<\/p>\n
Judges are the only persons constitutionally empowered to interpret legislation authoritatively.\u00a0[1<\/a>]<\/span>\u00a0As it is their function to interpret legislation, they will also establish legal rules when interpreting statutes in cases heard before them.\u00a0[2<\/a>]<\/span>\u00a0Formerly, the dominant approach to statutory interpretation was the \u2018literal rule\u2019, with its gloss known as the \u2018golden rule\u2019 supplemented by the \u2018mischief rule\u2019.\u00a0[3<\/a>]<\/span>\u00a0However, following the recommendations of the Law Commission\u2019s report, The Interpretation of Statutes 1969, the \u2018purposive\u2019 approach has been increasingly favoured. Under this approach, a development of the old mischief rule, the courts construe statutes in the light of the overall purpose of the legislation rather than relying solely on the mere text of the statute.\u00a0[4<\/a>]<\/span><\/p>\n This essay will outline the advantages and disadvantages of the literal rule and argue that it is not a sensible guide. It seems that a more purposive approach should prevail when the rules of statutory interpretation are compared.<\/p>\n The so-called literal rule was defined by Lord Tindal as, \u2018the words themselves alone do\u2026best declare the intention of the lawgiver\u2019.\u00a0[5<\/a>]<\/span><\/p>\n A feature of the rule of law is that the law should be both certain and knowable.\u00a0[6<\/a>]<\/span>\u00a0The literal rule ensures that ordinary citizens are able to take statutes at their face value.\u00a0[7<\/a>]<\/span>\u00a0As Lord Diplock said, \u2018the acceptance of the rule of law\u2026requires that a citizen\u2026 should be able to know in advance the legal consequences that will flow from [the statute]\u2026the court must give effect to what the words\u2026 would reasonably understood to mean by those whose conduct it regulates.\u2019\u00a0[8<\/a>]<\/span><\/p>\n Moreover, if statements by promoters as to the intent of an act were allowed to prevail, this would contravene the constitutional rule that Parliament is \u2018sovereign only in respect of what it expresses by the words used in the legislation it has passed\u2019.\u00a0[9<\/a>]<\/span>\u00a0It is the elected Parliament that must enact new law and the way of securing that the will of elected legislators will triumph is to take the words enacted by their \u2018plain\u2019 meaning.\u00a0[10<\/a>]<\/span>\u00a0As Lord Scarman asserted, \u2018[The HOL] are to be governed not by Parliament\u2019s intentions but by Parliament\u2019s enactments\u2019.\u00a0[11<\/a>]<\/span><\/p>\n The literal rule also guarantees that the doctrine of the separation of powers is upheld. Lord Diplock in Duport Steels Ltd v Sirs\u00a0[12<\/a>]<\/span>\u00a0claimed, \u2018the British Constitution\u2026is firmly based upon the separation of powers: Parliament makes the laws, the judiciary interprets them\u2019. For judges to \u2018fill up the gaps and make sense of the enactment\u2019\u00a0[13<\/a>]<\/span>\u00a0would \u2018be a naked usurpation of the legislative function under a thin disguise of interpretation\u2019.\u00a0[14<\/a>]<\/span><\/p>\n However, these advantages are undermined by the fact that the notion of any \u2018literal\u2019 meaning in an enactment is not itself a notion which is incontestable, nor free from any element of value judgments.\u00a0[15<\/a>]<\/span>\u00a0Words can bear a meaning other than the more obvious one, therefore judges, albeit to differential degrees, can apply the meaning that they prefer on grounds of policy or principle.\u00a0[16<\/a>]<\/span>\u00a0Eskridge is correct when stating that even the strictest adherence to statutory text cannot obliviate altogether the exercise of judicial discretion in hard cases. \u2018Courts must choose among various methods of statutory construction based upon their relative, rather than absolute, ability to constrain judicial usurpation of legislative powers.\u2019\u00a0[17<\/a>]<\/span><\/p>\n \u2018Simple literalism is fundamentally defective, because it proceeds on the false assumption that a word will always have a plain meaning.\u2019\u00a0[18<\/a>]<\/span>\u00a0Lord Reid in DPP v Ottewell affirmed that \u2018the imprecision of the English language\u2026 is such that it is extremely difficult to draft any provision which is not ambiguous in that sense\u2019.\u00a0[19<\/a>]<\/span><\/p>\n Even words which might be thought to have an obvious meaning can have numerous meanings as language is inherently equivocal.\u00a0[20<\/a>]<\/span>\u00a0Lord Nolan said, \u2018a word or phrase [is] fairly open to diverse meanings, [an] example being \u2018twelve o\u2019 clock\u2019 which\u2026could equally mean midday or midnight\u2019.\u00a0[21<\/a>]<\/span><\/p>\n This supposed rule would even require the literal meaning to be applied whatever the consequences and however unlikely they were to correspond with what Parliament intended. Lord Esher held, \u2018if the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity.\u2019 For the court to apply the literal meaning regardless of consequences is contrary to the judicial oath requiring a judge to \u2018do right\u2019.\u00a0[22<\/a>]<\/span>\u00a0This was especially true in the case of criminal statutes. If they were capable of two meanings, however unreasonable one of those meanings may be, it was applied if favourable to the accused.\u00a0[23<\/a>]<\/span>\u00a0R v Harris is an example of this where someone who bit off his victim\u2019s nose was held not guilty of \u2018wounding\u2019.\u00a0[24<\/a>]<\/span><\/p>\n The golden rule was set out in Mattison v Hart\u00a0[25<\/a>]<\/span>\u00a0where it \u2018is to give the words used\u2026 their plain meaning unless it is manifest from the general scope\u2026of the statute injustice and absurdity would result.\u2019 However, this rule is problematic as Lord Bramwell in Hill v East & the West India Dock Co\u00a0[26<\/a>]<\/span>\u00a0stressed, \u2018what seems absurd to one man does not seem absurd to another.\u2019 Also, the very existence of the rule was denied by some judges.\u00a0[27<\/a>]<\/span><\/p>\n The mischief rule is also problematic in that the mischief is only one consideration which the court will take into account, therefore it may not always be treated as being determinative of the issue.\u00a0[28<\/a>]<\/span>\u00a0In Letang v Cooper<\/a>\u00a0[29<\/a>]<\/span>\u00a0, Lord Denning pointed out that identifying the mischief \u2018does not help very much, for the simple reason that Parliament may, and often does, decide to do something different to cure the mischief\u2019.<\/p>\n Due to the inadequacies of the three above rules, modern judges have begun to look elsewhere for a guiding principle, and hence adopted a \u2018purposive approach\u2019.\u00a0[30<\/a>]<\/span>\u00a0Legislation may still be concerned with remedying specific \u2018mischief\u2019, but much of it is concerned with seeking to promote a positive social, economic and\/or political objectives.\u00a0[31<\/a>]<\/span><\/p>\n This approach is required when interpreting English legislation in compliance with EU law. Lord Oliver declared in Litster v Forth Dry Dock Co Ltd\u00a0[32<\/a>]<\/span>\u00a0, \u2018if the legislation can reasonably be construed as to conform to [UK\u2019s] obligations [under the EC Treaty]\u2026a purposive construction will be applied even though\u2026it may involve some departure from the strict and literal application of the words which the legislature has elected to use\u2019.<\/p>\n Similarly, under the HRA 1998, courts are required under s3(1) to \u2018read and give effect to\u2019 all legislation in a way which is compatible with rights under the ECHR so far as it is possible to do so. Again, it may not be possible to interpret English legislation to ensure that it is compatible with the Convention by using the traditional rules.\u00a0[33<\/a>]<\/span><\/p>\n The technique of simple literalism is seriously defective and no longer characterises the judicial approach to statutory interpretation.\u00a0[34<\/a>]<\/span>\u00a0\u2018In adopting the purposive approach to statutes, the courts have shown an increased willingness to cooperate in giving effect to legislative polices, in contrast to their earlier tendency to restrict them by appealing to constitutional values embodied in the traditional presumptions.\u2019\u00a0[35<\/a>]<\/span>\u00a0Contrary to what is sometimes said, the court does not \u2018select\u2019 any one of these many guides and then apply it to the exclusion of the rest. The courts take an overall view, weigh all the interpretative factors that are relevant, and arrive at a balanced conclusion, also known as the global method of statutory interpretation.\u00a0[36<\/a>]<\/span>\u00a0As Donaldson J contended, \u2018the interpretation of statutes is a craft as much as a science and the judges, as craftsmen, select and apply the appropriate rules as the tools of their trade.\u2019\u00a0[37<\/a>]<\/span><\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" This essay will outline the advantages and disadvantages of the literal rule and argue that it is not a sensible guide.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[43],"tags":[85],"class_list":["post-2630","post","type-post","status-publish","format-standard","hentry","category-free-law-essaysconstitutional-law","tag-uk-law"],"yoast_head":"\nAdvantages<\/h2>\n
Disadvantages \u2013 the Problem with Language<\/h2>\n
Problems with other Rules<\/h2>\n
Need for a more Purposive Approach?<\/h2>\n
Conclusion<\/h2>\n