Sources and methods of the english common law


Intention of the Legislature



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Intention of the Legislature


Given the legislative process, whose intention could possibly count? (i) draftsman's, (b) promoting minister's, (c) committee's (d) those voting for the Bill?
ENGLISH JUDICIAL APPROACHES TO INTERPRETATION:

i) "interpretation cannot be concerned wholly with what the promulgator of a written instrument meant by it: interpretation must also be frequently concerned with the reasonable expectations of those who may be affected thereby" (Lord Simon, Black-Clawson [1975] AC at 645).

ii) Lord Reid, Black Clawson [1975]:

"We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said".


STRUCTURE AND LANGUAGE OF STATUTES

  • No recitals or preamble or legal basis: explanatory memorandum and declaration of compatibility

  • Long Title: “An Act to make provision about the inclusion at local authority meetings of observances that are, and about powers of local authorities in relation to events that to any extent are, religious or related to a religious or philosophical belief”

  • Short Title: Local Government (Religious etc Observances) Act 2015 (2015 Chapter 27)

  • Detailed provisions, e.g.

s. 1 In Part 7 of the Local Government Act 1972 (miscellaneous powers of local authorities) after section 138 insert—

138APrayers and other observances

(1)The business at a meeting of a local authority in England may include time for—

(a) prayers or other religious observance, or

(b) observance connected with a religious or philosophical belief……

138B Involvement with religious events and events connected with a belief

(1)A local authority in England may support or facilitate, or make arrangements to be represented at, any of the following—

(a) a religious event,

(b) an event with a religious element,

(c) an event connected with a religious or philosophical belief, or

(d) an event with an element connected with such a belief.


138C Application of sections 138A and 138B to other authorities

(1)Each of the following is (subject to the limitations set out) to be treated as a local authority for the purposes of sections 138A and 138B— [25 classes of body including]

w)an internal drainage board for a district neither wholly nor partly in Wales…..

(7) An internal drainage board for a district partly but not wholly in Wales is to be treated as a local authority in England—

(a)for the purposes of section 138A, but only in relation to meetings held otherwise than in Wales, and

(b)for the purposes of section 138B, but only in relation to events that are to take place otherwise than in Wales.


METHODS OF INTERPRETATION

Status and how developed: Law Commission, The Interpretation of Statutes (Law Com 21; 1969), clause 2 (a):



"a construction which could promote the general legislative purpose underlying the provision in question is to be preferred to a construction which would not ..."
As Lord Griffiths put it in Pepper v Hart [1993]

'The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.'


Lord Nicholls has remarked that ‘

linguistic arguments…should be handled warily. They are a legitimate and useful aid in statutory interpretation, but they are no more than this…[B]efore reaching a final decision,…one should stand back and view a suggested interpretation in the wider context of the scheme and purpose of the Act.1


Bennion, Statutory Interpretation, s.313:

"A purposive construction of an enactment is one which gives effect to the legislative purpose by -

(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or

(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction)".

The Constitutional Function of Judges
a) The judge as subordinate of Parliament

Denning LJ, Magor & St Mellons RDC v Newport Corp [1950] 2 All ER at 1236:

"We do not sit here to pull the language of Parliament to pieces and make nonsense of it. That is an easy thing to do and it is a thing to which lawyers are too often prone. We sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis".

b) The judge as defender of the citizen

Lord Simon of Glaisdale, Stock v Frank Jones [1978] ICR at 354:

"in a society living under the rule of law citizens are entitled to regulate their conduct according to what a statute has said, rather than by what it was meant to say or by what it would otherwise have said if a newly considered situation had been envisaged".

‘[I]t is common place for courts to have to consider whether circumstances, beyond those at the forefront of Parliament’s consideration, may properly be held to be within the scope of a provision, having regard to its purpose.’ (Yemshaw v London Borough of Hownslow [2011] UKSC 3 at [45]) As a result, a statute may be considered as covering a range of situations which were not in the contemplation
PERMITTED MATERIALS:

"The constitutional function performed by the courts of justice as interpreters of the written law laid down in Acts of Parliament is often described as ascertaining "the intention of Parliament"; but what this metaphor, though convenient, omits to take into account is that the court ... is doing so as mediator between the state in the exercise of its legislative power and the private citizen for whom the law made by Parliament constitutes a rule binding upon him and enforceable by the executive power of the state. Elementary justice or, to use the concept often cited by the European Court, the need for legal certainty demands that the rules by which the citizen is to be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible". (Lord Diplock Fothergill v Monarch [1981] AC at 279).





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