This essay is to discuss the
way in which the Court of Appeal and Supreme Court’s traditional approaches to
statutory interpretation have been influenced by the UK’s membership of the
European Union and the Human Rights Act 1998. Within the essay we will also
recognise sources of law in England and wales and their key principles
are three traditional approaches to statutory interpretation; the literal rule,
the golden rule and the mischief rule, there is also often the purposive
approach. These are techniques in finding the “true meaning of a statute”
however they are not necessarily rules to be followed. The supreme court
clarified this in Cusack v London Borough of Harrow when (2013) when
interpreting statutes, they should be seen as “guidelines rather than railway
which is basically implying that it can be open to interpretation rather than a
The Literal rule
The first traditional approach
is the Literal rule. This rule provides words within a statute of their
original meaning3. Lord
Diplock stated in Duport steels Ltd V Sirs ‘the role of a judiciary is confined
to ascertaining from the words that parliament has approved as expressing its
intention what that intention was and to give effect to it’4.
The literal rule was applied in Whitely v Chapell (1868), A statute made it an
offence “to impersonate any person entitled to vote” at an election. The
accused was acquitted because he impersonated’ the deceased and a deceased person
was quite obviously unable to vote5.
Also in the case of Fisher V Bell 6
a more recent case than Whitley v Chapell, the case involves a shopkeeper who
displayed and sold flick knives, The Restriction of Offensive Weapons Act (1959)
s.1 stated that “any person who manufactures, sells or hires or offers for sale
or hire’ a flick knife shall be guilty of an offence”7
the defendant had then argued not guilty and that based on the facts no offer
had been made. When held by the Divisional Court of The Queens Bench Division 8
it was concluded that Mr Bell could not be convicted given the Literal meaning
of the statute.9 Due
to the 1959 act was amended by the Restriction of Offensive Weapons Act 1961
and the offence in s.1 was expanded to include where a “person exposes… for the
purpose of sale” a flick knife10.
There are many advantages and disadvantages to using the literal rule. An advantage
to this approach is that it respects parliament sovereignty and leaves law-making
to those whose job it is11.
However, the disadvantages of this rule is that it can create injustice where
parliament would have not intended it12
as seen in the case of London and Northern Eastern Railway co v Berriman.13
The Golden rule
The golden rule is used where
the literal interpretation leads to an absurd result. In the words of Lord
Wensleydale in Grey v Pearson (1857): ‘The grammatical and ordinary sense of
the words is to be adhered to, unless that would lead to some absurdity, or
some repugnance or inconsistency with the rest of the instrument, in which case
the grammatical and ordinary sense of the words may be modified so as to avoid
that absurdity and inconsistency, but no further.’14.
There are a number of cases where the golden rule has came to light such as R v
Allen (1872) section 57 of the Offences Against the Person Act 1861 states
that: “whosoever being married shall marry any other person during the life of
the former husband or wife . . . shall be guilty of bigamy.’15
It was evident within this that it was not possible for a person who was
already married to ‘marry’ another person; they could have another marriage
ceremony, but would not be legally married; applying the literal rule would
make the statute inaccurate. Therefore, the courts held that ‘shall marry’
should be mean ‘shall go through a marriage ceremony’16.
Within the golden rule advantages given from applying it to a case that it can
prevent the absurdity and injustice from applying the literal rule17.
A disadvantage it can provide there is no accurate and clear
information about how and when the rule should be applied ‘and no definition of
what an absurd result is before deciding to avoid it.’18.
The Mischief Rule
The mischief rule arose in
1584 in Heydons case it provides judges with three factors to consider: 1.What
was the law before the making of the Act. 2. What was the mischief and defect for which the common law did not
provide 3. What remedy the Parliament hath resolved and appointed to cure the
disease of the commonwealth, and 4. The true reason of the remedy.19
The office of judges will then collectively interpret the statute that
Parliament was addressing.20.
examples of the mischief rule in practice is in the case of Royal College of
Nursing v Department of Health and Social Security (1981) The Abortion Act 1967
states that termination of pregnancy was only legal when they were performed by
a “registered nurse practitioner”21.
By the year of 1972, abortions by surgery were replaced by drug induced
procedures, which within this the nurse was able to complete the second stage
of attaching the patient to a drip under supervision by a doctor. By this case
The House of Lords decided that the mischief from the previous legislation was
insubstantial, and made many women at risk of dangerous abortions. By widening
which abortions could be obtained and making sure they were being performed
with skill and hygienically it was not unlawful. The decision was controversial
however Lord Wilberforce and Edmund Davies claimed that the house was not
interpreting the legislation, but rewriting it 22.
An advantage of the mischief rule is that it prevents absurdity and injustice
and is more flexible. Described by the law commission in 1969 as a ‘rather more
satisfactory approach’ than the literal rule and golden rule.23
A disadvantage from the mischief rule is that the rules may be more inaccurate
as the legislative situation is so different.24
Heydons case and the purposive approach are similar in many ways and there are