The rules that the courts

When the courts are called upon to interpret a statute they use a variety of rules to try and ascertain 'the intention of Parliament' Explain and comment upon the rules that the courts may use in order to interpret a statute. It is assumed that, under the unwritten constitution that the United Kingdom is governed by, judges interpret the law, rather than write it (Read, 1998). Because English law is based on precedent the method used to decide the interpretation of the law concerned becomes important.

Judges presiding over relevant cases are faced with three routes to achieve their aims. i) The Literal rule ii) The Golden rule iii) The Mischief rule. The literal rule, as suggested is concerned with looking at the relevant statute and applying that statute to the letter. Judges taking this approach are doing this from the perspective of a judiciary not willing to challenge the primacy of the legislature to make law. Even if the law as it stands may seem ludicrous, that will be an issue for the legislature to remedy. Consider the case of Fisher v Bell (1960).

A shopkeeper had on display in his shop window a set of pocket knives. This was, on the face of it contrary to the Restriction of Offensive Weapons Act (1959), which proscribed the sale of flick knives, similar to what was on display. However the defendant argued that a window display was to be regarded as an invitation to treat, rather than an offer to sell (Riches and Keenan, 2005). Since this is an important facet of English contract law, the courts found for the defendant, and the legislature changed the law the next year to account for this.

The Golden rule takes the Literal rule, seen by some as too restrictive and tries to interpret legislation in a more logical fashion. The question is posed; if the law as it stands is followed to the letter, as with a literal interpretation, will a judgement based upon this law be absurd? One example: if a man kills his mother, and is sent to prison for life, is he entitled to inherit from his mother, even if the murder was committed for the purpose of the inheritance? This was the issue posed by Re Sigsworth (1935).

The Administration of Estates Act (1925) held that the defendant was entitled to inherit from his mother, because no will existed. However he was responsible for her murder and the courts upheld that he should not profit from his malfeasance, as according to convention (Jepson, n. d). The Mischief rule developed from a case in 1584, known as Heydon's Case. Indeed the Law Commission saw the Mischief rule as a "rather more satisfactory approach" to statutory interpretation than the other routes available (Law Teacher, n. d). What judges are concerned within this case are four factors.

Firstly what the law was before the relevant statute was enacted. Secondly, what mischief did the law prior not take into regard? Thirdly what did Parliament do to fix this mischief? And finally, why did Parliament take action? Judges are charged with ruling on cases according to these limits. Smith v Hughes (1960) is an example of the Mischief rule being applied. The Street Offences Act (1959) made it an offence to solicit on the street for prostitution purposes. Those charged attracted business from their balcony by signalling to customers on the street.

As they were not on the street at the time they claimed that they were guilty of no offence. The court disagreed, ruling against the defendant. The presiding judge ruled that the mischief in this case was street prostitution, and that the relevant act was drawn up to prevent this. The fact that action was solicited from a balcony or window on the street was still felt to be a transgression of this law (Jepson, n. d). In addition other rules in line with common law are used. Ejusdem generis, or general words following specific words for example.

The general words are related to the specific words, so in a case such as Powell v Kempton Park Racecourse (1899), a 'house, office, room or other place for betting' must relate to another indoor place, as the first three places are all related by their being indoors (Jepson, n. d) Judges can also consider that the mention of one thing excludes others (Expresso unus excluso alterus). This is the opposite of the previous rule in that if general words do not follow specific words then they are excluded from consideration.

The environment in which words exist with others can be regarded by judges also. Noscitur a socis or 'a word is known by the company it keeps' is the common law phrase. The Inland Revenue Commissioners v Frere (1965) case displays this. The phrase 'interest, annuities or other annual interest' is used. The presence of the last three words 'other annual interest' leads to the conclusion that 'interest' in this case referred to that paid on an annual basis only. Judges can give recourse to statutory instruments of their own in addition.

Two pieces of legislation allow for this, namely the Interpretation Act 1978 and the Human Rights Act 1998. The Interpretation Act gives direction on how statutes should be interpreted by judges. For example, if a law is passed which repeals a previous law, and the repealing law is repealed itself, then the previous law remains repealed. It gives guidance on how to interpret the language contained in statutes: unless it is expressed otherwise, masculine words have the same implied meaning as feminine words, and singular words have the same implied meaning as plural words, and vice versa (Boone, n.d).

The assent of the Human Rights Act 1998 meant that judges were now expected to adjudicate on English statutes with regards to whether they were compatible with the European Convention on Human Rights. Specifically, as Section 3 quotes: "So far as possible to do so, primary legislation and secondary legislation should be read and given effect in a way which is compatible with Convention rights" (The Lawyer, n. d).

If this is found not to be the case, then the relevant statute is found to be incompatible, and is recommended for amendment, (the court cannot force the legislature to do this), although if it is not an act of Parliament, but a piece of secondary legislation the courts can disregard it, or even annul the law.

Bibliography

Brown, I and Chandler, A. 2005. Law of Contract (5th Edition). Blackstone, London Duxbury, R. 2003. Contract Law (6th Edition). Sweet and Maxwell, London Furmston's The Law of Contract. 2003 (2nd Edition). Butterworths, London