Introduction This essay is to discuss theway in which the Court of Appeal and Supreme Court’s traditional approaches tostatutory interpretation have been influenced by the UK’s membership of theEuropean Union and the Human Rights Act 1998. Within the essay we will alsorecognise sources of law in England and wales and their key principles 1Thereare three traditional approaches to statutory interpretation; the literal rule,the golden rule and the mischief rule, there is also often the purposiveapproach. These are techniques in finding the “true meaning of a statute”however they are not necessarily rules to be followed. The supreme courtclarified this in Cusack v London Borough of Harrow when (2013) wheninterpreting statutes, they should be seen as “guidelines rather than railwaylines”2which is basically implying that it can be open to interpretation rather than asolid rule.
The Literal ruleThe first traditional approachis the Literal rule. This rule provides words within a statute of theiroriginal meaning3. LordDiplock stated in Duport steels Ltd V Sirs ‘the role of a judiciary is confinedto ascertaining from the words that parliament has approved as expressing itsintention 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 anoffence “to impersonate any person entitled to vote” at an election. Theaccused was acquitted because he impersonated’ the deceased and a deceased personwas quite obviously unable to vote5.
Also in the case of Fisher V Bell 6a more recent case than Whitley v Chapell, the case involves a shopkeeper whodisplayed 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 saleor hire’ a flick knife shall be guilty of an offence”7the defendant had then argued not guilty and that based on the facts no offerhad been made. When held by the Divisional Court of The Queens Bench Division 8it was concluded that Mr Bell could not be convicted given the Literal meaningof the statute.9 Dueto the 1959 act was amended by the Restriction of Offensive Weapons Act 1961and the offence in s.1 was expanded to include where a “person exposes… for thepurpose of sale” a flick knife10.There are many advantages and disadvantages to using the literal rule. An advantageto this approach is that it respects parliament sovereignty and leaves law-makingto those whose job it is11.
However, the disadvantages of this rule is that it can create injustice whereparliament would have not intended it12as seen in the case of London and Northern Eastern Railway co v Berriman.13 The Golden ruleThe golden rule is used wherethe literal interpretation leads to an absurd result. In the words of LordWensleydale in Grey v Pearson (1857): ‘The grammatical and ordinary sense ofthe words is to be adhered to, unless that would lead to some absurdity, orsome repugnance or inconsistency with the rest of the instrument, in which casethe grammatical and ordinary sense of the words may be modified so as to avoidthat absurdity and inconsistency, but no further.’14.
There are a number of cases where the golden rule has came to light such as R vAllen (1872) section 57 of the Offences Against the Person Act 1861 statesthat: “whosoever being married shall marry any other person during the life ofthe former husband or wife . . . shall be guilty of bigamy.’15It was evident within this that it was not possible for a person who wasalready married to ‘marry’ another person; they could have another marriageceremony, but would not be legally married; applying the literal rule wouldmake 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 canprevent the absurdity and injustice from applying the literal rule17.A disadvantage it can provide there is no accurate and clearinformation about how and when the rule should be applied ‘and no definition ofwhat an absurd result is before deciding to avoid it.’18.
The Mischief RuleThe mischief rule arose in1584 in Heydons case it provides judges with three factors to consider: 1.Whatwas the law before the making of the Act. 2.
What was the mischief and defect for which the common law did notprovide 3. What remedy the Parliament hath resolved and appointed to cure thedisease of the commonwealth, and 4. The true reason of the remedy.19The office of judges will then collectively interpret the statute thatParliament was addressing.
20.examples of the mischief rule in practice is in the case of Royal College ofNursing v Department of Health and Social Security (1981) The Abortion Act 1967states that termination of pregnancy was only legal when they were performed bya “registered nurse practitioner”21.By the year of 1972, abortions by surgery were replaced by drug inducedprocedures, which within this the nurse was able to complete the second stageof attaching the patient to a drip under supervision by a doctor. By this caseThe House of Lords decided that the mischief from the previous legislation wasinsubstantial, and made many women at risk of dangerous abortions. By wideningwhich abortions could be obtained and making sure they were being performedwith skill and hygienically it was not unlawful. The decision was controversialhowever Lord Wilberforce and Edmund Davies claimed that the house was notinterpreting the legislation, but rewriting it 22.An advantage of the mischief rule is that it prevents absurdity and injusticeand is more flexible.
Described by the law commission in 1969 as a ‘rather moresatisfactory approach’ than the literal rule and golden rule.23A disadvantage from the mischief rule is that the rules may be more inaccurateas the legislative situation is so different.24Heydons case and the purposive approach are similar in many ways and there arealso some 1 Steve Wilson andothers, English Legal System (2nd edn, 2016)2 Catherine Elliott and Frances Quinn, English Legal System (17th edn, Pearson 2016/2017)3 ibid4 Duport steels Ltd V Sirs 1980 1 WLR 142, 1575 Whitely v Chapell (1868)6 Fisher vBell (1961)7 Fisher v Bell8 Steve Wilson and others, English Legal System (2nd edn, 2016)9 Lawteachernet, ‘Critical Analysis Of The Literal, Golden And Mischief Rule’ (Lawteachernet, unknown )