7 Statutory interpretation Introduction Across broad areas, the details of English law are derived from the interpretation

n of statutes, and statutes (both domestic and international) have increased in importance as a source of English law. Statutes arise through domestic political processes and may have a transnational element. The largest transnational influence upon the English legal system has resulted from the United ingdom !oining the European Community/ European Union (EU). Under the relevant provisions of the European "ommunities Act #$%& (E"A), statutes have effect sub!ect to e'isting (enforceable community rights.(

 Another source of transnational law is the incorporation of international treaties and conventions. )n &*** the Human Rights ct (HR ) came into force, adding yet more comple'ity to the approach ta+en to the interpretation of statutes. Statutes appear to be an easy,to, understand source of law- they are enacted law (i.e. laws adopted by a legislature or another elected body, to provide general rules of conduct). Enacted law governs all persons sub!ect to the power of the government in all future situations in which the (rule( or statement of law contained in the statute applies. Enacted law includes written constitutions, statutes, treaties, e'ecutive orders and administrative regulations. .ow do we understand the role of these sources of law and how they are interpreted so as to be given legal effect/

 This chapter emphasises that four issues need to be understood as an introduction to statutory interpretation0 the nature o! language, which necessitates interpretative framewor+s for understanding the conte"t o! the legal process that provides the particular bac+ground for legal interpretation the history o! the common la# that provides the conte"t for the changing role of statutes and use of those approaches the idea that statutory interpretation can be understood as a $udicial practice.

1A E "ASE 23TES 320 4epper v .art 5#$$&6 7 (8uintavalle) v Secretary of State for .ealth 5&**96 7oyal "ollege of 2ursing v :.SS 5#$;#6 7 v .uman <ertili=ation and Embryology Authority, e' parte >lood 5#$$$6 :u+e v ?E" 7eliance 5#$;;6 4ic+stone v <reemans plc 5#$;;6 @itster v <orth :ry :oc+ A Engineering "o @td 5#$;$6 ?arland v >ritish 7ail Engineering @td 5#$;&6 "arole @ouise Bebb v E13 Air "argo (U ) @imited 2o & 5#$$C6 ?rant v South Bestern Trains ("ase ",&D$E$F) 7 v A 5&**#6 7e S 5&**&6 7 (Anderson) v Secretary of State for the .ome :epartment 5&**& ?haidan v ?odin,1endo=a 5&**D6 U .@.

 2ote0 remember that the importance of the cases above relates to what they tell us a%out statutory interpretation. 1a+e sure your case note focuses on this fundamental issue. )n other words, concentrate on the actual substantive law discussed in these cases to the e'tent it is relevant to the concern with the statutory interpretation. Some of the e'ercises below will guide your readings of these cases and assist you in ma+ing the relevant case notes.

7.& Interpretation o! statutes as sources o! la# and their application in court processes A +ey aspect of the rule of law is that statutes %e #ritten in such a way that the pu%lic can understand them. Statutes #ould !ail as an effective source of law i! every statement in them had to be put %e!ore the courts so that the meaning could be established. So there is good reason to start by giving the words of the statute the meaning they %ear in their common sense or everyday usage. There are, however, numerous di!!iculties in ta'ing a (common sense( or (literal( approach to the meaning of words in legal te'ts.

 Some standard problems include the following0 a #ord used in isolation may have a di!!erent meaning from the same word used in a sentence or a paragraph if the ordinary meaning is to be found by reference to a dictionary, then #hat dictionary is to %e used, and should it be a standard one, or one based on historical principles/ 1oreover, dictionaries o!ten give alternative meanings to words even general #ords can have several meanings even when the meaning of a word seems plain, $udges may still disagree as to its interpretation because each may have di!!erent vie#s regarding what the plain meaning is when a case comes to court disagreement is plainly possi%le , or else the case #ould not have come to court.

 The same %asic pro%lem confronts !udges when interpreting cts of 4arliament. This problem is intensi!ied %y the adversarial conte"t in which arguments are made about the meaning of words in statutes. )ne party(s ascription o! meaning to the #ords o! a statute is al#ays open to dispute by the other. A ma!or problem entailed in formulating legislation is that the lawyers who draft 4arliamentary >ills wor+ under great pressure of time. And to avoid creating too much opposition, they use language which must be (flat( in style but which is often verbose .

7.* +ro%lems o! dra!ting statutes lot o! legislation attempts to restate common la# rules and principles.

Sometimes this causes a #hole ne# development o! case la# concerning the meaning of +ey words. )n rationalising the offence of burglary under the Theft Act #$F;, for e'ample, a person #as said to %e guilty o! %urglary #hen they entered a (%uilding( as a trespasser in order to commit theft or certain other offences. >ut #hat is a %uilding/ interpreted by the courts at various times as being a houseboat, a caravan and even a large commercial refrigerator, in addition to houses, warehouses, factories and shops.

3f course 4arliamentary dra!tsmen cannot !oresee !uture eventualities. Statutory interpretation is a particular form of interpretation- it is

a shared (practice( of the legal profession. 2ot only is interpretation inescapable, but interpretation o! statutes occurs in a conte"t mediated %y S)+, ideas of the role of the !udiciary, and the special features of the legislative process. Be should also remember that a piece of legislation has a history and a future. Enacting the statute represents the culmination of 4arliament(s legislative process- but it is also the starting point for many years of e'istence.

Complexity of Statute Statutes are o!ten very comple", as they are an attempt to impose a structure of rules and directions that provide regulation to social events. >ut since social, economic and business relations are comple' and if they are to be regulated in part by law, then the laws e'pressing that regulation will be drafted in sophisticated language. )t sometimes seems that statutes are designed to %e incomprehensi%le to lay people. This is usually a side,e!!ect of the fact they are dra!ted %y e"perts (often with a set of intended meanings that may not be so clear in application) and undergo a series o! (readings( through the +arliamentary process. )n addition, printing or drafting errors can ma+e a statutory provision incomprehensible.

 <.A.7. >ennion (Statute law, #$$*) has identified a number of factors that may cause doubt in interpreting a statutory provision0 Ellipsis0 the dra!ter re!rains !rom using certain #ords that he regards as implied automatically, although others may not realise this. -road terms with #ide meaning are often used, and it is le!t up to the user to decide what situations fall with provision (e.g. the word (vehicle( clearly covers motor cars, buses, motorcycles. >ut does it include a don+ey cart, an invalid carriage or a child(s tricycle/). The meaning of a statutory e'pression may change over time (e.g. does (family( include (common law spouse(- does (father( refer to the biological or the social father/). .eli%erate uncertainty. :rafters may deli%erately use am%iguous #ords (e.g. where provision is politically contentious).

 Un!oreseea%le developments. :rafters cannot anticipate all new developments or devices that may create legislative loopholes. Inade/uate use o! #ords , especially ambiguity, where #ords are capa%le o! t#o or more meanings. +rinting errors and dra!ting errors , provision may be narrower or wider than intended.

7.0 pproaches to interpretation ?reatest tensions is that #ords on their o#n o!ten do not ma'e sense, unless the policy %ehind the statute is understood. -ut many $udges have %elieved that if the courts were to be too focused on interpreting the #ords of statutes in the light o! the (supposed) policy governing the statute, then the $udges #ould %e carrying out an essentially (political( !unction. )n the name of !udicial independence and +eeping faith to the law alone, many $udges have pre!erred a strictly literal approach and have denied the need to consider policy matters. .owever, to consider recent developments, specifically the growing influence of the more purposeful approach used in European courts and the impact of +epper v Hart 5#$$96

7.1 Su%stantive case la# on statutory interpretation The opening discussion of the nature of interpretation in the sections above are useful in order for you to understand the general issues raised in this area of law. .owever, it is necessary to stress that #e are no# loo'ing to the su%stantive case la# on statutory interpretation that will form the basis of any Guestion you might be as+ed in 4art > of the e'amination. The basic concern is0 can #e ma'e sense o! the various approaches ta+en in practice to statutory interpretation in the conte't of the legal system of England and Bales/ Simply put, is there such a large measure of discretion in the interpretation of statute that it is pointless to tal+ of rules guiding the interpretative choices that !udges ma+e/ Can #e ma'e sense o! the situation though some process o! rational reconstruction of what happens in practice/H

 This issue divides the commentators. Iou may note that in a ma!or wor+ on statutory interpretation, -ennion(s Statutory interpretation (#$$%), the author writes in his introduction0 The natural and reasonable desire that statutes should be easily understood is doomed to disappointment. )f statutes must be obscure, let us at least have simple devices to elucidate them. A golden rule would be best, to unloc+ all mysteries. Un!ortunate there is no golden rule. 2or is there a mischie! rule, or a literal rule, or any other cure, all rule of thumb. )nstead there are a thousand and one interpretative criteria.

 <ortunately, not all of these present themselves in any one case- but those that do yield !actors that the interpreter must figuratively weigh and balance. The author then constructs a code with a critical commentary, in which various detailed interpretative criteria are enumerated, illustrated and criticised. The te't then becomes a source for illustrations of the various detailed arguments that might be advanced before a court. >ennion(s approach is useful, %ut it steps %ac' !rom the practice o! interpretation and attempts to classify it, rather than understand it as a dynamic interpretative activity.

7.3 4he $udicial practice o! statutory interpretation ?earey et al. argues that statutory interpretation can %e %est understood as a $udicial practice and $udicial practice can %e seen as in!ormed %y pragmatism and (an engagement #ith the language o! ct in /uestion in its legal conte"t(. Rules The idea that statutory interpretation is a process or a practice departs !rom the old, !ashioned #ay o! thin'ing in terms o! (rules( of statutory interpretation. 4his #ay o! thin'ing can %e traced %ac' to 5illis( #$9; article (Statutory interpretation in a nutshell( (#F "an >ar 7ev #). Billis phrased the process of interpretation in terms of the literal, golden and mischief rules. Billis( article dominated introductory accounts of statutory interpretation, but has been su%$ect to e"tensive revisions.

JUnified contextual approach <or instance, Sir 7upert "ross has suggested that the English approach involves a progressive analysis rather than a choice among alternative 'rules'. )n his analysis, the !udge first considers the ordinary meaning of words in the general conte't of statute, then moves on to consider other possi%ilities #here ordinary meaning leads to a%surd results. This is +nown as the uni!ied conte"tual approach and is supported by dicta in .ouse of @ords decisions.

It is judicial practice .owever, even thin+ing in terms of a unified conte'tual approach does not seem to descri%e the su%tlety and comple"ity of the way in which !udges read statutes. To get round the difficulties of generalising in a reductive way about !udicial approaches to statute, it is perhaps pre!era%le, as suggested above, to thin' o! statutory interpretation as a process or a practice. The !udicial practice of statutory interpretation incorporates the constitutional position with an understanding of how certain (rules o! interpretation( can %e rationally connected. The !udicial practice of statutory interpretation has three basic constraints or norms involved in interpretation0 there are no limits upon the po#er of 4arliament to ma+e law the $udge ought to give e!!ect to the intention of 4arliament interpretation should start #ith the presumption that one should apply the ordinary6 (literal(6 meaning of the words 4arliament has used.H

7.7 5hy is +epper v Hart such a signi!icant case8 )n this decision, the .ouse of @ords decided to depart !rom the long, established practice that prohi%ited re!erence to Hansard (the record of debates in 4arliament). This practice, which we referred to as the e"clusionary rule, had long been viewed by commentators from other !urisdictions as a strange restriction and an a!!ront to common sense. The House o! 9ords laid do#n that references were only to be made concerning legislation #hich is am%iguous or o%scure or the literal meaning o! #hich leads to a%surdity. Even in such cases references...should only be permitted where such material clearly discloses the mischie! aimed at or the legislative intention lying behind the am%iguous or o%scure #ords.

)n the case of statements made in 4arliament, as at present advised I cannot !oresee that any statement other than the statement o! the minister or other promoter o! the -ill is li+ely to meet these criteria. (4er @ord >rowne,Bil+inson) The then @ord "hancellor, @ord 1ac ay, had dissented, claiming that the change #ould drastically increase legal costs since solicitors #ould need to engage in research to chec+ if relevant statements had indeed been recorded in .ansard. )t appears that su%stantial use o! Hansard has %een made since +epper v Hart and has gone beyond the terms of the restrictive criteria laid down by @ord >rowne, Bil+inson.

 )n the fifth edition of Smith, >ailey A ?unn on the modern English legal system, the authors state (&**%, p.DC9)0 The !irst nine years of the operation of 4epper v .art has largely %orne out the !ears e"pressed %y 9ord :ac'ay of "lashfern. )ssues concerning the cost o! litigation have been raised with the legal profession. The possibility of reference being made to 4arliamentary material has been raised in over 9F* cases to date. )n each of these, research #ill have %een done at the client(s e"pense- in very !e# indeed does a (croc+ of gold( appear to have made a di!!erence to the outcome. 5hat cannot %e estimated is the e"tent to #hich a#areness of that material has in!luenced the supposed (independent( approach o! the $udges to Guestions of interpretation.

 2ote, however, the interpretation of 4epper v .art in R (Spath Holme 9td) v Secretary o! State !or the Environment6 4ransport and the Regions 5&**#6, 4epper v .art does not mean that the courts now approach all statutes in a purposive #ay.

7.7 +urposive interpretation in the three central cases0 7 (8uintavalle) v Secretary of State for .ealth 5&**96 7oyal "ollege of 2ursing v :.SS 5#$;#6 7 v .uman <ertili=ation and Embryology Authority, e' p >lood 5#$$$6

7.; 4he impact o! mem%ership o! the European Union The accession of the United ingdom to the EU (formerly the European "ommunity), which was achieved in U law by the E"A, has radically altered the standing o! +arliamentary Sovereignty (since by that Act it appears that 4arliament has bound its successors as long as the United ingdom remains part of the EU). All U< legislation must %e interpreted to avoid con!lict with EU law. )f there is irreducible conflict, EU la# must prevail. "ases raising interpretive issues with EU law are the sub!ect of a reference to the European "ourt of Kustice (E"K). As the EC= !ollo#s a purposive method o! interpretation, we now have a superior court interpreting >ritish law that does not !ollo# the conventional literal approach. The interpretive approach of the European "ourt has had a pro!ound

in!luence on the legal system of England and Bales. The first !udge to face up to this was @ord :enning. )n H+ -ulmer 9td v = -ollinger S 5#$%D6, he argued that the literal approach #as inade/uate when dealing with the Treaty of 7ome, since that statute #as so %roadly #orded. Accordingly, the 4reaty o! Rome #as meant to %e clari!ied %y secondary legislation (e.g. :irectives, 7egulations and :ecisions) and also by the $udges !illing in the gaps in the la#. As this secondary legislation derived from the Treaty of 7ome, it too should %e interpreted in the light o! the purpose o! the 4reaty and the literal approach #as inade/uate. English !udges ought therefore to adopt interpretative strategies more common in the other civil law countries of Europe, namely loo'ing at the purpose and principles of such legislation.

 )n >uchanan > Co 9td v -a%co ?or#arding and Shipping U< 9td 5#$%%6, @ord :enning specifically pointed out that the European Court o! =ustice used a (schematic( or (teleological( system o! interpretation, loo+ing at the design or purpose o! the legislation and /uite readily !illing in any gaps.

C4I@I4A 7.& 7ead the following e'tract slowly and answer to the Guestion. The first and fundamental point is that the Treaty of 7ome #$C% 5hereafter the Treaty6 concerns only those matters which have a European element, that is to say, matters which affect people or property in the nine countries of the common mar+et besides ourselves. The Treaty does not touch any of the matters which concern solely England and the people in it. These are still governed by English law. They are not affected by the Treaty. >ut when we come to matters with a European element, the Treaty is li+e an incoming tide. )t flows into the estuaries and up the rivers. )t cannot be held bac+, 4arliament has decreed that the Treaty is henceforward to be part of our law. )t is eGual in force to any statute.

 The governing provision is section & (#) of the European "ommunities Act #$%&. )t says0 (All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United ingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly- and the e'pression (enforceable community right( and similar e'pressions shall be read as referring to one to which this subsection applies.( The statute is e'pressed in forthright terms which are absolute and all,embracing. Any rights or obligations created by the Treaty are to be given legal effect in England without more ado. Any remedies or procedures provided by the Treaty are to be made available here without being open to Guestion.

 )n future, in transactions which cross the frontiers, we must no longer spea+ or thin+ of English law as something on its own. Be must spea+ and thin+ of community law, of community rights and obligations, and we must give effect to them. This means a great effort for the lawyers. Be have to learn a new system. The Treaty, with the regulations and directives, covers many volumes. The case law is contained in hundreds of reported cases both in the European "ourt of Kustice and in the national courts of the nine. 1any must be studied before the right result can be reached. Be must get down to it. (@ord :enning, .4 >ulmer @td vK >ollingerSA 5#$%D6)

 According to @ord :enning #hat are the e!!ects o! the 4reaty o! Rome &B37 and the EC 8 Treaty only concern with European element so when the matters that concern with solely with England then still governed by English law 4arliament has bring the treaty as part of our law, so when in U , concerns matters with European element, then it must follow the treaty as obligation under the U statute. 4arliamentLs intention to uphold the treaty can be seen in the E"A #$%&, s.&(#). )t said that, all issue raised by treaty such as rights, powers, restriction etc, without further legal enactment, must be recognised and enforceable as law So, after this Act, when the issue raised related to Treaty, it cannot be solely !udged by English law but also Jthin+ of community law, rights and obligationL "ommunity law can be understand by the regulations, directives and also case law from E"K and national court of nine

C4I@I4A 7.* There are a number of important precedents that deal with the impact of European methods of interpretation. The following e'ercise will help familiarise you with these important cases. 7ead ?earey et al., "hapter $ (The !udicial practice of statutory interpretation(, section entitled (<irst steps0 Carland v. -ritish Rail Engineering 9tdD. Bhat were the issues around the interpretation of s.F(D) of the Se'ual :iscrimination Act #$%C and how did the .ouse of @ords resolve them/ Answer0 The problem was that the #ords o! the relevant section #ere capa%le o! t#o di!!erent and opposed interpretations0 one that suited the applicants and one that suited the respondents. @ord :iploc+ argued, and the rest of the .ouse concurred, that the meaning o! the section #hich

#as consistent #ith rticle &&B had to %e pre!erred. 7ead ?earey et al., "hapter $ (The !udicial practice of statutory interpretation(, section entitled (The for+ing path0 :u+e v. ?E" 7elianceL. Bhat issues were dealt with in this case/ .ow did the "ourt use a principle from 1arshall v Southampton and South Best .ampshire .ealth Authority 5#$;F6 to argue that they were compelled to interpret the #$%C Se'ual :iscrimination Act/ 5as .u'e #rongly decided8 .ouse of @ords interpreted sections &(D) and &(F) of the Se'ual :iscrimination Act. (same Act as above) )t was asserted that the #$%C Act was not meant to give e!!ect to the .irective on E/ual 4reatment issued in &B77. As s.& (D) of the E" Act did not allow a court to JdistortL the meaning of the statute, European employment rights should not %e availa%le in English la#.

 "ourt followed an earlier precedent. Marshall ( U case) promoted a much narrower approach to the interpretation of statute- stressing that if the domestic statute had not %een EintendedD to give e!!ect to European o%ligations, then the court #as limited %y the #ords o! the ct. 1arshall had held that a directive could not create o%ligations %et#een individuals. Some commentators have argued that :u+e was wrongly decided. 1ead )n :arleasing F&BB*G (another EU case), the European "ourt of Kustice (E"K) had relied on an earlier authority, Man "olson, to assert that a court had to interpret national la# as consistent #ith European o%ligations whether or not the national la# pre, or post,dated a directive.

7ead ?earey et al., "hapter $ (The !udicial practice of statutory interpretation(, section entitled (The path regained0 4ic+stone v. <reemansL. 5hy is +ic'stone v ?reemans plc F&B;;G a signi!icant case/ )n approaching the interpretation of the Act, their lordships %egan !rom a purposive position. 4roblem is on at least one interpretation of the relevant sections o! the U< ct6 it did not accord #ith European la#. <urthermore, the J%roadD interpretation of the section that would have made the la# coherent #as di!!icult to s/uare with the #ording o! the ct. )n previous case ?arland, @ord :iploc+ said that only e"press #ording in an ct passed prior to the date that the U had !oined the "ommunity would allo# a court to conclude that it #as not intended to be consistent with European law

 )n present case, the Act is prior to E"A The literal interpretation would compel the conclusion that the Act was in %reach o! European la# <urthermore, it #ould not %e consistent #ith the principle articulated %y 9ord .iploc'. .owever, )n 9ord )liverDs opinion, the ct #as reasona%ly capa%le o! %earing the interpretation that would ma+e it consistent with European law. lthough these dra!t regulations had not been sub!ected to the same 4arliamentary process as a bill, %ut they had %een passed to give e!!ect to a decision o! the EC=. @ord eith argued that it #as EplainD that +arliament could not have EintendedD to depart from its European law obligations. Under the circumstances of the case, he felt it was entirely legitimate that the court should consider the dra!t regulations.

7ead ?earey et al., "hapter $ (The !udicial practice of statutory interpretation(, section entitled (3n the road0 @itster v. <orth :ry :oc+ A Engineering "o. @tdL. 5hy is 9itster v ?orth .ry .oc' > Engineering Co 9td F&B;BG a signi!icant case8 .ouse of @ords #ent even !urther than +ic'stone. The court gave a purposive interpretation to a statutory instrument that concerned rules relating to the transfer of employeesL rights in the event of the sale of a business. The court EimpliedD #ords into the terms o! the regulation so as to ma'e it compati%le #ith o%ligations under European la#. @ord 3liver provided a useful summary of the courtLs approach in @itster. The court must !irst o! all determine the precise nature o! the o%ligations concerned by construing the wording of both the relevant directive, and the

interpretation given to that directive by the E"K. )f it can be Jreasonably construedL in such a manner, U< legislation must then %e purposively interpreted so as to give effect to European law. This approach can allo# the courts to depart !rom the literal meaning of the words used.

7ead ?earey et al., "hapter $ (The !udicial practice of statutory interpretation(, section entitled, (3ff the map/ Bebb v. E13 Air "argo and ?rant v. South Bestern TrainsL. 5hy are Carole 9ouise 5e%% v E:) ir Cargo (U<) 9td (2o *) 5#$$C6 and Crant v. South 5estern 4rains ("ase ",&D$E$F), The Times, &9 <ebruary #$$; significant cases/ Carole 9ouise 5e%% v. E:) ir Cargo (U ) @imited 2o.&, the #$%C Se' :iscrimination Act was again sub!ect to interpretation. As the .ouse of @ords could interpret the relevant sections of the Act in such a way, there was no need to distort the language o! the statute or to otherwise alter the literal sense. So, literal rule still applicable In Crant v. South 5estern 4rains6 it showed that la# o! the EU itsel! limits the purposive approach. The EC= re!used to prohi%it discrimination based on se'ual orientation.

 In theory, they might have %een a%le to %roaden the terms of Article ##$ and the relevant directives. .owever, the court felt that as community la# did not recognise homose"ual marriages, this issue could only be dealt with at a national level. ?rant indicates one e"treme constitutional line that Community la# #ill not cross. )t is interesting that this raises a Guestion of se"ual morality. 4he resistance to e/ual rights !or gays and les%ians (se"ual morality) means that it is unli'ely to give rise to acts o! %old interpretation.

7.B Interpretation and the Human Rights ct &BB; )n the Tom Sargent 1emorial @ecture of #$$%, the then @ord "hancellor, @ord )rvine said0 The .uman 7ights >ill...will be a constitutional change of ma!or significance, protecting the individual against erosion o! li%erties, either deliberate or gradual. )t will promote a culture where positive rights and li%erties %ecome the !ocus and concern o! legislators administrators and $udges ali+e. Some commentators predicted0 a ma$or shi!t in po#er !rom +arliament to $udges. 4hey #ill6 in e!!ect6 %e a%le to re#rite sections o! cts by reading into them words that are not there and by massaging away any potential conflicts with the "onstitution.( (Emerson, Guoted in The Times, &F 2ovember #$$;).

 This does not seem to have happened. )n fact parliamentary sovereignty has been preserved since if incompatibility arises the courts may not disapply legislation. The "ourt has the power to issue a (declaration of incompatibility( which effectively (invites( (rather than compels) 4arliament to change the law. The +ey provision is s.9(i) of the .7A, which provides that0 So !ar as it is possi%le to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with "onvention rights. Iou will come across the e'pressions reading (down( or (in( or (out(. These are two different techniGues developed by !udges. )f a provision is (read do#n( it is interpreted in such a way as to

ma'e it compati%le with a "onvention right. )f a $udge chooses to (read in( , words or interpretations can %e read into the relevant la# to ensure its coherence with "onvention !urisprudence. There is also a third term0 (reading out(. This involves the removal o! #ords or a court otherwise not enforcing law that is not "onvention compliant.

7.B.& R v H di!!ering $udicial approaches to interpretation under the Human Rights ct Fact: )n 7 v A 5&**#6, the .ouse of @ords considered whether s.D# of the Aouth =ustice and Criminal Evidence ct &BBB amounted to a %reach o! the de!endant(s right to a !air trial. .ow could the .ouse of @ords interpret this section/ Bould they have to issue a certificate of incompatibility/ 3r would the court assert that the Act had to be followed/ 9ord Steyn argued that the starting point for the interpretation o! the ct #as the (mischie!( that +arliament had (decided( to address. .owever, at the same time, the House o! 9ords had to decide #hether the ct made (an e"cessive inroad into the right to a fair trial(.

!ord !esters extrajudicial" #arliaments intent and proportionality .ow, then, was the court to assess where this particular provision fell/ 7eference was made to an important piece of e"tra$udicial #riting %y 9ord 9ester. This suggested a two,tier approach to the assessment of legislation in the light of the .7A. The first Guestion that the court had to as+ was #hether or not the provision in /uestion (inter!ered( #ith a Convention right. Answering this Guestion does not re/uire an essential re!erence to parliamentary intent, because it #ill hardly ever %e the case that +arliament deli%erately intended to %reach a Convention right. )t is at the second level of the test where the government attempts to $usti!y the particular provision, that parliamentary intention becomes more relevant.

 This raises the Guestion of whether or not the provision !alls into one o! the (e"ception clauses( under the HR . The court must then move to consider the issue of proportionality.

#roportionality test Bhat sense does proportionality ma+e in the present conte't/ Be need to start from the assertion that rticle 7 lays do#n a !undamental set of guarantees to ena%le a !air trial to ta'e place. The only way in which this right can %e restricted is %y re!erence to rticle 7 itsel!. @ord Steyn summarised this as determining a balance between (the interests o! the accused6 the victim and society(. pplying this set o! considerations to the test o! proportionality re/uires re!erence to 9ord Clyde(s guidelines in the +ey authority de <reitas v 4ermanent Secretary of 1inistry of Agriculture, <isheries, @ands and .ousing. These guidelines allo# a court to decide #hether a restriction on a right is accepta%le, or (arbitrary or e'cessive(.

 The guidelines as+ the court to determine, first of all, #hether the o%$ective FintentionG o! the legislation is (su!!iciently important(- then the court must decide if the actual limitations in the legislation achieve this end. Applied to the issues of 7 v A, the court must thus %e sure that the restrictions of the accused(s right to give evidence of consent to the court in the Act are (proportionate( to the goal o! limiting !air trial rights0 preventing irrelevant evidence and perpetuating stereotypes of women(s se'ual behaviour.

Interpretation of jud$es %y s&' This is essentially an act of interpretation. Section D# may %e su%$ect to certain e"ceptions, %ut it is e!!ectively a (%lan'et %an(. 2ote how @ord Steyn then ma+es e'plicit reference to techniGues of interpretation0 )rdinary methods o! purposive and conte"tual interpretation may yield ways of minimiIing the prima !acie e"or%itant %readth o! the section. Secondly, the interpretative obligation in section 0(&) of the #$$; Act may come into play. )t provides that (So !ar as it is possi%le to do so, primary legislation...must be read and given effect in a way which is compatible with the "onvention rights(. It is a 'ey !eature of the #$$; Act.

 )t is important to remember here that this is simply a re!erence to (purposive and conte"tual( methods it is not any e"plicit evocation of the mischief rule or the golden rule. 2ote also ho# it is o!!ered as one way in which $udicial discretion can limit the range o! s.1&, and thus grant some po#er to a $udge to determine whether or not evidence can be admitted. Alongside this is a literal reading of the section- or, rather, what is termed the (interpretative o%ligation( that is re/uired o! the $udges %y the HR .

 Be can consider the conclusion to which 9ord Steyn comes0 )n my view ordinary methods of purposive construction of section 1i(0)(c) cannot cure the pro%lem of the e'cessive breadth of the section D#, read as a whole, so far as it relates to previous se'ual e'perience between a complainant and the accused.

Bhilst the statute pursued desirable goals, %ut the methods adopted amounted to legislative over'ill

Be can see how this relates bac+ to the previous paragraph. The purposive interpretation cannot (cure( the %readth of the section. That mean if use purposive interpretation then it will lead to legislative over+ill >y this way, then the intention behind the Act will become not it should be The $udge must there!ore ma'e use o! the (interpretative o%ligation(.

 Section 0 applies even where (there is no am%iguity( in the Act it does not !ust mean, therefore, that the court must ta'e the Convention into account in interpreting am%iguous statutory language. The (duty( placed on the court by s.9 reGuires the court to (strive( to ma'e the statute coherent #ith the Convention. This ta+es us %eyond normal methods o! statutory interpretation. 2ormally a court can (depart from the language of the statute to avoid a%surd conse/uences(, but s.0 is a !ar more (radicalNgeneral principle(0 interpretation must ma+e Act and "onvention (compatible(. <ollowing 4epper v .art, this could amount to an interpretation (against the e"ecutive(.

 )n accordance with the #ill o! +arliament as re!lected in s.0, it will sometimes be necessary to adopt an interpretation #hich linguistically may appear strained. The techniGues to be used will not only involve the reading do#n of e'press language in a statute %ut also the implication o! provisions. A declaration o! incompati%ility is a measure o! last resort. )t must be avoided unless it is plainly impossible to do so.

Read into (add into( statute since #) *ill lead to le$islative over+ill )t may be that 4arliament e'presses a (clear limitation on "onvention rights(. .owever, R v those cases. is not one o!

)n @ord Steyn(s opinion, this reGuires an interpretation o! the statute in!ormed %y (common sense(, and by a supposition that +arliament itsel! #ould not have intended that the ct #ould prevent an accused ma+ing a full defence, so long as it made use of (truly probative material(. 4robative material is the fact issue in this case, perhaps not so important when discussing S)

 Bords can thus be read into the statute0 an (implied provision( that evidence which is probative and is necessary to a !air trial cannot %e e"cluded. )t is up to the trial $udge to determine when evidence is probative, and when it is merely irrelevant or insulting to the victim of rape. <ollowing this line of argument, it is not necessary to issue a declaration o! incompati%ility.

)nother approach, the statute does preserve the ri$ht to fair trial so no need read into 9ord Hope did not agree with @ord Steyn, asserting that s.1& #as proportionate to the end it sought to achieve, particularly because the overenthusiastic use o! $udicial discretion had resulted in a loss o! pu%lic con!idence in the fairness of rape trials. 1oreover, he argued that the section o! the ct itsel! preserved the de!endant(s right to as+ Guestions. >ecause s.D# did sub!ect to some limitation that :efendant may have the right to as+ M some Guestions 5but may be not occur in present case6 So sD# still preserve the right to fair trial This case6 then6 does not present itsel! as an opportunity to consider #hether or not issues o! general un!airness are raised. )nly in this instance 5unfair6 would there be grounds to hold an incompati%ility #ith rticle 7. So, @ord .ope intend to use s.D instead if unfair

 <urthermore, on this argument, the case does not raise the need to apply s.0 of the .7A- it is not necessary to (modi!y, alter or supplement the #ords used %y +arliament(. @ord .ope would not, then, see this case as calling for the (radical( approach0 5S6ection 9 does not entitle the court to legislate- its tas+ is still one of interpretation. "ompatibility is to be achieved only so far as this is possible. +lainly this #ill not %e possi%le if the legislation contains provisions #hich e"pressly contradict the meaning which the enactment would have to be given to ma+e it compatible. )t seems to me that the same result must !ollo# i! they do so %y necessary implication, as this too is a means of identifying the plain intention of 4arliament.

 This interpretation of the acceptable use of s.9 also begins with the idea that it is %ased on the intention o! +arliament. .owever, in a partial agreement #ith 9ord Steyn, @ord .ope concludes that i! the trial $udge !ound it necessary to use s.0, he should do so by !ollo#ing the test articulated %y 9ord Steyn.

)nother jud$es approaches @ord "lyde was also perhaps not as forthright as @ord Steyn.

.e admitted that it might %e possi%le to resolve the case #ithout (straining( the language of the provision. <ailing this approach, though, s.9 of the .7A could be applied- and the issue of compatibility with the "onvention did not arise. @ord .utton agreed with @ord Steyn.

Conclusion over SI issue The disagreements among the law lords as to the precise way in which the .7A is to be applied leads to the possi%ility o! t#o approaches. The relevant section of the #$$$ Act could be interpretedH %y re!erence to s.0 and along the lines suggested by 9ord Steyn, and broadly consented to by @ords "lyde and .utton, or in the way suggested by 9ord Hope. )n @ord Steyn(s understanding, the proportionality test suggests (legislative over'ill(, and this re/uires #ords to %e read into the ct so as to ma+e it consistent with Article F. @ord .ope did not feel the case raised a s.0 point, and it was not necessary to apply the proportionality test. 2ote that this is not a disagreement over the proportionality test as such, rather, it is a dispute over #hether it applies on the !acts.

7.B.* Ho# did $udicial practice change a!ter R v 8 The .7A may allo# $udges to consider the proportionality o! legislation, but what are the %oundaries of the test/ )n 7e S 5&**&6 .ouse of @ords considered the compatibility of care orders with Articles F(#) and ; of the E".7. The .ouse of @ords held that this use of s.9 overstepped the power given to !udges by the .7A.

 @ord 2icholls pointed out that0 )n applying section 9 courts must be ever mindful of this outer limit. The Human Rights ct reserves the amendment o! primary legislation to 4arliament. >y this means the ct see's to preserve parliamentary sovereignty. The ct maintains the constitutional %oundary. )nterpretation of statutes is a matter for the courts- the enactment of statutes, and the amendment of statutes, are matters for 4arliament. This restates a !undamental constitutional principle. )t is clear that the .7A is meant to preserve the distinction between interpretation and enactment of statutes.

 To some e'tent this rather simpli!ied distinction does not engage #ith the di!!iculty of drawing the line between the interpretation and the creation of the law. .owever, 9ord 2icholls did ac'no#ledge the inherent di!!iculties in the ne't part of his argument. .e pointed out that the more (li%eral( modes o! interpretation ma'e it harder to locate the %oundary between the (robust( and the (impermissibly creative(. .e proposes a rule of thumb test0 <or present purposes it is su!!icient to say that a meaning #hich departs su%stantially !rom a !undamental !eature of an Act of 4arliament is li'ely to have crossed the boundary between interpretation and amendment. This test returns us to themes of !udicial law ma+ing. 4articularly creative acts of interpretation depart !rom !undamental principles of an Act, and also bring matters to court that are ill,suited to the !orensic process.

 The reinterpretation of the "hildren(s Act by the "A did !ust this. )n a sensitive area, #here +arliament had entrusted po#ers to local authorities, the courts should not intervene so as to interfere with this statutory regime.

C4I@I4A 7.0 Anderson is fundamentally ambiguous0 it is hard to argue it de!ines a distinct approach to statutory interpretation in the wa+e of 7 v A. :o you agree/ Anderson certainly seems to suggest a change of direction. @ords >ingham, Steyn and .utton followed @ord 2icholl(s approach in 7e S and stepped bac+ from what seemed to be more creative approaches to interpretation. Civen that nderson #as decided %y a panel o! seven, and appears to %e !ollo#ed in -ellinger, the case appears to be authority for a more restricted understanding o! the interpretative po#ers given to the !udges by the .7A. .owever, commentators such as avanagh have argued that there are such signi!icant di!!erences %et#een Re S and Re that nderson cannot %e seen as a clear statement of a new direction of travel.

 nderson is thus limited to its !acts and la#. )t might be possible to see the tensions in the cases and the interpretations of the cases as evidence of a new relationship between the courts and 4arliament. <lug certainly sees the tensions %et#een R v and nderson as the attempt to #or' out the terms o! a (dialogue(- a dialogue that uses both interpretative powers and declarations of incompatibility.

C4I@I4A 7.1 7ead ?earey et al., "hapter $ (The !udicial practice of statutory interpretation(, section entitled (1ending fences/ ?haidan v. ?odin, 1endo=a(. Bhat does Chaidan v Codin, :endoIa 5&**D6 suggest about the limits o! the $udicial practice o! statutory interpretation under the .7A/

2o need ambiguity in statute @ord 2icholls pointed out that there are a num%er o! #ays o! reading s.0 as there is a certain degree of ambiguity in the word Epossi%leD. A narrow reading would hold that s.0 only allo#ed courts to resolve am%iguities in statutory language in !avour of "onvention, compliant interpretations. A much broader interpretation of the section has been preferred, which allo#s the courts to give a di!!erent meaning to the language of the statute in order to ma+e its meaning consistent #ith the Convention. This could involve reading in #ords, as in R. v. . There is no need for the language of the Act to be am%iguous !or the Court to ta'e this course o! action. This means that the court can Edepart !rom the unam%iguous meaning the legislation would otherwise bearL.

1ay depart from intention as well 2ormally6 the court #ould have to determine the intention of 4arliament by using the language in the Act. .owever, s.9 means that the court may have to Edepart !rom the intention of the enacting 4arliamentL. Be can begin to appreciate how the Human Rights ct ma'es !or a potentially radical departure from conventional methods of interpretation. .owever, this does not e"tend to the idea that the court is now an e/ual partner #ith +arliament when it comes to legislation. The !undamental re/uirement is that the courts should !ollo# +arliamentary intention in interpreting an Act. The Guestion becomes0 ho# #ould a court 'no# that it is legitimate to depart from 4arliamentary intention/

 The answer to this Guestion depends on the degree to #hich +arliament intended that the JactualD #ords of a statute, as opposed to the concept that those #ords e"press, is to be JdeterminativeL of the ActLs meaning. Bhat does this mean/ @ord 2icholls argues that the determinative !actor cannot %e the #ord o! the ct, since the HR allo#s them to %e interpreted against their o%vious sense. S.9 reGuire to interpret Jas far as possibleL )t would be possible, therefore, for a court to read #ords into an ct. >ut not the concept which the word wish to e'press <or e'ample in this case, husband and wife interpreted as Jas if husband and wifeL This would be consistent #ith the !act that s.0 Ere/uiresD that courts read in #ords to ma'e an ct compliant with the "onvention.

 There is a limit to this process. Although the court can read in words, +arliament could never have intended that Jthe courts should adopt a meaning inconsistent with a fundamental feature of legislationL (ibid.). 5perhaps what this statement means that as the present fact, if J4arent and childrenL never can read as Jhusband and wifeL while homose'ual can.6

C4I@I4A 7.3 7ead ?earey et al. "hapter $ (The !udicial practice of statutory interpretation(, section entitled (:efining the parameters of the new practice(. :o you agree with the argument that statutory interpretation has to be seen in the conte't of a democratic dialogue between the courts and 4arliament/

Summary The traditional approach to precedent and statutory interpretation has %een modi!ied %y the HR . The Act reGuires the courts to ensure that statutes and case law are compliant #ith the provisions o! the ECHR. This new obligation has changed the approach of the courts in some important recent cases.