Stat Int - What is Parliament's intention?
- 1. Parliament’s Intention 02.02.2012
- 2. HOMEWORK! Hand in your practice answer to exam question to the purposive approach – and any outstanding homework. Failure to hand in an answer, will result in an incomplete task on progress report. Grid.
- 3. Lesson Objectives All learners will be able to: Identify and explain 5 different rules judges use to find out Parliament’s intention. Most learners will be able to: Define the language rules and how they apply. Some learners will be able to: Critically analyse the progress of statutory interpretation, discussing the past, present and future aids to interpretation.
- 4. Starter Activity Card Game Match the bold headings with the paragraphs/phrases. 7 mins.
- 5. Picto-Case Law 10 mins
- 6. Literal Rule vs. Purposive Approach What is the difference between the literal approach and the purposive approach? The literal approach takes each word literally. The purposive approach is very broad and does not look at the precise meaning of each word. Can you recall any case-law/AO2 marks about the purposive app?
- 7. Problems between the literal approach and purposive approach. It is questioned whether judges should examine each word and take the words literally or whether it should be accepted that an Act of Parliament cannot cover every situation and that the meanings of words cannot always be exact. 1. Cheeseman v DPP – Facts? 2 policeman waited in a public toilet to arrest a man who was accused of wilfully and indecently exposing his person in a street to the annoyance of passengers. Court applied dictionary meaning, and since police did not fall under passengers , no offence had committed
- 8. Literal vs. Purposive A02 In this case, the courts interpreted the law literally, which therefore caused problems. Can you identify the problems caused as a result of the literal app being used? (5 mins) D was still ‘wilfully and indecently exposing his person in a street’ and that he was caught doing that.
- 9. Problems with Cheeseman v DPP (Literal) • The question arises does it matter whether the police officers were ‘passengers’ by literal meaning? • Surely, the purpose of the act was to prevent this indecent behaviour, regardless of whether the police officers were deemed passengers. • D was still ‘wilfully and indecently exposing his person in a street’ and that he was caught doing that. In contrast, the purposive app is very broad. Instead of looking at the exact definition of the word, a broader approach is taken – how? What other aids does the Purposive app use?
- 10. Problems with interpreting Statutes (A02) The following terms are a few reasons why interpreting statutes can cause confusion/why interpretation is required. Write a short paragraph explaining how: 1. A broad term 2. Ambiguity 3. A drafting error 4. New developments 5. Changes in the use of language.
- 11. Answers 1. A broad term Although the wording in some statutes may be broad so that it can cover and relate to a number of things, the word is sometimes too broad and results in confusion. Dangerous Dogs Act 1991- ‘any dog of the type known as the pit bull terrier’ - what is meant by ‘type’? - does it mean the same as ‘breed’?
- 12. 2. Ambiguity Where the wording in the statute is unclear because it has two or more meanings, then again, problems will arise and the court will have to decide the exact meaning of the particular word or phrase. 3. A drafting error Where an error has been made and has been unnoticed by Parliament, once again, the error in the statute will result is debate as the statute will say one thing but the actual law means another.
- 13. 4. New developments As a result of new technology, an old Act of Parliament does not always cover situations which occur today. 5. Changes in the use of language The meaning of words can change over a period of time. E.g. the meaning of ‘street’ and ‘passenger.’ Which cases does these words cause issues? Street – Smith v Hughes (prostitutes) Passengers – Cheeseman v DPP.
- 14. Looking at Parliament’s Intention Can you name any rules which judges may use to find out what was Parliament’s intention? Literal rule – plain ordinary meaning Golden rule – to take away any absurdity produced from literal rule Mischief rule – look at what the mischief caused from previous acts, and how Parliament intended to fix this. Purposive app – looking at what Parliament SAID and MEANT! – what was the purpose of the act?
- 15. Aids to interpretation The courts use a variety of aids to help them interpret statutes, along with the rules we have already mentioned. Imagine that you have a section of a book to read for homework, and it contains some words which you do not completely understand. Where might you obtain help? The index of the book, a dictionary, similar books, internet, ask a friend etc. Now consider what the courts may wish to use to help them understand words within a statute which are not clear.
- 16. Aids to interpretation • Euisdem Generis Rule – examples? • Expressio unius exclusio alterius - If there are no general words at the end of the list, only things in the list are covered by the legislation. For example; The "men" sign on a toilet door impliedly excludes women and vice versa. • Noscitur a sociis - Words are generally interpreted in the context of the Section and the Act as a whole.
- 17. Presumptions It is presumed that an Act does not act retrospectively unless stated specifically. It is presumed that an Act does not bind the crown. Criminal liability requires mens rea. The common law remains unchanged unless expressly stated by an Act of Parliament - Fisher v Bell (1961): A flick knife displayed in a shop was not ‘offered for sale’. It is presumed the draftsmen know technical legal language and so the common law expression was not altered.
- 18. Intrinsic Aids – define/examples? 1. These are matters within the statute which helps make the meaning clearer. 2. The courts can consider the long title, the short title and the preamble (if any). 3. The older statutes usually have a preamble. This sets out Parliament’s purpose in enacting that statute. 4. Modern statutes may not have a preamble but if it does, then it will be very brief one. E.g. the Theft Act 1968.
- 19. Intrinsic cont’d… • Other useful internal aids within the statute are the use of any headings before a group of sections, and any schedules attached to the Act. • There are also marginal notes explaining different sections, but these are not generally regarded as giving Parliament’s intention as they will have been inserted after the parliamentary debates and are only helpful comments put in by the printer.
- 20. Extrinsic Aids – define/example? These are matters which are outside the Act. It has always been accepted that some external sources can help explain the meaning of an Act. These sources are; Previous Acts of Parliament on the same topic The historical setting Earlier case law Dictionaries of the time
- 21. New Extrinsic Aids Originally, the courts had very strict rules that other extrinsic aids should not be considered. However, for the following three aids, the courts’ attitude has changed. The three main extrinsic aids are; 1. Hansard : the official report of what was said in Parliament when the Act was debated 2. Reports of law reform bodies, such as the law commission, which led to the passing of the Act. 3. International conventions, regulations or directives which have been implemented by English legislation.
- 22. Hansard From which case did the acceptance of the use of the Hansard arise? History Davis v Johnson – in this case there was resistance to the idea of the Hansard being used to interpret statute. Present Day Pepper v Hart – held that the Hansard can be used in 3 situations: 1. If the words of the Act are ambiguous 2. The statements relied on are of the Minister or promoter of the Bill 3. The statements relied on are clear.
- 23. The effect of EU Law on S.I Since the UK became a member of the EU in 1973, the influence of the European preference for the purposive approach has affected the English courts in two ways; 1. They have had to accept that, at least for law which has been passed as a result of having to conform to a European law, the purposive approach is the best one to use. 2. The fact that judges are having to use the purposive approach for European law is making them more accustomed to it and, therefore, more likely to apply it to English law.
- 24. Interpreting EU Law When the law to be interpreted is based on European law, the English courts must interpret it in the light of the wording and purpose of the European law. In the Marleasing case (1992), the European Court of Justice ruled that this included interpreting national law in the light and the aim of the European law. In your own time look up the Mendoza v Ghaidon (2002) and summarise it. What is the Human Rights Act 1998?
- 25. The effect of the Human Rights Act 1998 S3 Human Rights Act; “so far as it is possible to do so, legislation must be read and given effect in a way which is compatible with the rights in the European Convention on Human Rights”. Rights and freedoms to which all humans are entitled e.g. dignity, fairness, equality, autonomy. HRA 1998 now has an increasingly important impact on how judges interpret statutes.
- 26. The Effect of the HRA 1988 S.3 says that judges must read all primary and secondary legislation in a way that's compatible with the European Convention on Human Rights. So if the legislation has more than one meaning, the judge must use the meaning that makes English Law compatible with the convention. If the legislation is incompatible, government must decide whether to change the legislation to make it compatible.
- 27. Quick recap of last 3 lessons Write the answers down yourself, you have 10 mins. 1. Reason why statutes may require interpretation? 2. What is the Euisdem Generis rule? Examples? 3. What are Extrinsic/Intrinsic aids? 4. What is the literal rule? – case example? 5. What is the golden rule? Case example? 6. What are the two approaches in golden rule? Define? 7. Case example of wide approach? 8. Case example of narrow approach? 9. What are the ad/dis of literal rule? 10. What are the ad/dis of golden rule? 11. What is the mischief rule? 12. What is the KEY case with the four rules from the mischief rule? 13. What are the four rules from the above case? 14. List case-law for mischief rule. 15. What is the purposive approach? List some case-law. 16. What are the advantages and disadvantages of this approach?