User:Kaihsu/DraftC3

Legislation and statutory interpretation.

Module C: Statutory interpretation.

Chapter 3: Mischief rule.

Genesis of the mischief rule
The test (“mischief rule” or “purpose rule”) in Heydon’s Case (1584) 3 Co Rep 7a still applies: "For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered: and then the office of all the judges is always to make such construction as
 * 1) What was the common law before the making of the Act?
 * 2) What was the mischief and defect for which the common law did not provide.
 * 3) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And,
 * 4) The true reason of the remedy;
 * shall suppress the mischief, and advance the remedy, and
 * to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and
 * to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."

The first step now includes existing (statute) law as well: The Mayor of Aldermen and Burgesses of the London Borough of Ealing v The Race Relations Board [1972] AC 342 per Lord Kilbrandon.

For example, in Smith v Hughes (1960) “soliciting in a street” in the Street Offenses Act 1959 was interpreted to include tapping on the window to attract the attention of passers-by.

Simonds LJ in Attorney-General v Prince Ernest Augustus of Hanover [1957] 1 All ER 49; [1957] A.C. 436): “if enacting words are plain and unambiguous one does not need to look at the preamble to an Act of Parliament, but if they are not clear and unambiguous one may look at it”.

Nature of mischief

 * Social mischief: a factual position (past if retrospective, present, or expected in future) deemed as an evil.
 * Statutory mischief: deficiencies or legal defects of a statute law (loopholes), e.g. drafting errors, inadequate provision, unsound finding by the legislature, legislation deemed ultra vires or unconstitutional.

Ratio of no good reason
If there is no good reason a particular matter would fall within the mischief, the court would reject the argument.

“It is difficult to conceive any reason why Parliament[...] should have thought it necessary to prohibit persons whose religious or cultural traditions accept polygamy from marrying in their own manner abroad [even if the marriage could be polygamous] simply because they are domiciled in England and Wales”: Hussain v Hussain [1982] 3 All ER 369 on s 11(d) Matrimonial Causes Act 1973.

The word ‘equipment’ in Employers Liability (Defective Equipment) Act 1969 should be interpreted to include the flagstone because there is no reason why Parliament removed difficulties for workers only in part rather than in whole: Knowles v Liverpool City Council [1993] 1 WLR 1428.

Rule of manifest injustice
Of two possible constructions, Court must adopt the one that avoids injustice if the other one does “great and unnecessary injustice”: Earl Cairns LC in the bankruptcy case Hill v East and West India Dock Co (1884) 9 App Cas 448 at 456.

This was confirmed in the Australian case Ingham v Hie Lee [1912] HCA 66 on the Factories and Shops Act 1905, where it was held that “the word ‘work’ must be construed [narrowly] as meaning ‘work at factory work’”.

Rule of split mischief
A piece of legislation may provide for several remedies, each for a separate mischief. The court split the gross mischief of the legislation by the specific provisions.

The benefit was paid to the taxpayer’s son ‘by reason of [the taxpayer’s] employment within s 61’ of Finance Act 1976 so is chargeable; the exemption for ‘income arising from a scholarship’ under s 375 can include tax charged under s 61: Wicks v Firth [1983] 2 AC 214, followed by Mairs v Haughey [1993] 3 All ER 801.

Rule of de facto and de jure mischief
The mischief on the ground de facto may differ from the legislative mischief remedied by Parliament de jure. In particular, where a law is introduced to reverse the effects of a judicial decision, the interpreter must identify the breadth of the ultimate mischief for which Parliament has legislated.

In Maunsell v Olins [1975] AC 373, where the House of Lords had to determine whether a farm cottage attached to farmhouse constituted ‘premises’ for the purposes of the Rent Act, Lord Wilberforce pointed out the difficulty in doing this: “[e.g.] in the fiscal field, the draftsman, faced with some loophole in a taxing Act which the courts have recognised, will not merely close the particular loophole but will use general language extending much more widely, sometimes so as to sweep the honest and conscientious taxpayer up in the same net as the evader”, tracing back to Cow v Casey [1949] 1 KB 474; but the other judges did not all take the same approach.

Remedy as corresponding measure of mischief
It is presumed that Parliament intends to provide a remedy which can best cure the mischief, so the nature of the remedy itself helps in discerning the mischief to be cured. The court should prefer an interpretation that suppresses the mischief and advances the remedy.

Cross mischief
It is presumed that the remedy provided by Parliament does not give rise to another mischief; such interpretation is to be preferred to the alternative in which another mischief would arise.

Commonwealth jurisdictions
Interpretation Act 1999 (New Zealand) s 5 (Ascertaining meaning of legislation) provides: "# The meaning of an enactment must be ascertained from its text and in the light of its purpose.
 * 1) The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment.
 * 2) Examples of those indications are preambles, the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of the enactment."

See s 19 of [https://www.elegislation.gov.hk/hk/cap1 Cap. 1] Interpretation and General Clauses Ordinance (Hong Kong): “An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.” (條例必須當作有補缺去弊的作用，按其真正用意、涵義及精神，並為了最能確保達致其目的而作出公正、廣泛及靈活的釋疑及釋義. ) (Incidentally, s 18 is on the marginal notes and section headings.)

In England and Wales (and Scotland), the Law Commission recommended similar draft clauses to these in 1969, but they were not enacted by Parliament.

EU law
Acts must state the reasons on which they are based, enough to enable any person concerned to have defend their interests: Case 24/62 Germany v Commission (Brennwein). Recitals in the preamble are often cited by the Court to aid their interpretation; these are amendable by the legislature.

The application of remedy to cure a mischief is subject to proportionality considerations: See User:Kaihsu/IMlawC4, User:Kaihsu/EUlawD5.