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Legislation and statutory interpretation.

Module C: Statutory interpretation.

Chapter 5: Presumptions and maxims of interpretation.

Judicial recognition of canons of interpretation
Canons of construction include presumptions and maxims of interpretation. See general principles of European Union law (User:Kaihsu/EUlawD).

Maxims of interpretation

 * Ejusdem generis (of same kind, class or nature): when a general term follows a list of particular terms, the general term only applies to things similar to the particular terms.
 * Statutes in pari materia (upon the same subject): the meaning of an ambiguous law can be determined in light of other statutes on the same subject matter.
 * Expressio unius est exclusio alterius: anything not in a list is assumed to be purposely excluded.
 * Natural versus technical meaning: Lord Scott of Foscote, dissenting in Oxfordshire County Council v Oxford City Council [2006] UKHL 25, said it was not correct “to insist on a literal application of the s 22(1) [ Commons Registration Act 1965 ] definition so as to apply it to land that no one would recognise as a town or village green”.
 * No change of meaning without change of language
 * Noscitur a sociis: questionable meaning of a doubtful word can be derived from its association with other words.

Casus omissus
This (“omitted case”) concerns whether the court is entitled to apply rectifying construction to fill gaps or correct apparent mistakes.

In Magor and St. Mellons Rural District Council v. Newport [1952] AC 189, Lord Simonds criticized Lord Denning in the court below that “the general proposition that it is the duty of the court to find out the intention of Parliament – and not only of Parliament but of Ministers also – cannot by any means be supported.”

But in R v Oakes [1959] 2 QB 350, the “and” in the phrase “aids or abets and does any act preparatory” in s 7 Official Secrets Act 1920 was read as “or”; and in Adler v George [1964] 2 QB 7, the phrase “in the vicinity of” in the same act was read as “in or in the vicinity of”.

Lord Nicholls of Birkenhead in Inco Europe v First Choice Distributors [2000] UKHL 15 said: “The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words”; so “as provided by Part I of the Arbitration Act 1996, from any decision of the High Court under that Part” in s 18(1)(g) Senior Courts Act 1981 is to be read as meaning “..., from any decision of the High Court under a section in that Part which provides for an appeal from such decision”.

Rebuttable presumptions
These can be rebutted by clear intention of Parliament. A non-exhaustive list:
 * Presumption against unfairness
 * Presumption against double jeopardy (ne bis in idem): s 18 Interpretation Act. “The ne bis in idem principle laid down in Article 50 of the Charter of Fundamental Rights of the European Union does not preclude a Member State from imposing successively, for the same acts of non-compliance with declaration obligations in the field of valued added tax, a tax penalty and a criminal penalty in so far as the first penalty is not criminal in nature, a matter which is for the national court to determine”: Case C-617/10 Åkerberg Fransson. An example from Strasbourg is Nykänen v. Finland (11828/11), in which it was held that the applicants had been convicted twice for the same matter in two separate sets of proceedings, by being charged and convicted of the same acts which had already been subject to taxation proceedings in which tax surcharges had been imposed in final decisions.
 * Presumption against expropriation
 * Presumption against interference of human rights: Lord Dyson said in Secretary of State for the Home Department v GG [2009] EWCA Civ 786 on s 1(3) Prevention of Terrorism Act 2005 that “general words without more are insufficient to show that Parliament intended to take away fundamental rights”.
 * Presumption against absurdity
 * Presumption against penalty
 * Presumption against creating or removing judicial jurisdiction: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL), where it is held that the “ouster clause” in s 4(4) Foreign Compensation Act 1950 did not exclude judicial review of the validity of a determination by the commission; confirmed in R (Cart) v Upper Tribunal [2011] UKSC 28.
 * Presumption against delegation of powers
 * Presumption of notice, i.e. a decision of an authority is not to have legal effect in relation to the person unless they have notice of it: R (Anufrijeva) v Secretary of State for Home Department [2003] UKHL 36, where Lord Steyn said: “Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice.” An exception is found in R (M) v Secretary of State for Constitutional Affairs [2004] EWCA Civ 312 at para 39(2): “The more intrusive the [anti-social behaviour] order [made under s 1D Crime and Disorder Act 1998] the more the court will require proof that it is necessary that it should be made, and made in the particular form sought, but there is nothing intrinsically objectionable about the power to grant an interim ASBO without notice.”
 * Presumption against retrospectivity
 * Presumption that Parliament intends to comply with public international law.

Section 3 of the Human Rights Act 1998
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

Declaration of incompatibility in s 4 is a measure of last resort: Lord Steyn in R v A (No 2) [2001] 2 WLR 1546 at 1563. Lord Bingham in Sheldrake v Director of Public Prosecution [2004] UKHL 43 at para 28 gave four points:
 * 1) The interpretative obligation under s 3 is a very strong and far reaching one, and may require the court to depart from the legislative intention of Parliament.
 * 2) A Convention-compliant interpretation under s 3 is the primary remedial measure and a declaration of incompatibility under s 4 an exceptional course.
 * 3) During the passage of the [Human Rights Act] through Parliament the promoters of the Bill told both Houses that it was envisaged that the need for a declaration of incompatibility would rarely arise.
 * 4) There is a limit beyond which a Convention-compliant interpretation is not possible.

The Interpretation Act 1978
In the UK, there is the Interpretation Act 1978; see similar acts in other jurisdictions.