STATUTORY INTERPRETATION
[1.25] Approaches to statutory interpretation are of particular importance when it is argued in judicial review proceedings that a decision-maker’s actions or inactions conÂstitute an â€?illegality’ (that is, because the decision-maker has misunderstood the law that regulates its decision-making power).126 Although illegality and the other grounds for review overlap with one another,127 the question whether a decision-maker has, for instance, acted in accordance with a statutory power or duty, or whether subordinate legislation is ultra vires its parent Act,128 will depend on how the relevant statute is read by the courts.
In some cases, the statute may be read â€?on its own’, in the sense that the question for the reviewing court is simply whether an administrative act/failure to act or subordinate legislation is consistent with the terms of the statute. However, in other cases, the courts may be required to read the statute beside the European Communities Act 1972 or the Human Rights Act 1998 and to gauge the legality of the decisionÂmaker’s act or failure to act, or of subordinate legislation, in the light of those â€?constitutional statutes’ (on which see [1.28]—[1.33]; on the judicial approach to the interpretation of the devolution Acts—also referred to as â€?constitutional statutes’—see [1.36]).129 Under those circumstances, the courts may be required to adopt a more â€?purposive’ interpretive approach whereby they try to read the statute in a manner that122 The Christina [1938] AC 485, 497, Lord MacMillan. See further the judicial analysis in Re McIlwaine' Application [2008] NICA 12.
123 Chung Chi Cheung v The King [1939] AC 160, 168, Lord Atkin; and, eg, R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2005] UKHL 55, [2005] 2 AC 1, HL holding that extraÂterritorial immigration controls were contrary to, inter alia, customary international law standards on non-discrimination.
124 See, eg, R v Bow Street Metropolitan Stipendiary Magistrate and others, ex p Pinochet Ugarte (No 3) [2000] 1 AC 147, and Jones v Ministry of the Interior of Saudi Arabia [2006] UKHL 26, [2007] 1 AC 270.
125 For further analysis see R Singh, �The Use of International Law in the Domestic Courts of the United Kingdom’ (2005) 56 NILQ 119. On justiciability see [4.14]-[4.17].
126 Ch 5.
127 Boddington v British Transport Police [1999] 2 AC 143, 152, Lord Irvine LC; and chs 4-7.
128 See, eg, Re Cullen’s Application [2005] NIQB 9 (challenging, inter alia, the Game Preservation (Special Protection for Irish Hares) Order (Northern Ireland) 2003 made under s 7C(1) of the Game Preservation Act (Northern Ireland) 1928: application dismissed).
129 See too [5.04]-[5.33].
is consistent with EU law[130] and with the ECHR[131] (as appropriate). In the event that such harmonious interpretation cannot be achieved, primary Acts that are inconsistent with EU law may be disapplied (and subordinate legislation quashed);[132] and those that are inconsistent with the ECHR may be made the subject of â€?declarations of incomÂpatibility’[133] (subordinate legislation may here be quashed, save where primary legislation prevents removal of the incompatibility[134]).
[1.26] The purposive approach associated with European law is often taken to require courts to look to the policy of the statute that they are interpreting and to give effect to it accordingly.[135] It is, in turn, an approach that is usually contrasted with the �literal’ approach to interpretation that has historically been preferred by courts in Northern Ireland and the rest of the UK. Under the literal approach, courts seek to give effect to the legislature’s intentions by giving the words in a statute their ordinary and natural meaning; that is, the courts do not look beyond or behind the words used in the statute (the legislature for these purposes may be either the Westminster Parliament or the Northern Ireland Assembly).[136] This approach has been preferred historically because it is understood to ensure that courts �interpret’ rather than �legislate’ and that they in that way avoid usurping the role of the sovereign legislature.[137] However, even before the demands of EU law and the ECHR entailed that the courts develop more purposive approaches, the literal approach had already been modified in some important respects and/or replaced.
Hence there are both older and more recent authorities that reveal a judicial willingness: to read power into legislation where that power is â€?reasonably incidental’ to the statute or may be reasonably implied;[138] to interpret sections in a statute with part-reference to the corresponding headings in the statute;[139] to use the age-old â€?mischief rule’ to look to the pre-existing common law position when deciding what the objective of legislation is;[140] to protect common law fundamental rights by requiring that any legislative interference with those rights be provided for either in express terms or by necessary implication;[141] to read legislation in the light of its hisÂtorical context;142 and to give words their broader meaning where this enables two decision-makers to exercise their powers in a complementary fashion that is consistent with the intention of the legislation.143 Prior experience with EU law likewise led the House of Lords to relax more generally the exclusionary rule that prevented courts from consulting Hansard when trying to ascertain Parliament’s intention in enacting certain provisions.144[1.27] The interpretive approach adopted in any one case will of course depend on the context of the case and on the corresponding judicial perception of the issues raised. However, where there is scope for the courts reasonably to adopt one or other approach (literal or purposive), it is clear that there can be very different outcomes to the case and/or judicial opinions as to the outcome. There have, for instance, been several cases in which the courts have read legislation differently and in ways that have had far- reaching consequences for the structures of government in Northern Ireland.145 While such cases exist more as an exception than a rule—most issues of interpretation will not of course arise in the context of disputes about the workings of the institutions of government in Northern Ireland—they reveal how some approaches to statutory interÂpretation can take courts to the very fringes of political decision-making.
The corresponding question—to which there is no agreed answer—is therefore whether such judicial involvement in matters of policy is to be regarded as a positive feature of judicial decision-making, or as one to be rejected (for recent judicial guidance on the interpretive approach that might be adopted in cases in the context of devolution see [1.36]).For an example of the courts inferring words that permitted of an interference with individual rights/interests see Re RusselRs Application [1990] NI 188 (while the Prison Rules stated that each prisoner should have at least one hour of exercise in the open air every day, there was a clear necessity to imply the words �save in exceptional circumstances’ so as to permit the prison authorities to keep prisoners in their cells when it was necessary for safety and security at the prison).
142 R v Z [2005] UKHL 35, [2005] 2 WLR 1286, and R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003] 2 AC 687, 695, para 8, Lord Bingham.
143 Re Shields' Application [2003] NI 161.
144 Pepper v Hart [1993] AC 593, drawing upon the approach adopted in, eg, Pickstone v Freemans [1989] AC 66. Under the rule in Pepper v Hart it is permissible to consult Hansard where: (a) the legislation is obscure or ambiguous, or leads to an absurdity; (b) the material relied upon consists of one or more stateÂments by a Minister or other promoter of the Bill together... with such other Parliamentary material as is necessary to understand such statements and their effect; and (c) the statements relied upon are clear. But note that there has been considerable judicial displeasure with the ruling and there are differing judicial understandings of when recourse to Hansard is appropriate: see, eg, R v Secretary of State for the EnvironÂment, Transport and the Regions, ex p Spath Holme Ltd [2001] 2 AC 349 and Robinson v Secretary of State for Northern Ireland [2002] NI 390.
145 See, most notably, Robinson v Secretary of State for Northern Ireland [2002] NI 207 (NICA) and 390 (HL), where the central issue was whether a six-week time-limit in the Northern Ireland Act 1998 should be strictly observed even where such observance would have entailed fresh elections to the Northern Ireland Assembly and a corresponding political instability (Kerr J at first instance and the majority in both the Court of Appeal and the House of Lords held that the relevant provisions—ss 16(8) and 32(3)—should not be read literally but rather in the light of the Act’s objective of creating stable government in Northern Ireland; Carswell LCJ and the minority in the House of Lords dissented and considered that the provisions should be read literally).
And see too Re Northern Ireland Human Rights Commission [2001] NI 271 (NIQB and NICA), and [2002] NI 236 (HL), where the issue was whether ss 69-71 of the Northern Ireland Act 1998 should be read as giving the Northern Ireland Human Rights Commission (NIHRC) an implied power to intervene on points of human rights law in judicial proceedings (Carswell LCJ at first instance and a majority in the Court of Appeal—Kerr J dissenting—held that the power to intervene could not be read into the proviÂsions; a majority in the House of Lords—as with Kerr J—looked to the NIHRC’s overall function rather than its individual powers and on that basis held that the power to intervene could be attributed).