#16456 - Introduction To Statutory Interpretation - Scottish Legal System

1. Introduction to Statutory Interpretation

• Sometimes legislation can have different interpretations because law is linguistic in nature, and words are subjective in regards to interpretation

• Statutory interpretation involves 2 processes:

1. Construction: text must be scrutinised to establish what the rule actually is/ extracting the rule

2. Interpretation: to establish what the rule actually means in the context of a case

Construing

• Legislation can be analysed into 5 aspects:

1. Case

2. Condition

3. Subject

4. Declaration

5. Exception

• Semantic ambiguity: when one word means more than one thing

Example: fair- appropriate, just, fun fair entertainment, light hair colour, weather

The meaning of a word would often be given within its context, but that context itself can create its own ambiguities under uncertainty

• Syntactic ambiguity: when the context/ message of a sentence is ambiguous

Example: “no eggs of hens or ducks can be eaten…”- does this refer to eggs of hens and eggs of ducks, or eggs of hens and whole ducks?

Interpretation

• Interpretation problems:

1. Words change over time (family)

2. Difficulties with drafting because complex ideas are put into simple form and time pressure

• There are different perspectives in statutory interpretation, so there is no absolute certainty

• Intention of parliament:

To interpret legislation, the intention of parliament in creating that legislation is determined

• Parliament is sovereign so it can legislate as it wishes and the courts is obedient to this

• Advantages: objectivity and certainty

• Disadvantages: does parliament have an intention?

• Judicial approaches to interpretation:

-Modern-

1. Technical vs ordinary meaning of terms: The judge must consider if the technical or ordinary/ grammatical meaning of a term should be used in the context of the case

Example: Fisher v Bell

• Shopkeeper has a flick-knife in shop window with price attached

• Issue because of Restriction of Offensive Weapons Act 1959, section 1 (1)-

“any person who manufactures, sells or hires or offers for sale or hire, or lends or gives to any other person” any ‘flick-knife’ shall be guilty of an offence.

• The word “offer” was taken in the technical contractual sense, where the intent to be legally bound is evident

• But the display of a flick-knife in a window is not an offer for sale but an invitation to treat

• Court held that shopkeeper is not guilty of an offense

2. Purposive approach: The judge may apply a secondary meaning to words if they think that the ordinary meaning would produce a result contrary to the purpose of the statute

Example: Fitzpatrick v Sterling Housing Association Ltd

• John is the tenant of a property. He lives with his lover, Martin. They have cohabited for 8 years. John takes ill and later dies. Martin nurses him during his illness.

• Martin can only inherit the tenancy in the circumstances specified in paragraphs 2 and 3 of Rent Act 1977-

• Intent of creation of legislation was that those who the deceased tenant loved and cared about won't be rendered homeless

• in court of appeal, one of the judges held that martin should be treated as a spouse for the purposes of this case

• "family" was held to be a word whose meaning changes over time, so it doesn't only cover blood relations, but also caring relationships and ties of love and affection

words of a statutes are given meaning in a present context, so their meaning can change over time in response to changing social conditions

3. The judge can ignore or add words to statutes to implement meaning already implied in the statute

This is controversial because it gives judges the freedom and justification to create their own rules

4. Judges can use aids to construction and presumption (dictionaries

Example: Fisher v Bell, Hobson v Gledhill

5. Statutes can be interpreted to give effect to EU law, so they cannot be interpreted in a way that contradicts EU law

-Traditional-

1. Mischief Rule: judge should look at the uncertainty that the act was created to overcome and interpret it in order to suppress the mischief and advance the remedy

2. Literal Rule: We can only take the intention of Parliament form the literal words which they have used in the Act

3. Golden Rule: the literal meaning should be applied unless it produces an inconsistency, an absurdity or an inconvenience so great as to convince the courts that the intention of Parliament must have been different

• Interpretation Acts:

Interpretation Act 1978

Scotland Act 1998

Interpretation and Legislation Reform (Scotland) Act 2010

• Gendered words apply equally to both genders

• References to time mean GMT

• Singular and plural words are interchangeable in meaning

• Presumptions in statutory interpretation:

Linguistic

• “And” “or”

• “includes” “means”

• noscitur a sociis: the meaning of a term is restricted by the common features it shares with other terms in a list

• Ejusdem generis: “any A, B, C or other X” implies that A, B and C share common features that define X

• Expressio unius est exclusio alterius: the mention of one thing is to the exclusion of all others

• “shall”: synonymous with “is”, implying something is mandatory

• “may”: denotes power or permission without an obligation to use it

• punctuation makes difference

Legal

• Against absurd results

• Against criminalising behaviour by favouring a narrow reading so that the accused is not committing a criminal offence

• Against injustice

• Against unclear alterations of settled law

• Doctrine of implied repeal: where 2 statutes are in conflict but there is no explicit repeal of the earlier one, so the later rule takes precedent over the earlier one, which is by implication repealed

• Against retrospectivity: new legislation cannot bind or incriminate past action

• Materials Considered by the courts in construing and interpreting legislation:

• Interpretation provisions in the statute

• Unenacted parts of a statute: marginal notes by drafter, long titles, preambles

• Explanatory notes: designed to give a straightforward explanation of the meaning of various provisions

• External aids:

1. Dictionaries/ literature

Chief Constable of Staffordshire v Lees (OED)

2. Practice

3. Contemporary meanings

Fitzpatrick

4. Legislative history: has no place in interpretation unless it is unclear and ambiguous

1. Prior legislation:

• Consolidation acts: Acts which bring together the provisions of other acts relating to a particular topic without any changes in the law and are not subject to amendment in their passage through Parliament

• Statutory Re-enactment: using a previous court’s interpretation of a legislation if the current court agrees with it word for word, but this...