A short history of legislative interpretation

There are, and always have been, several principles which the courts use to guide themselves in the task of legislative interpretation. For example, where a statute which creates a criminal offence is open to two or more meanings, there is a presumption that Parliament intended the courts to apply the meaning which is most favourable to the defendant.

Historically, when statutes were a relatively minor source of English law, the predominant principle of interpretation was the mischief rule, or the rule in Heydon’s Case (1584) 76 ER 637, which may be stated as follows:

For the sure and true interpretation of all statutes … four things are to be discerned and considered: 1st What was the Common Law before the making of the Act? 2nd What was the mischief and defect for which the Common Law did not provide? 3rd What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth? 4th The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress continuance of the mischief … according to the true intent of the makers of the Act.

However, as statutes became increasingly important sources of law, and as Parliament became increasingly democratically validated during the 19th century, the courts relegated the mischief rule to the status of a long-stop, to be invoked only when all else failed.

If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. (Lord Tindall CJ, in the Sussex Peerage Case (1884) 8 ER 1034.)

The difficulty with this so-called rule is that it has very limited application, especially in the context of cases involving statutory interpretation, where the argument on either side could usually be upheld without the court descending to the level of unreasonableness. In these cases, it is simply unrealistic to speak of the ‘natural and ordinary’ sense of a word, because the meaning depends on the context within which the word is used rather than the word itself. (Recall, for example, the intrinsic ambiguity of the word last, as illustrated at p. 103.) However, the courts did not seem to be particularly concerned with this aspect of the inadequacy of the literal rule, although they were aware that applying what they took to be the literal meaning of statutory words could produce inappropriate results. This resulted in the adoption of the so-called golden rule.

The golden rule assumed that identifying the literal meaning of the relevant words was the first part of the interpretative process, but acknowledged there would be exceptional cases where the courts could seek out and apply some other meaning. These exceptions would arise where relying on the literal meaning would

produce an inconsistency or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification, and to justify the court in putting on them some other signification, which, though less proper, is one which the court thinks the words will bear. (Lord Blackburn, in River Wear Commissioners v Adamson (1877) 2 App Cas 743, 764.)

Unfortunately, the golden rule has two weaknesses.

I should like to have a good definition of what is such an absurdity that you are to disregard the plain words of an Act of Parliament. It is to be remembered that what seems absurd to one man does not seem absurd to another. (Hill v East & West India Dock Co (1884) 9 App Cas 448, 464-5.)

It is not surprising that some judges found comfort in clinging to the idea of literal meaning:

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 whether the legislature has committed an absurdity. (Lord Esher MR, in R v Judge of the City London Court [1892] 1 QB 273, 290.)

Perhaps it is even less surprising that the courts eventually realised that the idea of literal meaning led only to a dead end. The consequence of this realisation was that they came to appreciate that the purpose underlying the legislation is an essential element in the context of the statutory words:

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 … towards the purposive construction of statutory provisions. (Lord Diplock, in Carter v Bradbeer [1975] 1 WLR 1204, 1206-1207.)

An example of the power of purposivism may be useful. In R v Pigg [1983] 1 WLR 6, the point at issue was whether the defendant’s conviction for rape should be upheld or quashed. He had been convicted on a majority verdict, under a statutory provision in the following terms:

A court shall not accept a majority verdict of guilty unless the foreman of the jury has stated in open court the number of jurors who respectively agreed to and dissented from the verdict. (Section 17(2), Juries Act 1974.)

What actually happened in Pigg was that the foreman merely said that ten jurors had agreed to convict the defendant.

the precise form of words by which such compliance is achieved, so long as the effect is clear, is not material.

The conviction was, therefore, upheld. Lord Brandon appears not to have been concerned that his interpretation resulted in the upholding of the conviction, even though this ran counter to the basic proposition that criminal statutes should be interpreted strictly in favour of the defendant. Presumably Lord Brandon’s abhorrence of the offence weighed more heavily with him than did any traditional ideas of fair play for the defendant.

At this stage you may be thinking that the wheel has come full circle and we are back to the mischief rule of interpretation; and you are not be altogether wrong if you do think this. You are certainly right if you think the literal rule has passed peacefully into legal history. As Francis Bennion, one of the leading contemporary commentators on statute law and statutory interpretation and a former Parliamentary Counsel, says ‘nowadays, a legislative drafter … never intends the literal rule to be adopted.’ (Understanding Common Law Legislation: Drafting and Interpretation, 2001, p. 44.) But simply equating the mischief rule with the purposive approach is an overstatement, for the following reasons.

First, as Heydon’s Case itself makes clear, the mischief rule applies only where there is a gap in the common law. Purposivism, on the other hand, clearly applies whether the area covered by the enactment was previously within the domain of common law or statute law.

Secondly, and more importantly, purposivism is merely one aspect of the modern emphasis on the importance of context, and therefore can be regarded as having replaced the literal rule’s assumption that all words have intrinsic meanings. Heydon’s Case, on the other hand, pre-dated literalism.

Thirdly, according to Lord Diplock in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] 1 All ER 810, 835-6, the rule in Heydon’s Case was originally intended to restrict the scope of the court’s inquiry to the four corners of the Act itself, whereas purposivism, as currently practised, clearly allows reference to various extrinsic materials.

Finally, before leaving England for the continent, it is worth noticing that the doctrine of binding precedent has very limited relevance to cases involving statutory interpretation. As we saw at p. 108, when discussing the cases of Burgess v McCracken (1986) JP 150 529 and Newman v Lipman [1951] 1 KB 333, a decision on the meaning of a word in the context of one statute does not constitute a binding precedent as to its meaning in another statute (although there is an exception where both statutes deal with the same subject-matter).