Law Interpretation
ation in The aids to interpretation used by the judiciary, how this may impact upon the sovereignty of parliament
This assignment aims to introduce and discuss the aids to interpretation used by the judiciary and how this may impact upon the sovereignty of parliament.
The legal system of both England and Wales has a body which includes legislations, common law and other legal norms that are established by parliament, the crown and judiciary. The courts are organised in a hierarchal structure and England has no written constitutions like the US therefore giving parliament power of 'law-makers ' especially after they made themselves a supreme body who represent the people of the country, they have unquestionable power (unlike the other law-makers) to add, remove and change legislations without consulting the outsiders. As parliament don 't have time to look through all bills passed the following can make 'delegated ' (or subordinated) legislations; ministry of crown, privy council, local authority, courts and tribunals. Regulations in Chester v Bateson 1920 shows an example of a delegated legislation being declared void by parliament. The English courts are set in a hierarchal structure with this England developed a doctrine of binding precedent (doctrine of stare decisis Latin for "to stand by decided cases") meaning, when cases are being tried judges are bound by decisions of superior or equal court status within their jurisdiction and they must check for previous similar cases for precedents set by either equal or superior courts and should obey/follow this precedent. In the case where the precedent is from an inferior court precedent can be taken into account but doesn 't have to be followed. If judges fail to refer back to previous statutes either because he/she missed it or it wasn 't cited this gives reason for an appeal. Also judges must consider EU laws and Human rights Act when applying law as these may be binding on UK courts.
It is expressed that Parliament are the 'law-makers ' and judges are the 'ultimate ' law enforcers who must make sense of what parliament intended and apply it, because of this courts are constrained to cases presented before them and by constitutional understanding. Both tort and contract law fall into the category of 'civil law ' which is contrasting to English 'common law '. In civil law systems judges are strictly forbidden from "making law" and generally they are neither bound or encouraged to establish presidents of similar cases. Powers held by civil law judges allows them to base decisions exclusively to evidence brought forward during the course of a trial, hearing or in documents filed, with this judges also have an inquisitorial role which allows them to question both parties. This may be because the majority of civil cases differ extensively and there are codes which judges must follow.
Appendix 1: common law v civil law system.
As previously stated and shown in appendix 1 the common law is contrasting to civil law. As language can be complex and the use of legal language can be unintelligible as seen in landlord and tenant Act 1987 the case of Denetower ltd v Toop 1991 was said to be "ill-drafted, complicated and confused" it becomes the judges role to make sense of these Acts which again can still be really complicated as there can be problems of deciding what parliament mean by a particular piece of legislation, judges can miss-interpret the act or legislation, contradiction of higher laws, ambiguity, vagueness, ruling must abide with Human rights act and European law. In the case of Twining v Myers 1982, the court had to decide if roller skates meant the same as 'vehicle '. Meaning of words may change over time which can be seen in Offences Against a Persons Act 1861 the word "malicious" and "grievous". Because of these constant problems the courts developed ways of applying rules (and in other jurisdictions, presumptions) which would interpret the meanings and apply the law with the best intention of preserving the parliamentary sovereignty. If we refer back to the beginning I stated parliament made themselves the supreme body of the Law (UK constitution) who can add, remove or change any law without being questioned or overruled by courts. This is the most important "partly unwritten and wholly uncodified" constitution although statute laws passed in parliament are written so in a way these are actually written just not in the same way as the US or Germany. The following are rules which judiciary use to interpret the law.
The literal rule
Lord Reid in Pinner v Everett 1969 is quoted “In determining the meaning of any word or phrase in a statute, the first question to ask is always what is the natural and ordinary meaning of that word or phrase in its context in the statute.”
This approach has been dominant in the English legal system. it means to apply its everyday meaning and not look outside the legislation in attempt to find a different meaning.
appendix 2: application of literal rule
The purposive rule
This approach is used often in civil law systems. Judges are not limited in finding a literal meaning of words. Judges can look beyond words in statute to find the reason as to why this word was chosen this way judges are able to construe legislations in a way which reflects what parliament meant when passing this legislation. Although in RvZ and other 2005 N.Ireland court of appeal asked that the courts include the word "real IRA" in the term "the IRA" the supreme courts (at that time known as HOL)rejected this as they said that parliament wanted to keep this gap open in order to include ALL representations of the IRA whatever the relationship to each other.
The golden rule
They say this is like an extension or reduction of the effect of applying the literal rule. When the application of the literal rule is heading towards an "absurd" result or ambiguity the judge can use this although this is not to be used unless the judge finds genuine difficulty. In simpler terms this is a way of finding what they think the statute was suppose to say rather than what is said.. Lord Wensleydale in grey v Pearson 1857 first to use this approach.
Appendix 3: application of the golden rule where literal rule would result in accused not being guilty.
within this golden rule are two said to have two versions, the narrow meaning and the wider meaning. Appendix 3 is an example of the narrow meaning being used as there are two contradictory meaning. Interpretation of the wider meaning is shown in the case of Re sigsworth 1935 person murdered his mother and would have gotten the proceeds of her estate even though there was no will. the wider meaning was applied to prevent the murderer from benefiting for his crimes.
The mischief rule
This is an old rule from 1584 where steps were taken to identify what the stature was trying to put right. the following steps would have been asked;
what the law was before the Act was passed
what was wrong with that law
how Parliament intended to improve the law through the statute in question
Apply that finding to the case before the court. In Smith V Hughes 1960 it 's a great example of this rule being applied. Smith was in a building with prostitutes attracting attention of passersby which they were arrested for solicitation by the street offence Act 1958 because the act stated 'solicit in the street ', when applying the literal rule there would be no offence because they were not 'in ' the street, but when we answer the above questions it doesn 't matter if Smith and the women were 'in ' the streets they were still soliciting men / passersby which is what the act was trying to prevent so by applying the mischief rule you eliminate the weakness. As Lord Parker stated everyone knew the purpose of the act, it was just poorly written.
In order for Judges to apply these rules they must also have aids to help interpret these words and their meanings. There are intrinsic (internal) aids which can be found in the notes and definition of the Act i.e., long title of the act, explanatory notes, presumptions, other sections of the Act/ Definition section. the Extrinsic (external) aids are Dictionaries, text books, academic writing, law commission reports, case law from other jurisdictions and Hansard.
In conclusion I feel that having written statute allows both parties to know what to expect, there is little need to be constantly changing. Parliament still has the power to abrogate any rules within any case or previous statute it sees fit, although they delegate power of law making they keep sovereignty as the judiciary has there 'intentions ' in mind which we saw in the case of Smith V Hughes 1960. Because a word 's meaning is being looked at doesn 't necessarily mean that its changing the way that was intended, parliament represents the people of its country and the judges work on behalf of the people. they complement each other.
References http://privycouncil.independent.gov.uk/privy-council/privy-council-members/, (accessed 06/04/2013) http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1996_1/woolf/negligence (accessed 16/04/2013) http://www.cilex.org.uk/about_cilex_lawyers/the_uk_legal_system.aspx ( accessed 18/04/2013) http://www.worldlawdirect.com/forum/law-wiki/5966-judges.html, (accessed18/04/2013) http://www.parliament.uk/about/how/sovereignty/ (accessed18/04/2013)
Appendix
appendix 1, http://my.ilstu.edu/~ewells/cjs102/CommonvsCivilLaw-Chart.pdf ,accessed 10/04/2013, civil v common appendix 2, 3, http://home.loxfordlaw.co.uk/unit1/notes-on-statutory-interpretations ,accessed 10/04/2013, application of literal rule, application of the golden rule where literal rule would result in accused not being guilty.
.
References: http://privycouncil.independent.gov.uk/privy-council/privy-council-members/, (accessed 06/04/2013) http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1996_1/woolf/negligence (accessed 16/04/2013) http://www.cilex.org.uk/about_cilex_lawyers/the_uk_legal_system.aspx ( accessed 18/04/2013) http://www.worldlawdirect.com/forum/law-wiki/5966-judges.html, (accessed18/04/2013) http://www.parliament.uk/about/how/sovereignty/ (accessed18/04/2013) Appendix appendix 1, http://my.ilstu.edu/~ewells/cjs102/CommonvsCivilLaw-Chart.pdf ,accessed 10/04/2013, civil v common appendix 2, 3, http://home.loxfordlaw.co.uk/unit1/notes-on-statutory-interpretations ,accessed 10/04/2013, application of literal rule, application of the golden rule where literal rule would result in accused not being guilty. .
This assignment aims to introduce and discuss the aids to interpretation used by the judiciary and how this may impact upon the sovereignty of parliament.
The legal system of both England and Wales has a body which includes legislations, common law and other legal norms that are established by parliament, the crown and judiciary. The courts are organised in a hierarchal structure and England has no written constitutions like the US therefore giving parliament power of 'law-makers ' especially after they made themselves a supreme body who represent the people of the country, they have unquestionable power (unlike the other law-makers) to add, remove and change legislations without consulting the outsiders. As parliament don 't have time to look through all bills passed the following can make 'delegated ' (or subordinated) legislations; ministry of crown, privy council, local authority, courts and tribunals. Regulations in Chester v Bateson 1920 shows an example of a delegated legislation being declared void by parliament. The English courts are set in a hierarchal structure with this England developed a doctrine of binding precedent (doctrine of stare decisis Latin for "to stand by decided cases") meaning, when cases are being tried judges are bound by decisions of superior or equal court status within their jurisdiction and they must check for previous similar cases for precedents set by either equal or superior courts and should obey/follow this precedent. In the case where the precedent is from an inferior court precedent can be taken into account but doesn 't have to be followed. If judges fail to refer back to previous statutes either because he/she missed it or it wasn 't cited this gives reason for an appeal. Also judges must consider EU laws and Human rights Act when applying law as these may be binding on UK courts.
It is expressed that Parliament are the 'law-makers ' and judges are the 'ultimate ' law enforcers who must make sense of what parliament intended and apply it, because of this courts are constrained to cases presented before them and by constitutional understanding. Both tort and contract law fall into the category of 'civil law ' which is contrasting to English 'common law '. In civil law systems judges are strictly forbidden from "making law" and generally they are neither bound or encouraged to establish presidents of similar cases. Powers held by civil law judges allows them to base decisions exclusively to evidence brought forward during the course of a trial, hearing or in documents filed, with this judges also have an inquisitorial role which allows them to question both parties. This may be because the majority of civil cases differ extensively and there are codes which judges must follow.
Appendix 1: common law v civil law system.
As previously stated and shown in appendix 1 the common law is contrasting to civil law. As language can be complex and the use of legal language can be unintelligible as seen in landlord and tenant Act 1987 the case of Denetower ltd v Toop 1991 was said to be "ill-drafted, complicated and confused" it becomes the judges role to make sense of these Acts which again can still be really complicated as there can be problems of deciding what parliament mean by a particular piece of legislation, judges can miss-interpret the act or legislation, contradiction of higher laws, ambiguity, vagueness, ruling must abide with Human rights act and European law. In the case of Twining v Myers 1982, the court had to decide if roller skates meant the same as 'vehicle '. Meaning of words may change over time which can be seen in Offences Against a Persons Act 1861 the word "malicious" and "grievous". Because of these constant problems the courts developed ways of applying rules (and in other jurisdictions, presumptions) which would interpret the meanings and apply the law with the best intention of preserving the parliamentary sovereignty. If we refer back to the beginning I stated parliament made themselves the supreme body of the Law (UK constitution) who can add, remove or change any law without being questioned or overruled by courts. This is the most important "partly unwritten and wholly uncodified" constitution although statute laws passed in parliament are written so in a way these are actually written just not in the same way as the US or Germany. The following are rules which judiciary use to interpret the law.
The literal rule
Lord Reid in Pinner v Everett 1969 is quoted “In determining the meaning of any word or phrase in a statute, the first question to ask is always what is the natural and ordinary meaning of that word or phrase in its context in the statute.”
This approach has been dominant in the English legal system. it means to apply its everyday meaning and not look outside the legislation in attempt to find a different meaning.
appendix 2: application of literal rule
The purposive rule
This approach is used often in civil law systems. Judges are not limited in finding a literal meaning of words. Judges can look beyond words in statute to find the reason as to why this word was chosen this way judges are able to construe legislations in a way which reflects what parliament meant when passing this legislation. Although in RvZ and other 2005 N.Ireland court of appeal asked that the courts include the word "real IRA" in the term "the IRA" the supreme courts (at that time known as HOL)rejected this as they said that parliament wanted to keep this gap open in order to include ALL representations of the IRA whatever the relationship to each other.
The golden rule
They say this is like an extension or reduction of the effect of applying the literal rule. When the application of the literal rule is heading towards an "absurd" result or ambiguity the judge can use this although this is not to be used unless the judge finds genuine difficulty. In simpler terms this is a way of finding what they think the statute was suppose to say rather than what is said.. Lord Wensleydale in grey v Pearson 1857 first to use this approach.
Appendix 3: application of the golden rule where literal rule would result in accused not being guilty.
within this golden rule are two said to have two versions, the narrow meaning and the wider meaning. Appendix 3 is an example of the narrow meaning being used as there are two contradictory meaning. Interpretation of the wider meaning is shown in the case of Re sigsworth 1935 person murdered his mother and would have gotten the proceeds of her estate even though there was no will. the wider meaning was applied to prevent the murderer from benefiting for his crimes.
The mischief rule
This is an old rule from 1584 where steps were taken to identify what the stature was trying to put right. the following steps would have been asked;
what the law was before the Act was passed
what was wrong with that law
how Parliament intended to improve the law through the statute in question
Apply that finding to the case before the court. In Smith V Hughes 1960 it 's a great example of this rule being applied. Smith was in a building with prostitutes attracting attention of passersby which they were arrested for solicitation by the street offence Act 1958 because the act stated 'solicit in the street ', when applying the literal rule there would be no offence because they were not 'in ' the street, but when we answer the above questions it doesn 't matter if Smith and the women were 'in ' the streets they were still soliciting men / passersby which is what the act was trying to prevent so by applying the mischief rule you eliminate the weakness. As Lord Parker stated everyone knew the purpose of the act, it was just poorly written.
In order for Judges to apply these rules they must also have aids to help interpret these words and their meanings. There are intrinsic (internal) aids which can be found in the notes and definition of the Act i.e., long title of the act, explanatory notes, presumptions, other sections of the Act/ Definition section. the Extrinsic (external) aids are Dictionaries, text books, academic writing, law commission reports, case law from other jurisdictions and Hansard.
In conclusion I feel that having written statute allows both parties to know what to expect, there is little need to be constantly changing. Parliament still has the power to abrogate any rules within any case or previous statute it sees fit, although they delegate power of law making they keep sovereignty as the judiciary has there 'intentions ' in mind which we saw in the case of Smith V Hughes 1960. Because a word 's meaning is being looked at doesn 't necessarily mean that its changing the way that was intended, parliament represents the people of its country and the judges work on behalf of the people. they complement each other.
References http://privycouncil.independent.gov.uk/privy-council/privy-council-members/, (accessed 06/04/2013) http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1996_1/woolf/negligence (accessed 16/04/2013) http://www.cilex.org.uk/about_cilex_lawyers/the_uk_legal_system.aspx ( accessed 18/04/2013) http://www.worldlawdirect.com/forum/law-wiki/5966-judges.html, (accessed18/04/2013) http://www.parliament.uk/about/how/sovereignty/ (accessed18/04/2013)
Appendix
appendix 1, http://my.ilstu.edu/~ewells/cjs102/CommonvsCivilLaw-Chart.pdf ,accessed 10/04/2013, civil v common appendix 2, 3, http://home.loxfordlaw.co.uk/unit1/notes-on-statutory-interpretations ,accessed 10/04/2013, application of literal rule, application of the golden rule where literal rule would result in accused not being guilty.
.
References: http://privycouncil.independent.gov.uk/privy-council/privy-council-members/, (accessed 06/04/2013) http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1996_1/woolf/negligence (accessed 16/04/2013) http://www.cilex.org.uk/about_cilex_lawyers/the_uk_legal_system.aspx ( accessed 18/04/2013) http://www.worldlawdirect.com/forum/law-wiki/5966-judges.html, (accessed18/04/2013) http://www.parliament.uk/about/how/sovereignty/ (accessed18/04/2013) Appendix appendix 1, http://my.ilstu.edu/~ewells/cjs102/CommonvsCivilLaw-Chart.pdf ,accessed 10/04/2013, civil v common appendix 2, 3, http://home.loxfordlaw.co.uk/unit1/notes-on-statutory-interpretations ,accessed 10/04/2013, application of literal rule, application of the golden rule where literal rule would result in accused not being guilty. .