in dismissing him from his job in the union. This appeal was decided on the correct interpretation and application of the word "aids". Similarly in the case of Hallam v Chletenham BC [001] UKHL 15 HL the case was also decided on the interpretation of the word "aids". It was held that this word means to actively and closely be involved with another party to carryout an act and not merely to induce someone to carry out some act. This interpretation shows the degree to which courts sometimes go to reach decisions even when on the face of it there seems to be no ambiguity.

Words are also capable of having a broad meaning such as in Section 1 of Dangerous Dogs Act 11

"controls the possession, disposal and breeding of dogs of the type known as pit bull terriers."

Here the intention of Parliament was to control Pit Bull terriers only. However it caused problems in the case of Knightsbridge Crown Court Ex Parte Dunne [14] 1 WLR 6. Here, the Court held that the word 'type' can apply to dogs possessing a substantial number of the characteristics of Pit Bull terriers, for example Rottweilers or Pit Bull/Staffordshire cross breeds and similar breeds. So, unintentionally, other dogs were caught up in the Act's provisions.

Errors in drafting have also been known to happen. These problems arise where the Parliamentary Counsel makes a mistake that was overlooked as the Bill passed through its Parliamentary stages. In Inco Europe Ltd v First Choice Distribution and Others (000) AER 10 HL, In this case a contract for the sale of nickel that was the subject of an arbitration agreement between the parties. In Section of Arbitration Act 16 it stated that a 'party to an arbitration agreement against whom legal proceedings are brought…may…apply to the court…to stay the proceedings…'. The defendant company applied to stay the proceedings so that it could proceed to arbitration. The application was refused because the judge declared that the arbitration agreement was not valid. The question was whether the defendant company could appeal to the Court of Appeal against the decision. The draftsman should have provided for a right of appeal but he was silent on the point. It was held that the Court of Appeal did have jurisdiction. Lord Nicholls stated that 'something went awry in the drafting'; that the draftsman had 'slipped up'.

There are examples of statutory provisions that have been drafted so badly, such as S16()(a) of the Theft Act 178 that in R v Royle [171] AER 15 Edmund Davies LJ at 16 referred to it as 'a judicial nightmare' which finally replaced by an entirely new Act The Theft Act 178.

Advances in technology can also lead to situations where old Acts of Parliament do not cover current situations. In Royal College Of Nursing Of The United Kingdom v Department Of Health & Social Security (181) 1 AER 545 HL. Here, Section 1(1) of the Abortion Act 167 was considered. The relevant part states that 'a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner…'. in other words, a doctor. The point here was that medical technology had developed to such an extent that essentially a nurse could perform the termination, and the House of Lords interpreted Section 1(1) of the Act to mean that a termination which involve nurses playing a substantial role is acceptable provided that a registered medical practitioner accepts responsibility. Therefore essentially, a doctor nowadays need not even be present at a termination.

Changing times and situations can also lead to problems. In Gough V Avon And Somerset PLB [00] EWHC 658 DC the local magistrates had been compelled to deny the applicant licensee an extension to his pub drinking hours during the World Cup 00 because previous court decisions (precedent) indicated that the World Cup was not a 'special occasion'. However due to the high level of current interest in the game of football in the country, on appeal, the decision was reversed with the court re-interpreting the World Cup as a 'special occasion'. This ruling has now become applicable to include the All England Lawn Tennis Championships.[]

Definition of Literal Rule

Having looked at problems which can arise we now turn to the rules which are used to interpret the statutory provision. In reaching their conclusions on the wording of an Act, traditionally judges use to impose on themselves a ban on looking at the Parliamentary debates which preceded the Act. The words of the Act itself are the only guide the judges allow themselves to the meaning and purpose of the legislation. The literal rule requires judges to interpret the Act according to the ordinary, literal and grammatical meaning of the words which are used. If the words are capable of only one literal meaning then this is the meaning that must be given to them even though this obviously goes against the intention of the Act. In other words, in using the literal rule the court is applying the presumption that Parliament means what it says and says what it means. Therefore the outcome must reflect only the ordinary literal meaning of the words used in the statute.

Arguments stating that Literal Method is out of Date

In Pinner v Everett [16], Lord Reid said that judges should look at the 'natural and ordinary meaning of that word or phrase in its context in the statute'. In R v Judge Of The City Of London Court [188], Lord Esher said, 'If the words of an Act are clear, you must follow them even though they lead to a manifest absurdity. The court has nothing to do with the question of whether the legislator has committed an absurdity'. This was the line of reasoning for a very long time but this line of reasoning and thought has essentially fallen into disrepute and the courts will go to great lengths not to achieve absurd results. FISHER v BELL (above) is a very good example of the literal rule in operation.

Before progressing to the discussion on the Purposive approach it is worthwhile to look at the Golden Rule. It is applied in cases where the plain meaning of the words produces a 'manifest absurdity'. In Grey v Pearson (1857) 6 HL Cas 61, Parke B said

'… the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency but no further'

In ADLER v GEORGE (164) QB 7, words were added to a statute in order to avoid an absurdity and gain a conviction. The defendant was in a prohibited airbase and had obstructed a member of HM Forces. He was charged under Section of the Official Secrets Act 10 for so doing. The section states that 'No person in the vicinity of any prohibited place shall obstruct…any member of Her Majesty's forces'. The defendant was not 'in the vicinity' of the airbase - he was actually in the airbase; however the court held that the phrase 'in the vicinity of' was to be interpreted as 'in or in the vicinity of' so the defendant's obstruction could constitute an offence under the section. The Golden Rule is proof that an alternative was required to the literal rule, however it still had its limitations.

Definition of Purposive Approach

The Mischief Rule, which leads to the purposive approach, departs from the two rules above as it does not only look at the words of the statute but also at the purpose for which Parliament enacted the statute. Heydon's Case 1584 establishes a rule that permits judges to interpret a statute quite widely where the intention of the statute has been to put an end to some mischief. To do this, the judge should have consideration to(1) what the law was before the statute was passed; () the 'mischief' that the statute was trying to remedy; and () what remedy Parliament was attempting to provide and (4) the true reason of the remedy.

The limits of this rule have never been laid out, though in Jones v Wrotham Park Settled Estates (180) Hl, Lord Diplock laid out three circumstances where it may apply.

(1) If it is possible to determine from the Act the precise mischief that the Act was to remedy;

() if it was an accident that the mischief had not been resolved by the Act's literal meaning; and

() if it is possible to say with certainty what additional words would have been inserted by draftsmen and approved by Parliament.

This approach has found favour in modern times. It looks at the intention or purpose of Parliament and is known as the purposive approach.

Arguments that support the use of the purposive approach

In Smith v Hughes (160) 1 WLR 80 an offence under section 1 Street Offences Act 15 was involved. The 'mischief' this Act was trying to control was that of prostitutes openly soliciting customers in the street. Here, section 1 of the Act provided that it was 'an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution'. The prostitute was sitting in a house and tapping on a window to attract the attention of men walking by. The court decided that the aim of the Act was to enable people to walk along the street without being solicited and even though the prostitute was not in the street herself, the Act should be interpreted to include this activity. Under the literal rule the prostitute would most likely not be convicted and therefore would have by passed the actual intention of the Act and Parliament.

Eastbourne BC v Stirling [000] LTL C010011 - CA, where the forecourt of a railway station (which was private land) was nevertheless held to be a street within the meaning of the Town Police Clauses Act 1847. The Act prohibited the 'plying for hire' of unlicensed hackney carriages (taxis) - the mischief, if you like - and accordingly a taxi parked up in the forecourt, waiting for customers, was plying for hire and should have been licensed. Here again the intention of the Act and Parliament was incorporated into the decision by the Judges in order to make the Act effective..

In Notham v London Borough of Barnet [178] 1 All ER 14 Lord Denning declared that the 'literal method is now completely out of date'. In this case regarding unfair dismissal the point of contention was the word 'normal retiring age'. Here Miss Notham who was a teacher had a contract that stated she was to retire at the age of 65 but was terminated at when she was 61. At the Employment Tribunal it was contended by the employers that the age limit of 60 years should be applied for retirement as prescribed by law and therefore she was not entitled to claim unfair dismissal as only those below 60 were allowed to go to the employment tribunal and also that there was no normal retiring age for teachers who in practise retired at all ages. Miss Notham's case was dismissed and she appealed on the issue of 'normal retirement age'.

It was held by Lord Denning that the expression 'normal retiring age' meant the age at which the employment contract stated, that is 65 despite the wordings in the Trade Union and Labour Relations Act 174, Sch 1 para 10(b). He further went on to say that

'… the judges can and should use their good sense to remedy it, by reading words in if necessary, so as to do what Parliament would have done had they had the situation in mind.'

The Employment Tribunal in Miss Notham's case acknowledged that their judgment was unjust. However they felt compelled to make a decision they did not agree with. They stated that

'… Clearly someone has a duty to do something about this absurd and unjust situation. It may well be, however, that there is nothing we can do about it. We are bound to apply provisions of an Act of Parliament however absurd, out of date and unfair they appear to be. The duty of making or altering the law is the function of parliament and is not, as many persons seem to imagine, the privilege of the judges or judicial tribunals.'

This statement very clearly means that the literal rule was used by the tribunal even though they realised the unjust outcome. In response to the above statement Lord Denning used unusually strong language to repudiate it by stating

'Faced with injustice, the judges are, it is said, impotent, incapable and sterile'

Although Lord Denning is well noted for using strong language, this statement is even more strongly worded then usual.

The Law Commission in 167 made suggestions for the reform of statutory interpretation and suggested (1) that more liberal use should be made of the internal and external aids; and () in the event of ambiguity, the construction which best promoted the 'legislative purpose' should be adopted - i.e. they favoured the purposive approach.

The Renton Committee (UK) in 17 suggested that there should be a move towards a more European way of drafting which in itself this would lead to purposive interpretation. European Law now has had an impact on statutory interpretation in England, as it was held in Marleasing SA v La Comercial Internacional De Alimentacion SA (Case C-106/8) [10] ECR I-415 that where national courts have to interpret national law in a field governed by European Union law, they must interpret that law in the light of the wording and purpose of the Community legislation, so far as it is possible for them to do so. Therefore to a large extent whether the literal or purposive approach should be used or not seems to be answered already as far as English Law is concerned.

Other Rules

There are several other methods which are also used. External aids, such as The Interpretation Act 178 which provides some basic rules such as reference to male includes female and singular includes plural unless otherwise stated. Dictionaries are occasionally used but their use has also been rejected. Law Commission or Royal Commission Reports although prohibited from being used are occasionally allowed if the aim of the report was to remedy the Act of Parliament in question.

Reports from Parliamentary debates (Hansard) were for a very long time absolutely not allowed to be used to assist the judges in their interpretation of statutory provision. However in Pepper v Hart [1] 1 AER 4 the House of Lords decided that it was acceptable in certain circumstances to relax this rule. In Davis v Johnson [17] AC 64 HL, Lord Denning said that not to use Hansard 'would be to grope around in the dark for the meaning of an Act without switching the light on'.

Internal Aids such as reading the entire Act to gather its purpose is allowed. The Titles (short & long), Schedules and Preambles of an Act can mostly be used to assist in the interpretation process. All these aids to interpretation are available to

Conclusions

It is very clear that Parliament is the only body that is entitled to create legislation and is the originator of all legislation, however it can be said that it is the courts which 'breaths life' into the Acts of Parliament due to the fact that the courts are the ones which apply and interprets the law.

The purposive approach should be used if equity and justice is meant to be the outcome. A strict adherence to the words used without regard to unjust outcomes and absurdities would lead to a lack of confidence in the judicial process by businesses and the public at large. Absurd and unjust outcomes lead to uncertainties and therefore also affect the standing of the judiciary and deviates from the purpose for which it is set up.

In conclusion, the purposive approach, if applied cautiously, should be used by Judges and should be seen as a positive development in the evolution of justice. The Judges by using the purposive approach are playing a supportive role to the supremacy of Parliament and do not 'take over' the role of lawmakers. This conclusion is supported by Lord Denning's statement in Magor and St. Mellons v Newport Borough Council (15) AC 180 HL

'We do not sit here to pull the language of Parliament to pieces and make nonsense of it. We sit here to find out the intention of Parliament and carry it out and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis' (i.e. by applying the literal rule, one has destroyed the intention of Parliament).

Therefore the credibility and supremacy of Parliament is actually enhanced by the use of the purposive approach and it is the correct approach due to the fact that Judges are positively assisting Parliament to reach the desired and equitable outcome.

Footnotes

[1] English and European Legal Systems (nd Edition 001) Editor Judith Evans Old Bailey Press Page 4.

[] www.lglf.org/download/doc/EC.doc

Bibliography

English and European Legal Systems (nd Edition 001) Editor Judith Evans Old Bailey Press

http//www.e-lawstudent.com

Walker & Walker's English Legal System Eighth Edition Richard Ward 18 Butterworths

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