User:Kaihsu/DraftC4

Legislation and statutory interpretation.

Module C: Statutory interpretation.

Chapter 4: Purposive rule (or approach).

Development of the purposive rule
Courts could now: To avail of such use, the legislation must be “ambiguous or obscure”, and only ministerial statements can be used: Pepper (Inspector of Taxes) v Hart per Lord Browne-Wilkinson.
 * resort to the purposive approach to interpret legislation when the traditional methods of statutory construction were in doubt or when they resulted in an absurdity
 * use extraneous material to elucidate the background of the legislation.

This reverses Beswick v Beswick, where Lord Reid said that reference to Hansard is not permitted, otherwise it would be impracticable for Counsel to prepare the case.

Nature of purposive construction
The choices are:
 * Purposive and literal construction
 * Non-purposive and literal construction
 * Purposive and strained construction

Purposive and strained construction
In Liversidge v Anderson [1942] AC 206, a case about how much judiciary should help the executive in a national emergency, Lord Macmillan (in the majority) reasoned that the legislation in question was emergency legislation meant to ensure public safety, so words like “reasonable cause” and “hostile associations” should be interpreted so as to promote its efficacy for the defence of the realm. Lord Atkin (in the minority of one) protested “against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister.”

The trend of independent judiciary at international level (e.g. Caribbean, India and Pakistan) followed Lord Atkin’s interpretation; similarly in later cases Nakkuda Ali v Jayaratne [1951] AC 66; Ridge v Baldwin (Lord Reid) [1964] AC 40 at 73; and IRC v Rossminster Ltd (Lord Diplock) [1980] AC 952 at 1011. But Singapore and Malaysia follows the majority approach in Liversidge. In the UK, Lord Denning in R v Secretary of State ex parte Hosenball supported the view of noninterference with ministerial discretion in matters of national security.

Strained construction to give effect to the purpose was the approach taken in DPP v McKeown [1997] 1 All ER 737 to admit evidence from a breath-testing device whose clock is set incorrectly, despite a possible narrow reading of s 69(1)(b) Police and Criminal Evidence Act 1984. Likewise in Re Debtors (Nos 400 and 401 of 1996) [1997] 1 WLR 1319, rule 5.17(1) of the Insolvency Rules (under s 257 of the Insolvency Act 1986) is read liberally to allow creditors who did not receive notice but learnt of the meeting via another route to vote.

Duty of courts vis-à-vis Parliament
Oliver LJ in Wicks v Firth [1983] 2 AC 214: “it is not for this court to question or to evaluate the social justification for the legislation. The legislature may have cast the net wider than it needed to and even wider than, objectively, it should have done. ... but that cannot, in my judgment, justify the court in adopting a construction of the statutory provisions at variance with what, with tolerable clarity, these provisions expressly say.”

Interrelation between the literal and the purposive approach
The present trend in the English courts is towards the purposive approach to the interpretation of statutes: either the purposive and literal construction or the purposive or strained (but not contra legem or gap-filling) construction.

“Consideration of the purpose of an enactment is always a legitimate part of the process of interpretation, and if it is usual, and indeed correct, to look first for a clear meaning of the words used it is certain”: Lord Wilberforce in Fothergill v Monarch Airlines [1981] AC 251.

“The difference between purposive and literal construction is in truth one of degree only. [... A purposive approach’s] virtue is that the legislator’s true purpose may be more accurately ascertained. Its vice is that the certainty and accessibility of the law may be reduced or compromised”: Laws LJ in Oliver Ashworth (Holdings) v Ballard (Kent) Ltd [1999] 2 All ER 791.

Litigation reaches the courts often because the provision is capable of bearing two or more different meanings; “the court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose”; provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context: Lord Bingham in R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, quoting the dissenting opinion of Lord Wilberforce in Royal College of Nursing of the UK v Dept of Health and Social Security [1981] 1 All ER 545, [1981] AC 800.

Commonwealth jurisdictions
See s 9A of Interpretation Act (Singapore) (Purposive interpretation of written law and use of extrinsic materials).

In the UK, explanatory notes to Bills are issued routinely, and so are explanatory memoranda for secondary instruments.

EU law
The CJEU uses literal, systematic, and purposive/teleological (effet utile, functionalist “useful effect”) approaches. Certain provisions of the Treaties explicitly call for recourse to the principles, rules, and laws common to the Member States. Consider the Court’s statement in Case 26/62 Van Gend en Loos: "The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields and the subjects of which comprise not only member states but also their nationals. Independently of the legislation of member states, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty, but also by reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon the member states and upon the institutions of the Community."

And that in Case C-184/99 Grzelczyk (see also User:Kaihsu/EUlawD3): "Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for."

The Court refuses to consider travaux préparatoires e.g. the minutes of the Council that are not consistent with the legislation: Case C-404/06 Quelle [2008] ECR I-2685, para 32. See Hannes Rösler (2012) Interpretation of EU Law in Max Planck Encyclopedia of European Private Law, ISBN 9780199578955 and Koen Lenaerts (2007) Interpretation and the Court of Justice: A Basis for Comparative Reflection The International Lawyer 41(4):1011–1032.

National courts are obliged to interpret their laws in a way that conforms to the directives: Joined Cases C-397/01 to C-403/01 Pfeiffer [2004] ECR I-8835. But this obligation must not lead to a contra legem interpretation of a national norm: Case C-212/04 Adeneler [2006] ECR I-6057, para  110.

Finland
The doctrine in Finland is that the text of the statute is a “strong source of law”, whereas the prepatory legislative work (similar to Denmark), along with court precedents, are “weak sources of law”.

“Weakly binding sources of law, namely the ones that rank lower in the hierarchy, consist of preparatory legislative work and court decisions. Disregard of these sources does not result in a sanction for misconduct in office against the enforcement authority, but the likelihood of a decision being challenged in a higher court increases. The admissible sources of law categories include jurisprudence, general legal principles and factual arguments. Admissible sources of law are not binding, but they may be used to bolster an argument and thereby strengthen the grounds on which a decision is based.”

“A judge shall carefully examine the true purpose and grounds for the law and render judgment accordingly, and not as he or she pleases, against the law. In the absence of statutory law, the custom of the land, if not unreasonable, shall also be his or her guide in rendering judgment”: s 11 Code of Judicial Procedure.

See Aulis Aarnio (1989) Laintulkinnan teoria: Yleisen oikeustieteen oppikirja. Helsinki: WSOY. ISBN 951-0-15493-8.

Switzerland
"#The law applies according to its wording or interpretation to all legal questions for which it contains a provision.
 * 1) In the absence of a provision, the court shall decide in accordance with customary law and, in the absence of customary law, in accordance with the rule that it would make as legislator.
 * 2) In doing so, the court shall follow established doctrine and case law."

- Article 1, Swiss Civil Code