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STATUTORY INTERPRETATION

The aim of this essay is to explore and analyse the development of different

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approaches English judges have utilised in the interpretation of statutes. Conservative
judges have always been of the view that it is the job of the Parliament to make legislation
and the duty of the judges to interpret the words of the statutes literally when applying
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them to cases that are presented in front of them. These judges are ardent followers of the
‘literal rule’ and are usually indifferent to the harsh outcomes that may result from
following this approach. Gradually evolving with the times, liberal judges are now leaning
towards the ‘mischief rule’ or the ‘purposive approach’ when faced with the interpretation
of an ambiguous piece of legislation. As the name suggests, the objective of the purposive
approach is to seek and discover the intent of the Parliament behind the passing of an Act
and to ensure that this intention is fulfilled when that particular Act is applied to a case.
These approaches tend to help the judges in coming to decisions that are more fair and just.
This approach is also favoured by judges when interpreting European Union legislation and
seems the most practical when faced with the interpretation of legislation passed in various
languages. This essay will examine case law in which judges used the literal, golden, mischief
rule as well as the purposive approach to come to a decision and determine how the
judgement can differ by the application of different approaches.

Acts passed by the Parliament are known as statutes and there are thousands of
statutes passed by the Parliament every year. Ideally, the meaning of the words in these
statutes should be clear and explicit but it isn’t always so. The need for statutory
interpretation arises due to the fact that there might be a drafting error, a broad term may
have been used, the words might be ambiguous or there may be unforeseen developments.
The Interpretation Act 1978 provides certain standard definitions of common provisions,
such as the rule that the singular includes the plural and ‘he’ includes ‘she’, while
interpretation sections at the end of most modern Acts define some of the words used
within them – the Police and Criminal Evidence Act 1984 contains such a section. 1 Apart

1 English Legal System by Catherine Elliot & Frances Quinn, Twelfth Edition, page 52
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from this, judges use various approaches as well as intrinsic (internal) and extrinsic
(external) aids to help them in interpreting statutes.

The literal rule gives all the words their ordinary and natural meaning, on the
principle that the best way to interpret the will of Parliament is to follow the literal meaning

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of the words they have used.2 Lord Esher stated in R v. City of London Court Judge (1892):
“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 legislature has
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committed an absurdity”. 3 The use of this approach can be illustrated by case law.

In Whitely v. Chappell (1868)4, a statute aimed at preventing electoral malpractice

made it an offence to impersonate ‘any person entitled to vote’ at an election. The accused
was acquitted because he impersonated a dead person and a dead person was clearly not
entitled to vote.5 Similarly, in London and North Eastern Railway Co v. Berriman (1946), a
railway worker was knocked down and killed by a train, and his widow attempted to claim
damages. The Fatal Accident’s Act provided that it was available to employees killed while
engaging in ‘relaying or repairing’ tracks. The dead man had been doing routine
maintenance and oiling, which the court held did not come within the meaning of ‘relaying
and repairing’.6 It is evident through these judgements that the outcome of applying the
literal rule is rather harsh and can also be seen as ‘absurd’ at times. There are many critics of
the literal rule such as the distinguished legal scholar Michael Zander, who stated that “the
literal rule is mechanical and divorced from the realities of the use of language”. 7

The golden rule is to some extent an extension of the literal rule and under it the
words of a statute will as far as possible be construed according to their ordinary plain and
natural meaning, unless this leads to an absurd result. It is used by the courts where a
statutory provision is capable of more than one literal meaning and leads the judge to select

2 English Legal System by Catherine Elliot & Frances Quinn, Twelfth Edition, page 53

3 English Legal System by Catherine Elliot & Frances Quinn, Twelfth Edition, page 53

4 Whitely v. Chappell (1868) LR 4 QB 147

5 English Legal System by Catherine Elliot & Frances Quinn, Twelfth Edition, page 53

6 English Legal System by Catherine Elliot & Frances Quinn, Twelfth Edition, page 53

7 The English Legal System by Jacqueline Martin, Sixth Edition

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the one which avoids absurdity, or where a study of the statute as a whole reveals that the
conclusion reached by applying the literal rule is contrary to the intentions of the
Parliament.8

Thus, in Re Sigsworth (1935), the court decided that the Administration of Estates

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Act 1925, which provides for the distribution of the property of an intestate amongst his
next of kin, did not confer a benefit upon the person (a son) who had murdered the
intestate (his mother), even thought the murderer was the intestate’s next of kin, for it is a
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general principle of law that no one can profit from his own wrong.9 This shows that the
courts are willing to be slightly flexible in their approach in order to ensure that the main
aim of law, i.e. justice, is achieved.

The mischief rule is the most flexible one and is derived from the Heydon’s Case
1584, where it was stated that for the true interpretation of statutes, four things need to be
considered: (i) what was the common law before the making of the Act? (ii) what was the
mischief and defect for which the common law did not provide? (iii) what remedy
Parliament resolved and appointed to cure the disease? (iv) the true reason of the remedy;
and then the function of the judge is to make such construction as shall suppress the
mischief and advance the remedy.10

The judge tries to look at the objective of why the Act was passed and in interpreting
the statute, he tries to ensure that the objective is achieved. This was seen in the case of
Smith v. Hughes (1960)11. The Street Offences Act 1959 made it a criminal offence for a
prostitute to solicit potential customers in a street or public place. In this case, the
prostitute was not actually in the street, but was sitting in a house, on the first floor, and
tapping on the window to attract the attention of the men walking by. The judge decided
that the aim of the Act was to enable people to walk along the street without being
solicited, and since the soliciting in question was aimed at people in the street, even though

8 Smith & Keenan’s English Law by Charles Wild & Stuart Weinstein, Sixteenth Edition, page 190

9 Smith & Keenan’s English Law by Charles Wild & Stuart Weinstein, Sixteenth Edition, page 190

10 The English Legal System by Jacqueline Martin, Sixth Edition

11 Smith v Hughes (1960) 2 All ER 859

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the prostitute was not in the street herself, the Act should be interpreted to include this
activity.12

The mischief rule was also applied in the case of Royal College of Nursing v. DHSS
(1981). The Abortion Act 1967 states that terminations of pregnancy were legal only if

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performed by a ‘registered medical practitioner’. By 1972 surgical abortions were largely
being replaced by drug induced ones, in which the second stage of the process (attaching
the patient to a drip), was carried out by nurses, under the instruction of a doctor. The
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House of Lords (currently known as the Supreme Court, post the Constitutional Reform Act
2009), ruled that the mischief which the Act sought to remedy was the uncertain state of
the previous law, which drove many women to dangerous back street abortionists. It sought
to do this by widening the grounds on which abortions could be obtained, and ensuring that
they were carried out with proper skill in hygienic conditions, and the procedure in question
promoted this aim, and was not unlawful. It was a controversial decision with Lords
Wilberforce and Edmund Davies claiming that the House of Lords was not interpreting
legislation but rewriting it.13 Despite the fact that creative judges are leaning towards the
mischief rule, some conservative judges are still critical of this approach.

Over the last three decades, the courts have accepted that the literal approach can
be unsatisfactory. Instead, the judges have been increasingly influenced by the European
approach to statutory interpretation, which focuses on giving effect to the purpose of the
legislation. During his judicial career, Lord Denning was at the forefront of moves to
establish a more purposive approach, aiming to produce decisions that put into practice the
spirit of the law, even if that meant paying less than usual regard to the letter of the law –
the actual words of the statute.14

In the case of Coltman v. Bibbytankers (1987), an employee was killed when a ship
sank off the coast of Japan. The employee’s representatives argued that his death had been
caused in the course of employment because of defects in equipment, referring to the ship
provided by the defendants. The question for the court was therefore whether the word

12 English Legal System by Catherine Elliot & Frances Quinn, Twelfth Edition, page 56

13 English Legal System by Catherine Elliot & Frances Quinn, Twelfth Edition, page 56

14 English Legal System by Catherine Elliot & Frances Quinn, Twelfth Edition, page 57
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‘equipment’ in the Employers’ Liability (Defective Equipment) Act 1969, which was defined
in the Act as including ‘any plant and machinery, vehicle, aircraft and clothing, could also
include a ship. The House of Lords interpreted the provision purposively, thus giving a broad
construction to the effect that ‘equipment’ did include a ship. 15

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The purposive approach was also applied in the case of R v. Registrar General ex
parte Smith (1990). This concerned s51 of the Adoption Act 1976, which enables a person to
obtain details of his birth certificate when reaching 18 years of age. There were certain
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conditions to be undertaken but the applicant had undertaken all of these. On a literal view
of the law, the Registrar General had to comply and supply the information. However, in
doing so he would put at risk the life of the applicant’s natural mother because the applicant
was in Broadmoor Mental Hospital having murdered twice (a psychiatrist confirmed the
danger to the natural mother). The Court, despite the plain language of the Act, applied a
purposive approach and held that “Parliament could not have intended to promote serious
crime”.16 It can thus be ascertained that when using the purposive approach, the courts
look at the intention of the Parliament when passing the Act and ensure that this intention
is fulfilled.

The purposive approach is wider than the mischief rule. According to the Law
Commission, it looks to the ‘positive social purpose’ of legislation rather than focusing on
the evil that an Act might have been created to deal with. The purposive approach is
therefore a contextual approach. Judges adopting this approach look to the ‘spirit of the
law’ rather than the literal detail.17 As Lord Diplock pointed out in Carter v. Bradbeer
(1975), “If one looks back to the actual decisions of the House of Lords… over the last thirty
years one cannot fail to be struck by the evidence of a trend away from the purely literal
towards the purposive construction of statutory provisions”.

Since the UK became a part of the European Union, and since the implementation of
the Human Rights Act 1998, there has been a greater move towards following the purposive
approach. This point can be reinforced by the statement of Gary Slapper in the “Student

15 AS Law by Andrew Mitchell, Chapter 3

16 The English Legal System by Jacqueline Martin, Sixth Edition

17 AS Law by Andrew Mitchell, chapter 3

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Law Review (2001) that “the use of a purposive approach by the courts is becoming
something of a standard approach since Britain has become more involved in Europe”. For
example, in New ISG Ltd v. Vernon (2007) the Chancery Division of the High Court applied a
purposive interpretation to UK employment regulations so as to achieve the broader aims of

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a European Union Directive. Such a view is also applied by judges when interpreting certain
international obligations, such as the Geneva Convention relating to the Status of Refugees,
reflecting the need to balance sensible immigration controls with an appreciation of the
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importance of recognising genuine claims for refugee status (R v. Mohammed, 2007).18

Activist judges favour this approach by saying that it allows judges to investigate
relevant extrinsic aids to resolve ambiguities and enables them to keep up with the
changing times. However, the critics of this approach are of the view that it gives more
power to the judiciary, at the expense of the legislature, thus bringing into question
parliamentary sovereignty and the separation of powers by allowing judges, in effect, to
make new law. It may result in uncertainty in the law and subjective decision-making.19
Keeping both these view points in mind it is still inevitable that the purposive approach is
gaining popularity as judges try to adapt the law with the changing times and try to ensure
that UK law is kept in line with UK’s EU obligations.

Other than the approaches, certain aids are also used for finding the intention of the
Parliament. The two types of aids are Internal or Intrinsic Aids, which are the other parts of
the Act, which may help to make the meaning of the particular section clear. These are the
long title and short title, the preamble, definition sections and headings. The External or
Extrinsic Aids are matters outside the Act in question, which may be considered by the
court. These are dictionaries, previous Acts of Parliament, earlier case law, reports of the
Law Commission and Hansards. There was a rule until 1992 that the official records of
debates regarding the Bill in the Parliament as recorded in Hansards, could not be consulted
by the courts in determining what an Act meant. This was established in the case of Davis v.
Johnson (1979). In Pepper v. Hart (1993), it was held that the courts could consult Hansards,

18 AS Law by Andrew Mitchell, chapter 3.

19 AS Law by Andrew Mitchell, chapter 3.

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if the Act is ambiguous, obscure, leads to an absurdity and the material being consulted
consists of clear statements by a Minister or other promoter of the Bill.20

Some cases have revealed the benefits of admitting ‘Hansard’ as an aid to statutory
interpretation. The contract case of Stevenson v. Rogers (1999), which interpreted the

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words ‘in the course of a business’ in provisions of the Sale of Goods Act 1979 as applying to
a fisherman who sells his boat, and thereby determined the boundaries of a business sale,
provides an example of Hansard being used to resolve an ambiguity that had plagued the
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courts for years in cases relating to similar legislation.21

The rules of languages are also helpful in the interpretation of an ambiguous piece of
legislation. These are, “Euisdem generis” i.e. things of the same kind, which means that
where particular words are followed by general words, then the general words are limited
to the same kind of things as the ones specified. An example can be seen in ‘DPP v Jordan
(1976)’. “Expressio unius exclusion alterius”, i.e. the mention of one thing excludes others,
which means where there is a list of words which is not followed by general words, then the
Act applies only to items in the list. An example was illustrated in Tempest v Kilner (1846).
Lastly, “Noscitur a sociis” i.e. a word is known by the company it keeps. This means that
words must be looked at in their context and should be interpreted accordingly. An example
can be seen in ‘Muir v Keay (1875). 22

It can thus be concluded that all these different aids and rules of interpretation
available to the court for statutory interpretation play a great role in making a logical and
fair decision whilst facing an ambiguous and uncertain piece of legislation. The decision of
which approach to follow is left to the judges. Generally, the literal approach is followed by
the Conservative judges, who are of the view that it is the Parliament’s job to make laws and
the judges’ role is merely to interpret them. Parliament’s sovereignty cannot be
compromised upon at any cost. On the other hand, Activist judges tend to follow the
purposive approach, as they are more concerned with the intention of the Parliament in
passing the Act rather than following the literal meaning of each word. The Human Rights

20 The English Legal System by Jacqueline Martin, Sixth Edition

21 AS Law by Andre Mitchel, chapter 3

22 The English Legal System by Jacqueline Martin, Sixth Edition

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Act 1998, the United Kingdom interpreting legislation in line with the laws of the European
Union and the decision of Pepper v Hart (1993) on the use of the extrinsic aid of Hansards
clearly shows a move towards a more activist role.

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BIBLIOGRAPHY
1

1 English Legal System by Catherine Elliot & Frances Quinn, Twelfth Edition

The English Legal System by Jacqueline Martin, Sixth Edition

AS Law by Andrew Mitchell

1 Smith & Keenan’s English Law by Charles Wild & Stuart Weinstein, Sixteenth Edition