Statutory Interpretation – Aids Date: Monday, 17 September 2018 Statutory Interpretation – Aids Learning Objectives Describe the different aids to statutory interpretation and explain how they are used. Specification Link Aids to interpretation: rules of language; internal and external aids Example You be the Judge … Each students gets one card containing a case in which the courts used statutory interpretation to make a decision. Examine the facts of the case and the outcome and then decide which rule was applied by the courts and why. Royal College of Nursing of the UK v DHSS (1981) 1 All ER 545 Use of nurses to carry out abortions who used drugs and procedures not thought of when the Act was passed in 1967. The Act required abortions to be carried out by a ‘registered medical practitioner’. Principle – The Act was intended to provide for safe abortions and nurses could do this.  Lord Wilberforce and Lord Edmund Davies claimed that judges were not interpreting legislation but re-writing it. 15

Key Terms Presumptions Intrinsic Aids Extrinsic Aids The ejusdem generis rule Expressio unius est exclusio alterius Noscitur a sociis

What aids are available to judges? Intrinsic Presumptions Copy the students the first two or three sections – get them to thoroughly interpret the words as we will be coming back to this act later in the session. You could extend the exercise by using a QCI exercise (included in the lesson resource pack) and making a higher order thinking activity. Extrinsic

Aid One: Presumptions Meaning: Things we assume to be true Common law is not changed unless the act expressly say so R v Shivpuri Criminal Attempts Act 1981 s.1(3) Queen is not bound Human Rights Act 1998 Criminal Offences require mens rea B v DPP 2000 Sweet v Parsley 1970 The law should not act retrospectively Human Rights Act 1998 War Crimes Act 1991

Aid Two: Intrinsic Aids Meaning: Things that are internal to the Act itself 1) Look at your Human Organ Transplant Act again – can you find examples of each of the intrinsic aids in the statute? Definition sections Headings Long (& short) titles Schedules Other sections of the Act Draftsmen/side notes 5

Lets try it for ourselves… 2) Look at the following scenarios: Have they broken the law? What other sections of the Act did you find useful in working out the answers? Link the different sorts of law together – can you find the delegated legislation element of the Act? Dan texts all his friends asking them if they want to make some money by donating an eye. Ian’s grandfather donates his kidney to Ian, who pays for his medical expenses for the donation. Mark is given a new liver by Nat, he hands over the keys to his house in return. Look at your Human Organ Transplant Act 1989 again. Using the Act answer the following questions. And a box of two or Pringles and normal crisps as well

Intrinsic Aids – Long and Short Title May be used as guidance Abortion Act 1967 Fully entitled ‘An Act to amend and clarify the law relating to termination of pregnancy by registered medical practitioners. 3) Read your copy of the Act. 4) Does the short and long title help you answer the following question: Is it OK for nurses to carry out abortions? Royal College of Nursing of the United Kingdom v DHSS (1981)

Royal College of Nursing of the UK v DHSS (1981) 1 All ER 545 Use of nurses to carry out abortions who used drugs and procedures not thought of when the Act was passed in 1967. The Act required abortions to be carried out by a ‘registered medical practitioner’. Principle – The Act was intended to provide for safe abortions and nurses could do this.  Lord Wilberforce and Lord Edmund Davies claimed that judges were not interpreting legislation but re-writing it. 8

Intrinsic Aids – Other sections Older statutes may have a preamble serving as a purpose statement Newer acts may have objectives or purposes section - E.g. Climate Change and Sustainable Energy Act 2006 Look at this purpose section of the Climate Change Act: 4) How might this extra section help judges make decisions? 5) What does the purposes section tell you about the intention of the drafters? 6) What are the main objectives of the Act?

Intrinsic Aids – Schedules Schedules appear as additions to main body of Act Look at your copy of the Hunting Act 2004 7) What are the exemptions to hunting contained in the Schedule? 8) I ask my neighbour to bring his Jack Russell around to dig out some rats I have found in my garden – does the schedule exempt my neighbour from prosecution? 9) Make a list of five other exemptions

Intrinsic Aids – Schedules Most new Acts contain a special interpretation definition section Look at your copy of the Law Reform (Year and a Day Rule) Act 1996: 10) How does the Act define a fatal offence? 11) Which section is this contained in? 12) How do you think this might specifically help a judge in interpreting the Act?

Intrinsic Aids – Punctuation Punctuation is now seen to have an effect `in Hanlon v Law Society (1981) Lord Lowry commented; “To ignore punctuation disregards the reality that literate people, such as parliamentary draftsmen, do punctuate what they write.” In your groups come up with two sentences which use the same words but which have two different possible meanings because of the way you have punctuated it.

Aid Two: Extrinsic Aids Meaning: Things that are external to the Act itself Dictionaries Vaughan v Vaughan (1973) Previous Acts The Interpretation Act 1978 Reports of the Law Commission International Treaties Before you read the facts of the case what do you think the word molest means? Now check your meaning against a dictionary definition. Are they the same, close or different? If I pester my wife to take me back after a marital split does that merit molestation? Hansard Explanatory Notes Textbooks 13

Vaughan v Vaughan (1973) 1 WLR 1159 In this case the court had to interpret the word ‘molest’. D had been subject to injunctions in respect of previous violence towards his ex-wife who was afraid of him. D argued that pestering his ex-wife to resume their relationship by going to her home early in the morning and late at night and also calling on her at work, did not amount to molesting her. Principle – The judges consulted the dictionary, which defined molest as ‘to cause trouble, vex, annoy or , to put to inconvenience’ and held that the defendant's behaviour did amount to molestation. 14

Extrinsic Aids – Previous Acts Explosives Substances Act 1883 amending the Explosives Act 1875 Wheatley (1979) 5) How can the judge use the 1883 short title to justify applying the previous 1875 Act when he defined the term explosive in Wheatley?

R v Wheatley [1979] 1 All ER 954 A man D was found in possession of a metal pipe filled with sodium chlorate and sugar, and was charged with possessing an explosive substance contrary to s.4 of the Explosive Substances Act 1883. He argued that its effects would be pyrotechnic rather than explosive, but the court referred to the Explosives Act 1875, in which "explosive" was defined as including "pyrotechnic". Principle – Since the long title of the 1883 Act referred expressly to the 1875 Act, the definition from the earlier statute could be imported into the later. 16

Extrinsic Aids – The Interpretation Act 1978 7. How does section 6 assist the Judge when making a decision? 8. How many other idiosyncrasies of the English language need clearing up to make things easier to interpret? 9. Can you find 3 more in your groups? 10. Can you think of any occasion when this may still not make things clear? Answer to question 4 when gender identity is an issue maybe? Extrinsic aids also includes Reports of the Law Commission (e.g. when they highlight what is wrong with old Act) and International Treaties (such as the EU Law)

Extrinsic Aids – Hansard Hansard (the Official Report) is the edited verbatim report of proceedings of both the House of Commons and the House of Lords. Davis v Johnson (1979) To Pepper v Hart (1993)

Extrinsic Aids – Hansard Davis v Johnson (1979) To Pepper v Hart (1993) 11) Research Task – Take a look at the decisions in the two cases above. What was Lord Denning’s position about the use of Hansard in Davis? What did the House of Lords say? When did the rules change? What do the rules say now?

Davis v Johnson [1978] 2 WLR 553 House of Lords This case concerned the interpretation of the Domestic Violence and Matrimonial Proceedings Act 1976. At the Court of Appeal Lord Denning referred to Hansard stating, that not to do so would be like 'groping in the dark without switching on the light'. On appeal to the House of Lords the Lords reprimanded Denning for referring to Hansard and restated the rule that Hansard must not be referred to. Lord Kilbrandon - "It has always been a well established and salutary rule that Hansard can never be referred to by counsel in court and therefore can never be relied on by the court in construing a statute or for any other purpose.” Viscount Dilhorne: - "While, of course, anyone can look at Hansard, I venture to think that it would be improper for a judge to do so before arriving at his decision and before this case I have never known that done. It cannot be right that a judicial decision should be affected by matter which a judge has seen but to which counsel could not refer and on which counsel had no opportunity to comment.” 20

Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42 The House of Lords had to decide whether a teacher at a private school had to pay tax on the perk he received in the form of reduced school fees. The teacher sought to rely upon a statement in Hansard made at the time the Finance Act was passed in which the minister gave his exact circumstance as being where tax would not be payable. Previously the courts were not allowed to refer to Hansard. The House of Lords departed from Davis v Johnson and took a purposive approach to interpretation holding that Hansard may be referred to and that the teacher was not required to pay tax on the perk he received. The rules were however: The wording in the Act must be ambiguous or obscure, or a literal interpretation would lead to an absurdity. Judges may look only at the statement as made by a minister or other promoter of the bill. The statements must be clear in order for them to be relied upon. 21