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Legislation and statutory interpretation.

Module C: Statutory interpretation.

Chapter 2: Literal rule.

Basis of the rule
It is presumed that the words selected and used, in a particular context in legislation, declare the true intention of the legislature in an accurate and unambiguous manner; so where the words are clear and explicit, the court should always give effect to them regardless of the consequences. This is also called the plain meaning rule.

In The Dignity of Legislation Jeremy Waldron stated that the statute text is the only agreement achieved by the legislative assembly.

Words are used in a particular context
Lord Hewart CJ in Spillers Ltd v Cardiff Assessment Committee [1931] 2 KB 21, 42–43: ‘contiguous islands’ = ‘neighbouring’ but ‘contiguous houses’ = houses touching each other.

Words are used in an accurate and unambiguous manner
Lord Hewart CJ in Spillers: “words are used in an Act of Parliament correctly and exactly, and not loosely and inexactly”; reiterated by Lord Bingham of Cornhill in R (Quintavalle) v Secretary of State for Health [2003] 2 WLR 692 (HL) at 7, citing Wilberforce in Royal College of Nursing of the UK v Dept of Health and Social Security [1981] 1 All ER 545, [1981] AC 800.

Regardless of the consequences
Burton J in Warburton v Loveland (1832) 2 D&Cl 480, 489 (HL): “Where the language of the Act is clear and explicit, we must give effect to it, whatever may be the consequences; for in that case the words of the statute speak the intention of the Legislature. If in any case a doubt arises upon the words themselves, we must endeavour to solve that doubt by discovering the object which the Legislature intended to accomplish by passing the Act.”

Jervis CJ in Abley v Dale (1850) 20 LJCP 33, 35: “Words may be modified or varied where their import is doubtful or obscure, but we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning.”

Doctrine of absurdity: the golden rule
The golden rule tones down the literal rule. Where two interpretations are equally possible then the courts will advert to an interpretation which appeals more to common sense and do more justice, instead of the one where the application of the plain meaning rule would yield absurdity in the context of the legislation when read as a whole. E.g. ‘in the vicinity of’ was interpreted to cover a person already on the premises in Adler v George (1964).

But the mere fact that the results of a statute may be unjust or absurd does not entitle this court to refuse to give it effect, but if there are two different interpretations of the words in an Act, the court will adopt that which is just, reasonable and sensible rather than that which is none of those things: Finnemore J in Holmes v Bradfield RDC [1949] 2 KB 1, 7.

There is no equitable relief against clear provision: per Mellish LJ in Edwards v Edwards (1876) 2 Ch D 291, 297.

Lawful evasion not restrained by courts
“The commissioners or the court must identify the real transaction carried out by the taxpayers and, if this real transaction is carried through by a series of artificial steps, apply the words of the taxing provisions to the real transaction, disregarding for fiscal purposes the steps artificially inserted. The provision of the taxing statute is to be construed as applying to the actual transaction the parties were effecting in the real world, not to the artificial forms in which the parties chose to clothe it in the surrealist world of tax advisers”: Lord Browne-Wilkinson in IRC v Fitzwilliam [1993] 1 WLR 1189 at 1226–27, confirming Heydon’s Case.

Expressions that change meaning over time
The current position was was stated by Lord Steyn in Re McFarland (AP) (Northern Ireland) [2004 UKHL 17 at 25]: “It is now settled that legislation, primary or secondary, must be accorded an always speaking construction unless the language and structure of statute reveals an intention to impress on the statute a historic meaning. Exceptions to the general principle are a rarity.”

See also Lord Bingham of Cornhill in R (Quintavalle) v Secretary of State for Health [2003 2 WLR 692 (HL)]: “If Parliament, however long ago, passed an Act applicable to dogs, it could not properly be interpreted to apply to cats; but it could properly be held to apply to animals which were not regarded as dogs when the Act was passed but are so regarded now”, citing the dissenting opinion of Lord Wilberforce in Royal College of Nursing of the United Kingdom v Department of Health & Social Security [1981] AC 800: “The Courts should be less willing to extend expressed meanings if it is clear that the act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the subject matter is different in kind or dimension from that for which the legislation as passed.”

But the legislative text is to be construed in a manner so as to adopt the relevant modern time meanings and no further; “that the phrase ‘on the ground of her sex’ can mean ‘on the ground of her sexual orientation’ fails to respect the language of the statute. The two things are not the same. The use of different words gives the phrases different meanings”: Lord Hobhouse in MacDonald v Advocate-General for Scotland [2004 1 All ER 339 (HL)].

EU law
For interpretation of multilingual EU law, see Legal aspects of EU multilingualism.

“When a single decision is addressed to all the member states the necessity for uniform application and accordingly for uniform interpretation makes it impossible to consider one version of the text in isolation but requires that it be interpreted on the basis of both the real intention of its author and the aim he seeks to achieve, and in the light in particular of the versions in all ... languages. The provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of [Union] law and protected by the court”: Case 29/69 Stauder v Ulm.

“An interpretation of a provision of [Union] law ... involves a comparison of the different language versions”; “[Union] law uses terminology which is peculiar to it ... legal concepts do not necessarily have the same meaning in [Union] law and in the law of the various member states”; “every provision of [Union] law must be placed in its context and interpreted in the light of the provisions of [Union] law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied”: Case 283/81 CILFIT.

If a provision is not “in clear and unequivocal terms, it must be given a restrictive interpretation”: Case C-6/98 ARD v Pro Sieben.