UNDERSTANDING STATUTES

by

V.C.R.A.C. CRABBE

First published in Great Britain 1994 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX.

Telephone: 071-278 8000 Facsimile: 071-278 8080

© Crabbe, V 1994

All rights reserved. No part of this publication may be reproduced, stored in a retrievalsystem, or transmitted in any form or by any means, electronic, mechanical,photocopying, recording or otherwise, without the prior permission of the publisherand copyright owner.

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Any person who infringes the above in relation to this publication may be liable tocriminal prosecution and civil claims for damages.

British Library Cataloguing in Publication Data

Crabbe, Vincent

Understanding Statutes

I Title

344.20822

ISBN 1 85941 138 X

Printed and bound in Great Britain

DEDICATION

To all those who try to understand an Act of Parliament...

Lord Denning complained that, of the many books that have been written onthe subject of the interpretation of statutes, ‘all [are] for the old hand. Not one[is] for the beginner.’1 It is the intention of this little book to make good thatchallenge, to attempt to explain to the beginner how to understand statutes.The interpretation of an Act of Parliament demands an understanding of theAct, which should be based upon a number of factors.

Perhaps the starting point would be a command of the language in whichthe Act is drafted. Yet a mere command of the language would not be enough.Acts of Parliament are not enacted for the fun of it – they are intended to solvethe problems of governments and of societies. That background knowledge –of the problems and the solutions for the problems – is an essential pre-requisite to an understanding of an Act of Parliament. The ‘four things … tobe discerned and considered’ as stated by the Barons of the Exchequer inHeydon’s Case2 are still germane to an understanding of an Act of Parliament.

The processes through which a Bill passes on its way to the Statute Bookare also important. A Bill is drafted with the debates in Parliament in mind.Parliamentary procedure thus influences the language of the Bill andultimately the language of the Act, which may require interpretation.

It should also be borne in mind that the language used in an Act ofParliament is intended to express in law a policy or a set of ideas or valuesthought necessary for the achievement of certain goals. Yet the idea that the‘reasonable man of the law’ will easily understand an Act of Parliament is anillusion – not because the Act is badly drafted, nor that the language used isfrightfully complicated, but because a knowledge of the subject-matter of theAct may be woefully lacking.

In all walks of life to understand anything demands more than a mereknowledge of what a thing is or is supposed to be. Cricket is a game. Footballis a game. The rules applicable to cricket are not the same as those whichapply in football. To understand the game of cricket or of football anunderstanding of the nature of the two games, as well as how the game isplayed, is essential. So it is with an Act of Parliament.

In addition, it is as well to note that an Act of Parliament is a form ofcommunication, a communication which tells its audience what to do or whatnot to do. Herein lies the importance of the language in which the commandor the prohibition is stated.

The basic rules of the language must be understood. So must the nuancesof that language. And since the basic unit of any language is a word, wordsand their meanings constitute an important factor in the use of language. That

Preface

__________________________________________________________________________________________________________________________________________.1 The Discipline of Law, p.9.

2 (1854) 3 Co. Rep. 7a; 76 ER 637.

is why an Act of Parliament is construed so as to give a meaning to the wordsused in the Act. For, as stated by the Judicial Committee of the Privy Councilin Ditcher v Denison,3

It is a good general rule in jurisprudence that one who reads a legaldocument whether public or private, should not be prompt to ascribe –should not, without necessity or some sound reason, impute – to itslanguage tautology or superfluity, and should be rather at the outsetinclined to suppose every word intended to have some effect or be of someuse.

Case law has played – and will continue to play – a very important part inthe interpretation or construction of an Act of Parliament. ThoughInterpretation Acts have helped in the process, case law is still the dominantsphere wherein lie all the rules the courts have evolved for the interpretation orconstruction of an Act of Parliament. An Interpretation Act is indeed in mostcases, a codification of the rules of interpretation or of construction, but itonly applies where there is no contrary intention. That contrary intention willbe discerned, when necessary, by the courts. When that is done, anInterpretation Act ceases in its function to aid in the process – the decisions ofthe courts will hold sway.

For this reason the words of the Judges have been relied upon, in somecases extensively, to tell their own story. No better knowledge can be gainedthan by reading what Judges have said -and continue to say – sometimes outof court. This is primarily a student’s book and reading the judgments is initself part of the educative process that equips the student with the requisiteknowledge and is the one sure way to learn the law. Students should not find –nor should they consider – reading judgments tiresome. To understand an Actof Parliament one needs to understand what the Judges say about the languageof legislation. Those who draft legislation bear in mind what the courts havesaid or are likely to say. The courts and the Judges are the audience of lastresort.

In a way this book is an attempt to answer at least some of the questionswhich students in legislative drafting ask. It is thus linked to legislativedrafting, and certain areas which may be considered more appropriate to abook on legislative drafting are, nonetheless, reproduced here in an attempt togive the student a complete picture. This should obviate the necessity ofhaving to go to another source for a required information. One avoids, if onecan help it, anything in the nature of referential legislation.

My thanks go to my former students, who still communicate with me andmake valuable suggestions. Each set of students brings its own set of newknowledge, new problems, new answers. Without reservation or equivocationI acknowledge the debt I owe all of them. I must thank Miss Novellette Kidd

ii Preface

__________________________________________________________________________________________________________________________________________.3 (1857) 11 Moore PC 325 at p.337.

who read some of the proofs and made valuable suggestions. Mr SampsonOwusu of the Faculty of Law, as usual, has been very helpful with thecomputer. So also must I acknowledge with gratitude the criticism of mycolleagues. It is a help not a hindrance.

I am very grateful to the Oxford University Press for allowing me access toarticles published in the Statute Law Review; to the Incorporated Council ofLaw Reporting for England and Wales for permission to quote from thejudgments published in the Law Reports, King’s Bench, Queen’s Bench,Appeal Cases, Chancery and Family Divisions, the Weekly Law Reports andthe Industrial Cases Reports; to Butterworths & Co. Publishers, forpermission to quote from the judgments published in the All England LawReports and to Juta and Company for permission to quote from the SouthAfrican Law Reports. Their readiness to grant permission has been a source ofinspiration.

I remember with sincere gratitude all my mentors – past and present.I thank sincerely the many authors from whose works I have gained

knowledge, some of whom are mentioned in the Bibliography.I am also grateful to Ms Jo Reddy and Mr Sonny Leong of Cavendish

Publishing Ltd. for their assistance in many ways. My special thanks go to KimHarris who compiled the Index.

Yet again my secretary, Mrs Iris Hinds, has been an angel. She has broughtto the work her usual patience, skill and dedication which made my taskeasier.

To members of my family and to all friends, seen and unseen, I givespecial thanks.

And to those whom I have overlooked, or could not get in touch with, myvery sincere apologies and my very warm thanks.

V.C.R.A.C. CrabbeFaculty of LawCave HillJune 1994

Preface iii

CONTENTS

Page

Preface ..................................................................................................................iTable of Cases....................................................................................................viiTable of Statutes .................................................................................................xv

CHAPTER 1............................................................................................................1INTRODUCTION.........................................................................................1

What is a statute?.........................................................................................1The Genesis – the formulation of policy ....................................................2The Process – the drafting of legislation ....................................................5The language – legal language....................................................................6The progress – the stages in Parliament ...................................................14Words – meaning, ambiguity, vagueness, etc ...........................................25The purpose – communication..................................................................44

CHAPTER 2..........................................................................................................19THE FUNCTION OF THE COURTS .....................................................19

Interpretation and construction less legislation ........................................49The validity of an Act of Parliament.........................................................52Obsolete Acts of Parliament .....................................................................58The whole Act ...........................................................................................59The problems of the binding authority of precedent ................................62

CHAPTER 3..........................................................................................................67INTERPRETATION BY PARLIAMENT ...............................................67

The interpretation section..........................................................................67The Interpretation Act...............................................................................68The dictionary ...........................................................................................73Subsequent Acts of Parliament .................................................................74Parliament as a court .................................................................................78

CHAPTER 4..........................................................................................................81THE GENERAL RULES OF INTERPRETATION ....................81

General ......................................................................................................81

The mischief rule.......................................................................................82The literal rule ...........................................................................................85The golden rule .........................................................................................86The intention of Parliament ......................................................................89The modern approach ...............................................................................96Extrinsic aids to interpretation ..................................................................97

CHAPTER 5........................................................................................................119PRESUMPTIONS...........................................................................119

Consistency .............................................................................................119Consolidation Acts..................................................................................120Reasonableness of an Act – avoidance of injustice ...............................121Alteration of the existing law. .................................................................129Retroactive and retrospective operation of statutes ................................166Conformity with the rules of international law ......................................172Action or conduct lawful ........................................................................174Application to Crown or Republic..........................................................175Words to have the same meaning............................................................176Territorial operation ................................................................................176Surplusage ...............................................................................................177

APPENDICES ......................................................................................................189APPENDIX A ..................................................................................189

Classification of Statutes.........................................................................189APPENDIX B ..................................................................................195

A Bill for an Interpretation Act...............................................................195APPENDIX C ..................................................................................223

Bibliography............................................................................................223INDEX ...............................................................................................................227

vi Contents

Alder v. Deegan 167 N E 705 ...................................................................................40Allen v. Whitehead [1930] 1 KB 211 .....................................................................127Allgood v. Blake (1873) LR 8 Ex 160 ......................................................................87Anisminic Ltd. v. Foreign Compensation

Commission [1969] 2 AC 147................................................37, 145, 151-154, 165Armstrong v. Clark [1957] 2 QB 391 .........................................................................8Ash v. Abdy (1678) 3 Swan 644.............................................................................100Assam Railways & Trading Co. Ltd. v. Inland Revenue

Commissioners [1935] AC 445 .....................................................................51, 105Assessor for Aberdeen v. Collie 1932 SC 304..........................................................78Attorney-General for Canada v. Hallett & Carey Ltd. [1952] AC 427...................122Attorney-General for Northern Ireland v. Gallagher [1963] AC 349 .......................86Attorney-General v. Bradlaugh (1885) 14 QBD 667..............................................124Attorney-General v. Carlton Bank [1989] 1 KB 64................................................123Attorney-General v. Duke of Richmond and Gordon [1909] AC 466......................12Attorney-General v. Ernest Augustus (Prince) of

Hanover [1957] AC 436 .......................................................................73, 182, 187Attorney-General v. Maksimovich (1985) 4 NWLR 300 .......................................105Attorney-General v. Ryan [1980] AC 178......................................................152, 165Attorney-General v. Antigua Times [1976] AC 16 ..................................................35Attorney-General v. GE Ry (1879) 11 Ch D 522 .....................................................20Attorney-General v. Lamplough (1878) 3 Ex D 214 ................................................24Auchterarder Presbytery v. Lord Kinnoull (1839) 6 Cl & F 646............................177Baker v. Jones [1954] 1 WLR 1005........................................................................147Barber v. Pigden [1937] 1 KB 664..........................................................................138Barraclough v. Brown [1897] AC 615.............................................................160-161Bayliss v. Roberts (1989) Simmon’s Tax Cases 693................................................35Beswick v. Beswick [1968] AC 88 ...................................................................89, 120Black-Clawson International Ltd. v. Papierwerke

Waldhof-Aschaffenberg AG [1975] 1 All ER 810.........................84, 98, 105, 108Blackburn v. Flavelle (1886) 6 App. Cas. 628........................................................183Blake v. Attersoll (1824) 2 B & C 875 ..................................................................185Bloxham v. Favre (1883) 8 P D 101 ...............................................................172, 177Bourne v. Keane [1919] AC 815...............................................................................62Bourne v. Norwich Crematorium Ltd [1976] 2 All ER 576 .............................40, 182Brown v. Board of Education (1954) 347 US

483, 74 S Ct 689, 98 L Ed. 873 ...............................................................................9Burchell v. Thompson [1920] 2 KB 80.....................................................................25Bywater v. Brandling (1828) 7 B & C 643 ..............................................................60C & J Clark v. Inland Revenue Commissioners [1973] 2 All ER 513....................134Caledonian Railway v. North British Railway (1881) 6 App. Cas. 114 ...................86Callady v. Pilkinton (1707) 12 Mod. 573. ................................................................91Campbell’s Trustees v. Police Commissioners of Leith

(1870) LR 2 HL (Sc) 11........................................................................................43Canada Southern Railway v. International Bridge

Co. (1883) 8 App. Cas. 723 ................................................................................185Carter v. Bradbeer [1975] 1 WLR 1204....................................................................27Case of Proclamations (1611) 13. 12 Co. Rep. 74 ....................................................92

Table of Cases

Casement v. Fulton (1845) 5 Moore PC 130 ............................................................76Chandler v. DPP [1964] AC 763...............................................................................21Chapman v. Chapman [1954] AC 429......................................................................80Chemicals Reference [1943] SCR 1 .......................................................................159Chisholm v. Doulton [1899] 1 QB 20.....................................................................127Chitambazam v. King Emperor [1947] AC 200 .....................................................158Christie, Manson & Woods v. Cooper [1900] 2 QB 522........................................127City of London v. Wood (1701) 12 Mod. 669 ..................................................53, 130Coleshill and District Investment Co. Ltd. v. Minister

of Housing and Local Government [1968] 1 All ER 62 ....................................186Colonial Bank of Australia & Other v. William (1874) LR 5 PC 417....................150Commber v. Berks JJ (1882) 9 QBD 17 ...................................................................19Commissioner for the Special Purposes of Income

Tax v. Pemsel [1891] AC 531 ...............................................................................72Cooke v. New River Co. (1888) 38 Ch D 56 ...........................................................65Cooney v. Covell (1901) 21 NZLR 106..................................................................186Corkery v. Carpenter [1951] 1 KB 102...............................................................8, 183Corporation of Glasgow v. Glasgow Tramway and

Omnibus Co. Ltd. [1898] AC 631 . .....................................................................186Czarnikov v. Roth, Schmidt & Co [1922] 2 KB 478 ..............................................147Davis v. Johnson [1979] AC 264...............................................................97, 102-103Day v. Savadge (1614) Hob. 85 at 87 .......................................................................53Dean v. Green (1882) 8 PD 79..................................................................................25Dickson v. R (1864-65) 11 HL Cas 175 .................................................................181Director of Public Prosecutions v. Schildkamp [1971] AC 1 ..................91, 120, 187Dixon v. Caledonian Ry Co. (1882) 5 App. Cas. 820 ............................................181Donoghue v. Stevenson [1932] AC 562 ...................................................................45DPP v. Nasralla [1967] 2 AC 238...........................................................................138Duke v. GER Reliance Ltd. [1988] 1 All ER 626.....................................................94Duport Steel Ltd. & Ors v. Sir & Others [1980] 1 All ER 529...........................53, 88Dyson Holdings Ltd. v. Fox [1976] 3 All ER 1030 ..................................................39Ealing LBC v. Race Relations Board [1972] AC 342 ..............................................96Earl of Mexborough v. Whitwood U D Co. [1897] 2 QB 111................................125Eastman Photographic Materials Co. Ltd. v. Comptroller

of General Patents [1898] AC 571.......................................................................105Edinburgh & Dalkeith Railway Co. v. Wauchope

(1842) 8 Cl & F 710......................................................................................53, 130Edinburgh and Glasgow Ry v. Linlithgow Magistrates

(1859) 3 Macq, H.L., (SC) 691 ............................................................................19Edwards v. Porter [1925] AC..................................................................................186Ellerman Lines v. Murray [1931] AC 126 ................................................................86Equitable Life Assurance Society of USA v. Reed [1914] AC 587 ......................122Escoigne Properties Ltd. v. IRC [1958] AC 549 (HL) .............................................94Esso Petroleum Co. Ltd. v. Ministry of Defence [1990] All ER 1 ...........................21Evelyn Viscountess De Vesci v. O’Connell [1908] AC 298 ...................................13Everard v. Poppleton (1884) 5 QB 181 ..................................................................183Ex p. Copeland (1852) 22 LJ Bank 17.................................................................74-75Ex p. Cox (1887) 20 QBD 1 .....................................................................................65

viii Table of Cases

Ex p. Davis (1857) 5 WR 522 ..................................................................................29Ex p. St. Sepulchre’s (1864) 33 L J Ch.372 .............................................................60Eyston v. Studd (1574) 2 Plowden 459 ....................................................................83Fairmount Investments Ltd. v. Secretary of State for

the Environment [1976] 1 WLR 1255 ................................................................165Farrell v. Attorney-General of Antigua (1979) 27 WIR 377 ..................................163Fielden v. Morley Corporation [1899] 1 Ch 1 ..........................................................19Floor v. Davis [1979] 2 All ER 677..........................................................................25Fordyce v. Bridges 1 HL Cas. 1..............................................................................187Fothergill v. Monarch Airlines [1891] AC 251 ..........................................84, 98, 106Fraser v. City of Fraserville [1917] 34 DLR 211....................................................148Fry v. Inland Revenue commissioners [1959] 1 Ch 86 ............................................88Funning v. Board of Governors of the United Liverpool

Hospitals [1933] All ER 454 .............................................................................105Gartside v. Inland Revenue Commissioners [1968] AC 553 ..............................87-88Giffels & Vallet v. The King [1952] 1 DLR 620............................................119, 176Gilchrist v. Interborough Rapid Transit Co.

279 US 159, 49 S Ct 282, 73 L Ed. .......................................................................40Girdlestone v. Brighton Aquarium Co. (1878) 3 Ex D 137 ....................................125Great Western Railway Co. v. Swindon and

Cheltenham Extension Railway Co (1884) 9 App. Cas. 787 ..............................186Green v. R (1876) 1 App. Cas. 573.........................................................................180Greenwood v. Whelan [1967] 1 All ER 296.............................................................39Grey v. Pearson (1857) 6 H.LC 61; 10 ER .........................................................82, 86Griffith v. Barbados Cricket Association (1989) 41 WIR 48 .................................149Hadmor Productions v. Hamilton [1982] 2 WLR 322............................................102Hammersmith Ry v. Brand (1869) 4 HL 171 .........................................................139Handley v. Handley [1891] P 124...........................................................................138Hanlon v. The Law Society [1980] 2 All ER 199.....................................................25Harcourt v. Fox (1693) 1 Show 506........................................................................177Harrikissoon v. Attorney-General of Trinidad

and Tobago [1981] AC 265 .................................................................................161Hartnell v. Minister of Housing and Local

Government [1965] AC 1134 7 .............................................................................88Healey v. Minister of Health [1954] 2 QB 221.......................................................160Helby v. Rafferty [1978] 3 All ER 1016...................................................................39Helvering v. Gregory 69 F 2d 809 ............................................................................29Heydon’s Case (1584) 3 Co. Rep. 7a; 76 ER 637 ...................5, 49, 51, 81-83, 93, 97Hill v. Grange (1557), 1 Plowden 164 .....................................................................83Hill v. William Hill (Park Lane) Ltd [1949] AC 530 .............................................177Hobbs v. Winchester Corporation [1910] 2 KB 471...............................................127Holmes v. Bradfield Rural District Council [1949] 2 KB 1 ...................................121Houston v. Burns [1918] AC 337 .............................................................................25Howard v. Bodington (1877) 2 PD 203 ..................................................................184Ibralebe v. R [1964] AC 900.............................................................................57, 129Income Tax Commissioners for City of London v.

Gibbs [1942] AC 402...........................................................................................120Inland Revenue Commissioners & or v. Rossminster Ltd.

& Others [1980] AC 952 ......................................................................................53

Table of Cases ix

Inland Revenue Commissioners v. Hinchy [1960] AC 748......................25, 182, 185Inland Revenue Commissioners v. Saunders [1958] AC 285.................................124Institute of Patent Agents v. Lockwood [1804] AC 347 .................................156-157James v. Commonwealth of Australia [1936]

AC 578.............................................................................................73, 85, 137, 182Johnson v. Chief Constable of the Royal

Ulster Constabulary [1987] QB 129 ....................................................................155Joiner v. State Supreme Court of Georgia,

1969 223 Ga. 367, 155 SE 208 ..............................................................................57Jones v. Department of Employment [1988] WLR 493; [1989] 1 QB 1 ................148Jones v. Robson [1901] 1 QB 673 ..........................................................................158Jones v. Soloman (1981) 32 WIR (PC) 375............................................................163Jones v. Wrotham Park Settled Estates [1979] 2 WLR 132 .....................................80Kantor v. MacIntyre [1958] (1) SA 45......................................................................77Kensington Income Tax Commissioners v. Aramayo [1916] 1 AC 215 ................120Kesavananda v. State of Kerala ALR (1973) SC 1461...........................................162Labrador v. R [1893] AC 104 ...................................................................................19Le Neve v. Le Neve (1747) Amb 436.................................................................45, 79Leach v. R [1912] AC 305 ......................................................................................138Letang v. Cooper [1964] 1 QB 53.............................................................................94Lincoln College Case (1595) 3 Co. Rep. 586 ...........................................................60Liverpool Borough Bank v. Turner (1861) 30 LJ Ch 379 ......................................184Liversidge v. Anderson [1942] AC 206 ..............................................63-64, 157-158Liyanage v. R [1967] 1 AC 259 P C .................................................................57, 129London and India Docks Co. v. Thames Steam Tug and

Lighterage Co. Ltd. [1909] AC .............................................................................61London County Council v. Ayelsbury Dairy Co [1898] 1 QB 106 ........................125London School Board v. Jackson (1881) 7 QBD 502 ..............................................23Lord Howard de Walden v. Inland Revenue

Commissioners [1948] 2 All ER 825...................................................................185Lowden v. Northwestern National Bank & Trust

Co. [1936] 298 US 160 at 165 ...............................................................................43Lower v. Sorrell [1963] 1 QB Omerod LJ ...............................................................94Lyons v. Tucker (1881) 6 QBD 660 .........................................................................12MacCharles v. Jones.(1939) 1 WLR 133 ................................................................156Maclean v. Trembath [1956] 1 WLR 437...................................................................8Macmillan v. Dent [1907] 1 Ch 107 .......................................................................140Magor and St. Mellon’s Rural District Council v. Newport

Corporation [1952] AC 189......................................................................50, 61, 94Magor and St. Mellons Rural District Council v. Newport

Corporation [1950] 2 All ER 1226 ..................................................................50, 94Marbury v. Madison 1 Cranch 137, 2 Ed. 60 ....................................56, 129-130, 142Mearing v. Hellings (1845) 14 M. & W. 711 ...........................................................65Merttens v. Hill [1901] 1 Ch 842 ..............................................................................18Middlesex Justices v. R (1884) 9 App. Cas. 757 ......................................................20Millar v. Taylor (1769) 4 Burr. 2303, 2332 ..............................................................89Miller v. Salomans (1852) 7 Exch. 475 ..................................................................180Minerva Mills Ltd. v. Union of India AIR (1980) SC 1789 ...................................162

x Table of Cases

Minet v. Leman (1855) 20 Beav 269 ......................................................................139Minister of Health v. ex p. Yaffe [1931] AC 494 ...................................................156Minister of Home Affairs & another v. Collins MacDonald

Fisher & Another [1980] AC 319...............................................................134, 136Minister of Home Affairs & others v. Dabengwa 1982 (4) SA 301 .......................136Minister of Home Affairs v. Bickle & others 1984 (2) SA 439 (ZSC)...................137Mitchell v. Simpson (1890) 25 QBD 183 .........................................................75, 120Nairn v. University of St. Andrews [1909] AC 147 ...............................................176Nakkuda Ali v. Jayaratne [1951] AC 66...................................................................64Nasralla Case [1967] 2 AC 238 ..............................................................................138National Association of Local Government Officers v. Bolton

Corporation [1943] AC 166................................................................................186National Society v. Scottish National Society [1915] AC 207 .................................27New Windsor Corporation v. Taylor [1899] AC 41 .......................................139, 181Nokes v. Doncaster Amalgamated Collieries [1940] AC 1014 ......................119, 139Northern Securities Co. v. United States, 193 US 197 (1904).................................63Oriental Bank v. Wright (1880) 5 App. Cas. 842 ...................................................123Partridge v. Strange (1552/3) 1 Plowd. 83................................................................26Pearlman v. Keepers and Governors of Harrow School [1979] QB 56 ..................148Pemsel Case [1891] AC 531 .....................................................................................72Pepper v. Hart [1993] 1 All ER 42 ....................................................14, 89-90, 96-97,

116, 121Phillips v. Eyre (1870) LR 6 QB.............................................................166, 168, 180Pickstone v. Freemans plc [1988] 2 All ER 803.......................................................94Plessy v. Ferguson 163 US 537, 16 S Ct 1138, 42 L Ed 873......................................9Point of Ayr Collieries v. Lloyd George [1943] 2 All ER 546 ...............................159Prager v. Blatspiel, Stamp & Heacock Ltd. [1924] 1 KB 566 ....................................2Pyx Granite Co. Ltd. v. Minister of Housing [1970] AC 260.................................160Quazi v. Quazi [1980] AC 744 ...............................................................................106R. v. Lewes JJ., Home Secretary [1973] AC 388 (HL) ............................................92R v. Barrington 1969 (4) SA 179 (RAD)................................................................183R v. Bertrand (1867) LR 1 PC ................................................................................122R v. Brown [1890] 24 QBD 357 .............................................................................127R v. Buttle (1870) LR 1 CCR 248 ....................................................................76, 185R v. Coldham ex p. Australian Union (1983) 49 ALR 259 ....................................149R v. Comptroller General of Patents ex p. Bayer

Products Ltd [1941] 2 KB 306.............................................................................158R v. Cornwall County Council, ex p. Huntington

[1922] 3 All ER 566 ....................................................................................154-155R v. Eldershaw 3 C & P 396 ...................................................................................127R v. Electricity Commissioners ex p. London Electricity

Joint Committee Co. (1920) Ltd. [1924] 1 KB 171............................................144R v. Greater London Council ex p. Blackburn [1967] 1 WLR 550 ........................145R v. Halliday [1917] AC 260 ............................................................................64, 122R v. Hare [1934]1 K. B. 354 .....................................................................................21R v. Inland Revenue Commissioners ex p. Rossminter [1980] AC 952.................158R v. Kopsch (1925) 19 Cr App R 50.......................................................................127R v. Local Commission for Administration [1979] QB 287...................................103

Table of Cases xi

xii Table of Cases

R v. Loxdale (1758) 1 Burr. 445 .......................................................................75, 184R v. Males (1962) 2 QB 500 .....................................................................................94R v. Marsland 7 Cr App 77 .....................................................................................127R v. Meade [1909] 1 KB 895 ..................................................................................127R v. Medical Appeal Tribunal ex p. Gilmore [1957] 1 QB 574 .....................148, 150R v. Miall [1992] 3 All ER 153...............................................................................152R v. Morely (1760) 2 Burr. 1040 .....................................................................146-147R v. Morris [1867] LR 1 CCR 90 ...........................................................................138R v. Owen 4 C & P 236...........................................................................................127R v. Pearce (1880) 5 QBD 306 ................................................................................23R v. Plowright (1686) 3 Mod. 94.....................................................................145-146R v. Price (1871) L.R. 6 QB 411 ...... ...............................................................76, 185R v. Prince (1875) LR CCR 154 .............................................................................126R v. Registrar of Companies, ex p. Central Bank

of India [1986] 1 QB 1114...................................................................................155R v. Secretary of State for the Environment, ex p.

Ostler [1977] QB 122 ...................................................................................154-155R v. Smith (1670) 1 Mod. 44 ..................................................................................145R v. Tatam (1921) 15 Cr App R 122.......................................................................127R v. Tolson (1889) 23 QBD 164.....................................................................126, 128R v. Vasey & Lally [1905] 2 KB 748 ...............................................................72, 121R v. Vine (1875) LR 10 QB 195..............................................................167, 169-171R v. Waite [1892] 2 QB 600 ...................................................................................127R v. Warwickshire County Council, ex p. Johnson [1993] 2 WLR........................116R v. Williams [1893] 1 QB 320 ..............................................................................127R v. Wimbledon Justices ex p. Derwent [1953] 1 QB 380 .......................................61R v. Wood (1855) 5 E & B 49; 119 ER 400 ...........................................................149R v. Haughton (Inhabitants) (1853) 6 Cox c.c. 101; 1 E & B, 501...........................18R v. Liverpool Justices, ex p Crown Prosecution

Service (1990) 90 Cr. App. R. 261 ........................................................................31R v. Southwark Crown Court, ex p. Commissioners of

Customs and Excise (1989) 3 WLR 1054 .............................................................32R v. Tower Hamlets London Borough Council ex p.

Chetnik Developments (1988) 2 WLR 654 ...........................................................34Rahimtoola v. Nizam of Hyderabad [1958] AC 359 ................................................79Re A Solicitor’s Clerk [1957] 1 WLR 1219 ....................................................168-169Re Baines (1840) 12 A & E 227 ...............................................................................24Re Bidie [1948] 2 All ER 995.............................................................................73, 85Re Castioni [1891] 1 QB 149....................................................................................12Re Clarke 17 WIR 49 (1971) Barbados ..................................................................132Re Ludmore (1884) 13 QBD 415............................................................................139Re Pulborough Parish School Board Election [1894] 1 QB 725 ....................170, 172Re Sarran (1891) 32 WIR (PC) 375........................................................................163Re Williams (1887) 36 Ch D 573 ...........................................................................139Re Woking Urban District Council (Bassingstoke Canal)

Act, 1911 [1914] 1 Ch 300 ....................................................................................20Rein v. Lane (1867) LR 2 QB 144 ...........................................................................60Richards v. McBride (1881) 8 QBD 119 ..................................................................88River Wear Commissioners v. Anderson (1877) 2 AC 743......................................87

Table of Cases xiii

Robinson v. Barton Eccles Local Board (1833) 8 App. Cas. 798.............................22Ross-Clunis v. Papadopoullos & Others [1958] 2 All ER 23 .................................159Rowe v. Law [1978] IR 55......................................................................................100Rylands v. Fletcher (1868) LR 3 HL 330 .................................................................45S v. Marwane 1981 (3) SA 588...............................................................................133Sachs v. Minister of Justice 1934 SA (AD) 11 .......................................................165Sagnata Investments Ltd. v. Norwich Corporation [1971] 2 All ER 1441 .............100Salmon v. Duncombe (1886) 11 AC 627..........................................................72, 121Salomon v. Customs and Excise Commissioners [1967] 2 QB 116 .......................173Saunders v. White [1902] 1 KB 472 .........................................................................25Scruttons v. Midland Silicones Ltd [1962] AC 466..................................................55SE Railway v. Railway Commissioners (1880) 2 QBD 217 ....................................89Seaford Court Estates Ltd. v. Asher [1949] 2 KB 481 ........................................49-51Secretary of State for Employment v. Associated Society of Locomotive

Engineers and Firemen and Others (No. 2) [1970] 2 QB 55 ..............................159Secretary of State for Trade and Industry v.

Langridge (1991) 2 WLR 1343 .............................................................................31Seluka v. Suskin & Salkow 1912 TPD 258 ..............................................................49Sharpe v. Goodhew [1990] 96 ALR 251 ................................................................155Sillery v. R (1981) 35 ALR 227..............................................................................100Smith’s Case (In re London Marine Insurance

Association) (1869) LR 4 Ch. App. 611 ...............................................................60Smith v. East Elloe Rural District Council [1956] AC 736.............................153-155Smith v. Hughes [1960] 1 WLR 830 ........................................................................94Smt. Indira Gandhi v. Raj Narain AIR (1975) SC 2299..................................162-163Soil Fertility Ltd. v. Breed [1968] 3 All ER 193 ......................................................41South East Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral

Products Manufacturing Employees Union & Others [1981] AC 363...............148Spillers Ltd. v. Cardiff Assessment Committee [1931] 2 KB 21............................176State e rel Gouge v. Burrow, City Recorder Supreme Court of

Tennessee, 1907 119 Ten. 376, 104 SW 526 ........................................................57Stevens v. Chown [1921] 1 Ch 894 ........................................................................180Stowell v. Lord Zouch (1569) 1 Plowden 353; 75 ER 536.......................................84Stradling v. Morgan (1560), 1 Plowden 201 ............................................................83Sussex Peerage Case (1844) 11 Cl & F. 85; 8 ER 1034..........................81, 85-86, 89Taylor v. National Assistance Board [1957] AC 101 .............................................146Thomas v. Kelly (1880) 13 App. Cas. 506 ...............................................................25Thornloe & Clarkson Ltd. v. Board of Trade [1950] 2 All ER 245........................158Tillmans & Co. v. S.S. Knutsford [1908] 2 KB 385; [1908] AC 207.....................186Tolson Case (1889) 23 QBD 164............................................................................126Tomalin v. J Pearson & Son Ltd [1909] 2 KB 61...................................................176Tomas v. A-G (1989) 41 WIR 299 .........................................................................163Towne v. Eisner [1918] 245 US 418 at 425..............................................................39Trendtex Trading Corporation v. Central Bank of

Nigeria [1972] QB 529 (CA)...............................................................................173Tuck & Sons v. Priester (1877) 19 QBD 629 .........................................................124Tuck v. National Freight Corporation [1979] 1 WLR 37 .......................................102United States v. Bass 404 US 336 (1971) 339 ..........................................................99

xiv Table of Cases

United States v. Klinger 199 F. 2d 645.....................................................................50United States v. Raynor 302 US 540, 58 C 353, 82L Ed. 413................................101Vacher and Sons Ltd. v. London Society of Compositors [1913] AC 107...............20Venour v. Sellon (1876) 2 Ch D 522 20Wacal Developments Pty Ltd. v. Realty Development Pty

Ltd. (1978) 14 CLR 503 .....................................................................................104Warburton v. Loveland (1832) 2 Dow & C1 480 ...............................................60, 89Warley Caravans v. Wakelin [1968] 66 LGR, 534...................................................38West Ham Union v. Edmonton Union [1908] AC 1.................................................63West v. Gwynne [1911] 2 Ch 1 .......................................................................167-168Westminster Bank Ltd. v. Zang [1965] AC 182 .......................................................88Whiteman v. Sadler [1910] AC 514........................................................................183Wing v. Epsom Urban District Council [1904] 1 KB 798........................................25Woodward v. Sarsons (1875) LR 10 CP 733 .........................................................184Wray v. Ellis (1859) 1 E & E 276.............................................................................75Yorkshire Dale Steamship Company v. Minister of

Transport [1942] 1 KB 35......................................................................................12Zimbabwe Township Developers (Pvt) Ltd. v. Lou’s

Shoes (Pvt) Ltd. 1984 (2) SA 778 (ZSC) ............................................................136

TABLE OF STATUTES

Act of Settlement 1700....................................................................................141Administration of Estates Act 1925..................................................................46Administration of Justice (Miscellaneous Provisions) Act 1938...................144Australia Act 1916 ..........................................................................................155Aviation Security Act 1982...............................................................................44

Bankruptcy Act 1883 ..............................................................................170, 172

Carriage by Air Act 1961................................................................................106Charitable Uses Act 1601 ...........................................................................71, 72Charities Act 1960.......................................................................................71, 72Company Directors Disqualification Act 1986 ................................................31Constitution Act 1961 .......................................................................................77Constitution Act of Bophuthatswana 1977.....................................................133Constitution Acts of Canada 1867-1982...........................................................18Constitution Act of Nigeria 1979......................................................................17Constitution (Thirty-Ninth Amendment) Act 1975 .......................................162Consumer Protection Act 1987.......................................................................117Copyright Act 1842.........................................................................................140Copyright Act 1868.........................................................................................124Corporation Taxes Act 1970 .............................................................................35Corrupt Practices and Elections Act 1852........................................................76Corrupt Practices and Elections Act 1863........................................................76Criminal Justice Act 1988...............................................................................152Criminal Law (Special Provisions) Act 1962...................................................57Crown Proceedings Act 1947 .........................................................................175

Defence (General) Regulations 1939................................................................63Drug Trafficking Offences Act 1986 ................................................................33

Ecclesiastical Lease Act 1571.........................................................................145European Communities Act 1972...................................................................157

Factories Act 1961 ..........................................................................................157Family Law Act of Barbados 1987.....................................................................3Finance Act 1894 ..............................................................................................12

Finance Act 1926 ..............................................................................................35Finance Act 1976 ....................................................................108, 109, 110, 111Foreign Compensation Act 1950............................................................145, 151

General Rules Act 1967 ....................................................................................34

Housing Act 1974..............................................................................................80

Independence Act of Barbados 1966...............................................................???Industrial Court Act 1976 .......................................................................163, 164Industrial Relations Act 1976 .........................................................................149Interception of Communications Act 1985 ....................................................164Internal Security Act 1982 ................................................................................71Internal Security and Intimidation Amendment Act 1991 .................................1Interpretation Act 1850 ...................................................................24, 67, 68, 69Interpretation Act 1889 .......................................................................24, 69, 129Interpretation Act 1978 .............................................................................69, 129Interpretation Act of Canada 1967-1968..................................................19, 185Interpretation Act of Ghana 1960.....................................................94, 101, 102

Land Charges Act 1925.....................................................................................46Land Registration Act 1925 ..............................................................................46Land Transfer Act 1897 ....................................................................................15Law of Property Act 1892...............................................................................167Law of Property Act 1925...........................................................................46, 79Law of Property (Miscellaneous Provisions) Act 1989 .....................................9Leasehold Reform Act 1967............................................................................80-Licensing Act 1964 ...........................................................................................27Local Government Revenue Act 1988..............................................................95

Magistrates’ Courts Act 1980 ...........................................................................31Mortmain and Charitable Uses Act 1891 .........................................................71

National Insurance Act 1911 ..........................................................................157National Insurance (Industrial Injuries) Act 1946..........................................148Newspaper Surety Ordinance (Amendment) Act 1971....................................35

xvi Table of Statutes

Official Secrets Act 1911 ..................................................................................21

Public Health Act 1848 ...................................................................................150Public Order Act 1970 ....................................................................................132

Regulation of Customs Act 1825......................................................................67Republic of South Africa (Second Amendment) Act 1981 .............................77

Settled Land Act 1925.......................................................................................46Sex Discrimination Act 1975..........................................................................157Sheriffs Act 1887.............................................................................................120Social Security and Housing Benefits Act 1982 ..............................................31South Africa Act 1909 ................................................................................58, 59State Immunity Act 1978 ..................................................................................80Street Offences Act 1959 ..................................................................................94

Terrorism Act of South Africa 1967.............................................69, 70, 71, 133Tribunal and Inquiries Act 1958 .....................................................................164Tribunal and Inquiries Act 1971 .....................................................................164Trustees Act 1925..............................................................................................46

Vexatious Actions Act 1896............................................................................146Video Recordings Act 1984 ..............................................................................44

West India Docks Act 1831 ..............................................................................61

Yorkshire Registries Act 1884 ..........................................................................79

Table of Statutes xvii

Chapter 1

Introduction

What is a statute?

A statute is a formal act of the Legislature in written form. It declares the willof the Legislature. It may be declaratory of the law, or a command which mustbe obeyed, or a prohibition forbidding a course of conduct or a particular act.We normally refer to the whole body of law as enacted by Parliament as theStatute Book. For a single enactment, the term Act of Parliament is usuallyused. In a federal state, the enactment of the legislature of each of the States orProvinces is also a statute.

The term Act of Parliament is thus reserved for the law as enacted by thesupreme legislature. An Act of the Congress of the United States of Americais an Act of Parliament – the difference is that in the United States of AmericaParliament is referred to as the Congress. From about 1689, when the Bill ofRights was passed, Statute Law has become the most important source of law.At Appendix A is a classification of Statutes.

The term Statute Law is used to distinguish the law passed by Parliamentfrom Common Law or Equity. Common Law is almost, but not quite, ‘judge-made’ law. It derives its authority from the usages and customs of timeimmemorial, affirmed and enforced in the judgments and decrees of the courtsof law. William the Conqueror sent out his justices in eyre to collect andcollate the customs of England. Some of the customs were made universal asbeing common to the whole of the country. The Conqueror also accepted theDoons of the Saxon Kings. This process of adaptation and modification hascontinued to this day.

Common Law thus developed through case law. It comprises the body ofthose rules and principles which inform government, security of the person andproperty, and is therefore part of the positive law. It is as effective as an Act ofParliament – until it is ousted by statute. Like yeast, Common Law rises frombelow, rather than being imposed from above like an Act of Parliament.

The rules of law known as the doctrines of Equity grew out of theharshness of the Common Law. Equity started with petitions to the Sovereignto redress the grievances perpetrated and perpetuated by the rigid applicationof the Common Law. It thus began life as the attempt to administer justicewith fairness – from the quasi-religious status of the Lord Chancellor as thekeeper of the King’s conscience. The term Equity is often equated with thespirit and enforcement of fairness and right dealing which should animate thebehaviour of individuals.

The object of the Common Law, said McCardie J in Prager v. Blatspiel,Stamp & Heacock Ltd.,1

is to solve difficulties and adjust relations in social and commercial life. Itmust meet, so far as it can, sets of facts abnormal as well as usual. It mustgrow with the development of the nation. It must face and deal with changingor novel circumstances. Unless it can do that, it fails in its function anddeclines in its dignity and value. An expanding society demands an expandingCommon Law.

This statement applies equally well to Equity. It was the harshness of theCommon Law, its failure to achieve fairness instead of rigidity that led to therise of Equity. In the end, if both Common Law and Equity fail to deal withthe ‘changing and novel circumstances’, legislation – that is, statute law – willhold the day.

The Genesis – The Formulation of Policy

A statute is the crystallisation of an objective. That objective may be political,social, economic or even personal, but there will be a motive that lurks behindit. A group of persons may be interested in a particular measure which maycall for the exercise of the legislative power of the state. Legislation thenbecomes the means to attain an end. These groups could be:• political parties• pressure groups• departmental officials• Commissions of Inquiry• Parliamentary committees• public and private organisations

Although some groups have a greater or more direct influence on thelegislature than others, they are all united in the same conviction that asituation exists which calls for legislation.

This leads to the investigation of the social devices which would suggestthe remedies for the problems that call for legislation. In this investigation,recourse may be had to legislative committees, lobbyists, a person or personsdirectly or indirectly interested. At each stage of the investigation there will bestudies commissioned, conferences and consultations constituted and conflictsof competing concepts contained. There may be public debate generated by aGovernment White Paper.2

2 Understanding Statutes

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1 [1924] 1 KB 566 at p.570.

2 A White Paper is a report issued by the Government to give information. There are also Green Papers,which are tentative reports of Government Proposals without commitment.

When ideas have crystallised, a decision will be taken that there is need forlegislation. A summary of the various proposals will be submitted to, say, theMinister under whose portfolio the subject-matter of the proposals falls. Whenwhat is involved is a major piece of legislation, in some cases the public maynot be aware of all these happenings until a hint is given in the ‘Speech fromthe Throne’.

The proposals will be submitted to the Cabinet in the form of a CabinetMemorandum. After Cabinet approval has been obtained, instructions are sentto Parliamentary Counsel to draft the required Bill. After the draft iscompleted, it is sent to the sponsoring Ministry for comments. Others, inspecial circumstances, may also be asked for their comments and there may bea few revised drafts. Finally, the Bill as settled between Parliamentary Counseland the sponsoring Ministry is sent to the Cabinet Committee on Legislation,and then to the Cabinet as a whole to be approved for introduction inParliament.3

Background knowledge

Law does not operate in a vacuum, and this is especially true of statute law. Astatute is intended to guide, and regulate, the conduct and affairs of those towhom it is addressed. Its content thus takes cognisance of the cultural,economic, political and social conditions of the society within which it isintended to operate. A sound knowledge of these conditions is very necessaryto a complete understanding of the statute.

Any of those conditions, or a combination of any of them, could constitutethe facts upon which a Bill is drafted. In the drafting of a piece of legislationon marriage, for example, the question would obviously be asked whether ageis all that matters. Are there other incidents that go to make a valid marriage,such as the form of the celebration of the marriage, and the issue of dowry?

If the dowry is seen as an essential part of the marriage, then the mere factthat one has attained the age of majority does not mean that one can contract avalid marriage. Since marriage is an issue of social fact rather than of law,legislation would thus seek to regulate behaviour in the ‘real world’.4 In doingso, it must of necessity look at society and at the institutions which society hasestablished for its guidance. Legislation would not seek to uproot society. If itdid, the law would be a dead duck.

Spouses take lovers in monogamous societies. Legislation against thatsystem ‘would obliterate public life’.5 It is very difficult to prosecute for

Introduction 3

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3 The process does not exclude what is normally referred to as the Private Member’s Bill.

4 The Family Law Act 1987 of Barbados, for example.

5 The Guardian Weekly, Vol 146 No. 4 week ending 26 January 1992.

bigamy in a predominantly polygynous society. Each piece of legislation has abackground and a policy. A sufficient knowledge of that background and ofthat policy is essential to the understanding of an Act of Parliament.

Drafting instructions

An Act of Parliament subsumes government policy effectively into legislativelanguage. The policy considerations for the drafting of a Bill are put down inthe form of Drafting Instructions. These Instructions normally state preciselywhat the problem is, at least to the administrator. What has given rise to theproblem? What attempts have been made to solve the problem without theassistance of legislation? How and why have the attempts failed? What are thesolutions devised administratively to solve the problem that calls forlegislation?

Unless ideas have crystallised it is a sheer waste of time to embark uponthe drafting of a piece of legislation. However, those who instructParliamentary Counsel should not attempt to be lawyers. Least of all shouldthey attempt to be Parliamentary Counsel and send draft Bills to Counsel.They help in the process by remaining as laymen, leaving it to the draftingexperts to appreciate the decisions based on the policy and their implications.Legislative drafting does not consist in copying precedents nor in polishingwhat others have drafted.

Furthermore, from Westminster6 comes the stern warning that,

Nothing is more hampering to Parliamentary Counsel, when the drafting stageis reached, than to be obliged to build what is usually a complex structureround “sacred phrases” or forms of words which have become sacrosanct byreason of their having been agreed upon in Cabinet or in one of itscommittees. A still more serious objection to agreed form of words of thiskind is that they often turn out to represent agreement upon words only,concealing the fact that no real compromise or decision has been reachedbetween conflicting views upon some important question.

Parliamentary Counsel fill in the details of the broad policy statements.They raise questions – legal questions which may lead to a reconsideration ofthe policy. However, they do not presume to rearrange or alter the will of thelegislature, just as an architect does not dictate to a client what the architectthinks the client needs. The architect would advise the client that with thefinancial resources available and having regard to the area of the land for thebuilding, the contours of the land, the orbit of the sun and the wind directionduring the day and during the night, a north-facing building would suit thepurposes of the client. And bearing these matters in mind the architect wouldadvise the client how the bedrooms would be situated in relation to the study,

4 Understanding Statutes

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6 The Preparation of Bills (1948) p.8.

the lounge, the dining room, the kitchen and all the other facilities that go withthem. Those who draft Bills for Parliament bear a similar responsibility.

The Process – The Drafting of Legislation

Research

An Act of Parliament is usually an attempt to find a solution to the problemsfaced by governments, and by society as a whole. An understanding of theproblems is essential in the search for the solutions, and that depends uponadequate knowledge of the conditions that have given rise to the problems.Those who read an Act of Parliament must thus have some basic knowledgeof the subject-matter upon which the Act is based and must be prepared tosupplement their basic knowledge with research. A sound knowledge of theexisting law is vital since an Act of Parliament is drafted to become part of thebody of the law as a whole.

Added to that will be a sound knowledge, and understanding, of the issuesthat have created the problem. That is what is referred to in Heydon’s Case7 asthe ‘purpose approach’ or the ‘mischief rule’. Parliamentary Counsel whodraft a Bill must know what they are looking for. Their industry and disciplinehelps them to ask the right questions and thus save themselves valuable time,as well as the time of all others who may have to read an Act of Parliament.

The Legislative Scheme

After Parliamentary Counsel has mastered the subject matter of the proposedlegislation and read the Drafting Instructions, the next important step in thedrafting process is the preparation of the Legislative Scheme. Upon thatscheme hangs the quality of the Bill and ultimately of the Act of Parliament.The Legislative Scheme represents Counsel’s mental picture of how well theAct of Parliament would look in structure and quality, in substance and inform. Here Parliamentary Counsel deals with the logical sequence of thevarious matters that bear upon the Bill and organises the symmetricalarrangement of the sections. Here the symmetrical arrangement of sections isorganised. Form and substance take their proper places. The law and itsadministration are equally balanced.

Without the Legislative Scheme the resultant Act will look like a patchy,sketchy work, ill-conceived and ill-prepared. This is the area where the policyof the law is put in an outline for the achievement of the objectives of theproposed legislation. It is in the Legislative Scheme that ParliamentaryCounsel perceives whether the Act will be a workable piece of legislation,

Introduction 5

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7 (1584) 3 Co. Rep. 7a; 76 ER 637.

whether the task of the courts will be made easier in the construction of theAct as a whole. The Legislative Scheme is in effect the architectural plan ofthe building that is called an Act of Parliament.

Criticism

Those who criticise Parliamentary Counsel regarding the language of an Actof Parliament often do not realise the constant criticism to which Counselthemselves subject their drafts of a Bill. ‘Animals are such agreeable friends –they ask no questions, they pass no criticism.’ said George Eliot.8

Parliamentary Counsel heed that warning. They do not shun or avoid criticism.It is to their advantage that there are people who would question how well aBill has been drafted. Legislation is enacted for a variety of people, for avariety of reasons. It is a serious business. The happiness of a people dependon it, the progress of a people may be hindered by it. Those who areresponsible for drafting legislation bear this in mind.

Criticism, whether in good faith or in bad faith, is an asset toParliamentary Counsel and is accepted as having been made in good faith,whatever the source. It is considered as an attempt to improve the quality ofthe Bill.

Lord Thring warned Parliamentary Counsel that for them

virtue will, for the most part, be its own reward, and that after all the pains thathave been bestowed on the preparation of a Bill, every Lycurgus and Solonsitting on the back benches will denounce it as a crude and undigestedmeasure, a monument of ignorance and stupidity. Moreover, when the Bill hasbecome law, it will have to run the gauntlet of the judicial bench, whoseermined dignitaries delight in pointing out the shortcomings of the legislaturein approving such an imperfect performance.9

There are two aspects to be dealt with here: the quality of the drafting andthe soundness of the proposed law. To this may be added a third aspect: howwell will the resultant Act work in practice. Criticism helps ParliamentaryCounsel to recognise where there is an ambiguity, where the wording hasdeviated from the substance, where clarity has been sacrificed to simplicity,where verbosity has detracted from the beauty of expression.

The Language – Legal Language

The importance of language in any given situation cannot be over-emphasised.It is the chief medium of communication and thought. Because lawyers

6 Understanding Statutes

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8 George Eliot, Scenes of Clerical Life, Ch.7.

9 Practical Legislation, p.8.

operate in the field of social control, language is of even greater significanceto them. Words are, in a very special way, the tools of the lawyers’ trade.Words are to lawyers ‘what the scalpel and insulin are to the doctor, or atheodolite and slide rule to the civil engineer’.10

Words occupy the lawyer’s attention in the construction, drafting and theinterpretation of contracts, statutes, wills, and other legal documents. They are

the effective force in the legal world. In statutes they result in heavy fines,long imprisonments and even death. In contracts, deeds or wills, they transferlarge amounts of property. Hence the persistent feeling in our profession thatthe right words must be used.11

Parliamentary Counsel communicate policy decisions having legalconsequences to members of society in the form of legislation. Legislation inthese circumstances has, as its sole medium of communication, the writtenword. In ordinary speech we see and hear the person we are talking to.Gestures, intonation, the inflection of the voice, all aid in an understanding ofwhat is said. In the face of Othello’s horrible fancy, Desdemona queried:

Upon my knees, what doth your speech import?

I understand a fury in your words

But not the words.12

In cold print language is a different matter. The words stand on their own.There is an air of permanence, of finality about them. Compared with speech,that permanence, that finality give language another dimension. An error orambiguity in ordinary speech can be corrected and immediately resolved bythe Socratic method. In a statute, an amending legislation or a decision of thecourts is the cure. Said Driedger:

Statutes are laws. They are supposed to settle the rights and liabilities of thepeople, and they are enforced by the courts. They must be, so far as we canmake them, precise. They are serious documents. They are not, like themorning newspaper, to be read today and forgotten tomorrow. Like all otherserious works of literature, they must be read and studied with care andconcentration. Every word in a statute is intended to have a definite purposeand no unnecessary words are intentionally used. All the provisions in it areintended to constitute a unified whole.13

Introduction 7

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10 Z. Chafee, ‘The Disorderly Conduct of Words’, 41 Col LR 381 at p.382.

11 Z. Chafee, ‘The Disorderly Conduct of Words’, 41 Col LR 384.

12 Othello, Act 4 Scene 2.

13 The Composition of Legislation, p.xxiii.

It is, however, the very nature of language that presents the greatestproblem to successful communication. Language is considered as ‘perhaps thegreatest human invention’,14 yet it is a most imperfect instrument for theexpression of human thought. It has tremendous potential for vagueness,ambiguity, nonsense, imprecision, inaccuracy and indeed all the other horrorsrecognised by Parliamentary Counsel.15 As John Austin stated,

it is far easier to conceive justly what would be useful law, than so toconstruct that same law that it may accomplish the design of the law giver.16

In the famous words of Mr Justice Oliver Wendell Holmes, ‘Ideas are notoften hard, but words are the devil’.17 The imperfections of languagenotwithstanding, it still must be used in any society, if only because it is thechief medium of expression.

It should now be obvious that a good command of language is vital, notonly for those who draft legislation, but also for those who try to understand it.Firstly, the reader of an Act must understand the nature of language and itsvarious functions. Secondly, the reader must grasp the theory of words assymbols for the communication of meaning and their myriad imperfections.

Lastly, the reader must understand that time, circumstances, and socialforces influence the meaning and the usage of words. Thus legislation must beunderstood and interpreted to keep pace with social needs arising from theprogress of time. That is why in Corkery v. Carpenter,18 the conviction of adefendant was upheld on the ground that a bicycle fell within the words‘drunk while in charge on any highway … of any carriage’. In Maclean v.Trembath,19 a Judge thought that the word horse should include an aeroplane:‘it is much the same thing’. And in Armstrong v. Clark,20 Lord Goddard LCJwould not even consider

whether a non-alcoholic beverage is drink within the meaning of the [RoadTraffic Act, 1930]. If that were so, I should be inclined to apply the dictum ofMartin B., where the bailiff was sworn to keep the jury without meat or drink,or any light but candlelight, and a juryman asked if he might have a glass ofwater. Martin B. said: “Well, it is certainly not meat and I should not call itdrink. He can have it.” I think “drink” means alcoholic drink.

8 Understanding Statutes

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14 Glanvill Williams, ‘Language and the Law’, 61 LQR p.71.

15 G.C. Thornton, Legislative Drafting, p.2.

16 Jurisprudence, quoted by Ilbert, The Mechanics of Law Making, p.98.

17 Quoted by R.E. Megarry, A Second Miscellany-at-Law, p.152.

18 [1951] 1 KB 102 at p.103.

19 [1956] 1 WLR 437.

20 [1957] 2 QB 391 at p.394.

Plessy v. Ferguson21 and Brown v. Board of Education22 have alsodemonstrated how time, circumstances and the need to keep pace withadvancement in social conditions influenced the construction andinterpretation of the same words in the Constitution of the United States.

Modern linguists consider language as ‘a system of vocal symbols witharbitrary conventionalised references accepted by a group of humans andunderstood within it, and having the social function of carrying informationfrom speaker to hearer’.23 This definition places emphasis on the structuraland functional aspects of language. It constitutes a system of symbols, thefunction of which is to carry information from person to person within a givenspeech community. It indicates that the described function of the system isperformed by virtue of individual symbols having definite referential values,such as to individual items, units and elements in the culture of a givensociety.

Language as such goes beyond that. It is, essentially, a social institution. Itwas John Locke who said that,

God having designed man for a reasonable creature, made him not only withan inclination and under a necessity to have fellowship with those of his ownkind but furnished him also with language, which has to be the greatinstrument and tie of society.24

If the verbal images stored away in the minds of the individual members ofsociety are not substantially the same, there would be no effectivecommunication. And as St. Paul25 said,

if the trumpet give an uncertain sound, who shall prepare himself to the battle?So likewise ye, except ye utter by the tongue words easy to be understood, howshall it be known what is spoken? For ye shall speak into the air.

The symbols, then, are arbitrary: there would be no recognisable directlink between the sound structure of a given symbol and its referential value.Yet they are conventional in the sense that they are accepted by members ofthe speech community.26

The written word may be contrasted with speech, which is the actual useof vocal symbols by an individual to convey information. Speech, though, is

Introduction 9

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21 163 US 537, 16 S.Ct 1138, 42 L.Ed 256 (1896).

22 347 US 483, 74 S.Ct 689, 98 L.Ed 873 (1954).

23 Stephen Ullman, Semantics: An Introduction to the Science of Meaning, p.11.

24 The Second Treatise of Government, Chapter VII.

25 1 Corinthians, 14: 8-9.

26 S.A.Wurm, ‘Aboriginal Language and the Law’, 6 Annual Law Review, University of WesternAustralia, p.2.

the act of the moment, the instantaneous response to stimuli acting upon theindividual. The written word is a system that changes, but changes slowly.27

The relationship between language and thought is of particular interest insemantics. There are those who argue that all thinking above a very primitivelevel is in words, and those who hold the view that language is merely amedium for the expression of thought and no more.28 Examples of thoughtwithout words that are normally given are of the chess player pondering thenext move, or of the architect. Exactly how far there can be thought withoutwords is controversial. Nonetheless, it can be confidently asserted thatlanguage and thought are inextricably bound together. Most, though not all,thought involves the use of verbal images or symbols.29

Again this relationship between thought and language is of significance toan understanding of legislation. Words are much more than the tools of thelawyers’ trade. Words are the raw materials with which we all work. They arebound up with our thought processes and quite lacking in the passivity,stability and fixity of purpose recognised in a chisel or a hammer. FrancisBacon has said that,

Men imagine that their minds have command over language but it oftenhappens that language bears rule over their minds.30

A consequence of this close relationship between language and thought isthat the language of a given community to a large extent reflects and dependsupon its cultural environment. It is said31 that the individual’s culturalenvironment exercises a moulding influence on, and fixes the limits of, thatindividual’s thoughts and language habits.

This means that language as a system of symbols can only exist if there isa culture complex with which it is connected through conventionally-established and generally-accepted referential ties of the people who share thatlanguage. In other words, a language-like system of vocal symbols in whichthe individual symbols lack references to elements, items and concepts of aculture is meaningless. The sentence, ‘I will see you after lunch’, is onlymeaningful in a culture in which lunch is an established institution.

This language-culture nexus is of great practical importance to anunderstanding of the language of legislation. An Act of Parliament is part ofthe language of the society for which the law is enacted. It does not operate ina vacuum. It has a policy all its own, which may be cultural, economic or

10 Understanding Statutes

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27 G.C. Thornton, Legislative Drafting, p.3.

28 Glanville Williams, ‘Language and the Law’, 61 LQR p.71.

29 Glanville Williams, ibid, p.72.

30 Quoted by Simeon Potter at p.19, Language In The Modern World.

31 S.A.Wurm, ‘Aboriginal Language and the Law’, 6 Annual Law Review, University of WesternAustralia, p.2.

social, and an appreciation of the cultural, economic and social values isessential to a successful understanding of the statute.

The law may contain, and indeed may rely, on concepts or mental imageswhich are not known to the society concerned as a whole. However, wherethese concepts or mental images are not adequately translated into conceptsand images readily understood by the society for which the law is enacted, thelaw becomes an imperfect instrument as a means of communication.

Language has yet another function – an emotive function. It is argued thatlanguage is not used solely for the communication of thought, but frequentlyemployed to evoke emotional responses. A good illustration is a Counsel’saddress to a jury, which does much more than merely sum up the evidence.Counsel seeks to evoke emotion, action and reaction, i.e. a favourable verdict.In an Act of Parliament, even in the absence of the emotive use of language, itis the effect the Act has on society as a whole or a part of that society thatraises an emotive response.32 It is the essence of language that it reflects,expresses and affects the patterns of established ideas and the values that helpshape the culture within which the language grows.

The language used in our courts provided the vital material upon which thedoctrine of judicial precedent was based, and thus the body of our judge-madelaw. The Normans conquered Britain in 1066. In time Norman French becamethe language of the educated classes and thus of the law. Before that, Latin hadheld the day because of the Roman conquest. But Norman French became amixture of English and French.33

The earliest statutes were written in Latin. By 1275 some of the statuteswere in Norman French, others in Latin. By 1309 Norman French had takenover as the more usual language of statutes. Reaction set in. In 1362 a statute34

required pleadings to be in English rather than ‘in the French tongue, which ismuch unknown in the realm.’

The recording of statutes in Latin or Norman French ceased after the deathof Richard III. By 148835 the Statute Roll had ceased to be made up in theancient form and statutes have since continued to be published in English. Yet,to this day, the Lords Commissioners proclaim the Royal Assent in NormanFrench: la Reyne le veult.

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32 Consider the reaction of the people of the United Kingdom to Margaret Thatcher’s Poll Tax.

33 Megarry’s Miscellany-at-Law contains many examples of the mixture. A well known one is where areport mentions an incident in Court in which the defendant ‘jette un brickbat at le judge, quenarrowly missed’.

34 36 Edward 111 c.15, which provided that ‘... all pleas ... shall be pleaded, shewed, defended, answered,debated, and judged in the English tongue, and that they be entered and inrolled in Latin ....’.

35 4 Hen. 7.

By the nineteenth century, it was said that ‘the language of statutes ispeculiar … and not always that which a rigid grammarian would use’.36 Thecourts had started to be frightened by the language of Acts of Parliament.Another reaction had set in. Of the Finance Act, 1894,37 Lord Macnaghtenremarked that,

the only question remaining is a question of construction, a question perhapsof some difficulty, arising as it does on one of the least intelligible sections inan Act of Parliament not remarkable for perspicuity.38

In Yorkshire Dale Steamship Company v. Minister of Transport39

MacKinnon LJ stated:

This case raises the problem of the proper construction and effect of teninfamously obscure words – “warranted free… from the consequences ofhostilities or warlike operations.” It is to me, personally, a melancholyreflection that during my last ten years at the Bar I was compelled, asadvocate or arbitrator, to spend more time on the consideration of the effect ofthese ten words than on any other problem. They come back now to me acrambe repetitia, and the cabbage is of the stalest.

The criticism of the language of legislation has continued to this day. It isno longer confined to the courts. There are now calls that the language ofstatutes should be in Plain English. The Law Reform Commission of Victoria,Australia,40 makes the point that Plain English concentrates on thosegrammatical structures and words which are readily understood. That isadmirable. Yet the problem lies at the root of the English language itself – it isnot an instrument of mathematical precision – and the intellect andintelligence of advocates will always dispute the meaning of a particularprovision of an Act of Parliament.

That is why Stephen J warned, in Re Castioni,41 that a

degree of precision … is essential to [the drafting of] Acts of Parliament,which, although they may be easy to understand, people continually try tomisunderstand, and in which, therefore, it is not enough to attain to a degreeof precision which a person reading in good faith can understand, but it isnecessary to attain if possible to a degree of precision which a person readingin bad faith cannot misunderstand.

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36 Lyons v. Tucker (1881) 6 QBD 660 at p.664.

37 57 & 58 Vict. Ch.. 30.

38 Attorney-General v. Duke of Richmond and Gordon, [1909] AC 466.

39 [1942] 1 KB 35 at p.43.

40 ‘Legislation and Legal Rights and Plain English’, discussed in (1986) 12 CLB 1018 et seq.

41 [1891] 1 QB 149 at p.167.

It is perhaps instructive at this stage to quote at length the observations ofLord Oliver of Aylmerton, a Lord of Appeal in Ordinary:

The English language, as has been observed on more than one occasion, isfrequently susceptible of ambiguity. Whenever anyone finds a provisiondifficult to understand with certainty, his first and instantaneous reaction is toblame the draftsman. It is, of course, very easy to make fun of theparliamentary draftsmen. I confess to having myself once described aparticularly abstruse provision as “something of a minor masterpiece ofopacity”, but I regret it because I think that such shafts are frequently notaimed at the right target. The draftsman doesn’t draft in a vacuum and straightout of his head. It is his job as well as his misfortune to seek to reduce towriting concepts and ideas fashioned and implanted by somebody else. Theparliamentary draftsmen do an immensely important task and do it underalmost intolerable pressure; but in the end they merely put into words whattheir political masters state as their desired object. If the object is itself bizarreor ambiguous, one can hardly be surprised that the result is bizarre orambiguous. I like to remind myself, from time to time, of Lord Macnaghten’sremark that he did not think that the framers of the Irish Land Act were toblame for not assuming that a judge would go out of his way to derogate fromthe rights of a third person who had nothing whatever to do with the matter inhand. “The process vulgarly described as robbing Peter to pay Paul”, he said,“is not a principle of equity, nor is it, I think, lightly to be attributed to theLegislature even in an Irish Land Act.”42

If one finds, as one sometimes does, that an Act contains a provision that doesnot make sense, it is only too easy to assume that it is the draftsman who hasmade an error. What sometimes fails to strike the judicial mind is that thedraftsman was in fact doing exactly what he was instructed to do and that hisdrafting does indeed truly reflect that elusive “parliamentary intention”. It isprecisely this that makes me very suspicious of searching for some supposedrational parliamentary intention outside the language in which a draftsmanwho is known to be rational has chosen to express it. It is the statute thatmarks out the field and dictates to the citizen the rules by which he is to playand the goal at which he is to aim. Too often, I think, the referee is tempted toshift the goal-posts in reliance upon his own speculation about what it wouldhave been sensible for Parliament to do if Parliament had thought of doing it.This, and also the danger which, as it seems to me, lurks in the encouragementof judicial excursions into the parliamentary preserve of legislative policy,may be illustrated by reference to two cases. One of the cases also incidentallyraises the question of whether, and to what extent, it may be desirable to haveregard to what was said in Parliament at the time when the legislation wasunder discussion.43

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42 Evelyn Viscountess De Vesci v. O’Connell [1908] AC 298 at p.310.

43 [1993] Stat LR, Vol. 14 No. 1, pp.4-5.

The Progress – The Stages in Parliament

When a Bill is introduced in Parliament,44 it receives its first reading. Thismeans that the Clerk announces the title of the Bill, and the Ministerresponsible for it rises in his place at the front Bench and bows. That is all. Itis a reminder of the days when Bills were actually read out in Parliament asmost members then could not read nor write. There is no debate on the Bill atthis stage.

The next stage is Second Reading. At this stage the principles of the Billare fully debated, but no amendments are permitted. In the course of amember’s speech, however, an indication may be given of the intention tomove an amendment at the appropriate stage. In recent years, the SecondReading of a Bill may be referred to a special Second Reading committee. Thecommittee reports to the whole House, which then formally resolves that theBill be read a second time.

The Committee Stage follows the Second Reading and is the mostimportant part of the procedure, as Pepper v. Hart45 has shown. At this stagethe Bill is debated clause by clause. Explanations are sought from the Ministerresponsible for the Bill as to the meaning of some, at least, of the provisions.Clarification may be called for as to the effect of the law. The principles of theBill cannot be debated. A motion is moved in respect of each clause to ‘standpart of the Bill’. There is usually an informal atmosphere. A member mayspeak more than once to the same question.

Long set speeches are out of place and remarks are normally brief. Detailsof a Bill are being dealt with. They do not justify a lot of laboured arguments.Amendments put down usually come from the Minister promoting the Bill,departmental officials, even Parliamentary Counsel. Where amendments areaccepted, Parliamentary Counsel drafts the required amendments.

At the next stage – the Report Stage – the Bill as amended in Committee isreported to the House. Where the House is not satisfied the Bill may be sentback to the Committee. Occasionally, but not usually, amendments may bemade at the Report Stage.

Finally, the Bill is read a third time. At Third Reading debate is brief –general comments on the Bill as a whole may be dealt with. The Bill is thenpassed by Parliament and is submitted for the Assent. When the Assent isgiven, the Bill becomes an Act of Parliament.

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44 Where there are two Chambers the procedure is repeated. When the Upper and the Lower Chambersdo not agree on amendments, usually a committee of both Chambers is constituted to resolve thedifferences.

45 [1993] All ER 42.

Due to its importance, a little more needs to be said about the Committeestage. Normally, Bills are dealt with at this stage by a Committee of the WholeHouse. Increasingly, Standing Committees are chosen by the Committee ofSelection. A Standing Committee reflects the strength of the political partystructure in the House itself – it is a miniature Parliament. Amendments areput down for the Committee’s consideration, drafted by the ParliamentaryCounsel who drafted the Bill before the Committee. The language used is thatof Parliamentary Counsel. Each amendment is fully debated. At the end ofeach debate there is a motion that the clause as originally presented or asamended stand as part of the Bill.

Amendments moved by the Opposition or the Government’s ownbackbenchers are sometimes accepted, but usually the amendments arewithdrawn when the Minister in charge of a Bill gives an undertaking toreconsider the substance of the provision to meet a point raised on theparticular clause. The Government will frequently refuse any amendments,however controversial the Bill may be.46

Mistakes are likely to occur at the Committee Stage of a Bill. A wellknown example concerns s.22(6)(h) of the Land Transfer Act, 1897. The Billused the words ‘For inserting in the register …’. An amendment was moved inCommittee for substituting for the word ‘For’ the words ‘For allowing theinsertion’. The resulting provision thus read ‘For allowing the insertion,inserting in the register …’.

Gerald Kaufman47 gives us a very graphic idea of how the committeesystem works in the House of Commons. He states that once a Member goesinto the committee room, the member is encapsulated in a private world; life isgoverned by the hours the Committee sits and the party to which the memberbelongs. If the member is a government backbencher, the sole expectation isthat the member sits silently, except when votes take place and the member isrequired to call out Aye or No, as instructed by the harassed but unrelentingwhip. Apart from this, the supporters of the administration sit at their desks,studying their constituency correspondence, looking up from time to time incase something interesting might be happening.

Ministers in charge of a Bill are well briefed by the departmental officials.The Ministers are issued with one set of folders marked Notes on Clauses,which explain to them what each clause of their Bill is supposed to mean. AsOpposition members rise to move amendments, the Minister due to replyconsults another folder, entitled Notes on Amendments.

Some of these notes are headed Resist. This means that at the end of thedebate the backbenchers will have to be on hand to call out ‘No’. Another

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46 An example is the European Community’s Bill. See de Smith Constitutional and Administrative Law,5th ed. p.291.

47 The Listener 29 March 1984.

folder may have the heading Accept. The third heading is Consider. Thisrequires the Minister to decide personally on the merits of the arguments.When Opposition members ask awkward questions, answers to which arecontained neither in Notes on Clauses nor in Notes on Amendments, thedepartmental officials (some of whom sit on the chairman’s dais, others in acorner) pass notes to the Minister in order to make it easier for the Minister tomake a suitable reply.

In general, the amendments that are actually made in a Government Billare those proposed by the Government and those which are agreed to by theMinister in charge of the Bill. The Government amendments are alwaysdrafted by the Parliamentary Counsel who was responsible for drafting theBill. As regards amendments proposed by other members, the advice ofParliamentary Counsel is always taken and acted on.

Where a proposed amendment is acceptable to the Minister as a matter ofpolicy but is defective in form, then either the amendment will be made andsorted out at a later stage by further Government amendments, or it will bewithdrawn on a promise by the Minister to promote a Governmentamendment at a later stage. The latter practice in turn leads to the accusationthat Parliamentary Counsel, sheltering behind the Minister, exercise far toomuch control over the language and structure of legislation, thus making amockery of the true democratic process.48

The Parts – Short Title etc

A part of an Act of Parliament has effect upon the other parts of the Act, hencethe rule that an Act of Parliament should be read as a whole in order to beunderstood. The main parts of an Act are:• Assent• Titles• Marginal Notes• Preamble• Headings• Interpretation Section• Enacting Sections• Schedules

The Assent

The Assent is the final act in the process of turning a Bill into an Act ofParliament. A Bill passed by Parliament in all its stages is, normally, still a

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48 Professionalizing Legislative Drafting Ed. Reed Dickerson, p.118.

Bill, not law. Only the Assent can give it the character of a law. It is thus agenuinely important part of an Act of Parliament.

It is generally said that the courts in the United Kingdom do not questionthe validity of an Act of Parliament – certainly they cannot declare an Act ofParliament as being illegal or unconstitutional. This is based on the argumentthat there is no constitution as such by which to measure the legality of an Actof Parliament. (In jurisdictions with written constitutions, the constitution isthe supreme law, so any law which is inconsistent with, or in contravention of,a provision of the constitution is void to the extent of the inconsistency or thecontravention.) The Royal Assent also gives force to the theory of thesovereignty of Parliament.

However, even in the United Kingdom the Royal Assent may be queried. Itis a question of fact, not of law: the statute Quia Emptores (1289)49 providedthat an Act of Parliament

is a general law whereof the judges may take knowledge, and therefore it is tobe determined by them whether it is a statute or not.

Thus, whether an Act of Parliament has been assented to can bechallenged in a court of law in the United Kingdom. The Royal Assent givesforce to the enacting formula (that the Act is enacted by the Sovereign, theLords Spiritual and Temporal and the Commons). The Royal Assent is oftengiven by the Royal Commission, to which are attached as a Schedule the ShortTitles of the Bills to be assented to.

In Commonwealth countries with written constitutions it is possible for aBill to become an Act of Parliament without the Assent. Under theConstitution of Nigeria, 1979, s 54 provided that,

(4)Where a Bill is presented to the President for assent, he shall within 30days thereof signify that he assents or that he withholds assent.

(5)Where the President withholds his assent and the Bill is again passed byeach House by two-thirds majority, the Bill shall become law and theassent of the President shall not be required.

There was a similar provision under s.55 in respect of Money Bills:

(4)Where the President within 30 days after the presentation of the Bill to himfails to signify his assent or where he withholds assent, then the Bill shallagain be presented to the National Assembly sitting at a joint meeting andif passed by two-thirds majority of members of both Houses at such jointmeeting, the Bill shall become law and the assent of the President shall notbe required.

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49 18 Edw. 1, Stat. 1, c.1.

The importance of the Assent can also be gleaned from ss 55, 56 and 57 ofthe Constitution Acts 1867 to 1982 of Canada:

55. Where a Bill passed by the Houses of the Parliament is presented to theGovernor General for the Queen’s Assent, he shall declare, accordingto his Discretion, but subject to the Provisions of this Act and to HerMajesty’s Instructions, either that he assents thereto in the Queen’sname, or that he withholds the Queen’s Assent, or that he reserves theBill for the Signification of the Queen’s Pleasure.

56. Where the Governor General assents to a Bill in the Queen’s name, heshall by the first convenient Opportunity send an authentic Copy of theAct to one of Her Majesty’s Principal Secretaries of State, and if theQueen in Council within Two Years after Receipt thereof by theSecretary of State thinks fit to disallow the Act, such Disallowance(with a Certificate of the Secretary of State of the Day on which theAct was received by him) being signified by the Governor General, bySpeech or Message to each of the Houses of the Parliament or byProclamation, shall annul the Act from and after the Day of suchSignification.

57. A Bill reserved for the Signification of the Queen’s Pleasure shall nothave any Force unless and until, within Two Years from the Day onwhich it was presented to the Governor General for the Queen’sAssent, the Governor General signifies, by Speech or Message to eachof the Houses of the Parliament or by Proclamation, that it has receivedthe Assent of the Queen in Council.

The Preamble

The Preamble to an Act of Parliament is a recital of the facts that led to theenactment of the Act, and gives an idea of its main object. It provides anhistorical conspectus – ‘a key to open the minds of the makers of the Act, andthe mischiefs which they intended to redress’. However, although thePreamble is intended to recite the facts upon which the Act is based, the factsso recited cannot be accepted by the courts without challenge or accepted asconclusive evidence. In R v. Haughton (Inhabitants)50 Lord Campbell said that

A mere recital of an Act of Parliament, either of fact or law, is not conclusive,and we are at liberty to consider the fact or the law to be different to thestatement in the recital.51

In Edinburgh and Glasgow Ry v. Linlithgow Magistrates,52 Lord Campbell

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50 (1853) 6 Cox c.c.101; 1E&B, 501 at p.506.

51 See also Merttens v. Hill [1901] 1 Ch. 842 at p.852.

added that,

The recitals in a statute cannot bind those who are not within the enactingpart.

It should be noted, however, that the Preamble precedes the enacting partof an Act of Parliament. The onus is on those who challenge the recital toestablish its falsity. But no court now would impugn the validity of an Act ofParliament on the ground that it is based on an erroneous set of facts. InLabrador v. R53 Lord Hanner said that,

Even if it could be proved that the legislature was deceived, it would not becompetent for a court of law to disregard its enactments. If a mistake has beenmade, the legislature alone can correct it… The courts of law cannot sit injudgment on the legislature, but must obey and give effect to itsdetermination.

Acts of Parliament promoted by private, sectional or local interests arenormally introduced in Parliament as a petition. This is a requirement ofparliamentary procedure. Invariably, there is a Preamble which sets out (indetail, at times) the reasons for the introduction of the measure. The properfunction of a Preamble is thus to explain certain facts which need to begrasped before the enactment contained in the Act can be understood.54

Section 12 of the Interpretation Act of Canada55 provides that,

The preamble of an enactment shall be read as a part thereof intended to assistin explaining its purport and object.

The Titles

There are now two titles to an Act of Parliament: the Short Title and the LongTitle. The Long Title is an important part of the Act – it can be looked at inorder to remove an ambiguity in the words of the Act.56 In Fielden v. MorleyCorporation,57 Lindley MR referred to the Long Title and said:

I read the title advisedly because now and for some years past the title of anAct of Parliament has been part of the Act. In old days it used not to be so,and in the old law books we were told not to regard it; but now the title is an

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52 (1859) 3 Macq, HL, (Sc) 691 at p.704.

53 [1893] AC 104 at p.123.

54 Lord Thring, Practical Legislation p.92.

55 1967-1968 c.7.

56 Commber v. Berks JJ (1882) 9 QBD 17 at p.33.

57 [1899] 1 Ch. 1 at p.4, See also [1900] AC 133.

important part of the Act, and is so treated in both Houses of Parliament.

The Long Title indicates the nature of the legislative measure. It containsthe main theme or themes of the Act, and can thus be used in order todetermine the scope of the Act and the proper construction to be adopted inorder to resolve a doubt or an ambiguity. It is a device to tell the reader whatthe Act is about in the absence of the Memorandum to the Bill or thePreamble, but it cannot be used in construing a provision of an Act where thewords are clear. The meaning of the clear words of an Act cannot be narrowedor restricted by reference to the Long Title. In Vacher v. London Society ofCompositors,58 Lord Moulton said:

The title is part of the Act itself and it is legitimate to use it for the purpose ofinterpreting the Act as a whole and ascertaining its scope.

The Short Title is the name used for an Act of Parliament for referencepurposes. It is used to obviate the necessity of having to refer to the full anddescriptive title of the Act. It is a good general description of all that is doneby the Act.59 The object of the Short Title ‘is identification and notdescription’,60 but it could be used to assist in the interpretation of the Act.61

Marginal Notes

A section of an Act of Parliament has a marginal note, which is intended toindicate the general contents of the section. It describes, but does notnecessarily summarise, the provisions of the section to which it relates. Thegeneral rule is that it is not an aid to the interpretation or construction of anAct. In Venour v. Sellon,62 the marginal note was relied on to support a view‘that the marginal notes of Acts of Parliament now appear on the Rolls ofParliament, [and] consequently form part of the Acts.’ But in Attorney-General v. GE Ry63 it was noted that the House of Commons never hasanything to do with a marginal note.

In relation to a local Act, Phillimore LJ said:64

I am aware of the general rule of law as to marginal notes, at any rate in publicgeneral Acts of Parliament; but that rule is formed, as will be seen in referenceto the cases, upon the principle that those notes are inserted not by Parliament

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58 [1913] AC 107, at p.128.

59 Middlesex Justices v. R (1884) 9 App. Cas. 757 at p.772.

60 Vacher and Sons Ltd. v. London Society of Compositors [1913] AC 107 at p.128.

61 Lonhro Ltd. v. Shell Petroleum Co. Ltd (No. 2) [1981] 2 All ER 456.

62 (1876) 2 Ch. D. 522.

63 (1879) 11 Ch. D. 449.

64 Re Woking Urban District Council (Basingstoke Canal) Act, 1911 [1914] 1 Ch. 300 at p.322.

nor under the authority of Parliament, but by irresponsible persons.65

It is now quite settled that a marginal note in an Act of Parliament does notconstitute a legitimate aid to the construction of the section to which it relates.Chandler v. DPP66 appears to have set the seal on the issue. Lord Reid statedquite categorically that

side notes cannot be used as an aid to construction. They are mere catchwordsand [no] amendment to alter a sidenote could be proposed in either House….So sidenotes cannot be said to be enacted in the same sense as the long title orany part of the body of the Act.

The House of Lords thus held that the marginal note to s.1 of the OfficialSecrets Act 1911,67 ‘Penalties for spying’, did not restrict the actual words ofs.1 of the Act. The section made it an offence for a person who, for purposesprejudicial to the safety or interests of the state, approaches, or is in theneighbourhood of, or enters, a prohibited place. The offence was notcommitted by a person taking part in a political demonstration who had nointention of spying.

Section 13 of the Interpretation Act of Canada68 provides that,

Marginal notes and references to former enactments in an enactment after theend of a section or other division thereof form no part of the enactment, butshall be deemed to have been inserted for convenience of reference only.

Headings and Parts

Headings and Parts are used in legislation as a guide to the subject matter ofan Act.69 A Heading does not form part of the Act and is not voted on inParliament.70 Headings are unamendable descriptive components and are inthat sense, like anything else in an Act, part of the Act as passed byParliament. They may be considered in construing a provision of the Act,provided due account is taken of the fact that their function is merely to serveas a brief, and therefore necessarily inaccurate, guide to the material to whichthey are attached.71

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65 Is that so? One may ask whether those who draft the Bills which are introduced into Parliament areirresponsible persons! But then the word ‘irresponsible’ used here means not responsible to Parliamentin the sense in which, say, a Minister is responsible to Parliament.

66 [1964] AC 763.67 1 & 2 Geo. Vict. c.28.68 1967-1968 c.7.69 Driedger, The Composition of Legislation. 70 R v. Hare [1934]1 K. B. 354. See also Esso Petroleum Co. Ltd. v. Ministry of Defence [1990] All ER 1.71 Bennion, Statutory Interpretation, 1st ed. p.590.

Only Acts of considerable size are divided into Parts. There is no sense individing an Act of, say, 10 sections into Parts. Headings would do. An Act isdivided into Parts to improve readability, as a book is broken up into chapters.

Sir Courtenay Ilbert recommended that a complex statute might be dividedinto Parts, ‘each Part being treated as a simple Act and containing its principleor leading motive in concise form at the outset of the Act’.72 The division ofan Act into Parts is generally frowned upon unless the subjects are such thatthey could appropriately be embodied in separate Acts.

Parts are more frequently used now as an aid to the better arrangement oflengthy Acts or to permit segments of an Act to be referred to more easily. AnAct may also be divided further into Divisions or other subdivisions of a Part.No such arrangement of an Act should be undertaken unless the context of theParts or other subdivisions relate to a single or related subject:

The framework of a Bill may be made more intelligible by dividing it intoparts and by grouping clauses under italic headings.73

Excessive subdivision should be avoided. The division of an Act into Partsmay affect its construction by indicating the scheme of arrangement.74

The Interpretation Section

An Interpretation Section is used to define certain words or sets of words usedin the Act. These definitions determine the extent of the meaning to be givento the word or words so defined. There are two forms of definitions: therestrictive form where ‘means’ is used, and the extensive form where‘includes’ is used. When ‘means’ is used the definition is explanatory – andtherefore restrictive. When ‘includes’ is used the definition is extensive, in thesense that the ordinary dictionary meaning is intended – that is to say, the‘ordinary, popular and natural sense’. However, the meaning is also extended‘to some things to which it would not ordinarily be applicable’. Thus ‘street’would be enlarged to include a highway. But it would be wrong to define‘animal’ as including ‘man’, whatever the scientists say.

In Robinson v. Barton Eccles Local Board,75 Lord Selborne said that,

An interpretation clause of this kind is not meant to prevent the wordreceiving its ordinary, popular, and natural sense whenever that would beproperly applicable, but to enable the word as used in the Act, when there isnothing in the context or the subject-matter to the contrary, to be applied to

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72 Mechanics of Law Making, p.17.

73 Ilbert, Legislative Methods and Forms, p.245.

74 Ilbert, Legislative Methods and Forms, pp.245-246.

75 (1883) 8 App. Cas. 798 at p.801.

some things to which it would not ordinarily be applicable. I look upon thisportion of the interpretation clause as meaning neither more nor less than this,that the provisions contained in the Act as to streets, whether new streets orold streets, shall, unless there be something in the subject-matter or thecontext to the contrary, be read as applicable to these different things. It isperfectly consistent with that, that they should be read applicable, and shouldbe applied, to those things to which they in their natural sense apply, andwhich do not require any interpretation clause to bring them in.

In other words, an interpretation section is used for the purpose ofinterpreting words which are ambiguous or equivocal, and not to disturb themeaning of such as are plain,76 nor is it used to prevent the operation of theword in its primary and obvious sense.77

There may be cases where a word is defined in an Interpretation Sectionout of the abundance of caution. It is as well, therefore, to bear in mind thatthe Interpretation Section of an Act applies only where there is no contraryintention. A definition in an Interpretation Section does not seek to substitute aword or one set of words for another word or another set of words. It does notstrictly define the meaning to be given to the word or words in everyconceivable case, but rather declares the ambit within which the word orwords defined may be understood.

The Enacting Sections

An Act of Parliament is divided into sections, which may be divided intosubsections or paragraphs. The division into paragraphs is to help readabilityand reduce ambiguity to a minimum. It ensures precision and helps in theunderstanding of the legislative sentence. A section is intended to contain oneidea and therefore one enactment, but where the composition of the legislativesentence turns out to be a long one, the sentence is broken up into subsectionsor paragraphs. The subsections or the paragraphs read together must form acoherent and a consistent whole. The sections, numbered consecutively andtaken as a whole constitute the Act of Parliament.

The earliest statutes were written in Latin. The Provisions of Merton(1235)78 used the words Provisum est – It is provided. The words introducedeach enactment since in the earliest days the statutes were in one piece. Therewere no sections, subsections or paragraphs. Thus each provisum est, orpurveu est, or est acorde ordine establi79 provided the clue to each enactment,

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76 R v. Pearce (1880) 5 QBD 306 at p.389.

77 London School Board v. Jackson (1881) 7 QBD 502 at p.504.

78 20 Hen. 3.

79 Statute of Westminster, 1275, for example.

that is to say, to each section. Today, the Enacting Formula has replaced therepetition of It is provided before each enactment.80

Section 2 of the Interpretation Act, 1850,81 provided that,

All Acts shall be divided into sections if there be more enactments than onewhich sections shall be deemed to be substantive enactments without anyintroductory words.

The Interpretation Act 1889,82 by s.8, briefly provided that,

Every section of an Act shall have effect as a substantive enactment withoutintroductory words.83

The sections of an Act of Parliament are thus the operative parts of theAct. They declare the law. Lord Thring considered an Act of Parliament ‘… asa series of declarations of the Legislature’.84

The Schedules

A Schedule may be attached at the end of an Act of Parliament. It is anoperative part of the Act, and is part of the section which induces it. Itsprovisions may be as important as a section’s. It may:• incorporate part of the operative provisions of the Act;• contain provisions of a transitional nature;• contain a number of amendments which are better dealt with in the

Schedule than in the main body of the Act.In Attorney-General v. Lamplough85 it was stated that,

A schedule in an Act is a mere question of drafting, a mere question of words.The schedule is as much a part of the statute, and is as much an enactment asany other part.

But in Re Baines86 Lord Cottenham stated that,

If the enacting part of the statute cannot be made to correspond with theschedule, the latter must yield to the former.

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80 It also seems to be the origin of the use of the expression Provided that which is used to introduce aproviso.

81 13 & 14 Vict. c.21, usually referred to as Lord Brougham’s Act, 1850.

82 52 & 53 Vict. c.63.

83 Now replaced by section 1 of the Interpretation Act, 1978 c.30, where the wording is, ‘Every sectionof an Act takes effect as a substantive enactment without introductory words.’

84 Practical Legislation, p.26.

85 (1878) 3 Ex D 214 at p.229.

86 (1840) 12 A & E 227.

And in the words of Lord Penzance in Dean v. Green,87

It would be contrary to the principles on which courts of law construe Acts ofParliament to enlarge the conditions of an enactment by reference to wordsgiven in a schedule.

In more modern times, Lord Wilberforce said in Floor v. Davis88 that:

Using a modern technique, Parliament has placed most of the wording anddetailed provisions in lengthy schedules.

Forms provided for in a Schedule to an Act of Parliament are meant to bestrictly followed. However, deviations from a Form would not invalidate theForm used provided the essentials of the Form as provided for are adhered to.But Saunders v. White89 is authority for the proposition that if the Form isimperative then it must be strictly followed.90

Punctuation

The notion that punctuation forms no part of an Act of Parliament is no longertenable. It may be that the old statutes as engrossed on the Parliament Roll didnot have punctuation,91 but the modern view seems to have been expressed byLord Lowry:

I consider that not to take account of punctuation disregards the reality thatliterate people, such as parliamentary draftsmen, punctuate what they write, ifnot identically, at least in accordance with grammatical principles. Whyshould not other literate people, such as judges, look at the punctuation inorder to interpret the meaning of the legislation as accepted by Parliament?92

Words – Meaning, Ambiguity, Vagueness, etc

Aristotle defined words as ‘the smallest significant units of speech’. Tomodern linguists words are semantic units and morphemes as ‘the minimummeaningful unit of speech’.93 For example, the word ‘stonehouses’ consists of

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87 (1882) 8 PD 79.

88 [1979] 2 All ER 677 at p.679.

89 [1902] 1 KB 472.

90 See also Thomas v. Kelly (1880) 13 App. Cas. 506, Wing v. Epsom Urban District Council [1904] 1KB 798 and Burchell v. Thompson [1920] 2 KB 80.

91 See Craies on Statute Law 12th ed. 13, Lord Reid in IRC v. Hinchy [1960] AC 748 at p.765, Bennion,Statute Law 2nd ed. p.57 and Crabbe, Legislative Drafting, pp.84-103.

92 Hanlon v. The Law Society [1980] 2 All ER 199 at p.221. See also Houston v. Burns [1918] AC 337 atp.348.

93 Stephen Ullman, Semantics: An Introduction to the Science of Meaning, p.26.

three morphemes – ‘stone’, ‘house’ and ‘s’. The morphemes ‘stone’ and‘house’ are known as free morphemes. They are capable of standingindependently, while ‘s’ is a bound morpheme which cannot. Other examplesof bound morphemes are ‘ly’ in ‘lately’ and ‘ed’ in ‘accepted’.

Our usual concept of a word is that it is a unit of meaning, a distinct unit inthe pattern of language. Although words usually perform their communicativefunction jointly, they enjoy a measure of independence on the printed pageand in the dictionary. Stephen Ullman94 observes that vocabulary ‘gives theimpression of a vast filing system in which all items of our experience aredocketed and classified’. Each word stored in the mind has a meaning ormeanings attached to it. Words are symbols used to express a thing or an idea.

The theory of words as symbols is well explained by Ogden andRichards.95 The core of their theory is that words in themselves are nothing –‘the verberation of air’.96 Their importance lies in the fact that they aresymbols – signs that are consciously designed to stand for particular objects,things or situations.

Words are a special class of symbols – the most important in ordinarythinking and communication. When used, a word stimulates a mentalreference to an object or situation in the real world. The relationship between aword and the object or situation it symbolizes is always indirect; betweenthem there always intervenes the thought of a person. Thus, the object orsituation causes a thought in the mind of a speaker or writer and that personuses a word to express thought.

In listening or reading, the process is reversed: the word brings about thethought which refers to the object or situation. Although we usually refer towords as symbolizing objects, it is important to bear in mind the scenario:object to thought to word, or word to thought to object.

In the field of understanding statutes the lessons are obvious. Firstly, ithelps to avoid two common errors in the use of words pointed out by GlanvilleWilliams.97 There is the idea that words are important in themselves,irrespective of their symbolic meaning. There is the notion that real distinctionsexist where in fact the only distinction is between two forms of words.

The idea that words have existence and power, that they are equivalent tothe things and persons they denote or nearly so is common amongst lawyers.Chafee98 writes:

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94 Stephen Ullman, ibid, p.39.

95 C. K. Ogden and I. A. Richards, The Meaning of Meaning (1936).

96 Partridge v. Strange (1552/3) 1 Plowd. 83. Quoted by Glanville Williams, ibid, p.73.

97 Glanville Williams, ibid, p.74.

98 Z. Chafee, ‘The Disorderly Conduct of Words’, 41 Col LR p.384.

Lawyers and judges are highly susceptible to the notion of an indissoluble linkbetween the word and the thing.

The first useful lesson from the Ogden and Richard theory is that since therelationship between a word and what it symbolises is always indirect, itfollows that a word can never be the same as what it points to. A word is nomore and no less than a symbol and must do what it is told. Lord Diplockobserved in Carter v. Bradbeer,99 with respect to the word ‘bar’ underss 76(5) and 201 of the Licensing Act of 1964, that,

if a case which turns entirely upon the meaning to be ascribed to words usedin a statute gets as far as your Lordships’ House … on that question yourLordships constitute the court of last resort. So the words mean whatever theyare said to mean by a majority of the members of the Appellate Committeedealing with the case, even though a minority may think otherwise.

This echoes Humpty Dumpty’s100 famous boast:

When I use a word … it means just what I choose it to mean, neither more norless.

However, words as symbols must be interpreted as all symbols eventuallyare interpreted. Where we fail in that, we fail to communicate. In normalusage, words are conventionalised symbols and communicate only when soused. Thus, the definition of a word should not stipulate a matter which doesnot ordinarily come within its scope or which is substantially different fromthe conventional usage.101 For example, the word ‘horse’ should not bedefined to include ‘cow’, nor should ‘land’ be defined to include ‘ship’.

The notion that a word inevitably and unalterably belongs to a particularthing or person is a common error. This is the tendency to believe that a wordpoints to a particular object and only that object, and that no other word canpoint to it. In law this takes the form of making legal results depend entirelyon verbal distinctions. In National Society v. Scottish National Society,102 atestator who had spent all his life in Scotland bequeathed 500 pounds sterlingto ‘The National Society for the Prevention of Cruelty to Children’. Thesewords corresponded to the charter name of a London Society which did nowork in Scotland. The testator had never heard of the London Society. Nearerhome there was a branch office of the Scottish National Society for thePrevention of Cruelty to Children, whose activities the testator knew. Thequestion was, which charity should get the bequest?

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99 [1975] 1 WLR 1204 at 1205.

100 Lewis Carroll, Through the Looking Glass.

101 Namasivayan, The Drafting of Legislation, p.73.

102 [1915] AC 207.

The Scottish Courts awarded the bequest to the Scottish Society as thetestator clearly intended. Yet to the House of Lords, the testator ‘had by namedesignated the London Society’, and that Society was ‘the possessor of thename mentioned in the will’. The House of Lords clung to the notion that theScottish Society had only one name which the testator should have used toreach it. They failed to consider the fact that the Scottish Society may havehad other names.

That a corporation should use its corporate name in formal documents isnot in doubt. But, surely, it is not unusual for a corporation to be referred to byan abbreviation or by another name in ordinary conversation. We refer to theUniversity of Oxford as ‘Oxford’. But ‘Oxford’ is also the name of a city. Werefer to the Honourable Society of the Inner Temple as the ‘Inner Temple’.The latter expression has nothing to do with sanctum sanctorum. It is possiblethat, at that time, the name used by the testator was commonly used by Scotspeople for the Scottish Society, a fact which the Scottish courts no doubtrecognised.

The House of Lords, however, insisted that they were following ‘themeaning of the words used’. But then what did ‘meaning’ mean? Obviouslynot the intention of the testator, not common usage, not the opinion of theaverage reasonable Scot under the circumstances.

We thus turn to the theory of Ogden and Richards. Since the relationshipbetween the word and the object involves two steps, that is to say, word tothought to object, two different mistakes may occur. First, the thought may notadequately represent the object, as when parties buy and sell a racehorse thatis, in fact, dead. Chafee103 classifies this kind of mistake as Error. Secondly,the word may not correctly express the thought, as where a deed describes theeast half of Blackacre when the parties intended the west half. This lattermistake Chafee classifies as Mistake of Expression. The distinction betweenthe two is important. The remedy for Error is to rescind the bargain. Theremedy for Mistake of Expression is to remould the writing to the actualintention.

This little excursus bears direct relevance to an understanding of an Act ofParliament. Lord Denning104 writes that the courts stuck to the ‘golden rule’by which statutes were interpreted according to the grammatical and ordinarysense of the words, even if this gave rise to unjust results which Parliamentnever intended. The trend now is that the courts tend to look at ‘the intention’of the legislature, that is, the spirit and purpose of legislation.

Where the words are clear and cover the situation at hand, the courts neednot go further. It is only where the intention is not clear or there is doubt that

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103 Z. Chafee, ‘The Disorderly Conduct of Words’, 41 Col LR p.386.

104 Lord Denning, The Closing Chapter, p.95.

the courts resort to their own interpretation of the words used. Worse still,where there is a gap in a statute, where something not foreseen byParliamentary Counsel or by Parliament itself has taken place, the courts aresometimes reluctant to ‘legislate’ to fill the gap even though they mayultimately be forced to.

Although in the last resort, the words of a statute will mean what thejudges say they mean, in practice judges are unlikely to produce strainedinterpretations of a statute. It would cost them the respect and approval ofsociety. Charles Lewis105 has pointed out that the judges themselves have toomuch respect for language and semantics generally and for the conventions ofthe constitution to want to replace them with a scheme of their own making.Responsible judges will therefore do no violence to the language of a statute ifit is clear. They are ‘philologists of the highest order.’106 Clear words are notlikely to be litigated.

The practical application of this to an understanding of statutes is simple.An Act of Parliament represents what the promoters of the original Billintended to convey. It is, in reality, intended to represent the contingencies forwhich it was conceived. The words and phrases used express the statedintentions and no more. This demands a considerable degree of clarity andprecision in the use of words, and demands the utmost in simplicity ofexpression. Lord Denning107 has stated that all statutes passed by Parliamentshould be expressed in such words that all those affected by the statutes shouldunderstand them without recourse to lawyers. And those who draft Acts ofParliament must be experts in the use of words.

From the theory of words as symbols, there are two useful lessons. Firstly,words exist only as symbols to do our bidding; they mean what they areintended to mean in a given context. Secondly, words are not inevitably andunalterably chained to the objects they symbolise. Different words may beused to mean different things and they may be used to mean the same thing. Itfollows that words have no absolute and no proper meaning.

This leads to the last and most important lesson: words are a mostimperfect means of communication. Amongst their imperfections arevagueness, ambiguity, and instability. In Helvering v. Gregory,108 JusticeLearned Hand said that,

the meaning of a sentence may be more than that of the separate words, as amelody is more than the notes, and no degree of particularity can ever obviaterecourse to the setting in which all appear, and which all collectively create.

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105 ‘The Truth About Statutory Interpretation’ (culled from Guardian Gazette No. 27 Vol. 24 of 27.7.77).

106 Ex p. Davis (1857) 5 WR 522 at p.523.

107 Lord Denning, The Closing Chapter, p.92.

108 69 F 2d 809, at p.810 (1934).

Shall and may

In the structure of the legislative sentence shall and may play a very importantpart. They are the legislative auxiliaries, expressing the legal action in aprovision of an Act of Parliament. They are the enacting verbs in thelegislative sentence; its copulae. They have different functions in thelegislative sentence, and are not interchangeable.

In legislation, the auxiliary verb shall invariably denotes an imperativerather than futurity. It usually implies futurity in a will, when phrases like shallbe born or shall predecease me are used. In these instances shall is used torefer to events occurring after or before the death of the testator. An Act ofParliament may provide that the Act shall have effect, or the Act shall apply,or a person shall be entitled. In these circumstances it is best to use the presentindicative: it takes effect, it applies, a person is entitled. In other words, shallshould not be used where there is no command.

This brings us to a consideration of the principles governing the use ofshall in a legislative sentence. Here the word is generally imperative ormandatory. In its ordinary signification, shall is a word of command. It is aword which should normally be given a compulsory meaning, because it isintended to denote an obligation. The auxiliary verb shall should be used onlywhere a person is commanded to do something.109

It is thus not appropriate, for example, to provide that a person shallreceive a pension on retirement. Is that person bound to take whatever amountis given as pension? What is intended is an entitlement, that is to say, a right toa pension on retirement. There is no obligation placed on any person to givethe pension.

The use of shall, therefore, in those circumstances is inconsistent with theconcept of discretion or the exercise of discretionary power. Shall has theability to exclude the idea of discretion and gain the significance of imposing aduty, an obligation which would be enforced, particularly if it is in the publicinterest to do so. Shall, however, is sometimes intended to be directory only. Inthat case, it is the equivalent of may, and will be construed as being merelypermissive in order to carry out the legislative intention. This usually appliesin cases where no right or benefit accrues to anyone, or where no public orprivate right is impaired by its interpretation as being directory.

Thus where an Act of Parliament confers a right of appeal and providesthat notice of appeal shall be filed within thirty days, the shall here is not usedin the mandatory sense. It is used as a procedural direction, stating the timewithin which the right of appeal may be exercised.

A few cases will illustrate the approach of the courts to the use of shall inthe mandatory or the directory sense. In R v. Secretary of State for Social

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109 Driedger, The Composition of Legislation, pp.9-12.

Services ex p. Association of Metropolitan Authorities,110 the Secretary ofState was empowered by the Social Security and Housing Benefits Act1982111 to make Regulations setting up a housing benefits scheme. Under thescheme, eligible persons were entitled to receive housing benefits in the formof rent allowance, rent rebate or rebate. The administration of the scheme wasin the hands of the local authorities, which bore 10% of the cost of thescheme. Section 36(1) of the Act stated:

The Secretary of State shall consult with organisations appearing to him to berepresentative of the authorities concerned.

The Minister wrote to the applicant organisation, an association of localauthorities, requesting their views on a proposed amendment. The time givenfor the consideration of the proposed amendment was not sufficient. When theamendment was passed, the organisation applied for judicial review, claiming,inter alia, that the obligation to consult contained in s.36(1) was mandatory andnot directory and therefore the Minister had failed to comply with the duty.

The court held that the obligation imposed on the Secretary of State wasmandatory rather than directory because the day-to-day administration of thescheme fell on the authorities.

Similarly, shall, in s.21 of the Magistrates’ Courts Act 1980,112 was heldto be mandatory in the case of R v. Liverpool Justices, ex p Crown ProsecutionService.113 The section reads:

If, where the court has considered as required by section 19(1) above, itappears to the court that the offence is more suitable for trial on indictment,the court shall tell the accused that the court has decided that it is moresuitable for him to be tried for the offence by a jury, and shall proceed toenquire into the information as examining justices.

The court held that shall was mandatory, for once a trial on indictment isordered under that section, there is no power to vary the decision save asprovided for in s.25 of the Act.

However, the words shall give not less than ten days’ notice in s.16(1) ofthe Company Directors Disqualification Act 1986114 held to be merelydirectory and not mandatory. Therefore, failure to give the ten days’ notice didnot render the application for a disqualification order either void or voidable:Secretary of State for Trade and Industry v. Langridge.115

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110 [1986] 1 All ER 164.

111 C.24.

112 C.43.

113 (1990) 90 Cr. App. R. 261.

114 C.46.

115 (1991) 2 WLR 1343.

In arriving at that decision, the court engaged in what it called a‘balancing exercise’. It looked at the general object of the Act: for theprotection of the public. It looked at the object of the ten days’ notice: it is forthe protection of the person against whom an application for adisqualification is made. The court then felt that the ten days’ notice periodonly allowed a recipient to produce clear evidence of mistaken identity, orseek to challenge, by way of judicial review, the lawfulness of adisqualification order against the recipient.

Beyond that the period only served to limit the shock the recipient mightotherwise sustain if the first intimation of the application is when theproceedings are served on the recipient. The notice was seen as a mere‘unparticularised letter before action,’ conferring only a limited benefit on therecipient. Further, even if the failure to give the ten days’ notice rendered theorder void, all the Secretary of State had to do was to recommenceproceedings. The court found it difficult to conceive that Parliament intendedso pointless and wasteful a result.

The above case illustrates an instance where the court felt obliged toconstrue shall as directory – perhaps a judicial amelioration of a drafting error.Yet the moral is that a duty should not be disguised as a discretion nor shoulda discretionary power be disguised as a duty. That accounts for the provisionin the Interpretation Act of some jurisdictions that shall should be construedas mandatory and may as permissive.

The word may is an auxiliary verb which is normally used in a legislativesentence to confer a power, a privilege or a right. Its use implies thepermissive, the optional or a discretionary power or conduct. As a generalrule, may is not a word of command. It would be construed as implying acommand where there is something in the context or subject matter of thelegislative sentence to indicate that it is intended to do so. There are thusoccasions when the courts not infrequently have construed may as shall, to theend that justice may not be the slave of grammar.

May, therefore, in its ordinary meaning, gives an enabling, a discretionarypower. Case law shows that it scarcely needs an adventitious aid. It is onlywhere, for example, may is found in a section which for other purposesemploys imperative words that problems arise.

In R v. Southwark Crown Court, ex p. Commissioners of Customs andExcise,116 there was an application by the Customs and Excise Commissionersfor a judicial review of a judge’s order. The order had placed restrictions onthe removal of bank documents from the jurisdiction of the Court and theshowing or reading of those documents to any representative of a foreign lawagency. One of the grounds of relief was that on a true construction of s.27 of

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116 (1989) 3 WLR 1054.

the Drug Trafficking Offences Act 1986,117 the judge, on being satisfied thatthe conditions in s.27(4) were fulfilled, was obliged to make the order soughtand had no discretion with regard to the making of the order for the impositionof conditions.

Section 27 provides that,

(1) A constable … may, for the purpose of an investigation into drugtrafficking, apply to a Circuit judge … for an order under subsection(2) below in relation to particular material or material of a particulardescription.

(2) If on such application the judge … is satisfied that the conditions insubsection (4) below are fulfilled, he may make an order that theperson who appears to him to be in possession of the material to whichthe application relates shall -

(a) produce it to a constable for him to take away, or

(b) give a constable access to it,

within such period as the order may specify.

This subsection is subject to section 30(11) of the Act.

(3) The period to be specified in an order under subsection (2) above shallbe given seven days unless it appears to the judge … that a longer orshorter period would be appropriate in the particular circumstances ofthe application.

(4) The conditions referred to in subsection (2) above are -

(a) that there are reasonable grounds for suspecting that a specifiedperson has carried on or has benefited from drug trafficking,

(b) that there are reasonable grounds for suspecting that the material towhich the application relates

(i) is likely to be of substantial value (whether by itself or togetherwith other material) to the investigation for the purpose ofwhich the application is made, and

(ii) does not consist of or include items subject to legal privilege orexcluded material, and

(c) that there are reasonable grounds for believing that it is in thepublic interest, having regard -

(i) to the benefit likely to accrue to the investigation if the materialis obtained, and

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117 C.32.

(ii) to the circumstances under which the person in possession ofthe material holds it,

that the material should be produced or that access to it should begiven.

(5) Where the judge … makes an order under subsection (2)(b) above inrelation to material on any premises he may, on the application of aconstable …. order any person who appears to him to be entitled togrant entry to the premises to allow a constable to enter the premises toobtain access to the material.

(6)…(9).

The court saw nothing in the words of s.27(2) to suggest that Parliamentdid not intend to confer a discretionary power on the Circuit judge to grant orrefuse to grant an order even if the judge is persuaded that the conditionscontained in subsection (4) are satisfied. Said Watkins LJ:

Whilst we acknowledge that it is not easy to identify circumstances in which ajudge might properly refuse to make an order when those conditions aresatisfied, we are not persuaded that this is a subsection in which “may” can beconstrued as meaning “must” or “shall”… If Parliament had intended thejudge to have no discretion at all, having been persuaded that subsection (4)conditions had been satisfied, it would readily have used the word “shall” as itdid in s.27(3).

Thus, reading the section as a whole, the use of may in subsections (1) and(2), and the use of shall in subsection (3) clearly demonstrate that appropriatemeanings were intended for may and for shall respectively.

On the other hand, a contrary view was taken in R v. Tower HamletsLondon Borough Council ex p. Chetnik Developments.118 The BoroughCouncil refused to refund rates paid to it by the applicants in respect ofpremises which were not occupied at the time of the payments. Section 9(1)(c)of the General Rates Act 1967119 provided that the rating authority may refundany amount which has been paid by a person not liable to make the payment.

The House of Lords held that while the use of the word may gave theauthority some discretion in determining whether to make a repayment, it didnot relieve the authority of its duty to take into consideration the object of s.9,which is to remedy an injustice. Said Lord Bridge of Harwich:

If the rating authority…is not to be guided by the justice of making a refund,having regard to the circumstances in which the overpayment was made, Ifind it impossible to articulate any intelligible alternative principle to whichthe exercise of the discretion can sensibly be related. If there is no guiding

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118 (1988) 2 WLR 654.

119 C.9.

principle, the practical consequences must be that the decision whether or notto make a refund in any particular case may be purely arbitrary. I cannotbelieve that this is what Parliament intended.

Equally, in Bayliss v. Roberts,120 the court held that the words, he may becharged instead, imposed a mandatory duty on the tax inspector to raiseadditional Schedule D assessments under s.118(1)(b) of the Income andCorporation Taxes Act 1970.121 In this case, the Court looked at the legislativehistory of the Act, noting that its predecessor, the Finance Act 1926,122 did nothave the effect of conferring a general discretion on inspectors and none of thesubsequent statutory amendments had changed the law in that respect. Thus acontextual ambiguity was resolved by reference to external consistency, thatis, to Acts in pari materia.

The conclusion is that may never means shall in the ordinary meaning ofthe two words. May confers a power. It is a question whether in a particularcase may can be construed as not conferring a power to impose a duty toexercise the power so conferred. Thus if the power conferred is to facilitate alegal right, the courts will construe may as shall. A public officer in theexercise of a public duty will be compelled by those for whose benefit thepower was so conferred to exercise that power.

In Attorney-General v. Antigua Times,123 the proviso to s.3(2) of theNewspaper Surety Ordinance (Amendment) Act 1971 provided that theMinister may waive the requirement of a deposit of $10, 000 if the Minister issatisfied with the sufficiency of the security in the form of a policy ofinsurance or a bank guarantee. The Judicial Committee of the Privy Councilheld that the proviso did not confer an unfettered discretion on the Minister.Said the Privy Council:

The Minister is not given an unregulated and unfettered discretion withoutguidelines. His discretion is limited to determination of the sufficiency of thesecurity offered.

And and or

The use of the words and and or has given rise to not a few difficult problemsof interpretation. The use of either of those words calls for a high degree ofprecision.124 An appreciation of the legal effect of the use of and or or wouldhelp in minimising the difficulty in the choice of which word to use. The

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120 (1989) Simmon’s Tax Cases 693.

121 C.10.

122 16 & 17 Geo V, c.22.

123 [1976] AC 16.

124 Reed Dickerson, ‘The Difficulty of Choice Between And and Or’, ABA Journal 1960, p.310.

difference in meaning lies in this: or is disjunctive, and is conjunctive. Andconnotes togetherness. Or tells you to take your pick.125

The basic rule, therefore, is that and is used when the intention is to referto one thing, such as a husband and father. Here the reference is to a personwho is both a father and a husband. Where the reference is to two differentpersons but and is used, the expression would be a father and a husband.

Even then the and is still conjunctive since both a father as one entity, anda husband as another entity, would be required to act – as in the sentence, Afather and a husband shall file a statement. (The meaning becomes clearerwhen another word is substituted for husband: A father and a teacher shallsign the declaration form of a student.)

Where or is substituted for and, the expression becomes a father or ahusband shall file a statement – the reference here is to two separatecategories of persons: one, those who are fathers; two, those who arehusbands. Three situations are thus involved:

1. A husband and father, that is, one person who is a husband and at the sametime a father. (Obviously there are fathers who are not husbands, andhusbands who are not fathers.

2. A father and a husband: two separate people are referred to here, both ofwhom are commanded to act, or refrain from acting, in concert:

(a) a father who is not necessarily, but could be, a husband, and a husbandwho is not necessarily, but could be, a father;

(b) a father who is a husband and a husband who is a father; and

(c) a father who is not a husband and a husband who is not a father.

3. A father or a husband, that is, either one, independently of the other,would act or refrain from acting, whether or not the father is also ahusband and the husband is also a father.

Where there is an enumeration of subject-matters coupled with theexercise of a discretionary power, it is immaterial whether or or and is used,since in that case the discretion implies that the authority which has thediscretion can – and would – act as that authority thinks fit in exercising thediscretionary powers. Thus where it is provided that,

The Minister may make Regulations providing for

(a)…………

(b)…………

(c)…………

(d)…………

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125 Ibid 310.

the Minister could issue a set of Regulations providing for (a), (b), (c) and (d).He could also issue, as he wishes, Regulations providing for only (a) at onetime and another set of Regulations providing for (b) at another time, and soon. In this example the use of may governs what follows, so the use of and oror after each paragraph would not make much of a difference.

A difficult situation arises when and and or are both used in the samelegislative sentence.

A father and husband or wife shall ...The problem here is that there is an ambiguity. The expression could mean

1. a father and husband, as one person, or a wife;

2. a father who is not a husband or a wife;

3. a husband who is not a father or a wife;

4. a father who is not a husband or a husband who is not a father or a wife.

In other words is the reference here to:

1. two persons, that is,

(a) a person who is both a father and a husband, or

(b) a person who is a wife (but not necessarily the wife of that husband);

2. three persons, that is,

(a) a person who is a father but is not a husband, or

(b) a person, who is a wife, and

(c) a husband who may or may not be the husband of that wife;

3. two persons, that is

(a) a person who is a husband but is not a father, or

(b) a person who is a wife;

4. three persons, that is,

(a) a person who is a father, or

(b) a person who is a husband, or

(c) a person who is a wife.

In the last example, 4, the and becomes an or. It is thus desirable to notethe words of Lord Wilberforce in Anisminic v. Foreign CompensationCommission126:

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126 [1969] 2 AC 147 at p.214 (HL).

There remains, of course, the drafting of article 4(1)(b)(ii) “that the personreferred to and any person who became successor in title,” which does notappear to suggest that a situation may exist where a successor in title isrelevant even if the claim is made by the original owner. But I think that thisis not decisive: it is merely the result of unfortunate telescopic drafting. Thedraftsman ought to have dealt separately with the two cases saying (i) if aclaim is made by the person referred to as aforesaid that he was a Britishnational ... (ii) if a claim is made by the successor in title of such person andsuch person succeeded before February 28, 1959, that both he and the personreferred to as aforesaid were British nationals. We are well used to doing, byinterpretation, this kind of work on the draftsman’s behalf, and I think we cando so here.

Vagueness

A few words, like numbers, chemical formulæ and certain technical terms,have a distinctive meaning, constancy and exactness. Most other words do nothave that constancy and exactness. Of this, Stephen Ullman127 wrote:

The sense is visualised by modern thought as a series of concentric circles orzones, of varying determinateness: their inner core is more or less definite,whereas their outer fringes are vague, unstable and essentially “open”awaiting supplementary clarification from the context.

The three major sources of vagueness in words are: • their generic character;• their readiness to derive colour from the surrounding context; • their capacity to evoke emotional responses.

Generic character

Words commonly denote classes of things or events bound together bydistinctive features common to all the objects in that class. The identificationof these features, however, is often the source of heated court debates. This isso even in the case of common, familiar words which bring to mind mentalpictures so clear that vagueness seems unlikely.

The word shop brings to mind a structure containing goods for sale. Butthis image is not supported by two cases. In Warley Caravans v. Wakelin,128 anopen site used for the business of selling caravans was held to be a shop. In

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127 Words and Their Use, p.41.

128 [1968] 66 LGR 534.

Greenwood v. Whelan,129 a market stall constructed of tubular steel uprightsupports and horizontal bearers bolted together, with a permanent awning,electrical light and illuminated sign, was held not to be a shop.

The word family normally brings to mind a married couple and theirchildren. Yet it was held in Dyson Holdings Ltd. v. Fox130 that a relationshipbetween an unmarried man and an unmarried woman living together over along period, but having no children, constituted a family relationship. It wassaid that family should not be construed in a technical or legal sense, but in thesense that would be attributed to it by the ordinary man in the street in view ofthe ‘permanence and stability of their relationship’. In Helby v. Rafferty,131

however, a similar relationship was held not to constitute a family in that itlacked ‘a sufficient degree of permanence and stability to justify the view thatthey were members of the same family’.

The classification of abstract words is especially difficult. Unlike concretenouns, where the intended reference is real or solid, the intended reference inthe case of abstract words exists as a quality or concept with no physicalexistence. It has been said that although all words are symbols, some arecloser to the five senses than others.132 Thus, at the bottom level we have JohnKennedy, 195, Olive Drive, Cave Shepherd, Broad Street. On a higher level wehave generalised words like judge, bank, ship, shop. Above these we havemen, chattels, real estate. Still higher we have abstractions like mankind,property, democracy, freedom. Stuart Chase132 warns of the dangers we run aswe go higher up the hierarchy:

The more abstract the word, the greater the risk that any proposition in whichit is used will not be true of all the persons and things within the class denotedby the word, and the more we are liable to forget that at the bottom we aretalking about persons and things.

The generic nature of words is seen in words that perform an adjectival oradverbial function just as much as in nouns. Examples are reasonable, tall,short, neighbour, good, bad. These are relative terms, and the context in whichthey are used must set the yardstick for determining, for instance, whatconstitutes reasonable behaviour.

Colour and context

The readiness of words to derive colour from their context is another source ofvagueness. Mr Justice Oliver Wendell Holmes133 once observed that,

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129 [1967] 1 All ER 296.130 [1976] 3 All ER 1030.

131 [1978] 3 All ER 1016.

132 Quoted by Z. Chafee, ibid, p.390.

133 Towne v. Eisner [1918] 245 US 418 at p 425.

A word is not a crystal, transparent and unchanged, it is the skin of a livingthought and may very greatly in colour and content according to thecircumstances and the time in which it is used.

The colour varies according to the circumstances of their use, the context,the personality of the speaker or writer and the audience that is addressed. Theword line, for example, will evoke a different image in the mind of the railwaystationmaster, the printer, the palmist, the telephonist, the shopkeeper, thetennis player. The one meaning possesses various aspects.

The context in which a word is used is crucial and vital to the meaning ofthat word. In dealing with the words, ‘property, affairs or government ofcities’, Crane J asked:

What do these words mean? Their colloquial significance would indicate thatanything touching or pertaining to the affairs of a city or of the people thereofwas within the breadth and scope of their intent. If we are satisfied with firstimpressions, if we do not look beneath the surface of the matter, if we ignorethe past use of these words, then we may very well say that the statute underreview, known as the Multiple Dwelling Law, is unconstitutional. If, however,we pause to consider whether these words had a special, legal significance, wefind that there is another side to the question, and it is that which I desire topresent as the basis for my conclusion.

Words, like men, grow an individuality; their character changes with yearsand with use. It is common knowledge that many words have a meaning atlaw different from that of common speech – carelessness, negligence, fraud,theft, and the like – have a limitation not always given to them by thedictionary. Thus we expect that, if the words, “property, affairs or governmentof cities” have been previously used in statutes and in decisions with a limitedmeaning, this limited meaning was carried in article 12 of the Constitution.

What subject more vitally touches the affairs of the city than rapid transport?The recent litigation in the federal courts, and the decision of the United StatesSupreme Court, show how necessary rapid transit is to urban life. (279 US159, 49 S Ct 282, 73 L Ed Gilchrist v. Interborough Rapid Transit Co.). Stopthe railroads, surface, subways, or elevated, in the city of New York, and thecalamity, almost immediate, would be too direful for contemplation. An affairof the city! Any man in the street, or in the ordinary walks of life, conversantwith New York City would say that the railroads, already half municipallyowned, were a very important and vital affair of the city of New York.134

The effect of context on the meaning of a word may be compared to theeffect of the environment on the social conduct of a people. Thus, where aword is used in legislation, the scope and purpose of that legislation is of greatimportance. Said Stamp J in Bourne v. Norwich Crematorium Ltd.135:

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134 Alder v. Deegan, 167 N E 705 at p.706.

135 [1976] 2 All ER 576.

English words derive colour from those which surround them. Sentences arenot mere collections of words to be taken out of the sentence, definedseparately … and then put back again … with the same meaning you wouldhave assigned to them as separate words, so as to give the sentence or phrase ameaning … it cannot bear without distortion of the English language.

Emotional responses

The ability of words to evoke emotional responses is yet another source ofvagueness. An Act of Parliament which evokes little or no emotional responsehas a very different effect when considered as it affects people in a real-lifesituation.136 Abstract words, which are by nature inexact are especiallyemotional. The emotions are stirred into frenzy by words such as democracy,colonialism, racial discrimination, apartheid. They are best avoided inlegislation.137

One consequence of the vagueness of words is that although meaningsgenerally overlap, complete synonymity does not exist. So in legislation wordsor phrases are used that most exactly convey the intended meaning in theintended context – second best is not good enough. Secondly, one word isused for one intended meaning, otherwise an inference will arise that a changeof meaning is intended.

It should, however, be noted that sometimes the nature of the work ofParliamentary Counsel forces them to use vague words in legislation. Where,for instance, all possible contingencies cannot be foreseen, ParliamentaryCounsel may deliberately resort to vague terms. The usefulness of this wasacknowledged by Lord Parker, LCJ, in Soil Fertility Ltd. v. Breed,138 when hesaid that,

it may be that the legislation is deliberately vague in the matter in order thatcommon sense should prevail according to the circumstances of each case.

Deliberate vagueness may also be useful where legislation deals with anexplosive political issue and the resolution of the inherent difficulties is left tothe courts. When the use of vague words is justifiable is a matter for carefuljudgment, but the general purpose and intended scope of the legislation mustbe clear from the context. The criteria to be applied should be determinablefrom the context, otherwise uncertainty in the law and to poor administrationmay result.139

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136 G.C. Thornton, Legislative Drafting, p.10.

137 But see Race Relations Act 1976, c.74.

138 [1968] 3 All ER 193 at p 196.

139 G.C. Thornton, ibid, p.13.

Ambiguity

Ambiguity in the use of words is of three kinds: • syntactic;• semantic;• contextual.

Syntactic ambiguity

Syntactic (or grammatic) ambiguity results from combining words which areunambiguous when taken separately in such a way that they becomeambiguous when read together. It often arises where • the modifier in a sentence is misplaced;• it is not easy to determine which of the words in the sentence the modifier

qualifies;• there is an uncertainty of reference.

In the sentence, ‘Mabel saw Janne strolling down the lane’ there is anambiguity as to whether Mabel was strolling down the lane when she sawJanne, or whether it was Janne who was strolling down the lane when Mabelsaw her. It may also not be possible to ascertain whether one or all items in aseries are modified by an antecedent or subsequent modifier.

In the sentence, ‘An owner, a lessee or a person operating an industrialplant shall pay a tax of three thousand dollars’ there is an ambiguity whetherthe words operating an industrial plant qualify only person or each of theother words, owner or lessee. Also in an enumeration such as orange, whiteand blue flowers, is the reference to multicoloured flowers or to orangeflowers, white flowers, or blue flowers?

A syntactic ambiguity may also arise where there is uncertainty as towhether a given word is part of the thing being modified. The expression, ‘aclear water container’ may mean a water container that is clear in colour, or awater container (whatever its colour) which is holding clear water. Theseexamples provide ample illustration of the basic nature of the problem ofsyntactic ambiguity.

Semantic ambiguity

Many words in the English language have more than one meaning. Theambiguity here results from the word itself. Thus we pay dues to a golf cluband use a golf club to hit a golf ball. The expression ‘a person who wasdivorced on the first day of January, 1894’ is open to two interpretations,depending on whether divorced is a past participle and the word was is part ofthe verb to be. Thus the provision would apply to a person who was already

42 Understanding Statutes

divorced on the first day of January, 1894, or to a person who acquired thestatus of a divorced person on the first day of January, 1894.

When the objects for which a word stands are widely separated, no harmresults: We invite our friends to a ball at a club house; a giant uses a club.However, when the same word signifies two or more ideas which are closetogether or overlap, confusion and obscurity are probable. The speaker orwriter may end up using the word in more than one sense in the same context.For example, the word knowledge may be used for both the content of what isknown and the process of knowing. Mr Justice Cardozo140 once observed that,

when things are called by the same name, it is easy for the mind to slide intoan assumption that the verbal identity is accompanied in all its sequences byidentity of meaning.

Ambiguity also occurs where a word has both a general and a specialisedmeaning. Examples are the words action, suit, right, assignment.

Contextual ambiguity

This type of ambiguity arises where a pronoun is used in a situation wherethere are two or more persons referred to and it is not clear to which personthe pronoun refers. This is what is known as the pronomial uncertainty. Anexample is: ‘The employer shall ascertain from the employee whether he is agraduate’. The pronoun he may refer to the employer or the employee.

In legislation, therefore, the context should nullify the multiple meaning.Where this is not possible, a definition is normally provided. Also, where aword has both a general and a technical meaning, the context should alwaysmake clear which meaning the word is intended to have.

Instability

Words owe their instability to the nature of language itself. It is a system thatchanges slowly with time. New words come into use and old ones changetheir meaning or fall into disuse. In this way, language keeps up with theprogress of civilisation. It has been said that,

the English language absorbs, rejects and adopts elements of vocabulary as itgoes along.141

To keep up with social needs arising from this progress, legislation shouldhappily employ new words when necessary. Examples of new words

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140 Lowden v. Northwestern National Bank & Trust Co. [1936] 298 US 160 at p.165.

141 Robert Burchfield, The English Language, Oxford, 1985 p.113.

introduced into legislation in the last ten years are video142 and hijack.143 Suchwords are used only when they have attained a respectable stability ofmeaning. A word that appears to be in a fluid state is best avoided.

We have thus far demonstrated the importance of the correct use of wordsin legislation. An understanding of the nature, function and imperfections ofwords can assist in an understanding of statutes, but it is not an easy task.

The Purpose – Communication

The purpose of a statute is to communicate to its audience, be they all thepeople or some of the people, information that is intended to regulate itsconduct or affairs. It could be for all the people, such as in the sphere ofcriminal law, or for the regulation of the affairs of a class of the people, suchas an Act of Parliament to regulate the legal profession. It demands obedience.Disobedience leads to the imposition of sanctions – that is the punishmentstipulated by the statute.

It thus expresses legal relationships. Its language is part of the language ofa people, and will be understood as language is understood. An Act ofParliament would be construed or interpreted in accordance with theprinciples that govern language as a means of communication.

The ability to communicate, however, depends upon the ability to think. Asentence expresses a thought or an idea. Where the sentence follows theprinciples by which language is expressed, the meaning is made clear. Wherethe words are not arranged in a logical and the appropriate grammaticalsequence, ambiguity or vagueness – even confusion – might ensue.

In the words of James Carter,144 the purpose for which legislation isemployed is political rather than juristic. It is intended to remove political evilsand perfect the organisation and government of the state. Legislation aids theunwritten law of custom and thereby makes custom more effective. Yet

nothing is more attractive to the benevolent vanity of men than the notion thatthey can effect great improvements in society by the simple process offorbidding a wrong conduct, or conduct which they think is wrong by law,and enjoining all good conduct by the same means; as if men could not findout how to live until a book were placed in the hands of every individual, inwhich the things to be done and those not to be done were clearly set down.

Until the dominance of Acts of Parliament emphasised their importance asa source of law, the law was largely made up of the decisions of the courts – in

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142 The Video Recordings Act 1984 c.39.

143 The Aviation Security Act 1982 c.36.

144 Law: Its Origin, Growth and Function, Lecture IX, p.221.

essence, the decisions of the appellate courts. Legislation is perhaps moreimportant than the judge-made law, because judge-made law can be altered orabolished by an Act of Parliament. Where, as it has been shown,145 the courtsby interpretation deviate from the path laid down by Parliament, Parliamentcan deal with the matter by a further or corrective Act of Parliament.

Yet where an Act of Parliament purports to oust the Common Law, butdoes not go the whole distance, the Common Law can be called in aid.Equally, where an Act of Parliament is silent on a matter already governed byjudge-made law, the absence of legislation tends to strengthen the relevantrules of the Common Law or of the doctrines of Equity.

Therefore legislation by its true nature must carry the development of thelaw beyond the confines of the judge-made law, as Equity developed to correctthe injustices of the Common Law, and deal with the Common Law andEquity. In the last resort, judge-made law cannot formulate all the adequaterules for dealing with the affairs of individuals and of governments. Theprinciples of the Common Law and the doctrines of Equity in the end are notsufficient to deal with the practical adjustments required in our dailyrelationships with those who govern us. Lord Atkin said in Donoghue v.Stevenson146 that,

The rule that you are to love your neighbour becomes, in law, you must notinjure your neighbour; and the lawyer’s question, who is my neighbour?receives a restricted reply… Who, then, in law, is my neighbour? The answerseems to be – persons who are so closely and directly affected by my act that Iought reasonably to have them in contemplation as being so affected when Iam directing my mind to the acts or omissions which are called in question.

Clearly, Lord Atkin’s definition of neighbour is not precise. So manyquestions arise out of that definition: the duty to take care, the problems ofmoral blameworthiness, of foreseeability, of remoteness of damage. In theDonoghue case it was held that a manufacturer of chattels was under a duty tothe ultimate user or consumer even though there was no contractualrelationship between the two. The ultimate user or the consumer was held tobe a neighbour of the manufacturer. And one wonders whether the neighboursin that case and in Rylands v. Fletcher147 ever loved their neighbours asthemselves.

But the reply to the question will find adequate expression in legislationwhich will lay down who is one’s neighbour. When that is done, a person whodoes not fall within the scope of neighbour as determined by legislation, or

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145 See Le Neve v. Le Neve, fn 55 on p.79 (Chapter 3).

146 [1932] AC 562 at p.580.

147 (1868) LR 3 HL 330.

within any of the categories of neighbour as defined, is not a neighbour for thepurposes of the law. Equally,

equity never solved the problem of priorities between successive purchasersor mortgagees, because the only effective means of publicity, the publicrecord of instruments, was entirely incapable of being established or requiredby the exercise of judicial power.148

It was left to the Settled Land Act 1925,149 the Trustees Act 1925,150 theLaw of Property Act 1925,151 the Land Registration Act 1925,152 the LandCharges Act 1925,153 the Administration of Estates Act 1925,154 and theirsequels, in the form of amendments and other relevant legislation, to deal withthose matters which were ‘incapable of being established or required by theexercise of judicial power’.

Measured quantity, conventional form, administrative arrangements, and (itshould be added), compromise and concession, constitute the exclusiveprovince of statute law.155

Judges, by adhering to the doctrine of stare decisis, find it difficult to breakwith the past. Legislation is not so hidebound. It avoids the waste in cost andin time attendant upon litigation and finds solutions to the crazy quilt ofconflicting judge-made law. More importantly, legislation can and does takethe initiative in solving urgent problems in a manner that the inertia of judgesand random litigation cannot accomplish. Litigation is never conducted byreference to the orderly development of the law: consequently judge-made lawalso never proceeds on that basis.

Litigation presents a motley parade of humanity in its variousmanifestations – the three divisions of the High Court of Justice in Englandattest to that. Judge-made law is a reaction to these present problems whichrelies on the past; as Maitland said, ‘the forms of action we have buried, theystill rule us from their graves’.156 This is not so with an Act of Parliament –legislation considers the past, deals with the present, and speaks to the future.It can always clean the slate, transcend case and controversy, write and re-write the law in consonance with the demands of society.

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148 Ernest Freund, ‘Prolegomena To A Science of Legislation’, 13 Illinois Law Review 254, 269 (1918).

149 15 & 16 Geo Vict. c.18.

150 15 & 16 Geo Vict. c.19.

151 15 & 16 Geo Vict. c.21.

152 15 & 16 Geo Vict. c.22.

153 15 & 16 Geo Vict. c.22.

154 15 & 16 Geo Vict. c.23.

155 E. Freund, ‘Prolegomena To A Science of Legislation’, 13 Illinois Law Review, p.269.

156 Forms of Action at Common Law (1936), p.2.

Legislation thus deals with measures designed to meet the cultural,economic and social problems of a given jurisdiction. It is therefore importantto ponder a while on the famous words of Oliver Wendell Holmes,157 appositeto legislation as it is to the Common Law:

The life of the law has not been logic: it has been experience. The feltnecessities of the time, the prevalent moral or political theories, institutions ofpublic policy, avowed or unconscious, even the prejudices which judges sharewith their fellow men, have had a good deal more to do than the syllogism indetermining the rules by which men should be governed. The law embodiesthe story of a nation’s development through many centuries, and it cannot bedealt with as if it contained only axioms and corollaries of a book ofmathematics. In order to know what it is, we must know what it has been andwhat it tends to become. We must alternately consult history and existingtheories of legislation.

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157 The Common Law, p.1.

Chapter 2

The Function of the Courts

Interpretation and Construction less Legislation

When Parliament enacts a statute, the courts interpret it, leading to the creationof Case Law. This is often called ‘judge-made’ law. Yet some, at least, of thejudges claim that they do not make the law – they only interpret it. ‘Myfunction’, said Wessels J in Seluka v. Suskin & Salkow1 ‘is jus dicere not jusfacere’. Yet the great American judge Oliver Wendell Holmes, in a dissentingopinion, recognised ‘without hesitation that judges do and must legislate, butthey do so interstitially; they are confined from molar to molecular motions.’2

It is instructive to contrast Holmes’ view with the debate between LordDenning and Lord Simonds. In Seaford Court Estates Ltd. v. Asher,3 LordDenning stated that,

Whenever a statute comes up for consideration it must be remembered that itis not within human powers to foresee the manifold set of facts which mayarise, and even if it were, it is not possible to provide for them in terms freefrom all ambiguity…. A judge, believing himself to be fettered by thesupposed rule that he must look to the language and nothing else, laments thatthe draftsmen have not provided for this or that, or have been guilty of someor other ambiguity. It would certainly save the judges trouble if Acts ofParliament were drafted with divine prescience and perfect clarity. In theabsence of it, when a defect appears a judge cannot simply fold his hands andblame the draftsman. He must set to work on the constructive task of findingthe intention of Parliament, and he must do this not only from the language ofthe statute, but also from a consideration of the social conditions which gaverise to it, and of the mischief which it was passed to remedy, and then he mustsupplement the written word so as to give “force and life” to the intention ofthe legislature. That was clearly laid down by the resolution of the judges inHeydon’s Case, and it is the safest guide today…. Put into homely metaphor itis this: A judge should ask himself the question: If the makers of the Act hadthemselves come across this ruck in the texture of it, how would they havestraightened it out? He must then do as they would have done. A judge mustnot alter the material of which it is woven, but he can and should iron out thecreases.

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1 1912 TPD 258 at p.270.2 Southern Pacific Co. v. Jensen (1917) 244 US 205 at p.221.3 [1949] 2 KB 481 at p.499.

Lord Denning’s view of the function of the courts in the construction of anAct of Parliament appears to have been supported in the United States ofAmerica by Learned Hand J in United States v. Klinger4:

The issue involves the baffling question which comes up so often in theinterpretation of all kinds of writings: how far it is proper to read the wordsout of their literal meaning in order to realise their overriding purpose? It isidle to add to the acres of paper and streams of ink that have been devoted tothe discussion? When we ask what Congress “intended”, usually there can beno answer, if what we mean is what any person or group of persons actuallyhad in mind. Flinch as we may, what we do, and must do, is to projectourselves, as best we can, into the position of those who uttered the words,and to impute to them how they would have dealt with the concrete occasion.He who supposes that he can be certain of the result is the least fitted for theattempt.

Seaford Court Estates Ltd. v. Asher5 went to the House of Lords. Thedecision was upheld, ‘but it was there put by the majority of the House ontraditional grounds’.6 Lord Denning thus took the opportunity in Magor andSt. Mellon’s Rural District Council v. Newport Corporation7 to repeat what hehad stated in the Seaford case:

We do not sit here to pull the language of Parliament and of Ministers topieces and make nonsense of it. That is an easy thing to do, and it is a thing towhich lawyers are often prone. We sit here to find out the intention ofParliament and of Ministers and carry it out, and we do this better by filling inthe gaps and making sense of the enactment than by opening it up todestructive analysis.

This approach was ‘roundly condemned’ by the House of Lords.8

Lord Simonds dealt with the matter in this way:

My Lords, the criticism which I venture to make of the judgment of thelearned Lord Justice is not directed at the conclusion that he reached …. I amcontent to say that I agree with my noble and learned friend. But it is on theapproach of the Lord Justice to what is a question of construction and nothingelse that I think it desirable to make some comment; for at a time when solarge a proportion of the cases that are brought before the courts depend on theconstruction of modern statutes it would not be right for this House to passunnoticed the propositions which the learned Lord Justice lays down for theguidance of himself and, presumably, of others.

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4 199 F. 2d 645 at 648 (1952).5 [1949] 2 KB 481.6 Lord Denning, The Discipline of Law, p.13. 7 [1950] 2 All ER 1226 at p.1236.8 Magor and St. Mellons Rural District Council v. Newport Corporation [1952] AC 189 at p.191.

“We sit here”, he says,9 “to find out the intention of Parliament and ofministers and carry it out, and we do this better by filling in the gaps andmaking sense of the enactment than by opening it up to destructive analysis.”The first part of this passage appears to be an echo of what was said inHeydon’s Case10 300 years ago, and, so regarded, is not objectionable. Butthe way in which the Learned Lord Justice summarises the broad rules laiddown by Sir Edward Coke in that case may well induce grave misconceptionof the function of the court. The part which is played in the judicialinterpretation of a statute by reference to the circumstances of its passing istoo well known to need restatement; it is sufficient to say that the generalproposition that it is the duty of the court to find out the intention ofParliament – and not only of Parliament but of ministers also – cannot by anymeans be supported. The duty of the court is to interpret the words that thelegislature has used; those words may be ambiguous, but, even if they are, thepower and duty of the court to travel outside them on a voyage of discoveryare strictly limited: see, for instance, Assam Railways & Trading Co. Ltd. v.Inland Revenue Commissioners,11 and particularly the observations of LordWright.12

The part of the passage that I have cited from the judgment of the learnedLord Justice is no doubt the logical sequel of the first. The court, havingdiscovered the intention of Parliament and of ministers too, must proceed tofill in the gaps. What the legislature has not written, the court must write. Thisproposition, which restates in a new form the view expressed by the LordJustice in the earlier case of Seaford Court Estates Ltd. v. Asher,13 (to whichthe Lord Justice himself refers), cannot be supported. It appears to me to be anaked usurpation of the legislative function under the thin disguise ofinterpretation. And it is the less justifiable when it is guesswork with whatmaterial the legislature would, if it had discovered the gap, have filled it in. Ifa gap is disclosed, the remedy lies in an amending Act.

However, the Renton Report (1975)14 supported Lord Denning:

We see no reason why the courts should not respond in the way indicated byLord Denning. The courts should … approach legislation determined, aboveall, to give effect to the intention of Parliament. We see promising signs thatthe consideration is uppermost in the minds of the members of the highesttribunal in the country.

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9 [1950] 2 All ER 1226 at p.1236.10 (1584) 3 Co. Rep. 7a.11 [1935] AC 445.12 Ibid 458.13 [1949] 2 KB 481 at pp.498-9.14 Cmnd 6053, para. 19.2.

Interpretation

Interpretation, then, is a journey of discovery. It is the art of ascertaining themeaning of the words used in an Act of Parliament or other written document.Interpretation is authentic where the meaning is expressly provided for, as inthe example:

“child” means a person under the age of twenty-one years and who was bornafter the first day of January, 1962.

Two elements are involved here, that is to say, the age limit of twenty-oneyears and the fact of birth after the first day of January, 1962. Therefore, aperson under the age of twenty-one years who was born before the first day ofJanuary, 1962, is not a child for the purposes of the law.

Interpretation is usual or customary when it is based upon acceptance ofthe usage of the word or expression. A baker’s dozen is not twelve, it isthirteen – that is the accepted meaning in the baking trade. To a Barrister-at-Law, a guinea is not twenty-one shillings. It is twenty-three shillings andsixpence.

An interpretation is considered doctrinal where the meaning of the wordsor expression used turns on the grammatical arrangement of the words of thesentence. Where the interpretation is based upon what is termed the intentionof Parliament, the interpretation can be described as logical. Logicalinterpretation may be extensive, that is liberal interpretation, or restrictive, thatis strict interpretation.

Construction

Construction is wider in scope than interpretation. It is directed at the legaleffect or consequences of the provision called in question (and thus comesafter interpretation). Having ascertained the meaning of the words, how dothey fit into the scheme of the Act as a whole? We are in the realm ofconstruction when the courts are dealing with such matters as casus omissusand time and circumstances of an Act of Parliament.

The Validity of an Act of Parliament

In the United Kingdom, no court could or would declare an Act of Parliamentas being illegal or unconstitutional.15 The courts do not sit as a court of appealfrom Parliament. In the words of Lord Campbell,

all that a Court of Justice can do is to look at the Parliament roll: if from that itshould appear that a Bill has passed both Houses and received the Royal

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15 But see p.16 et seq, on the Assent.

Assent, no Court of Justice can inquire into the mode in which it wasintroduced into Parliament, nor into what was done previous to itsintroduction, or what passed in Parliament during its progress in its variousstages through both Houses.16

In more modern times, Lord Wilberforce in Inland RevenueCommissioners & or v. Rossminster Ltd. & Others17 is of the opinion that

while the courts may look critically at legislation which impairs the rights ofcitizens and should resolve any doubt in interpretation in their favour, it is nopart of their duty, or power, to restrict or impede the working of legislation,even of unpopular legislation.

To this Lord Diplock added that,

Judges, in performing their constitutional function of expounding what wordsused by Parliament in legislation mean, must not be over-zealous to reach forambiguities or obscurities in words which on the face of them are plain,simply because the members of the court are out of sympathy with the policyto which the Act appears to give effect.18

Duport Steel Ltd. & Ors v. Sir & Others19 gave the House of Lords theopportunity to enlarge upon what it has stated in this regard in the RossminsterCase. In the Duport case, the Court of Appeal attempted to restrict thestatutory immunity granted to trade unions by the Trade Union and LabourRelations(Amendment) Act 1976.20 That Act gave partial immunity to acts‘done by a person in ... furtherance of a trade dispute’.21 However, LordDiplock stated that,

given the existence of a trade dispute, it involves granting to trade unions apower, which has no other limits than their own self-restraint, to inflict, bymeans which are contrary to the general law, untold harm to industrialenterprises unconcerned with the particular dispute, to the employees of suchenterprises, to members of the public and to the nation itself, so long as those

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16 Edinburgh & Dalkeith Railway Co. v. Wauchope (1842) 8 Cl & F. 710 at 725. But see City ofLondon v. Wood (1701) 12 Mod 669 at 687, where Holt CJ said that ‘if an Act of Parliament shouldordain that the same person should be party and Judge, or, which is the same thing, Judge in his owncause, it would be a void Act of Parliament; for it is impossible that one should be Judge and party,for the Judge is to determine between party and party, or between Government and the party; and anAct of Parliament can do no wrong, though it may do several things that look pretty odd.’ And seealso Day v. Savadge (1614) Hob. 85 at 87: ‘Even an Act of Parliament, made against natural equity,as to make a man a Judge in his own case, is void in itself.’ Quoted by Megarry, A SecondMiscellany-at-Law pp.18-19.

17 [1980] AC 952 at p.998.18 At p.1008.19 [1980] 1 All ER 529.20 c.7.21 Section 13(1) as amended by the 1976 Act.

in whom the control of the trade union is vested honestly believe that to do somay assist it, albeit in a minor way, in achieving its objectives in the dispute.

My Lords, at a time when more and more cases involve the application oflegislation which gives effect to policies that are the subject of bitter publicand parliamentary controversy, it cannot be too strongly emphasised that theBritish Constitution, though largely unwritten, is firmly based on theseparation of powers: Parliament makes the laws, the judiciary interpret them…. The role of the judiciary is confined to ascertaining from the words thatParliament has approved as expressing its intention what that intention was,and to giving effect to it. Where the meaning of the statutory words is plainand unambiguous, it is not for the judges to invent fancied ambiguities as anexcuse for failing to give effect to its plain meaning because they themselvesconsider that the consequences of doing so would be inexpedient, or evenunjust or immoral. In controversial matters such as are involved in industrialrelations, there is room for differences of opinion as to what is expedient,what is just and what is morally justifiable. Under our Constitution it isParliament’s opinion on these matters that is paramount …. It is at leastpossible that Parliament when the [present] … Act was passed, did notanticipate that so widespread and crippling use as has in fact occurred wouldbe made of sympathetic withdrawals of labour and of secondary blacking andpicketing in support of sectional interests able to exercise ‘industrial muscle’.But if this be the case it is for Parliament, not for the judiciary, to decidewhether any changes should be made to the law as stated in the Act.

Lord Keith of Kinkel said22 that,

Perusal of the judgments in the Court of Appeal makes it clear that theirconclusion was strongly influenced by consideration of the injustice involved,in their view, in subjecting to serious economic loss, inconvenience anddistress, employers and workers in the private sector of the steel industry whohad no concern at all with the dispute … and also of the disastrous economicconsequences to the country as a whole of the action taken by the defendants.Such considerations cannot properly distract the Court from its duty offaithfully interpreting a statutory provision according to its true intent,notwithstanding that events have shown the provision to be capable of beingrelied on to enable privileged persons to bring about disastrous consequenceswith legal impunity. There is nothing in the apparent policy of the Act …which might warrant a restrictive interpretation. … Indeed, that policy seemsto have been to enlarge, not abridge, the privileges by way of immunityconferred on trade unions .… If these privileges should prove to have beenexercised with insufficient sense of responsibility, to the serious detriment ofthe national interest, then it is for the force of public opinion to seek theircurtailment through the democratic processes available to it. Theconsiderations for and against such curtailment can be properly and definitely

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22 At p.550.

debated only in Parliament. It is no part of the function of a Court of law toform conclusions about the merits of the issue. The one public interest whichcourts of law are properly entitled to treat as their concern is the standing ofand the degree of respect commanded by the judicial system. Involvement inpolitical controversy … is calculated to damage that interest. In theinterpretation of statutes the courts must faithfully endeavour to give effect tothe expressed intention of Parliament as gathered from the language used andthe apparent policy of the enactment under consideration.

Lord Edmund-Davis said that,23

a judge’s sworn duty to “do right by all manner of people after the laws andusages of this realm” sometimes puts him in difficulty, for certain of thoselaws and usages may be repugnant to him. When that situation arises, he maymeet it in one of two ways. First, where the law appears clear, he can shrughis shoulders, bow to what he regards as the inevitable, and apply it. If he hasmoral, intellectual, social or other twinges in doing so, he can always invokeViscount Simonds, Lord Chancellor, who once said24: “For to me heterodoxyor, as some might say, heresy, is not the more attractive because it is dignifiedby the name of reform. Nor will I easily be led by an undiscerning zeal forsome abstract kind of justice to ignore our first duty, which is to administerjustice according to law, the law which is established for us by Act ofParliament or the binding authority of precedent.”

Alternatively, a judge may be bold and deliberately set out to make new law ifhe thinks the existing legal situation unsatisfactory. But he risks trouble if hegoes about it too blatantly, and if the law has been declared in statutory form itmay prove too much for him, dislike it though he may.

Lord Scarman said25 that,

below the surface of the legal argument lurk some profound questions as tothe proper relationship in our society between the courts, the government andParliament …. My basic criticism of all three judgments in the Court ofAppeal is that in their desire to do justice the Court failed to do justiceaccording to law …. In our society the judges have in some aspects of theirwork a discretionary power to do justice so wide that they may be regarded aslawmakers … i.e. the Common Law and equity …. The judges, even in this,their very own field of creative endeavour, have accepted, in the interests ofcertainty, the self-denying ordinance of stare decisis, the doctrine of bindingprecedent; and no doubt this judicially imposed limitation on judiciallawmaking has helped to maintain confidence in the certainty and even-handedness of the law.

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23 At pp.547-8.24 Scruttons v. Midland Silicones Ltd. [1962] AC 466 at 467.25 At pp.550-551.

But in the field of statute law the judge must be obedient to the will ofParliament as expressed in its enactments. In this field Parliament makes andunmakes the law, the judge’s duty is to interpret and to apply the law, not tochange it to meet the judge’s idea of what justice requires. Interpretation does,of course, imply in the interpreter a power of choice where differingconstructions are possible. But our law requires the judge to choose theconstruction which in his judgment best meets the legislative purpose of theenactment. If the result be unjust but inevitable, the judge may say so andinvite Parliament to reconsider its provision. But he must not deny the statute.Unpalatable statute law may not be disregarded or rejected, merely because itis unpalatable. Only if a just result can be achieved without violating thelegislative purpose of the statute may the judge select the construction whichbest suits his idea of what justice requires.

The Constitution’s separation of powers, or more accurately functions, mustbe observed if judicial independence is not to be put at risk. For, if people andParliament came to think that the judicial power is to be confined by nothingother than the judge’s sense of what is right, or, as Selden put it, by the lengthof the Chancellor’s foot, confidence in the judicial system will be replaced byfear of it becoming uncertain and arbitrary in its application. Society will thenbe ready for Parliament to cut the power of the judges. Their power to dojustice will become more restricted by law than it need be, or is today.

However, in the other Commonwealth countries the hands of the courts arenot tied. They can, and do, declare an Act of Parliament as beingunconstitutional and therefore illegal. This arises from the fact that mostCommonwealth countries operate under a written constitution. Not all of theprovisions of the constitution are justicable, but fundamentally the constitutioncreates authorities and vests certain powers in these authorities. It gives certainrights to persons as well as to bodies of persons. It imposes obligations inmuch the same say as it confers privileges and powers.

The duties, obligations, powers, privileges and rights specified in aconstitution must be exercised in accordance with the letter – and the spirit –of the constitution. As Chief Justice John Marshall in Marbury v. Madison26

stated,

To what purpose are powers limited, and to what purpose is that limitationcommitted to writing, if these limits may, at any time, be passed by thoseintended to be restrained?

A written constitution thus lays down certain mechanics of enactment whicha Parliament under that constitution must obey. The constitution establishes thefundamental maxims by which the authorities it creates must guide theirconduct. It thus controls alike those who govern and those who are governed. It

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26 1 Cranch 137, 2 L Ed. 60 (1803).

sets the standard by which the duties are measured, the obligations, the powers,the privileges and the rights it has conferred, or imposed.

In the United States, the failure to observe the form of the enactingformula led to Acts of the state Legislature being declared invalid. The casesare Joiner v. State27 and State e rel Gouge v. Burrow, City Recorder.28 In theJoiner case, an amendment by the state Legislature did not contain theenacting formula. A question then arose whether the omission invalidated thepurported amendment. The Supreme Court held that the amendment ‘is anullity and of no force and effect as law’, and continued:

The purpose of an enacting clause is to establish the Act; to give itpermanence, uniformity and certainty; to afford evidence of its legislativestatutory nature, and to secure uniformity of identification and thus preventinadvertence, possible mistake, and fraud.

In the Burrow’s case, the enacting formula omitted the words ‘the state of’.The Constitution of the State provided that,

... the style of the Laws of this State shall be, “Be it enacted by the GeneralAssembly of the state of Tennessee ….”

The Supreme Court of the State was emphatic:

The provision we are here called upon to construe is in plain andunambiguous words. The meaning of it is clear and indisputable, and noground for construction can be found. The language is: “The style of the lawof the State shall be, …”. The word “shall”, as here used, is equivalent to“must”. We know of no case in which a provision of the constitution thusexpressed has been held to be directory. We think this one clearly mandatory,and must be complied with by the Legislature in all legislation important andunimportant, enacted by it; otherwise it will be invalid.

In Sri Lanka also, article 75 of the Constitution of the Democratic SocialistRepublic confers on Parliament

the power to make laws, having retrospective effect and repealing oramending any provision of the Constitution or adding any provision to theConstitution.

However, in the exercise of this legislative power Parliament is bound bythe Constitution: the courts can declare statutes as not being valid on theground that they are unconstitutional. An interesting illustration is the case ofLiyanage v. R29, in which the appellants were charged with participation in anabortive coup d’état. By the Criminal Law (Special Provisions) Act 1962,30

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27 Supreme Court of Georgia, 1969 223 Ga. 367, 155 SE 208.28 Supreme Court of Tennessee, 1907 119 Tenn. 376, 104 SW526.29 [1967] 1 AC 259 P C See also Ibralebe v. R [1964] AC 900.30 No.1 of 1962.

the Legislature sought to validate retroactively the prolonged imprisonmentwithout trial of the appellants; to create, ex post facto, a new criminal offenceso as to cover the situation of the abortive coup d’état; to alter the law ofevidence so as to render admissible much that otherwise would beinadmissible and to prescribe a minimum penalty.

All those provisions were limited in their effect to the appellants and to thecircumstances of the coup d’état. By another Act, a special tribunal nominatedby the Chief Justice was constituted to try the case. The Privy Councildeclared the legislation to be invalid because it infringed the doctrine ofseparation of powers, which was a part of the Constitution of Sri Lanka.

In contrast, the 1983 Constitution of the Republic of South Africa statesspecifically that,

no court of law shall be competent to enquire into or to pronounce upon thevalidity of any Act passed by Parliament.31

Thus, where it is established that an Act of Parliament has been enrolled inthe office of the Registrar of the Supreme Court, a copy of the Act is‘conclusive evidence as to the provisions of every such law’.32

So, in effect, under the 1983 Constitution the Supreme Court cannotenquire into the merits of an Act of Parliament. But because the Constitutionlays down certain conditions for the observance and guidance of thoseconcerned, the Supreme Court could declare an Act of Parliament as invalidwhere the procedure specified by the Constitution is not observed. For, bys.34(2), the Supreme Court

shall be competent to enquire into and pronounce upon the question as towhether the provisions of [the Constitution] were complied with in connectionwith any law which is expressed to be enacted by the State President and anyHouse.

Obsolete Acts of Parliament

We have found that the courts cannot declare an Act of Parliament as beinginvalid. But can they declare an Act to be obsolete? The answer is a simpleone – no. The doctrine of abrogation of a statute by disuse does not arise. Astatutory provision which forms part of the law, however dormant it may beconsidered to be by lack of use, is still part of the law. Many Commonwealthcountries inherited the rules of the common law, the doctrines of equity andthe statutes of general application as it stood in England at the time the Crown

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31 This provision reenacts s.59(2) of the 1961 Constitution. The 1961 Constitution repeated a similarprovision in the South Africa Act, 1909.

32 Section 35, 1983 Constitution; s.65, 1961 Constitution.

took over the administration of the territory concerned.33 Those laws becamethe basic law for the territory.

Indeed, s.135 of the South Africa Act 1909,34 provided that,

all laws in force in the several Colonies at the establishment of the Union shallcontinue in force in the respective provinces until repealed or amended byParliament, or by the provincial councils in matters in respect of which thepower to make ordinances is reserved or delegated to them. All legalcommissions in the several Colonies at the establishment of the Union shallcontinue as if the Union had not been established.

Also, Article 3 of the 1969 Ghana Constitution provided that the CommonLaw of Ghana

comprise the rules of law generally known as the common law, the rulesgenerally known as the doctrines of equity and the rules of the customary law…35

[and the existing law as comprising the written and unwritten law as theyexisted before the commencement of the Constitution, and that]

… the operation of the existing law after the coming into force of [the]Constitution shall not be affected by [that] commencement … [and] theexisting law shall be construed with such modifications, adaptations,qualifications and exceptions as may be necessary to bring it into conformitywith the provisions of [the] Constitution, or otherwise to give effect to, orenable effect to be given to, any changes effected by [the] Constitution.

The position, then, is this: that unless the enactment is expressly repealedeither by way of Statute Law Revision or otherwise, the enactment, to borrowa phrase from Sir James Stephen,36 ‘obviously exists only because it isforgotten’.

The Whole Act

In a debate in Parliament,37 Sir Roundell Palmer said that,

Nothing is better settled than that a statute is to be expounded, not accordingto the letter, but according to the meaning and spirit of it. What is within thetrue meaning and spirit of the statute is as much law as what is within the veryletter of it, and that which is not within the meaning and spirit, though itseems to be within the letter, is not the law, and is not the statute. That effect

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33 In Lesotho, Sri Lanka, Zimbabwe and Swaziland it was the Roman Dutch Law.34 9 Edw. 7 Ch.9.35 The provision has been repeated in all the subsequent Constitutions of Ghana.36 Digest of Criminal Law p.xxxi.37 209 Hansard Parl. Deb. (3rd Series) 685.

should be given to the object, spirit, and meaning of a statute is a rule of legalconstruction, but the object, spirit, and meaning must be collected from thewords used in the statute. It must be such an intention as the legislature hasused fit words to express.

This statement has been accepted as the basis for the rule of constructionbased upon the four corners of the Act – ex visceribus actus. In the LincolnCollege Case,38 Coke said that,

The office of a good expositor of an Act of Parliament is to make constructionon all parts together, and not of one part only by itself – for no one can rightlyunderstand any part without perusing the whole again and again.

However, in Warburton v. Loveland39 the House of Lords stated that,

No rule of construction can require, that when the words of one part of astatute convey a clear meaning according to their strict grammaticalconstruction, a meaning which best advances the remedy, and suppresses themischief, aimed at by the legislature, it shall be necessary to introduce anotherpart of the statute which speaks with less perspicuity, and of which the wordsmay be capable of such construction, as by possibility to diminish the efficacyof the other provisions of the Act.

It is thus well settled that in construing an Act of Parliament a court of law

(a) will not be astute to find out ways in which to defeat the object of theAct40;

(b) will not look only at the language of the preamble or of any particularsection, but at the language of the whole Act41;

(c) will look at the context, the collocation and the objects of the wordsrelating to the matter in hand in order to interpret the meaning of thewords according to what would appear to be the meaning intended tobe conveyed by the use of the words42;

(d) will not admit the principle that abstract justice would require or justifya departure from the established rule of construction43;

(e) will not, in the treatment of two consecutive subsections in an Act,isolate one from the other and give effect to each without regard to theother unless it is absolutely necessary.44

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38 (1595) 3 Co. Rep. 586.39 (1832) 2 Dow & Cl 480 at p.500; 5 ER 499 at p.510.40 Smith’s Case (In re London Marine Insurance Association) (1869) LR 4 Ch. App. 611 at p.614.41 Bywater v. Brandling (1828) 7 B & C 643 at p.660.42 Rein v. Lane (1867) LR 2 QB 144 at p.151.43 Ex p. St. Sepulchre’s (1864) 33 L J Ch.372 at p.375.44 [1955] Ch.730.

Casus omissus

An act of Parliament may be badly drafted. That may result in an omission ofcertain matters in the Act, or even of a word or words. It may be the fault ofthe Parliamentary Counsel who drafted the Bill for the Act, or the result of anamendment in Parliament, but whatever the source of the omission, effectmust be given to the Act. In those circumstances the ‘intention of thelegislature, however obvious it may be, must, no doubt, in the construction ofstatutes, be defeated where the language it has chosen compels to that result,but only where it compels to it’.45

In that case, s.83 of the West India Docks Act 1831,46 provided that,

all lighters and craft entering into the said docks, basins, locks or cuts todischarge or receive ballast or goods to or from on board of any ship or vessellying therein shall be exempt from the payment of any rates so long as suchlighter or craft shall be bona fide engaged in discharging or receiving suchballast or goods as aforesaid, and also all such ballast or goods so dischargedor received shall be exempt from any rate or charge whatever.

Thus, when, due to lack of space, a lighter with goods which had enteredthe docks was compelled to leave the docks without discharging its cargo, theHouse of Lords held that the lighter was liable as it was not being engaged indischarging or receiving cargo. Lord Loreburn contended that it would bemaking the law rather than interpreting the law to hold the lighter exempt.

The rationale, then, is that in cases where a material particular is notprovided for in express terms there is a casus omissus. The courts will refuseto apply the statute where the words do not compel the courts to supply theomission. This is in consonance with the basic principle that the function ofthe court is to interpret the law and not to legislate. Thus, in R v. WimbledonJustices ex p. Derwent,47 Lord Goddard said that,

Although in construing an Act of Parliament the court must always try to giveeffect to the intention of the Act and must look not only at the remedyprovided but also at the mischief aimed at, it cannot add words to a statute orread words into it which are not there, and, if the statute has created a specificoffence, it is not for the court to find other offences which do not appear in thestatute.

In the result, the courts would not extend a statute to meet a case for whichno express provision has been made.

It is instructive, however, to visit the arguments of Lord Denning, and LordSimonds’ strictures on him, in Magor and St Mellons RDC v. Newport

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45 London and India Docks Co. v. Thames Steam Tug and Lighterage Co. Ltd. [1909] AC at p.23.46 1 & 2 Will. 4, c.52.47 [1953] 1 QB 380.

Corporation,48 and the apparent approval by the Law Commission of theapproach adopted by Lord Denning.49

The Problems of the Binding Authority of Precedent

The doctrine of stare decisis is a doctrine of policy, intended to ensure thecertainty of established principles of law. When legal principles areestablished and understood, it is not wise to unsettle that which is establishedand when rights have accrued, it is wise – and consistent with justice – torecognise them. But consistency is a virtue only when facts remain consistent.Thus in the interests of justice, it may be necessary to vindicate the obviousprinciples of the law and remedy an injustice. In the words of Oliver WendellHolmes,

the law is always approaching and never reaching consistency. It is foreveradopting new principles from life at one end, and it always retains old onesfrom history at the other, which have not yet been absorbed or sloughed off. Itwill become entirely consistent only when it ceases to grow.50

Simply put, the doctrine of stare decisis means that a solemn decision of acourt of competent jurisdiction, made after arguments on questions of law andnecessary to the determination of a case, becomes an authority – a bindingauthority – in the court that made the decision and on all courts of lowerjurisdiction. That decision becomes an example to be followed where the factsand legal principles of the same hue arise in other cases. Similarity, however,is not identity.

Stare decisis does not seek to control – its importance lies in the guidancethat it affords. It is a tool which has differential effects and differential values.Like all tools, it may be bad, blundering or blunt. Its application must beapposite with justice and its use compatible with common sense. Blindadherence to precedent is fatal to the development of the law. The facts of onecase may be distinguished from another set of facts in another case. Theprinciples of law established may be of general application. It is alwaysdesirable to distinguish between the general principle laid down by a case –that is, the ratio decidendi – and the decision by itself.

In Bourne v. Keane,51 Lord Birkenhead LC said:

If there were, in fact, an unbroken line of authorities dating back 300 years, thenit would have been a matter of grave discussion whether this House, inaccordance with well recognised principles, would consent to break that chain.

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48 [1952] AC 189 at p.191.49 See pp.49-51.50 The Common Law, p.36.51 [1919] AC 815 at p.857.

In that case, Lord Buckmaster enunciated the principles for stare decisis:

Firstly, the construction of a statute of doubtful meaning once laid down andaccepted for a long period of time ought not to be altered unless yourLordships could say positively that it was wrong and productive ofinconvenience. Secondly, that the decisions upon which the title to propertydepends or which by established principles of construction otherwise form thebasis of contracts ought to receive the same protection. Thirdly, decisionsaffecting the general conduct of affairs, so that their alteration would meanthat taxes had been unlawfully imposed or exemption unlawfully obtained,payments needlessly made or the position of the public materially affectedought in the same way to continue.52

However, in West Ham Union v. Edmonton Union,53 Lord Loreburn LCsaid that,

Great importance is to be attached to old authorities on the strength of whichmany transactions may have been adjusted and rights determined. But wherethey are plainly wrong, and especially where the subsequent course of judicialdecisions has disclosed weakness in the reasoning on which they were based,and that practical injustice is the consequence that must flow from them, Iconsider it is the duty of this House to overrule them.

The ratio decidendi

The legal reasoning behind a decision is the basis of the doctrine of staredecisis. The reasoning must be clear in its statement, concise on itsformulation, free from an ambiguity. It is thus desirable to heed the advice ofOliver Wendell Holmes:54

Great cases, like hard cases, make bad law. For great cases are called great,not by reason of their real importance in shaping the law of the future, butbecause of some accident of immediate overwhelming interest which appealsto the feelings and distorts the judgment. These immediate interests exercise akind of hydraulic pressure which makes what previously was clear seemdoubtful, and before which even well settled principles of law will bind.

If an example were needed to support Holmes, Liversidge v. Anderson55

may be called in aid. In that case the issue was the meaning to be given to thewords, ‘has reasonable cause to believe’, in regulation 18B of the Defence(General) Regulations, 1939. The regulation provided that,

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52 Ibid, at p.874.53 [1908] AC 1 at p.4.54 Northern Securities Co. v. United States, (1904) 193 US 197 at p.400.55 [1942] AC 206.

if the Secretary of State has reasonable cause to believe any person to be ofhostile origin or association and that by reason thereof it is necessary toexercise control over him, he may make an order against that person directingthat he be detained.

The case involved a consideration of whether the Secretary of State wasbound to establish the reasonableness of his belief or whether his declarationthat he had that belief was legally sufficient. The test then was whether asubjective or objective approach was required in the construction of theprovision. To Lord Macmillan, and to the majority of the Law Lords,

it is for the Secretary of State alone to decide in the forum of his consciencewhether he has a reasonable cause of belief, and he cannot, if he has acted ingood faith, be called on to disclose to anyone the facts and circumstanceswhich have induced his belief or to satisfy anyone but himself that those factsand circumstances constituted a reasonable cause of belief.56

Lord Macmillan thus opted for the subjective approach. This approachignored Lord Shaw’s convincing dissent in R v. Halliday,57

in which the principles of liberty of the subject were forcibly asserted and animpressive warning was uttered concerning the extensions of executiveaction.58

Lord Atkin, however, favoured the objective approach. He showed, byreference to no less than twelve examples of cases, that the objective approachwas the correct one; the one which the courts, and the House of Lords itself,had adopted in a good number of cases. In a famous passage Lord Atkinobserved that the judges should always be ‘alert to see that any coercive actionis justified in law’.59 His stand was vindicated in Nakkuda Ali v. Jayaratne,60

where Lord Radcliffe observed that,

It would be an unfortunate thing if Liversidge v. Anderson came to beregarded as laying down any general rule.

Obiter dictum

There is a distinction between the legal reasoning upon which the decision in acase is based – the ratio decidendi – and things said by the way in the course ofa judgment or even in argument – obiter dicta. Obiter dicta are not necessarilyessential to the determination of the case in hand, but give an indication as tothe way a judge’s mind was working. To Bowen LJ, obiter dicta,

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56 Ibid, at p.248.57 [1917] AC 260 at p.285.58 CK Allen, Law and Orders 3rd ed., p.44.59 Liversidge v. Anderson [1942] AC 206 at p.244. 60 [1951] AC 66 at p.76.

like the proverbial chickens of destiny, come home to roost sooner or later in avery uncomfortable way to the Judges who have uttered them, and are a greatsource of embarrassment in future cases.61

And Lord Esher MR in Ex p. Cox62 did not think that

a judge would wish any statement which he may have made in the course of acase, merely obiter and casually, to be treated as necessarily being anauthority on the subject in question; but when a judge has thought it necessaryfor the purpose of a case to make a deliberate examination of the practice ofhis court and to state such practice, I do not think the authority of suchstatement can be got rid of merely by arguing that it was not really necessaryfor the actual decision of the case. I think that such a statement if cited as anauthority is entitled to great weight, though of course not binding on us as adecision.

Therein lies the value of an obiter dictum – it is of persuasive authority, apointer to progress. On the other hand, a ratio decidendi is a principle, theauthoritative principle of a decision in a case, the abstract principle deducedfrom the material facts as established by the judge, the abstract principlewhich attains the force of law.

Judges need not necessarily accede to the authority of a case, howeverstrong the decision may be. It they are not convinced, they should not beovercome.63 Judges are wise enough to appreciate their fallibility as humanbeings. Ready to learn, they are great enough to discard mere pride of opinion,follow truth wherever it leads, and acknowledge their errors. That is the test ofthe very best men who are called upon to determine the fortunes of theirfellow human beings.

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61 Cooke v. New River Co. (1888) 38 Ch D 56 at p.71.62 (1887) 20 QBD 1 at p.19.63 See Mearing v. Hellings (1845) 14 M. & W. 711 at p.712.

Chapter 3

Interpretation by Parliament

Interpretation is a journey of discovery. It is the process of ascertaining themeaning of an Act of Parliament or of a provision of an Act. It is referred to asdoctrinal interpretation when what is involved is the attempt to get at themeaning of a word or words, an expression or perhaps a whole sentence. Inthat case, doctrinal interpretation is often referred to as grammaticalinterpretation – that is, an interpretation based on what is called the ‘intentionof Parliament’.

When interpretation is based on the ‘intention of Parliament’ it isdescribed as logical. Logical interpretation is of two kinds: extensive andrestrictive. Extensive (or liberal) interpretation stretches the meaning of aword or an expression to cover its obvious meaning. It may also be referred toas remedial interpretation when ‘judges … bring in everything they canwithin the maximum scope of the language used’. It adopts a verycomprehensive approach towards the interpretation.

Restrictive interpretation avoids giving the full meaning to the word orexpression in order to confine the meaning to the ‘intention of Parliament’. Itis often referred to as literal (as opposed to liberal) interpretation.

The Interpretation section

An Act of Parliament may have a section or a provision which defines certainwords or expressions as used in the Act, a practice that started in earnest withLord Brougham’s Interpretation Act 1850.1 Statutory definition is an exampleof what is called authentic interpretation. Here a court of law is obliged tofollow the definition given in the Act. For example, where a provision of anAct states that,

“animal” means a cat or a dog,

there is an authentic interpretation. The word animal cannot be interpreted toinclude, say, a goat. The definition given here is also an example of arestrictive interpretation. Animal has a wider meaning. Cats and dogs are notthe only animals on earth. Such a definition is used in order to avoid therepetition of the words cat and dog.

Where an interpretation section provides that,

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1 13 & 14 Vict. c.21. The first use of an interpretation section appears to be s.115 of An Act for theRegulation of Customs, 1825, 6 Geo. 4, c.107.

“animal” includes a cat, a dog, a goat, a sheep and any other animal,

the question then arises whether the words any other animal will beinterpreted by reference to domestic animals or by reference to four-footedanimals. The category of animals specifically mentioned are all domesticanimals. They are all of them also four-footed animals. It could also be arguedthat the dictionary meaning of the word animal is what is intended, because ofthe use of the word includes.

Next to authentic interpretation, we have customary interpretation. Judicialprecedent plays a part here, since what we are dealing with are situationswhere a succession of decisions of the courts have dealt with the same subject-matter. It is an aspect of judge-made law. Indeed, the rules of interpretationand construction dealt with in Chapter Four are based on customaryinterpretation. In other words, customary interpretation is distinguished fromauthentic interpretation in the sense that authentic interpretation, as we haveseen, is prescribed by Parliament.

The Interpretation Act

An Interpretation Act lays down the basic rules as to how the courts shouldinterpret the provisions of an Act of Parliament. It also defines certain wordsor expressions so that there is no unnecessary repetition of the definition ofthose words in other Acts. In other words, an Interpretation Act provides astandard set of definitions or extended definitions of words and expressionscommonly used in legislation (and is thus an Act of wide application). It alsoprovides a set of rules which regulate certain aspects of the operation of otherenactments.

This means that an Interpretation Act is not all a question of definitions.There are other provisions which are not merely definitions or rules ofconstruction but substantive rules of law, such as the provisions relating to theeffect of the repeal of an Act. Judicial decisions have also given their blessingto the application of such provisions of the Interpretation Act. It should beemphasised, however, that an Interpretation Act does not supply all theanswers only some of them. It helps to simplify the law by avoiding repetitionand promoting consistency in the use of language. It clarifies, to an extent, therules of construction.

Interpretation Acts have a long history. Lord Brougham’s Act was2

AN ACT for consolidating enactments relating to the Construction of Acts ofParliament and for further shortening the language used in Acts of Parliament.

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2 The Interpretation Act, 1850, 13 & 14 Vict. c.21.

It provided (by s.2) for the use of the full stop in an Act of Parliament.3The 1850 Act stayed its course until it was repealed by the Interpretation Act1889.4 The 1889 Act became the mother of the many Interpretation Acts onereads about in all Commonwealth countries. It was repealed by theInterpretation Act 1978.5

It is also important to note a few considerations:

(a) quite a number of the provisions of an Interpretation Act are presumptive.In other words, the rules and principles stated in the Interpretation Act donot apply where a particular Act provides differently or the contextotherwise requires. It means that a definition in an Interpretation Act maynot be of an assistance to the court. For example, a definition which statesthat, “banker” includes a body of persons whether incorporated or notcarrying on the business of banking

does not help much, since the court still has to ascertain the meaning itshould give to the expression, ‘the business of banking’. It is like definingan archdeacon as a person who performs archidiaconal functions;

(b)a definition may, itself, be so lengthy that it would require interpretation bythe courts. The South Africa Terrorism Act 1967,6 dealt with later, affordsan example of a definition which is not only lengthy but complicated;

(c) a definition in an interpretation section will not be declared void on theground that it is uncertain or that it is vague.

(d) what does the expression ‘the intention of Parliament’ mean?

The definition of terrorism in the Terrorism Act 1967 of South Africa iscomplicated. Perhaps this was intentional – one must bear in mind theconditions of South Africa at the time, and the type of government thatbrought about that legislation. Nor should one forget how the minoritygovernment and its supporters at the time perceived the conditions in thecountry.

The essential features of the offence lay in three basic categories of facts.A person commits the offence of terrorism where

(a) that person, with intent to endanger the maintenance of law and order inthe Republic,

(i) does an act, whether in the Republic or outside the Republic, or

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3 This may well be the reason for earlier Parliamentary Counsel composing legislative sentences ofenormous lengths.

4 52 & 53 Vict. c.63.5 C.30.6 No.83 of 1967.

(ii) attempts to do that act, or

(iii)incites or advises the commission of the act, or

(iv)conspires with others to bring about the doing of that act;7

(b) that person undergoes a course of training, whether in the Republic oroutside the Republic, which training would be of use to a person intendingto endanger the maintenance of law and order, or attempts or consents toundergo that training or incites or advises any other person to undertakethat training;8

(c) that person possesses any explosives, ammunition, firearm or weapon.9

Once it is established that a person falls within paragraph (a), that person ispresumed to have intended to endanger the maintenance of law and order,where the act or acts complained of had, or were likely to have had, certainresults. The provision does not admit of any proof beyond reasonable doubtthat the acts were not intended to have any of those results.

Where the conduct complained of is established to fall within paragraph(b), the person concerned is conclusively guilty by reason of the trainingundertaken, attempted or instigated. A person in this category will not beconvicted where that person proves beyond reasonable doubt that certainresults were not intended by the act or acts established.

As regards paragraph (c), a person must establish beyond reasonable doubtthat there was no intention to use the explosive, ammunition, firearm orweapon to achieve certain results.

The certain results referred to, the contrary to each of which an accusedmust prove, are:

(a) to hamper or to deter any person from assisting in the maintenance of lawand order;

(b) to promote, by intimidation, the achievement of an object;

(c) to cause or promote general dislocation, disturbance or disorder;

(d) to cripple or prejudice an industry or an undertaking or industries orundertakings generally or the production or distribution of commodities orfoodstuffs at any place;

(e) to cause, encourage or further an insurrection or forcible resistance to theGovernment or the Administration of the territory;

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7 Section 2(1)(a).8 Section 2(1)(b).9 Section 2(1)(c).

(f) to further or encourage the achievement of a political aim, including thebringing about of a social or an economic change, by violence or forciblemeans or by the intervention of or in accordance with the direction orunder the guidance of or in co-operation with or with the assistance of aforeign government or a foreign or an international body or institution;

(g) to cause serious bodily injury to or endanger the safety of a person;

(h) to cause substantial financial loss to a person or the state;

(i) to cause, encourage or further feelings of hostility between the White andother inhabitants of the Republic;

(j) to damage, destroy, endanger, interrupt, render useless or unserviceable orput out of action the supply or distribution at a place of light, power, fuel,foodstuffs or water, or of sanitary, medical, fire extinguishing, postal,telephone or telegraph services or installations, or radio transmitting,broadcasting or receiving services or installations;

(k) to obstruct or endanger the free movement of any traffic on land, at sea orin the air;

(l) to embarrass the administration of the affairs of the State.10

The scope of this work does not permit of further detailed analysis andelucidation of the offence of terrorism under the South Africa Act. It issufficient to add that mens rea does not appear to have a place in the operationof the law of terrorism in South Africa.11

On the other hand, s.45 of the Charities Act 1960,12 states that charitymeans

any institution, corporate or not, which is established for charitable purposesand is subject to the control of the High Court in the exercise of the Court’sjurisdiction with respect to charities.

This is a definition in circles: ‘What is an archdeacon’? ‘An archdeacon isa person who performs archidiaconal functions.’ What are ‘archidiaconalfunctions’? Archidiaconal functions are functions performed by anarchdeacon! So where do we go from here? Perhaps the Preamble to theCharitable Uses Act 160113 may be called in aid. The 1601 Act was repealedby the Mortmain and Charitable Uses Act 1891.14 The 1891 Act was in its

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10 Section 2(2) of the Act.11 The South Africa Terrorism Act, 1967, No.83 of 1967, was repealed, with the exception of section

7, by the Internal Security Act, 1982, No.74 of 1982. The Internal Security and IntimidationAmendment Act, 1991, No.138 of 1991, eventually repealed s.7 of the Terrorism Act, 1967. The1991 Act made several amendments to the 1982 Act by way of repeals and substitutions.

12 8 & 9 Eliz. 2 c.58.13 43 Eliz. c.4.14 Section 13(1).

turn repealed by s.38 of the Charities Act 1960. However, the Preamble to the1601 Act is still a useful guide to an understanding of the meaning of the wordcharity.15

That takes us back to the 1601 Act. Case law, in this respect, is stillreliable. In Commissioner for the Special Purposes of Income Tax v. Pemsel,16

Lord Macnaghten laid down the classification by which a particular trustcould be considered as being a charitable trust:

Charity in its legal sense comprises four principal divisions: trusts for therelief of poverty; trusts for the advancement of education; trusts for theadvancement of religion; and trusts for other purposes beneficial to thecommunity, not falling under any of the preceding heads.17

Thus, legislation and case law – labyrinthine though the case law may be –combine to give a reasonable answer to the question, ‘What is a charity?’ AsLord Macnaghten said in the Pemsel case,

If a gentleman of education, without legal training, were asked what is themeaning of a “trust for charitable purposes”, I think he would most probablyreply, “That sounds like a legal phrase. You had better ask a lawyer.”18

However much we may claim to have buried the Common Law – becauselegislation has ousted its application – it is very much alive in this respect. Itrefuses to be buried because it is the very foundation of the law.

What the expression ‘the intention of Parliament’ means in the presentcontext is that the statutory definition as given in the particular Act shouldprevail. But what if adhering to the statutory definition gives rise todifficulties? These difficulties are normally solved by reliance on the rule thatan Interpretation Act does not apply where there is a contrary intention.Usually an Interpretation Act would provide that

unless a contrary intention appears, [the Act] applies to every enactment ….

An Act is read as a whole. It cannot be interpreted in order to reduce it toabsurdity. The courts will thus give a meaning to an expression so that the Actis not reduced to a nullity.19 In R v. Vasey and Lally20 the court re-arranged thelanguage of an amendment so as to make sense and carry out the object of theamendment. The test is an objective one.

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15 See McGovern v. Attorney-General [1982] Ch.321 and Incorporated Council of Law Reporting forEngland and Wales v. Attorney-General [1972] Ch.73.

16 [1891] AC 531.17 At p.583.18 At p.584.19 Salmon v. Duncombe (1886) 11 AC 627.20 [1905] 2 KB 748.

The Dictionary

In construing an Act of Parliament, the dictionary is of little assistance. Tobegin with, a dictionary usually gives more than one meaning to a word or anexpression and divorces the word entirely from its context. A properlycomposed sentence is the expression of an idea. In Re Bidie,21 Lord Greensaid that,

The first thing one has to do … in construing words in a section of an Act ofParliament is not to take those words in vacuo, so to speak, and attribute tothem what is sometimes called their natural or ordinary meaning. Few wordsin the English language have a natural or ordinary meaning in the sense thatthey must be so read that their meaning is entirely independent of theircontext. The method of construing statutes … is not to take particular wordsand attribute to them a sort of prima facie meaning which you may have todisplace or modify. It is to read the statute as a whole and ask oneself thequestion: “In this statute, in this context, relating to the subject-matter, what isthe true meaning of that word?” In the present case…the learned [Judge]attributed too much force to … the abstract or unconditioned meaning of theword “representation”. No doubt, in certain contexts, “representation” wouldbe sufficient to cover not merely probate and not merely letters ofadministration with the will annexed, but administration simpliciter. The realquestion … is: What does the word mean in the context in which we find ithere, both in the immediate context of the subsection in which the wordoccurs and in the general context of the Act, having regard to the declaredintention of the Act and the obvious evil that it is designed to remedy?

Words in the abstract do not have a meaning. They ‘cannot be read inisolation; their colour and their content are derived from their context’.22 AsLord Wright MR23 pointed out with respect to the word free,

It is now convenient to examine the actual language of the Constitution so faras relevant, in order to ascertain its true construction. The first question iswhat is meant by “absolutely free” in s.92. It may be that the word“absolutely” adds nothing. The trade is either free or it is not free.“Absolutely” may perhaps be regarded as merely inserted to add emphasis.The expression “absolutely free” is generally described as popular orrhetorical. On the other hand, “absolutely” may have been added with theobject of excluding the risk of partial or veiled infringements. In any case, theuse of the language involves the fallacy that a word completely general andundefined is most effective. A good draftsman would realise that the meregenerality of the word must compel limitation in its interpretation. “Free” initself is vague and indeterminate. It must take its colour from the context.

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21 [1948] 2 All ER 995 at p.998.22 Attorney-General v. Ernest Augustus (Prince) of Hanover [1957] AC 436 at p.461.23 James v. Commonwealth of Australia [1936] AC 578 at pp.627-628.

Compare, for instance, its use in free speech, free love, free dinner and freetrade. Free speech does not mean free speech; it means speech hedged in byall the laws against defamation, blasphemy, sedition and so forth; it meansfreedom governed by law … Free love, on the contrary, means licence orlibertinage, though, even so, there are limitations based on public decency andso forth. Free dinner generally means free of expense, and sometimes a mealopen to any one who comes, subject, however, to his condition or behaviournot being objectionable. Free trade means, in ordinary parlance, freedom fromtariffs.

“Free” in s.92 cannot be limited to freedom in the last mentioned sense. Theremay at first sight appear to be some plausibility in that idea, because of thestarting-point in time specified in the section, because of the sections whichsurround s.92, and because the proviso to s.92 relates to customs duties. But itis clear that much more is included in the term ….

Nor does “free” necessarily connote absence of discrimination between inter-state and intra-state trade. No doubt conditions restrictive of freedom of tradeamong the States will frequently involve discrimination; but that is notessential or decisive ….

Then there is the conception … that “free” means free from every sort ofimpediment or control by any organ of Government, legislative or executiveto which s.92 is addressed with respect to trade, commerce or intercourse ….’

That the courts resort to the dictionary is illustrated by Cozens-Hardy MRwhen he said that, in interpreting statutes, the courts

may no doubt assist themselves in the discharge of their duty by any literaryhelp which they can find, including of course the consultation of standardauthors and references to well-known and authoritative dictionaries, whichrefer to the sources in which the interpretation which they give to the wordsmay be found.24

Swifen Eady LJ in the same case stated that:

It is the duty of the court to construe a statute according to the ordinarymeaning of the words used, necessarily referring to dictionaries or otherliterature for the sake of informing itself as to the meaning of any words, butany evidence on the question is wholly inadmissible.

Subsequent Acts of Parliament

The courts credit Parliament with a profound knowledge of the Common Lawand of the existing law. Thus, in Ex p. Copeland,25 Knight-Bruce LJ said, on a

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24 Camden v. Inland Revenue Commissioners [1914] 1 KB 641 at p.648. 25 (1852) 22 LJ Bank 17 at p.21.

question of construction arising ‘upon a subsequent statute on the same branchof the law’ [that] ‘it is perfectly legitimate to use the former Act, thoughrepealed.’ He quoted the authority of Lord Mansfield:

Where there are different statutes in pari materia, though made at differenttimes, or even expired and not referring to each other, they shall be taken andconstrued together as one system and as explanatory of each other.26

However, the basis of such an interpretation must be that the statutes are inpari materia, that is to say,

(a) they are on the same branch of the law;27

(b) there are references to each other;28

(c) they relate to one subject-matter;29

(d) they are Consolidation Acts;30

(e) they are to be read with another Act or Acts;31

(f) the language used represents an adoption of an authoritative interpretation,whether by judicial decision or by a long course of practice, of an earlierAct or Acts;32

(g) the words used in an earlier Act are used in a subsequent Act.33

Where, though, there is a departure in a subsequent Act from the languageused in an earlier Act relating to the same subject, there is the presumptionthat ‘the alteration in the language used in the subsequent statute wasintentional’.34 Lord Campbell CJ put it differently in Wray v. Ellis35:

There can be little use in referring to cases where a similar question has arisenon Acts differently framed, for they only illustrate the general principle, whichis not in dispute.36

When, said Cockburn CJ,

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26 R v. Loxdale (1758) 1 Burr. 445 at p.447.27 Ex p. Copeland (1852) 22 LJ Bank 17.28 R v. Loxdale (1758) 1 Burr 445.29 Crosley v. Arkwright (1788) 2 TR 603.30 Mitchell v. Simpson (1890) 25 QBD 183; Smith v. Baker [1891] AC 325; R v. Riley [1896] 1

QB.309.31 Canadian Southern Ry v. International Bridge Co. (1833) 8 App. Cas. 723; Mather v. Brown (1876)

1 CPD 596. 32 D’Emdem v. Pedder (1904) 1 CLR 91; Barlow v. Teal (1885) 5 QBD 403.33 Lennon v. Gibson & Howes Ltd. [1919] AC 709.34 Dickerson v. Fletcher (1873) LR 9 CP 1 at p.8.35 (1859) 1 E & E 276 at p.288.36 See also Re McGreavey [1950] 1 All ER 442 at p.446.

the legislature, in legislating in pari materia and substituting certainprovisions for those which existed in an earlier statute, has entirely changedthe language of the enactment, it must be taken to have done so with someintention and motive.37

In Casement v. Fulton,38 the Judicial Committee of the Privy Council saidthat,

it is certainly to be wished that, in framing statutes, the same words shouldalways be employed in the same sense.

Yet there have been instances where the language of an Act has beenaltered without the intention that the meaning thereby should change. Thus inR v. Buttle39 it was held that, although the words in s.7 of the Corrupt Practicesand Elections Act 186340 were different from the words of s.8 of the CorruptPractices and Elections Act 1852,41 the words of the later s.7 should bepreferred to the wording of the earlier s.8. Said Kelly CB:

I think it was not the intention of the legislature that a witness should becompelled to answer under pain of imprisonment and should then be exposed toan indictment for some perjury committed on another occasion and that hisanswers before the commissioners should be used in evidence at the trial of thatindictment. This would be subversive of the principle of the Common Law.

We have seen that a decision on an earlier Act, or a provision thereof, canbe used in determining the meaning to be given to any part of a subsequentAct. In the same manner, a word or a provision of a subsequent Act can betaken into consideration in construing an earlier one.42 However, it is notunknown for an Act to be passed for the sole and express purpose ofexplaining, or removing doubts in, an earlier Act.

Such an Act is often referred to as an ‘Act of explanation’. In Butler andBaker,43 Lord Coke said that an Act of explanation

should not be construed by any strained sense against the letter of the previousAct, for if any exposition should be made against the direct letter of theexposition made by Parliament there would be no end of expounding.

There have also been times when Parliament has enacted legislation purelydeclaratory of common or existing law. These are legislative declarations orparliamentary expositions. But, says Craies44:

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37 R v. Price (1897) LR 6 QB 411 at p.416.38 (1845) 5 Moore PC 130 at p.141.39 (1870) LR 1 CCR 248.40 26 & 27 Vict. c.29.41 15 & 16 Vict. c.57.42 Morgan v. London General Omnibus Co. (1883) 12 QBD 201.43 (1591) 3 Co. Rep 25a.44 Craies on Statute Law, 7th ed., p.147

Except as a parliamentary exposition, subsequent Acts are not to be relied onas an aid to the construction of prior unambiguous Acts. A later statute maynot be referred to to interpret the clear terms of an earlier Act which the laterAct does not amend, even although both Acts are to be construed as one,unless the later Act expressly interprets the earlier Act: but if the earlier Act isambiguous, the later Act may throw light on it, as where a particularconstruction of the earlier Act will render the later incorporated Actineffectual.

The Republic of South Africa (Second Amendment) Act 198145 affords aninteresting example of an Act of explanation. Section 114 of the ConstitutionAct 196146 provided that a prior petition by a province of the Union wasrequired before the Parliament of South Africa could alter the boundaries of aprovince. Without any application for such a petition, parts of some of theprovinces were excised to form the so-called independent States of Transkei,Bophuthatswana, Venda and Ciskei. The 1981 Act made it clear that s.114 hadapplied only to the alteration of the boundaries of a province for the benefit ofanother province.47

The Minister responsible for the Bill told the South African Parliamentthat,

in the light of the momentum which the attainment of independence bynational states had gained and in view of the possible misconstruction of theprovisions of s.114 … as implying that all the changes in boundaries ofprovinces must be preceded by petitions from the provincial councilsconcerned, it is proposed … that s.114 be amended with retrospective effect48

to put the intention of the legislature regarding the provisions of that sectionbeyond all doubt.49

In Kantor v. MacIntyre,50 the Rhodesia Federal Supreme Court stated that:

It may happen that a later Act, by assuming that earlier cognate piece oflegislation has a particular meaning, throws light on what Parliamentoriginally intended. The use in this manner of later legislation to clear upambiguity or obscurity in earlier legislation has the approval of the House ofLords.51 But it is a method of construction which must … be applied withvery great caution. If a statute is capable of two meanings and one is moreprobable than the other, then the more probable meaning would presumablybe adopted by the courts in any event. If a later statute is involved to support

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45 No.101.46 No.32.47 My emphasis.48 From 31 May 1961.49 Cockram, The Interpretation of Statutes, p.32.50 1958 (1) SA 45 at p.48.51 Ormond Investment Co. v. Betts [1928] AC 143 at p.156.

the less probable meaning, it comes dangerously near to making the laterstatute retroactive and might have serious effects upon people who, before itwas passed, had, in good faith, acted upon the alternative construction.

Parliament as a Court

Parliament is that arm of government that is concerned with legislation, thefinancial arrangements of the government and the representation of the people.In the United Kingdom, it is also the highest court of appeal. We are not hereconcerned with the penal jurisdiction of Parliament, nor with breaches ofprivilege and contempt, but with the right of Parliament to interpret its ownlegislation.

After the compilation of the Corpus Juris, Justinian forbade allcommentaries upon it and said that he would settle all questions of doubt.Parliament at Westminster must have seized upon his approach, since in thethirteenth and fourteenth centuries the common lawyers and the Judgesmaintained that they were the only proper authorities to interpret statutes.There is the celebrated case in which Hengham CJ reproved counsel: ‘Do notgloss the statute; we understand it better than you do, for we made it.’52

Indeed, Edward 1 published an extra-judicial ‘exposition’ of the Statute ofGloucester in 1278, and in 1281 the King-in-Council made a correction to it.In Assessor for Aberdeen v. Collie,53 Lord Sands said that,

The House of Lords is an infallible interpreter of the law. A batsman who …had been struck on the shoulder by a ball remonstrated against a ruling ofl.b.w; but the wicket-keeper met his protest by the remark: “it disna’ maitter ifthe ba’ hit yer ned; if the umpire says yer oot, yer oot”, Accordingly, if theHouse of Lords says, “this is the proper interpretation of the statute”, then it isthe proper interpretation. The House of Lords has a perfect legal mind.Learned Lords may come or go, but the House of Lords never makes amistake.

Craies54 also, relying on Dicey, has stated that,

Parliament has power to declare by statute the common law or the meaning ofany prior statute, and may declare wrong or repeal any judicial legislationeffected by interpretation of statutes, and may make declaratory or repealingenactments retrospective.

But until Parliament is driven to exercise the power of interpretation of itsown legislation, the interpretation of statutes is the special preserve of the

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52 Quoted by Megarry, Miscellany-at-Law, p.356. The Judges were then usually summoned to attendParliament.

53 1932 SC 304 at p.311.54 Craies on Statute Law, 7th ed., pp.13-14.

Judiciary. That power is never exercised suo moto, but in the course of legalproceedings – except, perhaps, in respect of practice directions.

In Le Neve v. Le Neve,55 the courts of equity attempted to water down theeffect of a statutory provision which made the registration of a registrableinstrument a condition for gaining precedence over a prior unregisteredregistrable instrument. By the Yorkshire Registries Act 1884,56 Parliament didnot hesitate to frustrate that judicial attempt.57

This case shows that Parliament can react to judicial innovation ininterpreting statutes. Courts can circumvent a statutory requirement; thedoctrine of part-performance is a vivid illustration of this. The doctrine has itsown intrinsic mechanism to prevent abuse. It has been confined within limitswhich are designed to promote the object of the legislation (which can beflouted by its application).58 Hence the claim that the doctrine of part-performance is ‘a partial substitute for the statutory safeguard of signedwriting.’59 The doctrine has stood the test of time, as can be seen from areading of s.40(2) of the Law of Property Act 1925. Yet Parliament, with theenactment of s.2 of the Law of Property (Miscellaneous Provisions) Act1989,60 has shown its dislike of attempts by the courts ‘to strain the law’. Thatprovision requires that contracts for the sale or other disposition of an interestin land should be made in writing. It has the effect of making void, not merelyunenforcable, contracts affecting an interest in land which are merely verbal.

In Rahimtoola v. Nizam of Hyderabad,61 Lord Denning – fresh to theHouse of Lords – ‘provoked a strong rebuke’ from Lord Simonds LC and theother Law Lords (Lords Reid, Cohen, Morton and Tucker). In a dissentingjudgment, Lord Denning had argued that a sovereign state could not pleadimmunity from suit in England if the transaction in question was a commercial

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55 (1747) Amb 436 at p.445.56 47 & 48 Vict. c.54.57 The substance of s.14 of the 1884 Act is now found in s.199 of the Law of Property Act, 1925. This

provides that, ‘A purchaser shall not be prejudicially affected by notice of (i) any instrument or mat-ter capable of registration under the Land Charges Act, 1925, ... which is void or not enforceable asagainst him under that Act or enactment by reason of non-registration thereof.’ See also ReMonolithic Building Co. [1915] 1 Ch.643.

58 The doctrine of part-performance, as the term implies, relies, among other things, on acts performedin part which acts are unequivocally referable to a contract affecting an interest in land. But the actsmust be consistent with the facts of the alleged contract: Maddison v. Alderson (1883) 8 App. Cas.467; Kingswood Estate v. Anderson [1963] 1 QB 169. As Lord Selborne LC observed in Maddisonv. Alderson, the requirement was imposed ‘to prevent a recurrence of the mischief which the statutewas passed to suppress’ p.478.

59 Megarry and Wade, Law of Real Property, 5th ed. pp.784-785. See also Wade, Covenants - A Broadand Reasonable View, 1972 BCLJ 157.

60 C.34.61 [1958] AC 359.

one. Whatever the strength of the House of Lords in that case, Lord Denning’sdissentient view has been vindicated in the State Immunity Act 197862 –Parliament has stepped in to over-rule the House of Lords. Jones v. WrothamPark Settled Estates63 is also a case which led to an amendment to theLeasehold Reform Act 1967,64 by s.118 of the Housing Act 1974.65

The game of ping-pong between Parliament and the Judiciary which islikely to result in a situation like this is well captured by Lord Morton ofHenryton in Chapman v. Chapman66:

If the court had power to approve, and did approve, schemes such as thepresent scheme, the way would be open for a most undignified game of chessbetween the Chancery Division and the legislature. The alteration of onesettlement for the purpose of avoiding taxation already imposed might well befollowed by scores of successful applications for a similar purpose bybeneficiaries under other settlements. The legislature might then counter thismove by imposing fresh taxation upon the settlements as thus altered. Thebeneficiaries would then troop back to the Chancery Division …. So the gamemight go on, if the judges of the Chancery Division had power which theappellant claims for them, and if they thought it right to make the first move.

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62 C.33.63 [1979] 2 WLR 132.64 Ch.88.65 C.44.66 [1954] AC 429 at p.468.

Chapter 4

The General Rules of Interpretation

General

The General Rules of interpretation of statutes appear to have taken root fromthe principles laid down in Heydon’s Case.1 In that case, the Barons of theExchequer laid down the rule,

That for the sure and true interpretation of all statutes in general (be they penalor beneficial, restrictive or enlarging of the common law) four things are to bediscerned and considered: (1) What was the common law before the makingof the Act? (2) What was the mischief and defect for which the common lawdid not provide? (3) What remedy the Parliament hath resolved and appointedto cure the disease of the Commonwealth (4) The true reason of the remedy.And then the office of all the judges is always to make such construction asshall suppress the mischief and advance the remedy, and to suppress subtleinventions and evasions for the continuance of the mischief and pro privatocommodo, and to add force and life to the cure and remedy according to thetrue intent of the makers of the Act pro bono publico.

That was the beginning of what is now often referred to as the purposeapproach or the Mischief Rule. Thus in the construction of an Act ofParliament, it is important to consider the mischief that led to the passing ofthe Act and then give effect to the remedy as stated by the Act in order toachieve its object. This has its drawbacks: the language of the statute mayhave inadequately expressed the objective intended to be achieved.

This brought in the second rule of interpretation, the Literal Rule, laiddown in the Sussex Peerage Case.2 This rule stated that,

The only rule for the construction of Acts of Parliament is, that they should beconstrued according to the intent of the Parliament which passed the Act. Ifthe words of the statute are in themselves precise and unambiguous, then nomore can be necessary than to expound those words in their natural andordinary sense. The words themselves alone do, in such case, best declare theintention of the lawgiver. But if any doubt arises from the terms employed bythe Legislature, it has always been held a safe mean of collecting the intentionto call in aid the ground and cause of making the statute, and to have recourseto the preamble, which, according to Chief Justice Dyer,3 is “a key to open the

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1 (1584) 3 Co. Rep. 7a; 76 ER 637.2 (1844) 11 Cl. & F. 85; 8 ER 1034 at p.1057.3 Stowel v. Lord Zouch, Plowden, 369.

minds of the makers of the Act, and the mischiefs which they intend toredress”.

This means that only the words of the statute count; if they are clear bythemselves then effect must be given to them. This rule also has its drawbacks:it disregards consequences and the object of the statute may be consideredonly if there is doubt. It should be noted, however, that the object of a statuteand the circumstances that led to its enactment are always relevant – not justin cases of doubt.

The next development came with Grey v. Pearson.4 The rule enunciated inthat case came to be known as the ‘golden rule’: a court could construe astatute by departing from the literal meaning of the words if to do would avoidconsequences which are absurd. It stated that,

In construing wills, and indeed statutes and all written instruments, thegrammatical and ordinary sense of the words is to be adhered to, unless thatwould lead to some absurdity, or some repugnance or inconsistency with therest of the instrument, in which case the grammatical and ordinary sense ofthe words may be modified so as to avoid the absurdity and inconsistency, butno further.

The Mischief Rule

The Rule laid down by the Exchequer in Heydon’s Case5 assists a court whichis trying to find out why the Act was enacted in order to give substance to aword or words in the Act. The question asked is: ‘what was wrong thatnecessitated the enactment of the Act?’ In other words, what is the object ofthe Act, what is it intended to achieve, what are the consequences that followfrom its enactment? Here, not only the language, but the circumstancessurrounding the enactment, are involved; the spirit rather than the letter of thelaw becomes important.

The judges of the sixteenth century were immersed in common law andperceived legislation as, at best, a gloss, or at worst, an intrusion upon it. Theythus construed legislation simply by assessing to what extent it added to,subtracted from, supplemented or complemented the existing canon of judge-made law. Hence the four questions in Heydon’s Case6:

(a) What was the common law before the enactment of the Act?

(b)What was the mischief and defect for which the common law did notprovide a remedy or redress?

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4 (1857) 6 H. LC 61; 10 ER 1216.5 (1854) 3 Co. Rep. 7a; 76 ER 637.6 (1884) 3 Co. Rep. 7a; 76 ER 637.

(c) What is the remedy now provided by the Act of Parliament to deal with themischief or defect for which the common law did not provide a cure?

(d)What is the rationale for the remedy as discerned from the preamble to theAct or by the Act itself?

Having answered these questions a judge then had the duty to construe theAct so as to

(a) suppress the mischief;

(b) advance the remedy;

(c) suppress anything that would lead to the continuance of the mischief; and

(d)advance the cure and the remedy according to the true intent of the makersof the Act for the public benefit.

This really meant that the judges, in applying the Mischief Rule, did whatthey could with the words of the statute in order to deal effectively with themischief or defect as they found it. As Corry7 put it,

‘In the fourteenth century, when the judges were members of the great counciland framed the statutes as well as voted upon their adoption, they could retortto counsel who pressed a particular interpretation, “Do not gloss the statute.We know better than you for we made it.”8 No theory of interpretation wasneeded. After Parliament got the right to frame bills as well as petition forremoval of grievances, and after the judges had ceased to sit as members ofthe upper house, the gap between Parliament and the judges was bridged byequitable interpretation. That doctrine drew a distinction between the sense orspirit of a statute and its words,9 and justified the judges in extending orrestricting the operation of the letter.10 In so taking liberties with the text ofthe statute, they were always guided by “the intent of the Legislature whichthey have collected sometimes by considering the cause and necessity ofmaking the Act, sometimes by comparing one part of the Act with another,and sometimes by foreign circumstances”.11 The work of government wasintegrated under the Crown, and the first duty of the judges was to make thestatute realise its purposes. This is clearly shown in Heydon’s Case,12 whichlaid down four rules for the interpretation of all statutes. Its resoundinglanguage celebrates the unity of purpose which, in theory at any rate,animated the legislature and the judges under the leadership of the Crown.

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7 ‘Administrative Law and the Interpretation of Statutes’ (1936) 1 UTLJ 286.8 Anon., YB 33 & 34 Edw. 1, 82.9 Eyston v. Studd (1574), 2 Plowden 459 at p.464.10 Hill v. Grange (1557), 1 Plowden 164 at p.17811 Stradling v. Morgan (1560), 1 Plowden 201 at p.205.12 (1584) 3 Co. Rep 7b.

Nearer our times, Lord Reid in Black-Clawson International Ltd. v.Papierwerke Waldhof-Aschaffenberg AG,13 has stated that,

It has always been said to be important to consider the “mischief” which theAct was apparently intended to remedy. The word “mischief” is traditional. Iwould expand it in this way. In addition to reading the Act you look at thefacts presumed to be known to Parliament when the Bill which became theAct in question was before it, and you consider whether there is disclosedsome unsatisfactory state of affairs which parliament can properly besupposed to have intended to remedy by the Act. There is a presumptionwhich can be stated in various ways. One is that in the absence of any clearindication to the contrary Parliament can be presumed not to have altered thecommon law farther than was necessary to remedy the “mischief”. Of courseit may and quite often does go farther. But the principle is that if theenactment is ambiguous, that meaning which relates the scope of the Act tothe mischief should be taken rather than a different or wider meaning whichthe contemporary situation did not call for. The mischief which this Act wasintended to remedy may have been common knowledge 40 years ago. I do notthink it is today. But it so happens that a committee including many eminentand highly skilled members made a full investigation of the matter andreported some months before the Act was passed …. I think that we can takethis report as accurately stating the “mischief” and the law as it was thenunderstood to be, and therefore we are fully entitled to look at those parts ofthe report which deal with those matters.

The Black-Clawson Case appears to be the modern approach to theMischief Rule. (It will be remembered that under that rule the courts willconsider the mischief aimed at by the Act, and the remedy provided for it. Inorder to discern the mischief the courts will look at the preamble, dealing withthe reason behind the law in addition to the words of the Act.)

This led to what became known as the equitable construction of an Act ofParliament in which the intent of the Act prevailed over its words. The spirit,not the letter, of the law was what was important. In Stowell v. Lord Zouch,14 itwas stated that,

everything which is within the intent of the makers of the Act, although it benot within the letter, is as strongly within the Act as that which is within theletter and the intent also.

The modern approach to the Mischief Rule still considers the spirit of theAct, but the spirit is not used to ‘change’ or dominate the letter of the law. Thespirit or object of an Act is used to determine the meaning of the words usedin it. In Fothergill v. Monarch Airlines,15 the Court of Appeal in dealing with

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13 [1975] 1 All ER 810 at p.84. 14 (1569) 1 Plowden 353; 75 ER 536.15 [1981] AC 251 at p.272.

article 26 of the Warsaw Convention ‘for the Unification of certain Rulesrelating to International Carriage by Air’, observed, per Lord Wilberforce:

I start by considering the purpose of article 26, and I do not think that in doingso I am infringing any “golden rule”. Consideration of the purpose of anenactment is always a legitimate part of the process of interpretation, and if itis usual – and indeed correct – to look first for a clear meaning of the wordsused, it is certain, in the present case, both on a first look at the relevant text,and from the judgments in the court below, that no “golden rule” meaning canbe ascribed.

The Literal Rule

It has been shown in Chapter One16 that the primary meaning of a wordchanges with its context. That is a caution that must be taken into accountwhen dealing with the application of the Literal Rule of interpretation orconstruction. The Rule stipulates that in interpreting or construing an Act ofParliament, if the words ‘are in themselves precise and unambiguous, then nomore can be necessary than to expound those words in their natural andordinary sense’,17

Yet words in themselves, not in the abstract, do not have a meaning. Adictionary definition merely gives us a history of the word; how over the yearsit has been used in various contexts with respect to various subject-matters.Thus the sentence structure determines the meaning that is intended to beconveyed, bearing in mind the idea that is intended to be expressed.18 In ReBidie,19 Lord Greene said that,

The first thing one has to do … in construing words in a section of an Act ofParliament is not to take those words in vacuo, so to speak, and attribute tothem what is sometimes called their natural or ordinary meaning. Few wordsin the English language have a natural meaning in the sense that they must beso read that their meaning is entirely independent of their context. The methodof construing statutes that I prefer is not to take particular words and attributeto them a sort of prima facie meaning which you may have to displace ormodify. It is to read the statute as a whole and ask oneself the question: “Inthis statute, in this context, relating to this subject-matter, what is the truemeaning of that word?”…. No doubt, in certain contexts, “representation”would be sufficient to cover not merely probate and not merely letters ofadministration with the will annexed, but administration simpliciter. The realquestion which we have to decide is: what does the word mean in the context

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16 Language p.6 et seq.;Words p.25 et seq.17 Sussex Peerage Case (1844) 11 Cl & F. 85; 8 ER 1034.18 See James v. Commonwealth of Australia [1936] AC 578 at pp.627-628.19 [1948] 2 All ER 995 at p.998.

in which we find it here, both in the immediate content of the subsection inwhich the word occurs and in the general context of the Act, having regard tothe declared intention of the Act and the obvious evil that it is designed toremedy?

The Literal Rule is clearly an advance on the Mischief Rule. In a sense theLiteral Rule is a reaction to the Mischief Rule. The latter rule could beconsidered as judicial legislation. The Literal Rule as expounded by the SussexPeerage Case,20 rejected the notion that in the interpretation of an Act ofParliament a judge could go outside the Act. Where a doubt arises as to thewords used in the Act, the object of the Act may be resorted to in a case wherethere is clearly a choice presented by the language of the Act,21 or where themeaning is not plain. Simply put, the Literal Rule stipulates that only thewords of the Act count, but where there is an ambiguity in the sense that thewords used are not precise a judge could consider the object of the Act.

Modern cases tend to give the impression that the two approaches of theMischief Rule and the Literal Rule are being merged into one subsumed underthe literal rule. As Lord Reid put it in Attorney-General for Northern Ireland v.Gallagher,22

We can have in mind the circumstances when the Act was passed and themischief which then existed so far as these are common knowledge, but wecan only use these matters as an aid to the construction of the words whichParliament has used. We cannot encroach on its legislative function byreading in some limitation which we may think was probably intended butwhich cannot be inferred from the words of the Act.

The Golden Rule

The Golden Rule, as stated in Grey v. Pearson,23 means no more than that themeaning of the words of the Act may be modified in order to avoidrepugnance, inconsistency or absurdity. In Caledonian Railway v. NorthBritish Railway,24 Lord Blackburn expressed agreement with the Golden Rulebut added – and that is the crux of the matter – that the Rule does not helpmuch because the

cases in which there is a real difficulty are those in which there is acontroversy as to what the grammatical and ordinary sense of the words usedwith reference to the subject-matter is. To one mind it may appear that the

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20 (1844) 11 Cl & F., 85; 8 ER 1034.21 Ellerman Lines v. Murray [1931] AC 126.22 [1963] AC 349 at p.366.23 (1857) 6 H LC 61; 10 ER 1216.24 (1881) 6 App. Cas. 114.

most that can be said is that the sense may be what is contended by the otherside, and that the inconsistency and repugnancy is very great, that you shouldmake a great stretch to avoid such absurdity, and that what is required to avoidit is a very little stretch or none at all. To another mind it may appear that thewords are perfectly clear – that they can bear no other meaning at all, and thatto substitute any other meaning would be not to interpret the words used, butto make an instrument for the parties – and that the supposed inconsistency orrepugnancy is perhaps a hardship – a thing which perhaps it would have beenbetter to have avoided, but which we have no power to deal with.

This, in effect, supports George Bernard Shaw’s statement that the onlygolden rule is that there are no golden rules.25 In The Duke of Buccleuch,26

Lord Lindley said that,

You are not so to construe the Act of Parliament as to reduce it to rankabsurdity. You are not to attribute to general language used by the Legislaturein this case, any more than in any other case, a meaning which would notcarry out its object, but produce consequences which, to the ordinaryintelligence, are absurd. You must give it such a meaning as will carry out itsobjects.

In Gartside v. IRC,27 Lord Reid said that,

It is always proper to construe an ambiguous word or phrase in light of themischief which the provision is obviously designed to prevent, and in the lightof the reasonableness of the consequences which follow from giving it aparticular construction.

All these authorities raise one fundamental problem: what is the test to beapplied? In River Wear Commissioners v. Anderson,28 Lord Blackburn stated:

We are to take the whole statute together, and construe it all together, givingthe words their ordinary signification, unless when so applied they produce aninconsistency, or an absurdity or inconvenience so great as to convince thecourt that the intention could not have been to use them in their ordinarysignification, and to justify the court in putting on them some othersignification, though less proper, is one which the court thinks the words willbear.29

That, then, is the test. The departure from the grammatical or ordinarysense of the words must of necessity relate to the Act read as a whole, and to aconsideration of the objective or scheme of the Act. The test deals with thewords used and not with the consequences of the application of the words. If

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25 Man and Superman III.26 (1889) 15 PD 86 at p.96.27 [1968] AC 553, at p.612.28 (1877) 2 AC 743 at pp.764-765.29 This is a repetition of what Lord Blackburn stated in Allgood v. Blake (1873), LR 8 Ex. 160. He

merely substituted the word statute for the word will.

the meaning of the words are clear, the consequences of their application areimmaterial. This is illustrated by the words of Lord Reid in Westminster BankLtd. v. Zang30:

no principle of interpretation of statutes is more firmly settled than the rulethat the court must deduce the intention of Parliament from the words used inthe Act. If those words are in any way ambiguous – if they are reasonablycapable of more than one meaning – or if the provision in question iscontradicted by or is incompatible with any other provision in the Act, thenthe court may depart from the natural meaning of the words in question. Butbeyond that we cannot go.

Yet it is difficult to dissociate the words of an Act from the application ofit. For what purposes was the Act enacted if one can draw a distinctive linebetween the words and their application? Thus to understand an Act within theprinciple of the Golden Rule, a few considerations are pertinent:

(a) whatever may be the reading as to what is meant by the words of an Act,that reading cannot be a justification for so construing the words concernedso as to escape the plain meaning31;

(b) it is desirable, always, to have a second look at the words actually used inthe Act32;

(c) where the ambiguity, obscurity or inconsistency could not be resolved byan objective standard, then a subjective standard can be employed in orderto avoid unreasonable consequences33;

(d)consequences may legitimately be taken into consideration where there is achoice between two reasonable interpretations.34

The Golden Rule, in its modern application is summed up by LordAtkinson in Victoria (City) v. Bishop of Vancouver Island35:

In the construction of statutes their words must be interpreted in their ordinarygrammatical sense, unless there be something in the context, or in the objectof the statute in which they occur, or in the circumstances with reference towhich they are used, to show that they were used in a special sense differentfrom their ordinary grammatical sense.

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30 [1965] AC 182 at p.222.31 Duport Steel Ltd. v. Sirs [1980] 1 All ER 529.32 Hartnell v. Minister of Housing and Local Government [1965] AC 1134 at p.1157.33 Richards v. McBride (1881) 8 QBD 119; Fry v. Inland Revenue Commissioners [1959] 1. Ch. 86.34 Gartside v. Inland Revenue Commissioners [1968] AC 553 at p.612; Fry v. Inland Revenue commis-

sioners [1959] 1 Ch.86 at p.105.35 [1921] AC 384 at p.387.

The Intention of Parliament

A statute has been defined as ‘the will of the legislature’.36 The function of acourt of competent jurisdiction in relation to an Act of Parliament is,according to Coke, to interpret that Act ‘according to the intent of them thatmade it.’37 This statement of Coke has, to a great extent, down the ages,influenced the judges in the interpretation of an Act of Parliament. The judgeshave always maintained that it is their function to give expression to theintention of Parliament.38 And in Warburton v. Loveland,39 it was stated that,

Where the language of an Act is clear and explicit, we must give effect to it.Whatever may be the consequences, for in that case the words of the statutespeak the intention of the legislature.

In SE Railway v. Railway Commissioners,40 Cockburn, CJ thought thatwhere the meaning of an Act was doubtful the judges were at liberty to referto the circumstances under which the Act was passed into law as a means ofsolving the difficulty. Lord Reid41 has stated that there was room for exceptionwhere examining the proceedings in Parliament would almost certainly settlethe matter immediately one way or the other.42 There is the eighteenth centuryview43 that the sense and meaning of an Act of Parliament must be collectedfrom what it says when passed into law, ‘and not from the history of changes itunderwent in the House where it took its rise’.

An Act of Parliament does not take its ‘rise’ from Parliament, but from thepromoters of the Bill. Can what happened during the progress of a Bill inParliament really be a guide to the interpretation of a provision of the Act?Parliamentary debates, at best, reflect the political, social and economic forcesbehind the Bill. They may indicate how the other side would want to deal withthe same matter had it the power to do so. However, both the Government andthe Opposition seek to satisfy the demands of their respective political partiesduring debates; and they also show how members of Parliament clear theirconsciences when the general election may not be far away.

Therefore would ‘examining the proceedings in Parliament almostcertainly settle the matter’? If ‘the circumstances under which it passed intolaw’ mean the objects and purposes of the Act, then there is room for takingthat into account. The Act was not enacted for the sake of its details but to

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36 Maxwell on Interpretation of Statutes 11th ed., p.1.37 Coke, 4 Institutes, 330.38 Sussex Peerage Claim (1884) 11 Cl & F 85 per Tindal CJ.39 (1832) 2 Dow & Cl 480 at p.489.40 (1880) 2 QBD 217, 226.41 Beswick v. Beswick [1968] AC 88.42 And now Pepper v. Hart [1993] 1 All ER 42.43 Millar v. Taylor (1769) 4 Burr 2303, at p.2332.

achieve a purpose. Thus, when it is stated that the meaning must be collectedfrom what the Act says, attention, it is submitted, must be directed towards theproblems that gave rise to its introduction into Parliament in the form of a Bill.And since we could not, before Pepper v. Hart,44 take into consideration whatParliament said during the passage of a Bill in Parliament, is it proper to talkof the intention of Parliament?

What, in fact, is the ‘intention of Parliament’? Is it a myth encouraged bythe doctrine of separation of powers? Is it a mere dogma, fundamental thoughit may be considered to be in the study of the science of government? Exceptin a very limited sense, for example, the recommendations of a ParliamentaryCommittee, Parliament never had an intention to introduce legislation. In thegreat majority of cases, the government of the day introduces legislation.According to de Smith,45

a very large majority of Government bills introduced into Parliament byMinisters are passed into law substantially in their original form.

Gerald Kaufman46 has also demonstrated how ineffective Parliament is –through its committee system, where the real work of legislating should bedone – to put its intention into legislation brought by the Executive. HasPepper v. Hart47 cleared the way for us to abandon the deceptions of politicalor constitutional theory and of mythology and acknowledge that the judges, ininterpreting an Act of Parliament, seek to find solutions to the problems thatarise within society – social problems posed by social questions?

We may argue till the end of time whether or not judges make law;whether or not they usurp the functions of Parliament through the process ofthe interpretation of an Act of Parliament; whether or not their judgments arebased upon principle or policy. We shall, at the end of the day, come toappreciate that the facts that lead to the interpretation of a piece of legislationwere not – or may not have been – in the contemplation of those whopromoted that legislation, nor of those who drafted or enacted it.

Legislation is introduced to deal with situations that have arisen. There isthen the hope that those situations will not occur in the future since the lawhas provided a solution to those situations. What happens is that when othersituations arise in the future we seek to bring them within the ambit of whathas been provided for, and the judges do their best to relate the law to the factsof the situation that has now arisen in order to reflect the conscience of societyas a whole.48

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44 [1993] 1 All ER 42.45 Constitutional and Administrative Law 5th ed. p.247.46 The Listener, 29 March, 1984. Paul Meredity in the Introduction to his article ‘Legislation:

Educational Reform’ refers to the ‘elective dictatorship’ of Parliament: Modern Law Review,Vol.52, pp.215-216.

47 [1993] 1 All ER 42.48 This will depend to a great extent on the view of interpretation adopted.

Although a piece of legislation deals with the past, it also speaks to thefuture in the hope that a problem dealt with would not occur again. If it doesoccur again there is legislation to deal with it. Legislation is thus but areflection of social progress in any given society.

Was Coke really referring to Parliament as we know it today in his use ofthe celebrated phrase, ‘according to the intent of them that made it’? Howeffective was Parliament in the sixteenth and seventeenth centuries?Parliament in Coke’s day was, in essence, the Sovereign. Legislation in thosecenturies was not only drafted by the judges but voted on by them as well.There is that celebrated remark, ‘Do not gloss the statute. We know better thanyou for we made it.’49 So surely, when Coke refers to the ‘intent of them thatmade it’ he was referring to the ‘lions under the throne’.

Experience has taught us that Parliament has no mind. And if Parliamenthas no mind, how can it have an intention? Nor can we talk of ‘the collectiveintention of members of Parliament’. Instead, perhaps,

it may be more realistic to accept the Act as printed as being the product of thewhole legislative process, and to give due weight to anything found in theprinted Act …. If we take these matters into consideration, then we are ineffect searching for the intention of the draftsman rather than the intention ofParliament. And then it becomes very relevant to ask – could any competentdraftsman have adopted this form of drafting if he had intended the result forwhich the appellant contends? If the answer is no, then there is such real doubtthat it must be resolved in favour of the accused.50

Why then does the use of the phrase continue? It may well be the influenceof Coke as already stated, or of Locke and Montesquieu. Locke51 taught usthat men have certain inalienable rights, rights that were beyond the reach ofany government; life, liberty and the pursuit of happiness.52 This theory of thenatural rights of man influenced the doctrine held by the judges that certainlaws regarding life, liberty and property, were so fundamental that they shouldbe placed beyond the reach of Parliament. Holt CJ said that,

If an act give away the property of a subject it ought not to be countenanced.53

No judge in the United Kingdom today would say such a thing!

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49 Year Book 33 & 34. Ed. 1, 82.50 Lord Reid in Director of Public Prosecutions v. Schildkamp [1971] AC 1 at p.10.51 Second Treatise of Government ss.6, 24-27, 135.52 This found expression in the Constitution of the United States.53 Callady v. Pilkinton (1707) 12 Mod. 573.

Montesquieu54 taught us that liberty is sustained by the doctrine of theseparation of powers. This the judges interpreted to mean that they did notmake the law, they only apply it; it is the legislature that makes the law. Oneeffect of the 1688 Revolution55 was to cut the royal prerogative to the bone;56

the King’s wish was no longer a command and Hobbes’ sovereign hadvanished. Governmental action had to be justified by the laws and that meantParliament became the new sovereign, representative of the will of the people– if such a will there is.

Blackstone stated that,

if Parliament will positively enact a thing to be done which is unreasonable, Iknow of no power in the ordinary forms of the constitution that is vested withauthority to control it.57

Perhaps we may now consider another phrase: the legislative intent, that is,the object and purpose of the legislation. Would it not be better to talk of theintention of the promoters of the Bill which became the Act of Parliament,that is to say, of the policy behind the law? The promoters, whether they belobbyists, individuals or a political party, are the source of what we now callthe intention of Parliament.

Is it pertinent to realise that what the judges do in interpretation is torestore certainty for the uncertainties of meaning in a particular provision ofan Act of Parliament in the light of social conditions58 and not to divine theintention of Parliament?

Modern parliamentary practice and procedure have shown that whatParliament does in relation to an Act of Parliament, is to give its stamp ofapproval, as the Legislative arm of government, to an intention conceived,nurtured and brought forth by others. They that intended the law may notnecessarily be members of Parliament.

A building inspector who approves a house as being fit for humanhabitation is not the architect of that house. Still less can he claim to be theperson who built the house. Similarly, of the majority who vote in favour of

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54 L’Esprit de Lois. 55 The ‘Glorious Revolution’ established the sovereignty of Parliament, though it can be said that, that

Parliament represented 10% of the male population. That Parliament placed power securely in theWhig Oligarchy. It ruled Britain until the nineteenth century, by which time the power of the Whigswas on the decline.

56 In the Case of Proclamations (1611) 13. 12 Co. Rep. 74, the judges asserted their right to determinethe limits of the prerogative. And since the 1688 Revolution the Crown has not contested that claimof the judges. See also R. v. Lewes JJ., Home Secretary [1973] AC 388 (HL).

57 Commentaries 1766 Vol. 1 at p.91.58 Much though will depend on the Judge’s philosophy of interpretation.

the passing of a Bill, it would be wrong to assert that they had a commonintention regarding the details, whether minor or of major importance, of thedetailed provisions of the Bill. The votes of the majority are but an indicationof the success of the Government whips.

In civil law countries the reports of those who codified the law are used assources of interpretation of ambiguous provisions of extant codes. TheMemorandum to a Bill does, also, under our system, supply usefulinformation regarding the intention of Parliamentary Counsel and of thepromoters of a Bill. The function of a Memorandum to a Bill is to givesufficient background information to set ‘in perspective and in context thefacts and problems which the legislative proposal is intended to meet’.

It also indicates the principal objects of the legislation, the means by whichthe objectives of the legislation are intended to be achieved, as well as theknown implications and difficulties, whether legal, social or administrative.Equally, a Memorandum to a Bill is intended to assist members of Parliamentin understanding the Bill.

The English courts, however, do not, as a rule, refer to the Memorandumto a Bill as an aid to interpretation. No doubt such a Memorandum, especiallyin the case of a Bill of considerable importance, would contain very usefulinformation as to the intention of Parliamentary Counsel and of the promotersof the Bill. Equally, the courts do not countenance explanatory notes issued bydepartmental officials for the guidance of their officers for the purpose ofconstruing an Act promoted by the Ministry. It could be argued that there isthe danger here that a court may be unduly influenced by official opinion. Butwould it? Can not the court make up its own mind in the process of which itmay derive assistance from such an explanatory note?

It would be realistic in the process of interpretation to consider, if need be,what the promoters wanted to achieve. If we are reluctant to appreciate thissimple truth, the problem which brought the solution in the form of aprovision of an Act of Parliament is side-tracked and semantics govern theday. Heydon’s Case59 must still have some relevance if we consider not only‘the mischief and defect for which the common law did not provide’ but alsothe problems and defects for which the law was conceived, nurtured andpresented to Parliament as a Bill.

Then the office of all the Judges is always to make such construction as shall[solve the problems which have arisen, and advance the solution to theproblems] and to suppress subtle inventions and evasions [which do notaccord with the objects and purposes of the Act] and to add force and life tothe cure and remedy according to the objects and purposes of the Act, [thedemands of society and the dictates of common sense and justice].60

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59 3 Co. Rep. 7a.60 The italics and the words in the square brackets are mine.

This approach, it is submitted, is the one taken in Smith v. Hughes.61 Inthat case the words ‘in a street’ used in subsection (1) of s.1 of the StreetOffences Act 1959,62 were construed to bring within the ambit of the Actprostitutes who attracted the attention of passers-by from balconies orwindows. Lord Parker63 stated that for his part he approached

the matter by considering what is the mischief aimed at by the Act. Everybodyknows that this was an Act intended to clean up the streets, to enable people towalk along the streets without being molested or solicited by commonprostitutes.64

Would it be wrong for a court of competent jurisdiction, when faced with aproblem of interpretation of an enactment, to look at the legislative history of theenactment? The traditional view is that judges seek to divine the intention of thelegislature, but surely the real question should be ‘did the legislature fail toprovide the apparently missing pieces or did those responsible for introducingthe Bill – the policy makers, departmental officials and parliamentary counsel –all simply fail to anticipate the situation that has arisen?’

In 1958 Lord Denning65 said:

We do not refer to legislative history as they do in America, we do not look atthe explanatory memoranda which preface Bills before Parliament.

But in 1964 he said:

It is legitimate to look at the report of a Committee leading to legislation so asto see what was the mischief at which the Act was directed; but you cannotlook at what the Committee recommended or at least if you do look at it, youshould not be unduly influenced by it.66

No doubt it is now recognised that the report of a Committee, and for thatmatter of a Commission of Inquiry,67 both explains and delimits the mischiefat which the Act was directed.

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61 [1960] 1 WLR 830.62 7 & 8 Eliz 2 c.57.63 Ibid at p.832.64 See also R v. Males (1962) 2 QB 500. In Lower v. Sorrell [1963] 1 QB Omerod LJ, at p.968 adopted

an interpretation that would have the effect of defeating the purpose of the Agricultural HoldingsAct, 1948.

65 Escoigne Properties Ltd. v. IRC [1958] AC 549 (HL).66 Letang v. Cooper [1964] 1 QB 53. Lord Denning’s approach to interpretation has not been free from

criticism even by the House of Lords. See Magor and St. Mellons RDC v. Newport Corporation[1952] AC 189.

67 Ghana has a provision in its Interpretation Act 1960 which allows the Courts to look at the report ofa Commission of Inquiry in these matters. Australia has a similar provision. But Sir Noel Huttonconsiders that ‘a Government report in particular is not a reliable basis for the interpretation of sub-sequent legislation. Very often the Act is deliberately not intended to reflect what the original reportsaid, and this is just a method of making things worse’. Professionalising Legislative Drafting Ed.Reed Dickerson. See, however, Duke v. GER Reliance Ltd. [1988] 1 All ER 626 and LordTempleman’s dictum at p.634; and Pickstone v. Freemans plc [1988] 2 All ER 803.

It should be noted also that an increasing number of Acts of Parliamentgives discretionary powers to Ministers – in effect, to departmental officials –to issue Regulations. In some cases there are no guidelines. In respect ofexpressions such as

The Minister may by order make Regulations for the purposes of this Act,

what is the Minister to prescribe? The Local Government Finance Act 198867a

gives power in almost every sentence to the Secretary of State to makeRegulations. Those Regulations are intended to deal with exemptions,penalties, the enforcement of payments and appeals.

When a provision of a Regulation under that Act comes up forinterpretation, can we sincerely talk of the intention of Parliament? There arethe procedures of negative and affirmative resolutions to give Parliamenteffective control of delegated legislation. What is the practice? How effectiveis the Standing Committee on Delegated Legislation? Does it not suffer thefate of all other Committees of Parliament? In order to be able to talk about‘the intention of Parliament’, perhaps we need another Committee onMinisters’ Powers68 to review the recommendations of the 1932 Committee,to investigate how far the 1932 recommendations have worked in the light ofthe domination in Parliament of the political party that forms the government,and how far we can move away from the mechanical consideration oflegislation in Parliament to a system which will allow Parliament a realinfluence as the legislative arm of government.

Even granting the argument in favour of the intention of Parliament, ifParliament did not see or foresee the injustice in what it has provided, whyshould not judges, who see it when dealing with the lives and fortunes offellow human beings, in the name of Justice rectify the error? If those whopromoted the legislation did not see or foresee the injustice that had arisen, notin their proposals but in the way the proposals had become law, why shouldthat not be corrected outside the chamber? How would that undermine thesovereignty of Parliament? Which is the higher principle – Justice or dogma?

Of all those who have anything to do with a piece of legislation called inquestion, it is only the judges who have sworn to do justice. Members ofParliament do not swear to do justice between the individual and the state,between one individual and the other.

Whichever philosophy of interpretation is adopted, should Justice not bepursued in the interpretation of a piece of legislation? Should we crucifyJustice at the altar of a myth (turned into a principle of government) thatjudges do not and should not make the law? It is submitted that in theinterpretation of an Act of Parliament the question should be ‘whichconstruction would best advance the cause and course of justice?’ and not‘what has Parliament intended?’ Justice is worth pursuing for Her own sake.

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67a C.41.

When litigants go to court they are not interested in any of the finearguments we make about the separation of powers, about the intention ofParliament – they have faith that justice will be done. That faith should be aliving faith not a meaningless one. The advice of Christ regarding an ear ofcorn on the sabbath day69 should not be forgotten. ‘The place of justice is ahallowed place.’70

There is a school of thought, however, that believes that the intention ofParliament is not a myth.71 In that regard it is as well to consider what LordSimon of Glaisdale said in Ealing LBC v. Race Relations Board72:

The court sometimes asks itself what the draftsman must have intended. This isreasonable enough: the draftsman knows what is the intention of the legislativeinitiator (nowadays almost always an organ of the executive); he knows whatcanons of construction the courts will apply; and he will express himself insuch a way as accordingly to give effect to the legislative intention. Parliament,of course, in enacting legislation, assumes responsibility for the language of thedraftsman. But the reality is that only a minority of legislators will attenddebates on the legislation. Failing special interest in the subject-matter of thelegislation, what will demand their intention will be something on the face ofproposed legislation which alerts them to a questionable matter. Accordingly,such canons of construction as that words in a non-technical statute willprimarily be interpreted according to their ordinary meaning or that a statuteestablishing a criminal offence will be expected to use plain and unequivocallanguage to delimit the ambit of the offence (i.e. that such a statute will beconstrued restrictively) are not only useful as part of that common code ofjuristic communication by which the draftsman signals legislative intent, butare also constitutionally salutory in helping to ensure that legislators are not leftin doubt as to what they are taking responsibility for.

The Modern Approach

The modern approach to the interpretation of an Act of Parliament is what istermed the Purposive Approach. As Lord Griffith put it in Pepper v. Hart,73

The days have long passed when the courts adopted a strict constructionistview of interpretation which required them to adopt the literal meaning of thelanguage. The courts must adopt a purposive approach which seeks to giveeffect to the true purpose of legislation.

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69 Luke 6, 1-4.70 Bacon, Essays, of Judicature, 56.71 See Bennion, Statutory Interpretation pp.226-228 and pp.231-235, and Reed Dickerson, Materials

on Legal Drafting p.51.72 [1972] AC 342 at pp.360-361.73 [1993] 1 All ER 42 at p.50.

The Purposive Approach thus takes account not only of the words of theAct according to their ordinary meaning but also the context. ‘Context’ heredoes not mean simply ‘linguistic context’; the subject-matter, scope, purposeand (to some extent) background of the Act are also taken into consideration.There is no concentration on language to the exclusion of context (or, indeed,vice versa); the ultimate aim is one of synthesis.

The language used by Lord Griffith in Pepper v. Hart is clear and cogent:to give effect to the true purpose of the legislation. He did not say ‘to giveeffect to the intention of Parliament’. And that, it is submitted, takes us againto a principle of the rule in Heydon’s Case74:

That for the sure and true interpretation of all statutes … the office of all thejudges is always to make such construction as shall [solve the problems whichhave arisen, and advance the solutions to the problem] and to suppress subtleinventions and evasions [which do not accord with the objects and purposesof the Act] and to add force and life to the cure and remedy according [to theobjects and purposes of the Act, the demands of society and the dictates ofcommon sense and justice.]75

Extrinsic Aids to Interpretation

The road to Pepper v. Hart is scattered with doubts, criticism and boldness.Vera Sacks76 considers it

perverse that judges refuse to seek the legislative intent in the very placewhere it might be found, that is, the background materials to the statute, LawCommission Reports, White Papers, Hansard etc.

Viscount Dilhorne in Davis v. Johnson77 stated that what is said by aMinister or member sponsoring a Bill is not a legitimate aid to theinterpretation of an Act. Crawford78 observed, as regards the admissibility ofextrinsic aids for the purpose of the interpretation or construction of legislationin the United States of America, that,

After all intrinsic aids have been exhausted, if the meaning of the statute isstill in doubt, certain extrinsic matters may be considered by the court in itsefforts to ascertain the statute’s meaning. But the statute must be ambiguousbefore a resort to extrinsic evidence is justified.

Our tradition has been that travaux preparatoires – that is, ‘materials usedin the preparation of, and having a formative influence on, the ultimately

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74 (1884) 3 Co. Rep. 7a.75 The italics and the words in the square brackets are supplied.76 Vera Sacks, ‘Towards Discovering Parliamentary Intent’ (1982) Stat LR p.143.77 [1979] AC 264 at p.337.78 Crawford, Construction of Statutes, p.365.

adopted form of the treaty’79 – cannot be consulted in order to ascertain theintention of Parliament. Sacks observes that in Europe the approach tointerpretation of statutes is eclectic, and although the practice varies fromcountry to country, no European or American would seek to ban their use.80

The arguments are legion regarding the admissibility of extrinsic aids. TheRenton Committee81 strongly argued against the use of extrinsic aids on thegrounds of relevance, reliability and availability. It is also argued that thematerials may be misleading as the words used might be agreed upon but notthe purpose or intent. Equally, preparatory materials might tend to be preparedwith a view to influence the courts in the interpretation or construction of anAct of Parliament or a provision thereof.

The House of Lords has been willing to admit an official report for thepurpose of ascertaining the background and objectives of an Act, but not toadmit the same material for the purpose of construing it. Lord Dilhorne wouldhave admitted recommendations where Parliament had by enacting the Actaccepted the recommendations of the official report.82 Lord Simon83 pointedout that an official report and a consequential Act form an integral process andlogically one could not look at the result for one purpose and not another. InBlack-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenberg,84

the House of Lords laid down guidelines to the effect that reference toparliamentary debates are to be excluded but reference to other travauxpreparatoires might be permitted only to determine the mischief which theAct seeks to remedy.

The House of Lords took a different approach in Fothergill v. MonarchAirlines.85 Lord Wilberforce considered it proper that the House of Lordsrecognise that there may be cases where travaux preparatoires could beprofitably used. The rule about the admissibility of extrinsic aid is now clearand settled. Official reports leading to legislation may be referred to for thepurpose of ascertaining the mischief sought to be overcome, but not for thepurpose of construction of the statute itself.86 There is no doubt that the policyor purpose of an Act may be found outside the strict words of the Act itself.

The courts are now becoming accustomed to the ways of legislators. Theyare now learning to differentiate between the value of different kinds ofmaterial. Thus in general, debates in the legislature are much less frequently

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79 Walker, The Oxford Companion to Law (1980) p.1231.80 Vera Sacks, ‘Towards Discovering Parliamentary Intent’ [1982] Stat LR p.143.81 Cmnd. 6035 paras. 19, 23.82 Black-Clawson v. Papierwerke [1975] 1 All ER 810.83 Ibid. 84 [1975] 1 All ER 810.85 [1980] 2 All ER 696 at p.703.86 Alec Samuels, ‘The Interpretation of Statutes’ [1980] Stat LR p.86.

used than the reports presented by legislative committees. In France, themeaning suggested by the travaux preparatoires is not regarded as decisiveand may even be ignored. In Scandinavia, travaux preparatoires areextensively used, not as evidence of the legislative intent, but as generalinformation on the whole background to a particular Act, in cases where it isessential for the court to know the background in order to give meaning to itstask.87

In the United States of America, the courts may properly refer to what isknown as contemporaneous circumstances. These include the history of thetimes existing when the Act was enacted, the previous state of the law and theevil it intended to correct. The court may inform itself upon these matters, and

the various extraneous considerations … are not to be resorted to in order toalter the meaning of the statute, but to remove whatever doubt that stillremains after all intrinsic aids have been considered.88

The question that may be asked is ‘what materials should the courts haverecourse to when seeking to ascribe meaning to a given statutory provision?’ Itis as well to take a look at the different materials.

Legislative History

The materials on legislative history are of three kinds:

(a) the legislative antecedents of the statutory provisions under consideration,for example, corresponding provisions in previous enactments;

(b)pre-parliamentary materials relating to the provision in the Act in which itis contained. Reports of committees and commissions reviewing theexisting law and recommending changes are examples;

(c) parliamentary materials, such as the text of a Bill as first published andsuccessively amended in its passage through Parliament, explanatorymemoranda, proceedings in committees and parliamentary debates.89

The records of the debates and speeches in Parliament are the most likelysource from which to discover evidence of the ‘intention of Parliament’. Fearshave been expressed that an examination of the legislative history might be atthe expense of the time devoted to the statutory text itself.90 This ‘view is bestencapsulated in the quip that only when legislative history is doubtful do yougo to the statute’91 itself.

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87 Vera Sacks, supra, p.144.88 Crawford, Construction of Statutes, pp.366-368.89 Cross, Statutory Interpretation, by Bell and Engle, p.15090 G. Parker ‘Criminal Law - Statutory Interpretation - Use of Parliamentary Debates’ - (1982) 60 Can.

Bar Rev. 502 at 505.91 United States v. Bass 404 US 336 (1971) 339 per Justice Marshall.

In our system legislative history is not yet recognised as a permissible aidto construction or interpretation.

Although a judge might look to the intention of Parliament when it broughtforward the legislation (the so-called mens or sententia legis), the commonlaw, (unlike the civil law) would argue that it is a rule of practice that whileinterpreting an item of legislation, the judge should not survey any debates oramendments which preceded its enactment. In essence, a judge must look tothe legislation and not the legislative process. Many judges have commentedon this rule of practice which tends to restrain their powers of statutoryinterpretation. Many have noted it, some have criticised it and even a fewhave departed from it.92

One argument against admissibility of legislative history is that theadmission would mean that every lawyer who advised a client without firstexamining all the relevant history would be acting negligently. It would alsorequire a lot of time and expense. It seems inconsistent also to permit thecourts to look to legislative history in their construction of statutes while alsorecognising that an individual’s reliance upon that same history may offersome justification for conduct which is arguably inconsistent with thelegislative intention as revealed in the history.93

All these argument notwithstanding, the courts have on occasion departedfrom the practice (eg in Sillery v. R)94 especially where a judge was personallyinvolved in the production of the piece of legislation now up for construction.Lord Nottingham claimed in Ash v. Abdy95 to ‘have some reason to know themeaning’ of the Statute of Frauds because, he said, it had its rise from him; hehad brought it into the House of Lords. In Rowe v. Law96 the Chief Justice ofthe Republic of Ireland substantiated his construction by turning to thelegislative history of the Act, as did Lord Denning in Sagnata Investments Ltd.v. Norwich Corporation.97

According to Rhodes, White and Goldman98 the constitutional separationof powers requires a conscientious search for legislative intent. This wouldinclude investigating legislative history and other extrinsic aids in instanceswhere the circumstances disclose relevant uncertainty. They suggested thecriteria for the use of legislative history – something in the nature of

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92 Vincent J.G. Power, ‘Parliamentary History as an Aid to Statutory Interpretation’, [1984] Stat LR38-39.

93 S.J.Gibb, ‘Parliamentary Materials as Extrinsic Aids to Statutory Interpretation’, [1980] Stat LRp.29 at p.35.

94 (1981) 35 ALR 227 at p.233.95 (1678) 3 Swan 644; 36 ER 1014.96 [1978] IR 55.97 [1971] 2 All ER 1441 at p.1445.98 ‘The Search for Intent: Aids to Statutory Construction in Florida’ (1978) 6 Fla. H. U. L. Rev. 383.

substantially increased committee reports, recording and retaining the recordsof committee hearings and floor details and requiring sponsor’s statement ofintent99:

According to the weight of authority and surely the better view, the court mayconsider the general history of a statute, including its derivation, that is, thevarious steps leading up to and attending its enactment, as shown by thelegislative journals in its efforts to ascertain the intention of the legislaturewhere it is in doubt.100

In the United States, amendments to a Bill and the action taken on them,messages from the Chief Executive, reports of legislative committees anddebates of the legislature are often referred to, as indicative of the legislativeintent where that intent is obscure: United States v. Raynor.101 In that case theUnited States Congress had passed an Act which provided that the possessionof paper similar to that used by the Government in printing its obligationconstituted a crime and the defendant was charged with violating the Act. Theissue for determination was whether a paper similar but not identical to thatused by the Government fell within the ambit of the section. The Court lookedinto the legislative history of the Act and concluded:

The section now under consideration is plainly a combination of a long seriesof legislative aids, each of which has declared it to be a crime to havepossession of paper counterfeiting the distinctive paper …. Each change since1837 was intended to make the possession of counterfeit paper moredangerous for counterfeiters.

The Ghana Interpretation Act 1960 deals with this question of recourse toexternal materials. Section 19 empowers the court to turn

to any text-book, or other work of reference, to the report or anymemorandum published by authority in reference to the enactment or the Billfor the enactment and to any papers laid before the National Assembly inreference to it, but not to the debates in the Assembly.

This is a very wide provision. It makes it possible for a court to considerWhite Papers, Green Papers, the Memorandum to the Bill and text-books. Thesection, however, clearly excludes the use of parliamentary debates.

Parliamentary Debates

The traditional rule was that the courts could not have recourse toparliamentary debates for any purpose, be it to find out the mischief to becured or the ‘intention of Parliament’. This rule was affirmed in Davis v.

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99 Ibid at pp.405-407.100 Crawford, Construction of Statutes, p.383.101 302 US 540, 58 C 353, 82L Ed. 413.

Johnson102 and in Hadmor Productions v. Hamilton,103 Lord Diplock saidthat,

There are a series of rulings by this House, unbroken for a hundred years, andmost recently affirmed emphatically and unanimously in Davis v. Johnson,that recourse to reports of proceedings in either House of Parliament duringthe passage of the Bill which … became the Act of Parliament that falls to beconstrued, is not permissible as an aid to its construction.

The non-admissibility of parliamentary debates for purposes ofinterpretation has nothing to do with parliamentary privilege; in recent yearsattempts have been made to change the position. Lord Scarman, in Tuck v.National Freight Corporation104 stated that if Parliament chooses to use

language that is general to the point of ambiguity, ought not judges to beallowed the aid of, for example, official reports or the record of proceedings atthe committee stage of the Bill to determine the intention of Parliament?105

He also wished that ‘Notes on Clauses’ used by Ministers when taking theBill through Parliament could be referred to: ‘How useful they would be, notof course decisive but an invaluable guide …’

Lord Denning has been described as

the most persistent advocate of a departure from the rule forbidding use ofHansard in statutory interpretation … Unlike some advocates of change, LordDenning was not at all willing to wait for the Parliament in England to decidethe dispute: instead he simply went ahead and looked at the records ofparliamentary debates regardless of the weight of authority to the contrary…Even in 1976 he was aware that he was not supposed to look at Hansard inorder to discover why Parliament took certain action. Nonetheless he did so.

Lord Dilhorne has argued that it is improper for a judge to look at Hansard.But what is intrinsically improper about reference to Parliamentary

Debates? The Ghana Interpretation Act 1960 which by its s.19 actually set thepace for the use of extrinsic aids, surprisingly failed in the area ofadmissibility of parliamentary debates – influenced, no doubt, by the standtaken by the judges in England. The Memorandum to the Bill which laterbecame the Act stated that,

There are two cogent reasons for their exclusion: first, it would not beconducive to the respect which one organ of state owes to another, that itsdeliberations should be open to discussion in court and secondly, it would

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102 [1979] AC 264 at p.337 per Viscount Dilhorne.103 [1982] 2 WLR 322 at p.337.104 [1979] 1 WLR 37 at 55.105 It does appear that Lord Scarman has had a change of heart between Tuck and the Hadmor

Production cases.

greatly interfere with the freedom of debate if members had to speak in theknowledge that every remark might be subject to judicial analysis.

However, as Lord Hailsham, the Lord Chancellor, pointed out:

If they really think that courts and practitioners do not read blue books inorder to find out what statutes mean, they are living in a complete fool’sparadise. When I was at the Bar I was constantly having to advise as to themeaning of statutes and as constantly I was finding, as I do in this House andas I do when I sit judicially, that the words of the Parliamentary draftsman areat first sight incomprehensible. I always look at Hansard, I always look ateverything I can.106

Lord Denning, in an attempt to make the admissibility of parliamentarydebates possible, found a way of circumventing the difficulty. In a publicaddress, the Parliamentary Commissioner had quoted portions of a debate inParliament. These were then quoted by Professor Wade in one of his books,which brought them into the domain of permissible reference.

In R v. Local Commission for Administration,107 Lord Denning explained:

The Parliamentary Ombudsman, Sir Edward Compton, has acknowledgedopenly that he himself gained assistance by looking at the debates inParliament on the subject. He looked at Hansard …. Now the question at oncearises: are we the judges to look at Hansard when we have the self-same task?... According to the recent pronouncement of the House of Lords in Davis v.Johnson108 ... we ought to regard Hansard as a closed book to which we asjudges must not refer at all, not even as an aid to the construction of statutes....By good fortune, however, we have been given a way of overcoming thatobstacle. For the Ombudsman himself in a public address to the Society ofPublic Teachers of Law quoted the relevant passages of Hansard … as part ofhis address: and Professor Wade has quoted the very words in his latest textbook on Administrative Law, 4th ed. (1977) p.82. And we have not yet beentold that we may not look at the writing of the teachers of law. Lord Simondswas as strict upon these matters as any judge ever has been, but he confessedhis indebtedness to their writings, even very recently …. So have other greatjudges. I hope therefore that our teachers will go on quoting Hansard so that ajudge may in this way have the same help as others have in interpreting astatute.

According to Alec Samuels,

with characteristic ingenuity, Lord Denning has found a possible way roundthe direct non-admissibility of Hansard, though one which might put pressureon text-book writers.109

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106 Parliamentary Debates, 1983 1986 cols 1345-1346.107 [1979] QB 287 at p.311.108 [1978] 2 WLR 553.109 The Interpretation of Statutes [1980] Stat LR 98.

Did the courts have to wait for the text-books to refer to parliamentarydebates before they admit Hansard? The refusal to admit parliamentarydebates as an aid to construction, be it noted, is a self-imposed rule.

Policy Documents

A judge may read privately whatever policy documents he chooses to read inorder to arrive at an understanding of the legal effect of a statutory provision.Yet, in what circumstances is it permissible for the judge to refer explicitly tothese policy documents in a judgment? According to Miers and Page,110

Domestic pre-legislative documents which include reports of RoyalCommissions, the Criminal Law Revision Committee, the Law Commissions,the Law Reform Committee, departmental inquiries and Parliamentary SelectCommittees may be used as an aid to identify the mischief which the legislationis intended to remedy; but not for the purpose of construing enacting words insuch a way as to conform with recommendations made in the report as to theform the remedy should take. By contrast, the explanatory memoranda andnotes of clauses prepared by the department to accompany the parliamentarystages on a Bill may not be publicly referred to by a judge for any purpose.

But Crawford111 states that,

In spite of authority to the contrary, the general policy of the state, or theestablished policy of the Legislature as revealed by its legislation generallyshould be considered in the construction of statutes …. Where doubt existsregarding the meaning of a statute, rather than allow a miscarriage of theintention of the legislature when that intention is in fact ascertainable, it wouldseem proper for the court to give the general policy of the state someconsideration. Nevertheless, if the Legislature reveals an intent to depart fromexisting public policy, that intent must be effective; and the court should notignore or override it.

Reports of Commissions and Committees

The courts in Australia use the reports of the Law Commission in order todiscover the mischief which an Act is intended to remedy. But Gibbs J iscautious:

One [must] … confine one’s consideration of such a report to discovering theprevious state of the law and the mischief or defect for which it wasconsidered that the law did not provide: such a report is not to be used for thepurpose of ascertaining directly what the Act was intended to mean.112

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110 Legislation, pp.174-175111 Construction of Statutes, pp.371-372.112 Wacal Developments Pty Ltd. v. Realty Development Pty Ltd. (1978) 14 CLR 503 at p.509.

It was held in Attorney-General v. Maksimovich113 that the interim reportof a commission of inquiry is

likely to provide a useful compilation of background material which, so longas it is compatible with the language of the legislation ultimately enacted, mayhelp in understanding the mischief to which it was addressed.

In Eastman Photographic Materials Co Ltd. v. Comptroller of GeneralPatents,114 the Act under consideration was passed as a result of a report of adepartmental Commission on the use of geographical names. Said LordHalsbury:

I think no more accurate source of information as to what was the evil ordefect which the Act of Parliament now under consideration was intended toremedy could be imagined than the report of that Commission.

The House of Lords, in Assam Railways and Trading Co Ltd. v. InlandRevenue Commissioners,115 refused to admit the Royal Commission’s report.More recently, in Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenberg AG,116 a distinction was drawn between the admissibility ofpre-parliamentary materials as evidence of surrounding circumstances and theadmissibility of such materials as direct evidence of the intention ofParliament. In the United States of America and Western European countriesno such distinction is made.

Select Committees of either House of Parliament or some other publiclyappointed Committee or Commission may be required to report on such mattersfor the very purpose of identifying changes which ought to be made in the law.Such a report may only be looked at in order to ascertain the relevantmischief.117 In the Black-Clawson case, Lord Reid pointed out that the courtsshould disregard expressions of intention by Committees reported before a Billis introduced. Lord Denning appears to have agreed that the courts cannot lookat what the Committee recommended! However, Viscount Dilhorne118 said:

That one can look at such reports to discern the mischief is now, I think,established, but there is a difference of opinion as to what can be looked at insuch reports. Can one have regard to the recommendations of the Committeeor Commission? Where a draft Bill is attached to the report as is nowfrequently the case ... can one refer to the terms of the draft Bill when theyhave been enacted without material alterations by Parliament? Can one referto the notes on the clauses of the draft Bill appended to it by the Committee?

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113 (1985) 4 NWLR 300 at p.304 per Kirby P.114 [1898] AC 571 at p.575.115 [1935] AC 445.116 [1975] AC 591.117 Funning v. Board of Governors of the United Liverpool Hospitals [1933] All ER 454 at p.457. 118 [1975] AC 591 at pp.622-623.

... Is it legitimate to make use of such parts of a report as an aid to theconstruction of the Act?

In my opinion it is. The question why one is entitled to consider what was themischief at which the Act was aimed is surely that that will throw a revealinglight on the object and purpose of the Act, that is to say, the intention ofParliament; and applying Lord Halsbury’s observation ... what more accuratesource of information both as to law at the time and as to the evil or defectwhich the Act was intended to remedy can be imagined than the report of sucha Committee or, for that matter, the reports of the Law Commission?

Lord Dilhorne’s case is compelling, and one questions why Lord Reidthinks the court is ‘not ... entitled to take any of this into account in construingthe Act’.

Treaties

It is usual for treaties to be accompanied by travaux preparatoires. Can thecourts use a treaty to interpret an Act or admit the travaux preparatoires of thetreaty to construe an Act? The question is easily answered where the Actresolves the problem by including the text of the treaty as a Schedule to theAct. And where the Act seeks to give effect to the treaty by adoption of thetreaty, no doubt the travaux preparatoires can be consulted. Said LordDiplock in Quazi v. Quazi119:

It is a legitimate aid to construction of any provisions of the Act that areambiguous or vague to have recourse to the terms of the treaty in order to seewhat was the obligation in international law that Parliament intended that thiscountry should be enabled to assume. The ambiguity is to be resolved infavour of that meaning that is consistent with the provisions of the treaty.

According to Meirs and Page, where a treaty has become part of the law ofthe United Kingdom two conditions are required: ‘first, that the material ispublic and accessible, and secondly, that the travaux preparatoires clearly andindisputably point to a definite legislative intent.’120

In Fothergill v. Monarch Airlines Ltd., articles 18(1) and 26(2) of theWarsaw Convention Relating to International Carriage by Air as embodied inthe Carriage by Air Act 1961121 were in issue. The texts of the Conventionboth in the English and in the French Acts were contained in the Schedule tothe Act. There is a provision in the Act that in case of an inconsistency theFrench Act should prevail. It was held that any doubts could be resolved bylooking at French text-books and judicial opinions on the subject. Crosstherefore considers that,

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119 [1980] AC 744 at p.808.120 Legislation, pp.175-176.121 9 & 10 Eliz. 2 ch 27.

The difference in the judicial approach to travaux preparatoires in the case oftreaties as compared with domestic legislation was justified by Lord Diplockon the ground that delegates to the conference giving rise to the treaty wouldhave voted on the understanding that certain materials would be consulted,and that therefore no further clarification of the treaty’s wording on theparticular point was necessary. To consult the travaux preparatoires bestensures the comity of nations and uniformity of interpretation amongsignatories.122

It should now be clear that judicial consideration of legislative action is notparticipation in the legislative process, nor an infringement of the legislativefunctions of Parliament. It is an exercise of the judicial function.

The constitutional separation of powers requires a conscientious search forlegislative intent. This should include investigating legislative history andother extrinsic material where there is ambiguity or even vagueness oruncertainty, and the courts should be able to resort to the use of extrinsicmaterial if they are to perform efficiently their function of interpretation orconstruction. The legislative history of an Act would definitely help the courtsin discovering the meaning of an ambiguous word or expression. Legislativehistory will also give sufficient information and insight not readily availableelsewhere.

We live in an age of increasing cultural, economic and social complexity.Legal solutions must match the attempts to solve the problems of the daythrough the instrumentality of legislation. The cultural, economic and socialstimuli of the day are of immense importance in the search for a just society.The courts should not stand aloof, oblivious to these currents, or refuse to seekthe meaning of words or expressions in an Act in the very materials whichwould explain the meaning the words and expressions are intended to have.Green Papers, parliamentary debates, White Papers, all have a part tocontribute in this important exercise of understanding statutes.

The various arguments against the use of extrinsic material are not enough.The arguments about inaccessibility, about unreliability, about overwhelmingthe judges – and lawyers – are not convincing in the face of the demands ofsocial justice and all that go with it. If the legislators know that their wordswill be subject to careful scrutiny and analysis by the courts in the effort to dojustice, they would be more careful in their approach to their responsibilities inrelation to a Bill presented to them. Parliamentary debates are published. Isthere then a problem of inaccessibility?

The House of Lords admits official reports for the purposes of ascertainingthe background, the mischief, the objectives of an Act of Parliament. Why notadmit those materials for the purpose of construing an Act of Parliament?Lord Simon of Glaisdale was correct when he said that an official report and a

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122 Statutory Interpretation, by Bell and Engle, p.164.

consequential Act form an integral process and logically one cannot look atthe result for one purpose and not for the other.123 The value in reading theparliamentary debates is to get to the pith and substance of the legislation.

Travaux preparatoires should be used as evidence of legislative intent aswell as general information on the whole background of an Act, materialwhich is essential for the courts to know in order to give meaning to theirtasks. Extrinsic material, legislative history, the previous state of the law, theevil intended to be corrected, are all vital to an understanding of an Act ofParliament, and the removal of the doubts that may remain.

Pepper (Inspector of Taxes) v. Hart

This very important case found the House of Lords grappling with the issue ofreference to the proceedings in Parliament as an aid to the construction of anambiguous or obscure legislation. The legislation in question was the FinanceAct 1976.124 The particular provisions which came up for construction weresub-sections 61(1), 63(1) and 63(2). They provided that,

61.(1) Where in any year a person is employed in director’s or higher-paidemployment and –

(a) by reason of his employment there is provided for him, or for others beingmembers of his family or house-hold, any benefit to which this sectionapplies; and

(b) the cost of providing the benefit is not (apart from this section) chargeableto tax as his income,

there is to be treated as emoluments of the employment, and accordinglychargeable to income tax under Schedule E, an amount equal to whatever isthe cash equivalent of the benefit.

63.(1) The cash equivalent of any benefit chargeable to tax under s.61 aboveis an amount equal to the cost of the benefit, less so much (if any) of it as ismade good by the employee to those providing the benefit.

(2) Subject to the following subsections, the cost of a benefit is the amount ofany expense incurred in or in connection with its provision, and (here and inthose subsections) includes a proper proportion of any expense relating partlyto the benefit and partly to other matters.

Nine masters and the bursar at an independent boy’s school were thetaxpayers in this case. For the benefit of the members of the teaching staff, theschool operated a concessionary fees scheme. The sons of the masters and thebursar were educated at the school on those concessionary terms. The fees

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123 Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenberg AG [1975] 1 All ER 810 at pp.842-848.124 C.40.

they paid were one-fifth of the fees ordinarily charged to members of thepublic.

The concessionary fees more than covered the additional cost to the schoolof educating the taxpayers’ sons. In the relevant years the school was not fullto capacity, so the admission of the sons did not therefore cause the school tolose full fees which would otherwise have been paid by members of the publicfor the places so occupied. The education of the sons of the nine members andthe bursar at reduced fees was a taxable benefit under s.61(1) of the FinanceAct 1976.

The taxpayers were assessed to income tax on the cash equivalent of thatbenefit on the basis that they were liable for a rateable proportion of theexpenses in the running of the school as a whole for all the boys of the school.That proportion was roughly equal to the amount of the ordinary school fees.By s.63(1) of the 1976 Act, the cash equivalent of the benefit was an amountequal to the cost of the benefit and by s.63(2) the cost of the benefit was theamount of any expense incurred in or in connection with its provision.

The taxpayers appealed against the assessments made by the Inspector ofTaxes. They claimed that since all the costs of running the school generallywould have had to be incurred in any event the only expense incurred by theschool in or in connection with the education of their sons was the smalladditional or marginal cost to the school caused by the presence of their sons,that was covered by the fees they paid. Thus the cash equivalent of the benefitwas nil. The Crown contended that the expense incurred in or in connectionwith the provision of education for the taxpayers’ sons was exactly the sameas the expense incurred in or in connection with the education of all otherpupils at the school. Accordingly the expense of educating any one child was aproportionate part of the cost of running the whole school.

The Special Commissioner allowed the taxpayers’ appeals. It was held thatsince the taxpayers’ sons occupied only surplus places at the school at theschool’s discretion and the fees paid by the taxpayers fully covered andreimbursed the cost to the school of educating the taxpayers’ sons no tax waspayable by the taxpayers. The Crown appealed. The Court of Appeal affirmedthe decision of the judge. The taxpayers then appealed to the House of Lords.

In the House of Lords it became apparent that an examination of theproceedings in Parliament in 1976 in respect of sections 61 and 63 might helpin determining

(a) whether Parliament intended that the cost of the benefit, that is to say,the amount of any expense incurred in or in connection with itsprovision, in s.63(2) meant the actual expense incurred by the school inproviding the benefit, or

(b) the average cost of the provision of the benefit (that being very close toa market value test).

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The House of Lords, by a majority, held that,(a) having regard to the purposive approach to the construction of legislation the

courts had adopted in order to give effect to the true intention of thelegislature, the rule prohibiting the courts from referring to parliamentarymaterial as an aid to statutory construction should, subject to any question ofparliamentary privilege, be relaxed so as to permit reference to parliamentarymaterial where

(i) the legislation was ambiguous or obscure or the literal meaning led toan absurdity,

(ii) the material relied on consisted of statements by a minister or otherpromoter of the Bill which led to the enactment of the legislationtogether, if necessary, with such other parliamentary material as wasnecessary to understand the statements and their effect, and

(iii) the statements relied on were clear;

(b) the use of parliamentary material as a guide to the construction ofambiguous legislation would not infringe s.1, art 9 of the Bill of Rightssince it would not amount to a ‘questioning’ of the freedom of speech orparliamentary debate provided counsel and the judge refrained fromimpugning or criticising the minister’s statements or his reasoning;

(c) the purpose of the courts in referring to parliamentary material would be togive effect to, rather than thwart through ignorance, the intentions ofParliament, nor would it be the purpose of the courts to question theprocesses by which the legislation was enacted or to criticise anything saidby anyone in Parliament in the course of enacting it;

(d) section 63(2) of the 1976 Act was clearly ambiguous because the ‘expenseincurred in or in connection with’ the provision of in-house benefits couldbe interpreted as being either the marginal cost caused by the provision ofthe benefit in question or as a proportion of the total cost incurred inproviding the service both for the public and for the employee (the averagecost);

(e) the parliamentary history of the 1976 Act and statements made by theFinancial Secretary to the Treasury during the committee stage of the Billmade it clear that Parliament had passed the legislation on the basis that theeffect of sections 61 and 63 was to assess in-house benefits, andparticularly concessionary education for teachers’ children, on themarginal cost to the employer and not on the average cost of the benefit.Accordingly s.63 should be given that meaning;

(f) since the Crown had not identified or specified the nature of anyparliamentary privilege going beyond that protected by the Bill of Rights,there was no defined privilege as to the existence and validity of which theHouse of Lords in its judicial capacity would otherwise have been entitledto make a determination, and it would therefore not be right to withhold

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from the taxpayers the benefit of a decision to which, in law, they wereentitled.

Lord Bridge of Harwich found it very difficult, in conscience, to reach aconclusion adverse to the taxpayers on the basis of a technical rule ofconstruction requiring him

to ignore the very material which ... indicates unequivocally which of the twopossible interpretations of s.63(2) of the 1976 Act was intended by Parliament.... It should … only be in the rare cases, where the very issue of interpretationwhich the courts are called on to resolve has been addressed in parliamentarydebate and where the promoter of the legislation has made a clear statementdirected to that very issue, that reference to Hansard should be permitted.Indeed, it is only in such cases that reference to Hansard is likely to be of anyassistance to the courts. Provided the relaxation of the previous exclusionaryrule is so limited, I find it difficult to suppose that the additional cost oflitigation or any other ground of objection can justify the court continuing towear blinkers which, in such a case as this, conceal the vital clue to theintended meaning of an enactment.125

To Lord Griffiths,

The days have long passed when the courts adopted a strict constructionistview of interpretation which required them to adopt the literal meaning of thelanguage. The courts now adopt a purposive approach which seeks to giveeffect to the true purpose of legislation and are prepared to look at muchextraneous material that bears on the background against which thelegislation was enacted. Why then cut ourselves off from the one source inwhich may be found an authoritative statement of the intention with whichthe legislation is placed before Parliament.126

Lord Oliver of Aylmerton stated that,

A statute is, after all, the formal and complete intimation to the citizen of aparticular rule of the law which he is enjoined, sometimes under penalty, toobey and by which he is both expected and entitled to regulate his conduct ….But experience shows that language – and, particularly, language adopted orconcurred in under the pressure of a tight parliamentary timetable – is notalways a reliable vehicle for the complete or accurate translation of legislativeintention; and I have been persuaded ... that the circumstances of this casedemonstrate that there is both the room and the necessity for a limitedrelaxation of the previously well-settled rule which excludes reference toparliamentary history as an aid to statutory construction … I accept,therefore, that in referring to “the cost of the benefit” and the “expenseincurred in ... its provision”, s.63(1) and (2) of the Finance Act 1976introduced an element of ambiguity. That is underlined by the absurdity which

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125 Ibid at p.49. Emphasis supplied. 126 Ibid at p.50. Emphasis supplied.

would result from a literal construction of the word “cost” in the case of aloss-making concern such as British Rail or a heavily endowed institution,where the employee’s benefit would have to be valued at a figure in excess –indeed, it may be many times in excess – of the market price of the serviceprovided. The references to Hansard ... put it beyond doubt that that could nothave been the intention of Parliament in enacting the section.127

Lord Browne-Wilkinson reviewed extensively the case law on the subjectof the admissibility of extrinsic aids and of parliamentary debates in theinterpretation or construction of an Act of Parliament. He came to theconclusion that,

Where the words used by Parliament are obscure or ambiguous, theparliamentary material may throw considerable light not only on the mischiefwhich the Act was designed to remedy but also on the purpose of thelegislation and its anticipated effect. If there are statements by the minister orother promoter of the Bill, these may throw as much light on the “mischief”which the Bill seeks to remedy as do the white papers, reports of officialcommittees and Law Commission reports to which the courts already haveregard for that purpose. If a minister clearly states the effect of a provision andthere is no subsequent relevant amendment to the Bill or withdrawal of thestatement it is reasonable to assume that Parliament passed the Bill on thebasis that the provision would have the effect stated. There is no logicaldistinction between the use of ministerial statements introducing subordinatelegislation … and such statements made in relation to other statutoryprovisions which are not in fact subsequently amended …. In my judgment ...reference to parliamentary material should be permitted as an aid to theconstruction of legislation which is ambiguous or obscure or the literalmeaning of which leads to an absurdity. Even in such cases references incourt to parliamentary material should only be permitted where such materialclearly discloses the mischief aimed at or the legislative intention lying behindthe ambiguous or obscure words .... Statute law consists of the words thatParliament has enacted. It is for the courts to construe those words and it is thecourt’s duty in so doing to give effect to the intention of Parliament in usingthose words .... Parliament never intends to enact an ambiguity ... but in a fewcases it may emerge that the very question was considered by Parliament inpassing the legislation. Why in such a case should the courts blind themselvesto a clear indication of what Parliament intended in using those words? Thecourt cannot attach a meaning to words which they cannot bear, but if thewords are capable of bearing more than one meaning why should notParliament’s true intention be enforced rather than thwarted?

The courts can now look at white papers and official reports for the purpose offinding the “mischief” sought to be corrected, although not at draft clauses orproposals for the remedying of such mischief. A ministerial statement made in

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127 Ibid at pp.52-53. Emphasis supplied.

Parliament is an equally authoritative source of such information; why shouldthe courts be cut off from this source of information as to the mischief aimedat? ... Given the purposive approach to construction now adopted by thecourts in order to give effect to the true intentions of the legislature, the finedistinctions between looking for the mischief and looking for the intention inusing words to provide the remedy are technical and inappropriate. Clear andunambiguous statements made by ministers in Parliament are as much thebackground to the enactment of legislation as white papers and parliamentaryreports .… The courts should not deny themselves the light whichparliamentary materials may shed on the meaning of the words Parliamenthas used and thereby risk subjecting the individual to a law which Parliamentnever intended to enact .… Recourse is already had to white papers andofficial reports not because they determine the meaning of the statutory wordsbut because they assist the court to make its own determination …. Theexclusionary rule should be relaxed so as to permit reference toparliamentary materials where

(a) legislation is ambiguous or obscure, or leads to an absurdity;

(b) the material relied on consists of one or more statements by a minister orother promoter of the Bill together if necessary with such otherparliamentary material as is necessary to understand such statements andtheir effect;

(c) the statements relied on are clear.127a

The House of Lords was not persuaded by the argument that the practicaldifficulties arising from a limited relaxation of the rule was sufficient tooutweigh the need for the Courts to give effect to the words of an Act ofParliament by reference to parliamentary material. There are seriousconsiderations for permitting the relaxation of the exclusionary rule:

(a) experience in New Zealand and Australia had shown that not only areparliamentary materials available but also that they are readilyunderstandable by the lawyer as well as the layman;

(b) the suggestion that lawyers and judges are not familiar with parliamentaryprocedures and will thus have difficulty in giving proper weight to theparliamentary materials is a very weak one;

(c) the danger of litigation becoming time-consuming and more costly will notnecessarily be significant as long as the courts maintain strict control overthe use of parliamentary materials;

(d) the cost of researching to the legal adviser is over-estimated.128

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127a Emphasis supplied.128 Ibid pp.66-67 per Lord Browne-Wilkinson.

Lord MacKay LC, while agreeing that the appeal should be allowed, wasunable to concur in the considerations mentioned above. He had no objectionin principle to a relaxation of the rule, but felt that the practical difficulties ofrelaxing the rule would outweigh its effectiveness:

(a) the difficulty of legal advisers having to study in practically every casethe whole proceedings in Parliament on the Bill in question to seewhether or not there is any help to be gained from them;

(b) the difficulty of an immense increase in the cost of litigation confirmedby the various Law Commissions.129

Bill of Rights

The House of Lords were in complete agreement that

(a) the use of parliamentary materials as a guide to the construction of anAct of Parliament would not infringe s.1 of article 9 of the Bill ofRights, 1688.130 The provision states

“That the freedom of speech and debate or proceedings inParlyament ought not to be impeached or questioned in any Courtor place out of Parlyament”;131

(b) the purpose of the article is to protect members of Parliament from anypenalty, civil or criminal, for what they said and to enable them todiscuss what they, as opposed to the Sovereign, choose to discuss;

(c) the relaxation of the exclusionary rule would not amount to a‘questioning’ of the freedom of speech or parliamentary debateprovided counsel and judge refrained from impugning or criticising theminister’s statements or the reasoning of the minister.

Lord Griffiths said:

I agree that the use of Hansard as an aid to assist the court to give effect to thetrue intention of Parliament is not “questioning” within the meaning of s.1article 9 of the Bill of Rights (1688). I agree that the House is not inhibited byany parliamentary privilege in deciding this appeal.132

Lord Oliver of Aylmerton also said:

I find myself quite unable to see how referring to the reports of parliamentarydebates in order to determine the meaning of words which Parliament hasemployed could possibly be construed as “questioning” or “impeaching” the

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129 Ibid pp.47-48. 130 1 Will. & Mar. Second Session, c.2.131 See p.55 of the judgment of Lord Browne-Wilkinson.132 Ibid p.50.

freedom of speech or debate or proceedings in Parliament or as otherwiseinfringing the provisions of art. 9 of s.1 of the Bill of Rights.133

Lord Browne-Wilkinson considered that the purpose of the courts inreferring to parliamentary material would be to give effect to, rather thanthwart through ignorance, the intentions of Parliament and not to question thelegislative process leading up to the enactment or to criticise anything said byanyone in Parliament in the course of enacting it.

A writer in support of the judgment has expressed surprise at thesubmission by the Crown that citing Hansard in court infringes parliamentaryprivilege. He referred to the argument by the Crown as ‘absurd.’ The criticismis unsparing on this issue:

It is surely one thing for Parliament to commit the Sheriff of Middlesex forcontempt in levying execution on Hansard’s property,134 but quite another tocomplain that the courts are giving effect to what might for the first timeaccurately be described as “the intention of Parliament”.135

Francis Bennion agrees with Lord Browne-Wilkinson that the resolutiongives leave only for reference to be made to debates and that the referencedoes not authorise discussion or argument about what was said in the debates.Bennion is of the opinion that,

Article 9 is badly drafted and ambiguous since “freedom” may qualify only“speech” or it may qualify “debates or proceedings in Parliament.” In otherwords, is it merely the freedom of parliamentary debates and proceedings thatought not to be impeached or questioned or is it the debates and proceedingsin its entirety?’136

But he was not convinced that the view adopted by the House of Lordswas correct:

To allow an advocate to cite in court, as an indication of the intended legalmeaning of an Act, a statement made in Parliament by the minister sponsoringthe Bill for the Act, surely must involve “questioning” the ministerialstatement in court.137

Advocates’ arguments and counter-arguments in court in an effort tounderstand what the promoter of a Bill has said in Parliament and the judge’sview on the arguments do not amount to questioning the statement made bythe promoter in Parliament. It is part of the time-honoured method the courtshave evolved over the years in order to ascertain the meaning of what hasbeen said. To try to find out what a person has said is not the same thing as

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133 Ibid p.53.134 (1840) 11 A& E 273.135 The Current Notes (1993) British Tax Review, p.1.136 Statute Law, (1992) All ER Annual Review, p.394.137 Ibid p.396.

finding out whether that person has any right to say it. There is a markeddifference between questioning the right of a person and questioning theexercise of that right. And clearly there is a difference between, (a) a right, (b)the normal exercise of the right, and (c) the meaning of the words used in theexercise of the right.

Before the second hearing of the case, the Attorney-General submitted aletter written by the Clerk of the House of Commons referring to a resolutionpassed by the House of Commons on 31 October 1980 giving general leavefor reference to be made to Hansard or other parliamentary reports in courtproceedings. The relevant portion of the letter of the 5 June 1992 stated:

In my opinion, the use proposed for the Official Report of Debates in this caseis beyond the meaning of the “reference” contemplated in the Resolution ofOctober, 1980. If a court were minded in particular circumstances to permitthe questioning of the proceedings of the House in the way proposed, it wouldbe proper for the leave of the House to be sought first by way of petition sothat, if leave were granted, no question would arise of the House regarding itsPrivileges as having been breached.

The House of Lords held that since the Crown or the Clerk of the House ofCommons had not identified or specified the nature of any parliamentaryprivilege going beyond that protected by the Bill of Rights, there was nodefined privilege as to the existence and validity of which the House of Lordsin its judicial capacity would otherwise have been entitled to make adetermination. It would therefore not be right to withhold from the tax payersthe benefit of a decision to which, in law, they were entitled.

It does appear that on this point the omission on the part of the Crown toadequately prepare and submit a full argument was crucial to its rejection.Despite having notice that the resumed hearing before the House of Lords wasto consider references to parliamentary material, the Attorney-General did notpresent his argument until the start of the hearing and to the other side. Norwas an adjournment requested to enable the House of Commons to considerthe matter. Perhaps the Crown, through the Attorney-General, never believedthe submission would carry much weight on the decision.

The Outlook

Pepper v. Hart may now be considered a change of judicial approach to theinterpretation or construction of an Act of Parliament. The rules which tend todisapprove of the use of extrinsic aids to construction may have to be lookedat again. In R v. Warwickshire County Council, ex p. Johnson,138 a caseinvolving a reference to parliamentary material, Pepper v. Hart was followed

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138 [1993] 2 WLR 1. See also Stubbings v. Webb [1993] 2 WLR 120; Foster v. Chief AdjudicatingOfficer [1993] 2 WLR 292; [1993] 1 All ER 705 HL.

in order to construe s.20 of the Consumer Protection Act 1987.139 The doorhas been opened. It will be difficult now to close it.

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139 C.43.

Chapter 5

Presumptions

A presumption is a mere legal device, yet it is a rule of law. It operates, in thefield of the interpretation or construction of an Act of Parliament, to allowcertain inferences to be drawn from available material. It is an assumption thatit is legitimate to make in order to achieve a result, legal and desirable, in agiven set of circumstances. The presumption of innocence, for example, is apresumption of law jealously guarded by the courts. Thus, in addition to therules of interpretation discussed in Chapter Four, the courts have acceptedcertain presumptions of law which are called to aid in the interpretation orconstruction of an Act of Parliament.

Consistency

It is a basic principle in legislative drafting, and one accepted by the courts,that the same idea should be expressed in the same way every time it isexpounded. Thus different ideas should be differently expressed, and wherecomparable ideas are expressed they are correspondingly identified to indicatethe appropriate differences in meaning. Therefore, in the interpretation of anAct of Parliament, the courts presume that a word used with one meaning isintended to bear that meaning each time the word is used in the Act.

However, any obvious departure from this principle would be treated tomean a departure in meaning. A court would then be faced with twointerpretations. In those circumstances,

If the choice is between two interpretations, the narrower of which would failto achieve the manifest purpose of the legislation, [the court would] avoid aconstruction which would reduce the legislation to futility and [would] ratheraccept the bold construction based on the view that Parliament would legislateonly for the purpose of bringing about an effective result. If the language iscapable of more than one interpretation, one ought to discard the more naturalmeaning if it leads to an unreasonable result and adopt the interpretationwhich leads to a reasonable practical result.1

In Giffels & Vallet v. The King,2 it was put clearly that,

while it is quite true that a word may have different meanings in the same

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1 Gill v. Donald Humberstone Co. Ltd. [1963] 1 WLR 929 at pp.933-934 See also Nokes v. DoncasterAmalgamated Collieries Ltd. [1940] AC 1014 at p.1022; Bracey v. Read [1963] 1 Ch 88.

2 [1952] 1 DLR 620 at p.630.

statute or even in the same section, it is not to be forgotten that the firstinference is that a word carries the same connotation in all places where it isfound in a statute.

In Income Tax Commissioners for City of London v. Gibbs,3 LordMacmillan said:

The scheme of legislation in the matter in hand has been far from logical. Ithas been a case of makeshift patches of different hands, and verbalconsistency is the last virtue that can be attributed to a code which uses sovital a term as “assessment” in no less than eight differing senses … Indeed,Lord Wrenbury, in Kensington Income Tax Commissioners v. Aramayo4 wentso far as to say that “no reliance can be placed upon an assumption ofaccuracy in the use of language in these Acts.” Section 62 of the Act of 1880does not profess to be an amendment of the previous law. It is a new departureand … its language ... may fairly be held to cover the case of changes in thepersons carrying on a partnership concern. The draftsman of s.62 may havetaken that view and [may] have regarded a change in partnership personnel asa ceasing by one set of persons to carry it on and a succeeding to it of anotherset of persons, notwithstanding, or perhaps without due regard to, thedistinction drawn in the fourth rule in the Act of 1842.

Consolidation Acts

Director of Public Prosecutions v. Schildkamp5 can be cited as an authority forthe very strong presumption that a provision in a consolidation Act does notalter the pre-existing law. This presumption is based upon parliamentaryprocedure: the assurance is given that the consolidating Bill does not make asubstantial change in the existing law and that assurance facilitates theprogress of the Bill in Parliament. It practically precludes amendment beingmoved during the committee stage of the Bill.6

In Mitchell v. Simpson,7 Lord Esher said:

The [Sheriffs Act 1887] is a consolidation Act, and the provision in questionis in substantially the same terms as that of the Act of Geo. 2, and therefore, inorder to determine the meaning of the provision, we must consider to what theAct of Geo. 2 was applicable.

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3 [1942] AC 402 at p.424.4 [1916] 1 AC 215 at p.228.5 [1971] AC 1.6 See also Beswick v. Beswick [1968] AC 58 at p.73; Mackay v. Davies (1904) 1 CLR 483 at p.491.7 (1890) 25 QBD 183 at p.188.

Reasonableness of an Act – Avoidance of Injustice

In Pepper v. Hart,8 Lord Browne-Wilkinson stated that ‘Parliament neverintends to enact an ambiguity’. However, the instances are numerous wherethe courts are faced with ambiguity in a provision of an Act of Parliament. Aset of words used in an Act may be capable of more than one meaning. Acourt has to choose, in those circumstances, the interpretation or constructionwhich best suits the purpose of the legislation.

The courts proceed on the basis that it is not the duty of a Court of law todecide on the reasonableness or unreasonableness of an Act of Parliament.Thus in Holmes v. Bradfield Rural District Council,9 Finnemore J said:

The mere fact that the results of a statute may be unjust or absurd does notentitle this court to refuse to give it effect.

In Salmon v. Duncombe,10 the Judicial Committee of the Privy Counciltreated as immaterial the words ‘as if such subject resided in England’ in orderto make sense and give meaning to the statute. To do otherwise would be toreduce s.1 of the Natal Ordinance No. 1 of 1856 to a nullity. So also in R v.Vasey & Lally,11 the court rearranged the words of an amendment in order tomake sense of the amendment and carry out the manifest object of theamendment.

The presumption of reasonableness of an Act of Parliament involves otherprinciples of construction, which are:

(a) statutory provisions would be interpreted to affect all persons equally andimpartially, unless other persons or classes of persons are specificallyexcluded from the ambit of the legislation;

(b) the legislature never intends to deprive an individual of that individual’sexisting vested rights, whether the rights were acquired under the CommonLaw or under a statute;

(c) statutes imposing taxes would be strictly construed in favour of the personliable to pay tax;

(d)penal statutes would not be so strictly construed as to result in the creationof an absurdity;

(e) an accused person must have a guilty mind in the commission of anoffence before that person could be convicted of an offence.

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8 [1993] 1 All ER 42 at p.64.9 [1949] 2 KB 1 at p.7.10 (1886) 11 AC 627.11 [1905] 2 KB 748.

Inequality of treatment

The use of the universal description, a person, in an Act of Parliament meansthat the Act demands an equality of treatment; it applies equally to all persons.Thus unless the Act specifically or by necessary implication limits itsapplication to certain persons or to a class of persons, all other persons notspecifically excluded are included in its application. The courts will decline toassist a person who seeks their aid in order to relieve him or herself fromexpress statutory provisions.12

In Equitable Life Assurance Society of USA v. Reed,13 Lord Dunedin statedthat when a statutory provision lays down a rule of public policy, neither partyto a contract can contract out of it. In Burrow’s Case,14 Vice-ChancellorBacon was of the opinion that ‘the doctrine of estoppel cannot be applied to anAct of Parliament’. Equality of treatment applies equally to subsidiarylegislation: the conditions in an enabling Act provided for the protection orbenefit of the public cannot be dispensed with (R v. Bertrand).15

Modern written constitutions now assert equal treatment under the law.These constitutions specify in great detail the provisions relating toFundamental Human Rights and the areas within which discrimination will bepermitted – and permitted only – by law.

Vested rights

An Act of Parliament is never construed so as to interfere with vested rights. Itis a presumption that is usually invoked where a provision in a statute isshown to have two meanings. In Attorney-General for Canada v. Hallett &Carey Ltd.,16 Lord Radcliffe explained:

It is fair to say that there is a well-known general principle that statutes whichencroach upon the rights of the subject, whether as regards person or property,are subject to a “strict” construction. Most statutes can be shown to achievesuch an encroachment in some form or another, and the general principlemeans no more than that, where the import of some enactment is inconclusiveor ambiguous, the court may then properly lean in favour of the interpretationthat leaves private rights undisturbed.

In R v. Halliday,17 Lord Aitkinson said that he could never appreciate thecontention

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12 Edwards v. Edwards (1876) 2 Ch D 291 at p.297.13 [1914] AC 587 at p.595.14 (1880) 14 ChD 432 at p.441.15 (1867) LR 1 PC 520.16 [1952] AC 427 at p.450.17 [1917] AC 260 at p.274.

that statutes invading the liberty of the subject should be construed after onemanner, and statutes not invading it after another, that certain words should inthe first class have a meaning put upon them different from what the samewords would have put upon them when used in the second. I think the tribunalwhose duty it is to interpret a statute of the one class or the other shouldendeavour to find out what, according to the well-known rules and principlesof construction, the statute means, and if the meaning be clear to apply it inthat sense. Should the statute be ambiguous, equally susceptible of twomeanings, one leading to an invasion of the liberty of the subject, and theother not, it may well be that the latter should be preferred on the ground ofthe presumed intention of the Legislature not to interfere with it.

Taxation statutes

A tax is a pecuniary burden imposed by the government of the day, the objectof which is to generate revenue for public purposes. It can only be imposedthrough legislation; without legislative authority the government cannotimpose a tax on income or property.

Being a creature of legislation, it is thus subject to all the rules andprinciples to which an Act of Parliament is subject where it comes to mattersof construction and interpretation. In Attorney-General v. Carlton Bank,18

Lord Russell of Killowen CJ saw no reason why any special canons ofconstruction should be applied to any Act of Parliament, nor that there wasauthority

for saying that a taxing Act is to be construed differently from any other Act.The duty of the court is … in all cases the same, whether the Act to beconstrued relates to taxation or to any other subject, viz. to give effect to theintention of the legislature, as that intention is to be gathered from thelanguage employed, having regard to the context in connection with which itis employed. The court must no doubt ascertain the subject-matter to whichthe particular tax is by the statute intended to be applied, but when once that isascertained, it is not open to the court to narrow or whittle down the operationof the Act by considerations of hardship or business convenience, or the like.

However, in Oriental Bank v. Wright,19 the Judicial Committee of thePrivy Council stated that,

the intention to impose a charge upon a subject must be shown by clear andunambiguous language.

Therefore in the words of Lord Hanworth MR,

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18 [1989] 1 KB 64 at p.71.19 (1880) 5 App Cas. 842 at p.856.

Either in the clear words of a taxing statute the subject is liable or if he is notwithin the words, he is not liable.

And in IRC v. Saunders,20 Lord Reid said:

It is sometimes said that we should apply the spirit and not the letter of the lawso as to bring in cases which, though not within the letter of the law, arewithin the mischief at which the law is aimed. But it has long been recognisedthat our courts cannot so apply taxing Acts.

It is thus clear from the cases that taxing statutes are strictly construed, sothat

(a) the person sought to be taxed must fall within the clear words of the Act,whatever may be the consequences;

(b) the Courts will take the Act as a whole in determining whether a widermeaning or a narrower meaning is intended;

(c) of two alternative constructions, the Courts will accept the constructionthat favours the subject and is consistent with the scheme of the legislation.

Penal statutes

It is important to be clear what the term ‘penal statutes’ actually means. Penalstatutes are statutes which create offences against the State. The character ofthe punishment for the offence is not important. An Act of Parliamentnormally contains a command to do a thing or a prohibition to refrain fromdoing a thing and there is usually a sanction to enable the command orprohibition to be enforced. That does not mean that an Act of that nature isnecessarily a penal statute. In Attorney-General v. Bradlaugh,21 Brett MR saidthat,

The recovery of a penalty, if that is the only consequence, does not make theprohibited act a crime. If it did ... that distinction which has been well knownand established in law for many years between a penal statute and a criminalenactment, would fall to the ground, for every penal statute would involve acrime and would be a criminal enactment.

In Tuck & Sons v. Priester,22 Lord Esher said that the court must be carefulin construing s.6 of the Copyright Act,186823

because it imposes a penalty. If there is a reasonable interpretation which willavoid the penalty in any particular case we must adopt that construction. If

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20 [1958] AC 285 at p.298.21 (1885) 14 QBD 667 at p.687.22 (1877) 19 QBD 629 at p.638.23 25 & 26 Vict c.68.

there are two reasonable constructions we must give the more lenient one.That is the settled rule for the construction of penal sections.

This was followed in London County Council v. Ayelsbury Dairy Co24

where Wright J said:

I have certainly always understood the rule to be that where there is anenactment which may entail penal consequences, you ought not to do violenceto its language in order to bring people within it.

In order to determine whether an Act of Parliament is a penal statuteconsideration should be given to whether

(a) the imposition of a forfeiture or a penalty is such that the procedure to beused in enforcing the law is criminal procedure25;

(b) the fine, forfeiture or penalty is payable to an individual or to the State; butthe fact that it is payable to an individual does not necessarily mean thatthe fine, forfeiture or penalty is a civil remedy26;

(c) the penalty is exacted by way of punishment or by way of compensation;for if it is by way of punishment, then the contravention is a criminaloffence, even if it is a statutory offence; and if it is by way ofcompensation, then the penalty is liquidated damages27;

(d) the penalty is recoverable as a debt in a civil cause or matter, for if it is sorecoverable it is not penal28;

(e) the penalty to be recovered is for the benefit of an aggrieved person29;

(f) the statute concerned is merely remedial though also penal.30

Mens rea

Mens rea means the guilty mind, the unlawful intention, with which an act isdone – or omitted to be done. It is an essential element in criminalresponsibility, as well as in some civil wrongs. Carelessness, negligence andrecklessness import an element of mens rea. The criminal intent or thewrongful purpose with which a person does an act turns the act into an

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24 [1898] 1 QB 106 at p.109.25 Mellor v. Denham (1880) 5 QBD 467; Ex p. Schofield [1891] 2 QB 428; R v. Whitchurch (1881) 7

QBD 534; R v. Paget (1881) 8 QBD 151.26 R v. Paget (1881) 8 QBD 151.27 R v. Tyler [1891] 2 QB 588. See also Musgrove v. Chung Teeong Tay [1891] AC 272.28 Girdlestone v. Brighton Aquarium Co. (1878) 3 Ex D 137.29 Earl of Mexborough v. Whitwood U D Co. [1897] 2 QB 111.30 Stanley v. Wharton (1821) 9 Price 301 at p.310; Hobbs v. Hudson (1890) 25 QBD 232; Ex p. Pearson

(1873) LR 8 Ch App 667 at p.673; Derby Corporation v. Derbyshire County Council [1897] AC 550.

offence. It is part of the ability of the prudent person to foresee theconsequences of the wrongful act. Thus where an act is prohibited by law, thelaw is construed so as, in the appropriate cases, to make mens rea aningredient of the offence.

However, there are limitations. In murder, for example, under the doctrineof constructive malice, where death ensues in the course of the commission ofan unlawful act, it is immaterial whether or not the person charged with theoffence intended or did not foresee that the conduct complained of might leadto death.31 Equally, a provision of an Act of Parliament may be so drafted that,considering the subject-matter of the provision, it is immaterial whether or nota person charged under that provision had any intention to break the law, orotherwise to do what is prohibited. In such cases the words of the provisionand the subject-matter are important considerations. So also are thecircumstances that make for reasonable construction of the provision and thesanction imposed for the infringement of the law.32

Another limitation in the application of mens rea is the presence ofmistake or ignorance of fact. A belief, honestly and reasonably held, in theexistence of certain circumstances which are true, would make a wrongful actan innocent one.33 The conduct complained of in such circumstances mightnot be voluntary, nor would it be reasonable to impute foresight of theconsequences. This rule is applied in some cases to statutory offences. Thus inthe Tolson case, it was a good defence that the woman charged with bigamybelieved on reasonable grounds that her husband was dead.

However, in R v. Prince,34 there was total prohibition of the actcomplained of. The position then is that ignorance of the material facts wouldnot avail as a defence where there is absolute prohibition. Where the lawcategorically prohibits the doing of an act, it would not be a defence to arguethat one did the act in ignorance. The public must be protected against thedoing of certain things. A person cannot be allowed to set fire to a buildingand then claim an intention not to cause injury to persons, or damage toproperty, in the building.

In general, a master is not responsible for the acts of the servant:

The criminal law makes no one punishable for an offence but the person whoeither committed it or incited and procured the other to commit it, or whoaided in its commission.35

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31 Director of Public Prosecutions v. Beard [1920] AC 479; R v. Stone (1937) 53 TLR 1046.32 R v. Tolson (1889) 23 QBD 164 at pp.172-176, per Wills J.33 R v. Tolson (1889) 23 QBD 164 at p.181, per Cave J.34 (1875) LR CCR 154.35 R v. Holbrook [1878] 4 QBD 42 at p.47 per Lush J.

But, where the prohibition is absolute or it is intended for the protection ofthe public, a master may be held liable: Parker v. Alder,36 Christie, Manson &Woods v. Cooper,37 Allen v. Whitehead,38 and Hobbs v. WinchesterCorporation.39

Drunkenness may also be taken into account whether there is mens rea. Aperson may be so drunk as to be incapable of forming an intention. In R v.Meade,40 Lord Coleridge’s direction to the jury was held right:

if the mind at that time is so obscure by drink, if the reason is dethroned andthe man is incapable therefore of forming that intent (i.e. the intent to kill orinflict serious injury), it justifies the reduction of the charge from murder tomanslaughter.

As with drunkenness, so it is with• natural disabilities: Chisholm v. Doulton41; • insanity: R v. Marsland,42 and R v. Kopsch43; • infancy, with its various degrees of criminal responsibility: R v. Owen,44 R

v. Waite,45 R v. Tatam,46 R v. Eldershaw,47 R v. Williams48 and R v.Brown.49

The tendency now is to lessen the importance of mens rea in crime. In1937 Goddard J said50:

With the complexity of modern legislation one knows that there are timeswhen the court is constrained to find that, by reason of the clear terms of anAct of Parliament, mens rea or the absence of mens rea becomes immaterialand that if a certain act is done, an offence is committed whether the personcharged knew or did not know of the Act.

In 1946, as Lord Goddard LCJ, he said:

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36 [1899] 1 QB 20.37 [1900] 2 QB 522.38 [1930] 1 KB 211.39 [1910] 2 KB 471.40 [1909] 1 KB 895.41 [1889] 22 QBD 736; 1 Hawk PC 1.42 7 Cr App 77.43 (1925) 19 Cr App R 50.44 4 C & P 236.45 [1892] 2 QB 600.46 (1921) 15 Cr App R 122.47 3 C & P 396.48 [1893] 1 QB 320.49 [1890] 24 QBD 357.50 Evans v. Dell (1937) 53 TLR 310 at p.313.

It is of the utmost importance for the liberty of the subject that a court shouldalways bear in mind that unless a statute either clearly or by necessaryimplication rules out mens rea as a constituent part of a crime, the courtshould not find a man guilty of an offence against the criminal law unless hehas a guilty mind.51

In 1948 Lord Goddard LCJ said52:

If a statute contains an absolute prohibition against the doing of some act, as ageneral rule mens rea is not a constituent of the offence, but there is all thedifference between prohibiting an act and imposing a duty to do something onthe happening of a certain event. Unless a man knows that the event hashappened, how is he to carry out the duty imposed?

In 1949, Lord Goddard LCJ said53:

Actus non facit reum nisi mens sit rea is a cardinal doctrine of the criminallaw. No doubt the legislature can create offences which consist solely in doingan act whatever the intention or state of mind of the actor may be ... of lateyears the courts have been so accustomed to dealing with a host of offencescreated by regulations and orders independent of guilty intention, that it isdesirable to emphasise that such cases should be regarded as exceptions to therule that a person cannot be convicted of a crime unless it is shown not onlythat he has committed a forbidden act or default but also that a wrongfulintention or blameworthy condition of mind can be imputed to him.

This brings to mind the words of Wills J in R v. Tolson54:

Although, prima facie and as a general rule, there must be a mind at faultbefore there can be a crime, it is not an inflexible rule, and a statute may relateto such a subject-matter and may be so framed as to make an act criminalwhether there has been any intention to break the law or otherwise to dowrong, or not. There is a large body of municipal law in the present day whichis so conceived. By-laws are constantly made regulating the width ofthoroughfares, the height of buildings, the thickness of walls, and a variety ofother matters necessary for the general welfare, health, or commerce, and suchby-laws are enforced by the sanction of penalties, and the breach of themconstitutes an offence, and is a criminal matter ... and in such a case thesubstance of the enactment is that a man shall take care that the statutorydirection is obeyed, and that if he fails to do so he does so at his peril.

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51 Brend v. Wood (1946) 62 TLR 462 at p.463.52 Harding v. Price [1948] 1 KB 695 at p.701 (failure to inform police of collision), following Nicholls

v. Hall (1873) LR 8 C P 322 at p.326, per Keating J.53 Younghusband v. Luftig [1949] 2 KB 354 at p.370.54 (1889) 23 QBD 168 at p.173.

Alteration of the Existing Law

It is part of the law and custom of Parliament that an Act may be altered,amended or repealed in the same session in which it was passed. This wasreflected in s.10 of the Interpretation Act 1889.55 The principle is embedded inthe assertion that Parliament as the legislative arm of government is thesupreme legislative authority. Incidental to this is the power to change, modifyor abrogate the law. Hence the principle that a present Parliament cannot fetterthe hands of a subsequent Parliament. A provision in an Act of Parliamentforbidding Parliament to amend that self-same Act would be void.

Conformity with the Constitution

The modern manifestation of this principle is found in the writtenconstitutions of many countries of the world today. The Constitution is thefundamental law. It: • contains the principles upon which the government is established;• regulates the powers of the various authorities it establishes;• directs the persons or authorities who shall or may exercise certain powers;• determines the manner in which the powers it confers are to be confined or

exercised;• specifies the limits to which powers are confined in order to protect

individual rights and prevent the abusive exercise of arbitrary power.A constitution is the bedrock of constitutional government.

It usually confers the legislative power of the state on a Legislature andthen clothes that Legislature with the power to make laws for good order andgood government. But, the Constitution remains the supreme law. Thus a lawpassed by the Legislature which is not in consonance with the spirit and theletter of the Constitution will be declared an unconstitutional law56 – to theextent of the contravention of, or inconsistency with, the Constitution. HenceChief Justice John Marshall could say in Marbury v. Madison57:

To what purpose are powers limited, and to what purpose is that limitationcommitted to writing, if these limits may, at any time, be passed by thoseintended to be restrained? The distinction between a government with limitedand unlimited powers is abolished, if these limits do not confine the personson whom they are imposed, and if acts prohibited and acts allowed are ofequal obligation. It is a proposition too plain to be contested, that the

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55 52 & 53 Vict c.63 And now see s.2 of the Interpretation Act, 1978, c.46.56 Liyanage v. R [1967] 1 AC 259 PC; Ibralebe v. R [1964] AC 900.57 1 Cranch 137, 2 L Ed 60 (1803).

constitution controls any legislative act repugnant to it; or, that the legislaturemay alter the constitution by an ordinary act... So if a law be in opposition tothe constitution; if both the law and the constitution apply to a particular case,so that the court must either decide that case conformably to the law,disregarding the constitution; or conformably to the constitution disregardingthe law; the court must determine which of these conflicting rules governs thecase. This is the very essence of judicial duty.

In Marbury v. Madison, the Supreme Court of the United States concludedthat ‘a legislative act contrary to the constitution is not law’.

However, in the United Kingdom, where there is no written constitution assuch, the exercise of the legislative sovereign power of Parliament cannot beso treated. An Act of Parliament not in harmony with the existingconstitutional principles changes or abrogates the law. It thus nullifies theprinciple of unconstitutionality rather than the Act being nullified by virtue ofthe principle of constitutionality. So Lord Campbell could say that,

all that a Court of Justice can do is to look at the Parliament roll: if from that itshould appear that a Bill has passed both Houses and received the RoyalAssent, no Court of Justice can inquire into the mode in which it wasintroduced into Parliament, nor into what passed in Parliament during itsprogress in its various stages through both Houses.58

In other words, the power to control or modify the constitution resides inthe ordinary law-making powers of the Parliament of the United Kingdom.The declared will of the Parliament at Westminster is the final law – save,perhaps, the force of public opinion.59 But in jurisdictions with writtenconstitutions, the will of the Legislature is subordinate to, and must beexercised in conformity with, the controlling instrument – the Constitution.That Constitution governs the Executive, the Legislature and the Judiciary asmuch as it governs the ordinary individual.

But what is the impact of a written constitution on the ordinary law of theland where the Constitution, which is the supreme law, specifically saves whatis often described as the existing law? The existing law might be inconsistentwith, or in contravention of, the Constitution, particularly with respect to theprovisions relating to Fundamental Human Rights and Freedoms of the

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58 Edinburgh & Dalkeith Railway Co. v. Wauchope (1842) 8 Cl & F 710 at p.725 But see City ofLondon v. Wood (1701) 12 Mod 669 at p.687, where Holt CJ said that “if an Act of Parliamentshould ordain that the same person should be party and Judge, or, which is the same thing, Judge inhis own cause, it would be a void Act of Parliament; for it is impossible that one should be Judgeand party, for the Judge is to determine between party and party, or between Government and theparty; and an Act of Parliament can do no wrong, though it may do several things that look prettyodd” See also Day v. Savage (1614) Hob 85 at p.87: “Even an Act of Parliament, made against nat-ural equity, as to make a man a Judge in his own case, is void in it self”.

59 In the Thatcher years, people defied the Poll Tax, the political consequences of which contributed tothe fall of the Prime Minister, Mrs Margaret Thatcher.

Individual. Section 26 of the Constitution of Barbados60 provides for the saving of the

existing law. It states that,

(1) Nothing contained in or done under the authority of any written law shallbe held to be inconsistent with or in contravention of any provision of sections12 to 2361 to the extent that the law in question

(a) is a law (in this section referred to as “an existing law”) that was enacted ormade before 30th November, 1966,62 and has continued to be part of thelaw of Barbados at all times since that day;

(b) repeals and re-enacts an existing law without alteration; or

(c) alters an existing law and not thereby render that law inconsistent with anyprovision of sections 12 to 23 in a manner in which, or to an extent towhich, it was not previously so inconsistent.

(2) In subsection (1)(c) the reference to altering an existing law includesreferences to repealing it and re-enacting it with modifications or makingdifferent provisions in lieu thereof, and to modifying it; and in subsection (1)“written law” includes any instrument having the force of law, and in thissubsection and subsection (1) references to the repeal and re-enactment of anexisting law shall be construed accordingly.

It is obvious that at the time of independence there would be laws on thestatute book which would be, or would become after the date of theindependence, inconsistent with the Constitution. Thus s.4(1) of the BarbadosIndependence Order 196663 states that,

Subject to the provisions of this section the existing laws shall be construedwith such modifications, adaptations, qualifications and exceptions as may benecessary to bring them into conformity with the Barbados Independence Act1966,64 and this Order.

It must be emphasised that the Barbados Independence Act 1966 and theBarbados Independence Order 1966 should be read together. They form partof the constitutional order which gave independence to Barbados. In thatcontext, the existing law comprises the written and the unwritten law; that is tosay the statute law and the common law of Barbados are both saved. Thus inany interpretation or construction of s.4(1) by reliance on the literal rule of

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60 The Schedule to the Barbados Independence Order, 1966, No. 1455 Other Constitutions have similarprovisions.

61 That is, the Fundamental Human Rights and Freedoms of the individual provisions of theConstitution.

62 That is, the day on which Barbados became a sovereign, independent State.63 1966 No. 1455.64 1966 c.37.

construction could produce unfortunate results and could work hardshipagainst a person despite the detailed provisions of Chapter III on theFundamental Human Rights and Freedoms of the Individual: ss 11 to 27.

This was brought to light in Re Clarke.65 The Magistrates Jurisdiction andProcedure Act 195666 prevents a person from impeaching a conviction by amagistrate on the ground that the magistrate had no jurisdiction to convict,unless the objection to jurisdiction was taken at the trial. Section 24(3) of theConstitution provides that, should a question arise as to the contravention of aprovision of Chapter III in proceedings before a court subordinate to the HighCourt, the person presiding at the subordinate court

shall refer the question to the High Court unless, in his opinion, the raising ofthe question is merely frivolous and vexatious.

Robert Clarke sought certiorari to quash his conviction by a magistrateunder the Public Order Act 1970.67 He argued that the magistrate should havereferred the constitutional issue to the High Court on the ground that thePublic Order Act violated his freedom of expression. The order for certiorariwas refused. The reason was, amongst other things, that the 1956 Act as anexisting law could not be held to be inconsistent with the provisions of theConstitution relating to Fundamental Human Rights and Freedoms of theIndividual. Bearing in mind that s.24(3) uses the word shall, was it obligatoryfor the magistrate to refer the issue to the High Court, or can it be said that toallow the 1956 Act to prevail is to undermine s.24(3)?

The issue really is whether it can be argued that the existing law and thecommon law guaranteed, in this respect, any rights of the individual prior tothe coming into force of the Constitution. What is the approach of the courts?It would seem that the courts will not allow the existing law or the commonlaw to be used as a cloak for wrong-doing. Nor will the courts, equally, allowthe relevant provisions of the Constitution to be defeated merely by invokingthe existing law or the common law.

Practical necessity dictates the saving, in a written constitution, of theexisting law. The absence of such a saving provision would create anintolerable vacuum. It would be chaotic. Since, however, the Constitution isthe supreme law, its express provisions cannot be whittled away by reliance onthe existing law which the Constitution has saved. The existing law and thecommon law including equity are saved within the spirit of the Constitution.Hence s.4(1) of the Independence Order, which provides for modifications,adaptations, qualifications and exceptions which are necessary to bring the

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65 17 WIR 49 (1971) Barbados.66 Cap 116.67 Cap 168A.

existing law into conformity with the Constitution.South Africa and Zimbabwe provide some interesting examples. The

Bophuthatswana Constitution Act 197768 provides in s.7(1) that forBophuthatswana the Constitution shall be the supreme law. Chapter 2 providesfor Fundamental Human Rights. Section 7(2) provides that,

Any law passed after the date of coming into operation of the Constitutionwhich is inconsistent with the provisions thereof, shall to the extent of suchinconsistency, be void.

In S v. Marwane,69 it was argued before the Bophuthatswana SupremeCourt that the South African Terrorism Act 196770 which was in conflict withthe letter and the spirit of the Declaration of Fundamental Rights,

is irreconcilable with the terms of the Constitution, and is in fact so radicallyopposed to it, that it can only continue to operate in Bophuthatswana in termsof a specific provision to that effect.

Hiemstra J rejected that argument. He said that s.7(2) of the Constitution

is plain enough that only subsequent legislation was affected. Practicallyspeaking, there was no other way of reconciling existing legislation with thedeclaration of Fundamental Rights. South African legislation continue toapply … and the (Bophuthatswana) Government proceeded to adapt it to theirown needs as time and manpower allowed.

The Appellate Division71 rejected the reasoning of Hiemstra J. Millar JA,speaking for the court, noted that there was no doubt that provisions of theTerrorism Act conflicted with provisions of the Bophuthatswana Constitution.Under the Terrorism Act, the accused person bore the onus of proving beyondreasonable doubt the absence of certain essential elements of the offence. TheBophuthatswana Constitution provides in s.12(7) that everyone charged with acriminal offence shall be presumed innocent until proved guilty. Equally, theTerrorism Act provided that no court may pronounce on the validity of adetention or order the release of a detainee. Section 12(5) of theBophuthatswana Constitution provides the opposite. Millar JA stated that,

in respect of each of the ... points of conflict, the provision of the Constitutionwith which the Terrorism Act is in direct conflict appears in Chapter 2 of theConstitution – a chapter which is entitled “Declaration of FundamentalRights”. The “fundamental rights” proclaimed in the chapter are said in s.8(1)to be “binding on the Legislature, the Executive and the Judiciary, and aredirectly enforceable by law”. The concluding section of Chapter 2 provided

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68 No. 18 of 1977.69 1981 (3) SA 588 at pp.589-90.70 No. 83 of 1967.71 1982 (3) SA 717 (AD) at p.745.

that the “rights and freedoms” referred to in that chapter may be restrictedonly by Parliament (of Bophuthatswana) and that except in circumstancesprovided for in Chapter 2, a fundamental right and freedom shall not be totallyabolished or in its essence be encroached upon ….

The words “subject to the provisions of this Constitution” in s.93(1) of theConstitution clearly govern the provision that laws in operation immediatelyprior to the commencement of the Constitution are to continue in operation ....When the legislator wishes to convey that which is now being enacted is notto prevail in circumstances where it conflicts, or is consistent or incompatiblewith a specified other enactment, it very frequently, if not almost invariably,qualifies such enactment by the method of declaring it to be “subject to” theother specified one. As Megarry J observed in C & J Clark v. Inland RevenueCommissioners,72 “When there is no clash, the phrase ... ‘subject to’ ... doesnothing; if there is collision, the phrase shows what is to prevail …”.

The approach to interpretation of a Constitution, and more particularly onethat contains a declaration of human rights and freedoms, has recently beendiscussed by Lord Wilberforce in Minister of Home Affairs & another v.Collins MacDonald Fisher & Another.73 After observing that such an actcalled for “a generous interpretation avoiding what has been called ‘theausterity of tabulated legalism’, suitable to give to individuals the full measureof the fundamental rights and freedoms referred to”, Lord Wilberforce wenton to consider an argument that provisions in the Act subsequent to thedeclaration of fundamental rights should be construed as would any other Actof Parliament. To this argument he said that there were two possible answers:“The first would be to say that, recognising the status of the Constitution as, ineffect, an Act of Parliament, there is room for interpreting it with less rigidity,and greater generosity, than other Acts .... The second would be more radical;it would be to treat a constitutional instrument such as this sui generis, callingfor principles of interpretation of its own, suitable to its character as alreadydescribed, without necessary acceptance of all the presumptions that arerelevant to legislation of private law …”.

Of these two possible approaches it was the unanimous opinion of the PrivyCouncil that the second was to be preferred, but the judgment went on toexplain that this did not mean that no rules of interpretation should be appliedwhen construing a Constitution; respect had still to be paid to the languageused “and to the traditions and usages which have given meaning to thatlanguage”. But consistently with recognition of “rules of interpretation”, theCourt interpreting a Constitution would also recognise “the character andorigin of the instrument and be guided by the principle of giving fullrecognition and effect to those fundamental rights and freedoms with astatement of which the Constitution commences…”.

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72 [1973] 2 All ER 513 at p.520.73 [1980] AC 319 at pp.328-9.

… whether our courts were to regard an Act creative of a Constitution as itwould any other statute, or as an Act sui generis, when construing a particularprovision therein, they would give effect to the ordinarily accepted meaningand effect of the words used and would not deviate therefrom unless to giveeffect to the ordinary meaning would give rise to glaring absurdity; or unlessthere were indications in the Act – considered as a whole in its own peculiarsetting and with due regard to its aims and objects – that the legislator did notintend the words to be understood in their ordinary sense. It appears to me,therefore, that, if the words in issue have a clear and generally acceptedconnotation and effect and there are no such indications as I have mentioned,the result would be the same whether the accepted principles of interpretationof statutes in our courts were applied or whichever of the possible approachesreferred to in the judgment of the Privy Council were adopted ….

… It was contended on behalf of [the] respondent that indications such as Ihave referred to were present and the ... argument in support thereof was thatit was extremely unlikely, if not inconceivable, that the makers of theConstitution would take over the whole body of existing laws ... to cover the“transition period”, with the reservation that any of the laws so taken overcould, when they were in issue, be challenged on the ground of conflict withthe Constitution. Such a situation, it was contended, would result inuncertainty regarding the validity of any law. I do not find this argument to beconvincing, or even persuasive. What it overlooks, or tends to give scantweight to, is that, whatever interpretation is given to s.93(1), uncertaintyrelating to the validity of laws is necessarily inherent in the terms of theConstitution. Section 7(2) provides that any law passed after the date ofcoming into operation of the Constitution, which is inconsistent with theprovisions thereof, “shall to the extent of such inconsistency, be void”. For solong as this Constitution stands, the right to challenge the validity oflegislation passed by the legislative authority will remain, as will the SupremeCourt’s power – and its duty, when properly called upon so to do – to test thevalidity of the challenged legislation by reference to the provisions of theConstitution. This is usually a feature of systems in which a “Bill of Rights” isenshrined in a Constitution, to which very many cases decided in the UnitedStates of America bear irrefutable testimony …. There is no question here ofrepeal with retrospective effect; the conflicting law is excluded by s.93(1)from the body of existing law taken over by the new state ….

I have ... in this judgment referred to the embarrassing and undesirablesituation which the co-existence of conflicting provisions would bring about.That remains true whether such co-existence was of long or short duration. Asimple example will suffice to demonstrate the sort of situation which I haveno doubt the makers of the Constitution were concerned to avoid. A persontaken into detention without trial in terms of the Terrorism Act, after 6December 1977, in Bophuthatswana, might move the Court in terms ofs.12(5) of the Constitution for an order that he be released on the ground thathis detention was unlawful. If s.93(1) of the Constitution did not have the

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effect of rendering at least parts of the Terrorism Act inapplicable inBophuthatswana, as being in conflict with the Constitution, the Court wouldbe obliged ... to brush aside sections 7(1) and 12(5) of the Constitution and torefuse to entertain the applicant’s suit at all. The applicant would then berequired to remain in detention, despite what might be called his “guaranteed”or “entrenched” constitutional rights, for such period of time as might berequired to set in motion the legislative process for the repeal of the TerrorismAct or part thereof. Whether such time was short or long, the situation createdby the continued applicability of laws in conflict with the Constitution wouldbe conducive to dissatisfaction amongst citizens of the new State who, notwithout reason, would tend to regard as illusory the fundamental rightsafforded them by the Constitution. Such a situation would be detrimental tothe public interest ….

The effect of continued applicability of “inherited” laws in conflict with theConstitution would be suspension, for an undefined period of time, of theprovisions of the Constitution affected by such conflicts. I can find nothing inthe Constitution Act to suggest an intention that the provisions … thereof ...should remain in suspense at all; on the contrary … the clear indications arethat such provisions were forthwith to become operative ….

I am, in all the circumstances, unable to construe the words “subject to theprovisions of this Constitution” in the context of s.93(1) in any way other thanthat laws in conflict with the Constitution are to be excluded from the lawswhich in terms of that section are to continue in operation. Any otherconstruction would, in my view, constitute an unjustifiable departure fromtheir natural, ordinary meaning in the context of s.93(1) and in the context ofthe Constitution Act as a whole, and would defeat the purpose of theirinclusion in the provisions of s.93(1) …. The result is that the Terrorism Act,in the respects in which it is in conflict with the provisions of the Constitution,is not applicable in Bophuthatswana and was not therefore applicable at thetime of the alleged contravention by the appellant ... for it was, effectively,repealed by the Constitution to the extent of the conflict.’

In Minister of Home Affairs & others v. Dabengwa,74 the ZimbabweSupreme Court decided that in so far as they conflicted with the ZimbabweConstitution, the Emergency Powers (Maintenance of Order) Regulationsprohibiting detainees from instructing and consulting with their legal adviserswere invalid. The Supreme Court quoted with approval Lord Wilberforce’sstatement in Minister of Home Affairs & another v. Collins.75

Telford Georges CJ also quoted with approval from that judgment in

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74 1982 (4) SA 301.75 [1980] AC 319 (PC).76 1984 (2) SA 778 (ZSC) at p.782.

Zimbabwe Township Developers (Pvt) Ltd. v. Lou’s Shoes (Pvt) Ltd76 Heobserved that the presumption of constitutionality:

is a phrase which appears to me to be pregnant with the possibilities ofmisunderstanding. Clearly a litigant who asserts that an Act of Parliament or aregulation is unconstitutional must show that it is. In such a case the judicialbody charged with deciding that issue must interpret the Constitution anddetermine its meaning and thereafter interpret the challenged piece oflegislation to arrive at a conclusion as to whether it falls within that meaningor does not. The challenged piece of legislation may, however, be capable ofmore than one meaning. If that is the position, then, if one possibleinterpretation falls within the meaning of the Constitution and others do not,then the judicial body will presume that the law makers intended to actconstitutionally and uphold the piece of legislation so interpreted. This is oneof the senses in which a presumption of constitutionality can be said to arise.One does not interpret the Constitution in a restricted manner in order toaccommodate the challenged legislation. The Constitution must be properlyinterpreted, adopting the approach accepted above. Thereafter the challengedlegislation is examined to discover whether it can be interpreted to fit into theframework of the Constitution… Even where the Constitution does not makeit clear where the onus lies, as the Zimbabwe Constitution does, the onus lieson the challenger to prove that the legislation is not reasonably justifiable in ademocratic state, and not on the state to show that it is. In that sense there is apresumption of constitutionality.

Minister of Home Affairs v. Bickle & others77 concerned s.16(8)(b) of theZimbabwe Constitution. The section protected the individual againstcompulsory acquisition by the State of that individual’s property except incertain prescribed circumstances, including the property of the enemy. Theword enemy was not defined in s.113, which is the interpretation section of theConstitution. Telford Georges CJ quoted with approval the words of LordWright in James v. The Commonwealth of Australia78:

It is true that a Constitution must not be construed in any narrow and pedanticsense. The words used are necessarily general, and their full import and truemeaning can often only be appreciated when considered, as the years go on, inrelation to the vicissitudes of fact which from time to time emerge. It is notthat the meaning of the words changes, but the changing circumstancesillustrate and illuminate the full import of that meaning …. The task of theCourt must be to interpret the Constitution, applying the normal canons, thento interpret the challenged legislation, and then to decide whether a meaningcan fairly be placed on that legislation which enables it to fit within thealready determined constitutional framework ….

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77 1984 (2) SA 439 (ZSC).78 [1936] AC 578 at p.614.

Although the word [enemy] is not defined, its meaning does not appear to meto be in doubt on all the authorities to which we have been referred. Indeed,perhaps because of that, the need for definition did not arise. The word canonly be used in situations where there is a state of war or armed conflict.

Accordingly, an order made under the Emergency Powers (Forfeiture ofEnemy Property) Regulations 1981 was declared invalid, as the meaning ofenemy in the Regulations did not accord with the limited meaning of that termin the constitutional guarantees, in that the Regulations purported to includesituations not amounting to war or armed conflict.

The conflict between the Constitution and the existing law as saved by theConstitution is yet again illustrated by the Jamaican case of DPP v. Nasralla.79

In that case the Common Law and the written law were considered as co-extensive with the Constitution by virtue of the saving by the Constitution ofthe existing law, under a provision of the Constitution of Jamaica similar tothe Barbados provisions reproduced above. The effect of the Nasralla Case isthat

(a) the provisions on the Fundamental Human Rights and Freedoms of theIndividual

(i) could only be relied on where the right invoked can be proved to be aright that existed immediately before the Constitution came into force;

(ii) could not be relied on where the right invoked could not have beenasserted but for the Constitution;

(b) the existing law under the circumstances must be reasonably justifiable interms of the spirit of the Constitution.

Conformity with the Case Law80

The relationship between Statute Law and Case Law is that case law pre-datesthe statute law. Thus in R v. Morris81 Byles J said:

It is a sound rule to construe a statute in conformity with the common lawrather than against it, except where and so far as the statute is plainly intendedto alter the course of the common law.

As such, an Act of Parliament

(a) may alter the common law: Barber v. Pigden82; Handley v. Handley83;

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79 [1967] 2 AC 238 (PC).80 The term is used here to comprise both the Common Law and Equity.81 [1867] LR 1 CCR 90 at p.95.82 [1937] 1 KB 664 at p.677.83 [1891] P 124 at p.127.84 [1912] AC 305 at pp.309-311.

(b) may exclude the operation of the common law: Leach v. R84;

(c) may extend the application of the common law to cases not previouslycovered by the common law: Re Ludmore85;

(d)may merge the common law with the statute law: New WindsorCorporation v. Taylor86;

The basic rule of construction, however, must be stated that where there isa conflict between the case law and the statute law, the statute law will prevail:Hammersmith Ry v. Brand.87 In all such cases the courts will not infer that astatute intended to alter the common law. The provisions of the Act must be inexpress terms:

It is a well-established principle of construction that a statute is not to be takenas effecting a fundamental alteration in the general law unless it uses wordsthat point unmistakably to that conclusion.88

Conformity with the Existing Law

In Nokes v. Doncaster Amalgamated Collieries89 Lord Atkin applied thepresumption that the Legislature does not, except in clear terms or bynecessary implication, intend to make a substantial change in the existing law.In that case Lord Atkin decided that a statutory transfer of property did notinclude a contract of personal service. A person cannot be compelled againsthis or her will to serve a master. This principle Lord Atkin regarded as beingso deep-seated in the common law that it can only be over-ruled by clear,definite or positive enactment.90

The test to be applied is the principle Romilly MR laid down in Minet v.Leman91:

the general words of the Act are not to be so construed as to alter the previouspolicy of the law, unless no sense or meaning can be applied to those wordsconsistently with the intention of preserving the existing policy untouched.

The Legislature, it has already been stated, has the power to modify,extend, alter or repeal an Act of Parliament. Therefore, as stated in Re

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85 (1884) 13 QBD 415.86 [1899] AC 41.87 (1869) 4 HL 171.88 National Assistance Board v. Wilkinson [1952] 2 QB 648 (DC) per Devlin J.89 [1940] AC 1014.90 Ibid, at p.1033.91 (1855) 20 Beav 269.92 (1887) 36 ChD 573 at p.578.

Williams,92

The provisions of an earlier Act may be revoked or abrogated in particularcases by a subsequent Act, either from the express language used beingaddressed to the particular point, or from implication or inference from thelanguage used.

Express repeals do not pose a problem. An Act of Parliament mayspecifically provide that a particular Act or a provision of an Act is repealed.However, there are instances where the subsequent Act does not specificallyrepeal the earlier enactment, and questions do arise as to how much and towhat extent in those circumstances the later enactment had repealed the earlierenactment. Fletcher Moulton LJ dealt with the issue in respect of theCopyright Act 1842.93 This what he said in Macmillan v. Dent94:

The Act of 1842 did two things. It established a new copyright law and wipedout all the old statutes relating to copyrights. For the sake of clearness I willuse the phrase “it had an enacting part and it had a repealing part”. Theenacting part must have full force given to it whatever be the pre-existingstatutes. If those provisions are contrary to those of the Act of Anne, theseprovisions being in a later Act override and pro tanto extinguish theprovisions of the earlier Act. But apart from this, the repealing part wipedthese earlier Acts off the statute book. The consequence of this would havebeen that all the rights which had been created under them and had notexpired would have been wiped out. The enabling part of the Act of 1842applies only to books published after that date, but if the preceding statuteshad been wiped out simpliciter, all the books published before that date whichwere then in the enjoyment of copyright would have lost their privilege.

In his view, however, that was not the intention and thus s.1 of the 1842Act preserved the older Acts so far as was needed to secure rights alreadyacquired under the earlier Acts that had not then expired.

Express repeal is now effected

(a) by means of a Schedule which would specify the enactments to berepealed, and the extent of the repeal;

(b)by Statute Law Revision, in which exercise any doubts about inconsistencyof enactments are dealt with;

(c) by consolidation, where the enactments incorporated in the consolidationare specifically repealed;

(d)by codification, in which, like consolidation, the enactments incorporatedin the codification are specifically repealed.

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93 5 & 6 Vict c.45.94 [1907] 1 Ch 107 at p.124.

As has been noted, the effect of a repeal is that the enactment repealed iscompletely obliterated – as if it had never been enacted. Now, InterpretationActs provide that, unless a contrary intention is expressed, the repeal of an Actof Parliament does not

(a) revive an enactment or anything not in force or existing at the time whenthe repeal takes effect;

(b)affect the previous operation of the enactment so repealed or anything dulydone or suffered thereunder;

(c) affect a right, a privilege, an obligation or a liability acquired, accrued,accruing or incurred under the enactment so repealed;

(d)affect an offence committed against or a violation of a provision of theenactment so repealed, or a penalty, a forfeiture or a punishment incurredunder the enactment so repealed; or

(e) affect an investigation, legal proceeding or remedy in respect of any suchright, privilege, obligation, liability, penalty, forfeiture or punishment;

and an investigation, legal proceeding or remedy as described in paragraph (e)may be instituted, continued or enforced, and the penalty, forfeiture orpunishment may be imposed as if the enactment had not been so repealed.

There is also a presumption – the principle of implied repeal – that wheretwo Acts are inconsistent with each other the later is construed as havingrepealed the earlier Act by necessary implication.95 The later Act is the latestexpression of the will of Parliament and the latest will prevails.96

The Jurisdiction of the Courts

The Judiciary is a vital and an indispensable component in constitutionalgovernment. Its integrity and independence ensure the democratic operation ofconstitutional government. The struggle to assert and, then, maintain theindependence of the Judiciary had been concomitant with the fight to establishthe liberty of the subject. Its success against despotism culminated in the Actof Settlement 1700.97 It has stood as the custodian – and the bastion – of theliberty and the dignity of the individual. As Lord Hewart, Lord Chief Justice,put it in The New Despotism,

When, for any reason or combination of reasons, it has happened that therehas been lack of courage on the Judicial Bench, the enemies of equality before

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95 Paine v. Slater (1883) 11 QBD 120.96 White v. Islington Corporation [1909] 1 KB 133; Ellen Estates v. Minster of Health [1934] 1 KB

590; British Columbia Electric Ry v. Stewart [1913] AC 816.97 12 & 13 Will 3 c.2.

the law have succeeded, and the administration of the law has been broughtinto disrepute.

Independent of statute, the courts have at common law exercised the powerof review of administrative authority. With a written constitution, thejurisdiction of the courts becomes peculiarly essential. The limitationsimposed by the constitution on persons and the various authorities itestablishes can only be preserved through the medium of the courts of justice.Without that power, all constitutional guarantees fade into nothingness. Theinterpretation and the construction of the laws, be they written or unwritten,must of necessity be the peculiar province, ultimately, of the courts. All this isnow well recognised in all modern constitutions.

The Judiciary is the ultimate arbiter in which is vested the judicial powerof the State. It ensures the crucial balance between the State and theindividual, between one individual and another. We may well recall the wordsof Abraham Lincoln98:

I do not forget the position assumed by some that constitutional questions areto be decided by the Supreme Court, nor do I deny that such decisions must bebinding in any case upon the parties to a suit as to the object of that suit, whilethey are also entitled to very high respect and consideration in all parallelcases by all other departments of the Government. And while it is obviouslypossible that such decision may be erroneous in any given case, still the evileffect following it, being limited to that particular case, with the chance that itmay be overruled and never become a precedent for other cases, can better beborne than could the evils of a different practice. At the same time, the candidcitizen must confess that if the policy of the Government upon vital questionsaffecting the whole people is to be irrevocably fixed by decisions of theSupreme Court, the instant they are made in ordinary litigation betweenparties in personal actions the people will have ceased to be their own rulers,having to that extent practically resigned their Government into the hands ofthat eminent tribunal. Nor is there in this view any assault upon the Court orthe judges. It is a duty from which they may not shrink to decide casesproperly brought before them, and it is no fault of theirs if others seek to turntheir decisions to political purposes.

Judicial Review – The Supervisory Role

Marbury v. Madison99 established the principle of judicial review. ChiefJustice John Marshall asserted that,

The very essence of civil liberty certainly consists in the right of everyindividual to claim the protection of the laws, whenever he receives injury.

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98 Inaugural Address in 1861, S Richardson, Messages and Papers of Presidents (1900).99 1 Cranch 137, 2 L Ed 60 (1803).

One of the first duties of government is to afford that protection ....

He emphasised that a government should be

a government of laws, and not of men … [and] where a specific duty isassigned by law, and individual rights depend upon the performance of thatduty, it seems equally clear that the individual who considers himself injured,has a right to resort to the laws of his country for a remedy...[for the] originaland supreme will organises the government, and assigns to differentdepartments their respective powers ... [therefore it] is emphatically theprovince and duty of the judicial department to say what the law is.

It is not for some official, minor or major, to say what the law is. Thus inCampbell’s Trustees v. Police Commissioners of Leith,100 Lord Hatherley said

The courts will hold a strict hand over those to whom the legislature hasentrusted large powers, and take care that no injury is done by extravagantassertion of them.

The main grounds upon which the courts will now interfere to assert theirsupervisory role are

(a) improper motives, including mala fides, in the exercise of a power;

(b) that the powers are exercised

(i) in an arbitrary manner, or

(ii) capriciously; and

(c) that the powers exercised are ultra vires the enabling power.

The due processes of the law by which this interference is now exercised isby way of the issue of orders of certiorari, mandamus, prohibition and quowarranto.

Certiorari

This is an order – formerly a prerogative writ – of common law origin. It isissued from a superior court to an inferior court requiring the inferior court toproduce a record to be certified, that is to say, the proceedings before theinferior court would be examined to determine whether there has been anirregularity. It was first issued in the seventeenth century to control statutorypowers when proceedings were brought before the King’s Bench. If there wasan error on the face of the record the decision was quashed.

Now the remedy is available in cases where there is excess of jurisdiction,want of jurisdiction, abuse of power and the exercise of powers which areultra vires. Certiorari, in the sense of a review of the record of an inferior

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100 (1870) LR 2 HL (Sc) 1 at p.3.101 Walsall Overseers v. London & North Western Railway (1878) 4 App. Cas. 30.

court, was thus originally a method of exercising judicial control. Evolution ofthe process has led to its use as a supervisory weapon over the decisions oftribunals and administrative authorities.101 In R v. NorthumberlandCompensation Appeal Tribunal ex p. Shaw,102 Denning LJ said:

‘We have here a simple case of error of law by a tribunal, an error which theyfrankly acknowledge. It is an error which deprives Mr Shaw of thecompensation to which he is by law entitled. So long as that erroneousdecision stands, the compensating authority dare not pay Mr Shaw the moneyto which he is entitled lest the auditor should surcharge them. It would bequite intolerable if in such a case there were no means of correcting theerror.103

Mandamus

This order – originally a prerogative writ104 – is a command. Indeed, ittranslates directly as ‘we command’. It issues from a superior court directed toan inferior authority, whether private or municipal, administrative, executive orjudicial that a legal duty be done.105 But mandamus will not be granted wherethere exists any other remedy which is swift, beneficial and effectual. It is awide discretionary power in the hands of the courts – and the judges jealouslyguard the exercise of that power.

Prohibition

Prohibition is like certiorari. It is used to prevent an inferior court or tribunalfrom exceeding its judicial or quasi-judicial powers or, indeed, from takingcognisance of matters not within its jurisdiction to hear or to determine. It is,though, prospective in character, not retrospective as in the case of certiorari.Lord Atkin, in R v. Electricity Commissioners ex p. London Electricity JointCommittee Co. (1920) Ltd.,106 said that he could

see no difference in principle between certiorari and prohibition, except thatthe latter may be invoked at an earlier stage. If the proceedings establish thatthe body complained of is exceeding its jurisdiction by entertaining matters

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102 [1952] 1 KB 338 at p.354.103 See also R v. Logan ex p. McAllister [1974] 4 DLR 676; John East Ironworks v. Labour Relations

Board of Saskatchewan [1949] 3 DLR 51.104 The prerogative writs of mandamus, prohibition and certiorari were abolished by the Administration

of Justice (Miscellaneous Provisions) Act, 1938, s.7 of which provides for orders of mandamus,prohibition or certiorari.

105 Re Nathan (1884) 12 QBD 461; Stepney Borough Council v. John Walker & Sons Ltd. [1934] AC365.

106 [1924] 1 KB 171 at p.206.

which would result in its final decision being subject to being brought up andquashed on certiorari ... prohibition will lie to restrain it from so exceeding itsjurisdiction.

And in R v. Greater London Council ex p. Blackburn,107 Lord DenningMR said that prohibition

is available to prohibit administrative authorities from exceeding their powersor misusing them. In particular, it can prohibit a licensing authority frommaking rules or granting licences which permit conduct which is contrary tolaw.

Quo warranto

This order was originally a prerogative writ in common law issued to test thelegality of the exercise of a power – ‘by what authority is the power exercised?’It is intended to prevent the exercise of a power not conferred by law. It is notused to regulate the manner of the exercise of a power lawfully conferred. It isnow an injunction used to prevent the usurpation of a public office.

Ousting the Jurisdiction of the Courts

Legislation has, occasionally, provided that,

the determination by the Minister of an application made to the Minister underthis Act shall not be called in question in a court of law.

This type of provision is normally referred to as an ouster clause – it isintended to oust the jurisdiction of the courts. To a layman, a power of thiskind would seem to deprive the courts of jurisdiction over the Minister or anyother person or authority exercising an administrative or a judicial function.The courts do not think so. The House of Lords has held in Anisminic Ltd. v.Foreign Compensation Commission108 that s.4(4) of the ForeignCompensation Act 1950,109 which provided that the determination by theCommission of an application shall not be called in question in a court of law,did not protect any such determination from the jurisdiction of the courts.

The effect of Anisminic is that a provision of an Act of Parliament whichdirectly or indirectly protects a particular act or thing from the jurisdiction ofthe Courts or manifests an insulation of that act or thing from interference bythe Courts will not be countenanced by the courts in respect of a remedy thatthe Courts feel they are in a position to give.

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107 [1967] 1 WLR 550 at p.559.108 [1969] 2 AC.109 14 Geo 6 Ch 12.110 (1670) 1 Mod 44.111 (1686) 3 Mod 94.

Ouster clauses have a long history. R v. Smith110 and R v. Plowright111

appear to be the earliest of the cases which deal with them. R v. Smith involvedthe interpretation of a provision of the Ecclesiastical Leases Act 1571.112

Under that Act, a commissioner of sewer was not liable to make a return forhis actions. Some commissioners disobeyed writs of certiorari issued from theKing’s Bench to stop them rating land outside their jurisdiction and were dulyimprisoned for contempt. The courts would not tolerate the exercise of ajurisdiction that was not subject to their control.

In R v. Plowright, statute imposed a tax on chimneys, and empowered theJustices of the Peace, in a case of a dispute, ‘to hear and finally determine thematter’. On an application for a writ of certiorari the court held that theabsence in the statute of a reference to certiorari did not mean that the remedyby way of certiorari had been excluded. The courts have been consistent intheir dislike of attempts by the Legislature to oust or curtail theirjurisdiction.113

Lord Campbell CJ attributed the origin of this dislike to the contest forfees in the early common law.114 In the eighteenth and early nineteenthcenturies, the courts were active in their use of the prerogative writ ofcertiorari. Indeed, the proliferation of tribunals in England after the SecondWorld War led to the growth of the ouster clause, which was used byParliament to prevent the High Court from interfering with the decisions oftribunals.115 The culmination of the determination of the courts to overrideouster clauses came with an obiter dictum of Lord Denning in Taylor v.National Assistance Board116:

The remedy is not excluded by the fact that the determination of the Board isby statute made “final”. Parliament gives the impress of finality to thedecisions of the Board only on the condition that they are reached inaccordance with the law; and the Queen’s courts can issue a declaration to seethat condition is fulfilled.

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112 13 Eliz Ch 10.113 See R v. Morely (1760) 2 Burr 1040; Shipman v. Henbest (1790) 4 Term Rep 109; Balfour v. Malcol

(1842) 8 Cl & Fin 485; Smith v. Brown (1871) LR 6 QB 729; Oram v. Breary (1877) 2 Ex D 346;Seaward v. The Vera Cruz (Owner), The Vera Cruz (1884) 10 App Cas 59; Payne v. Hogg (1900) 2QB 43; Morris v. Loughborough Corporation (1908) 1 KB 205; Attorney-General v. Boden [1912]1 KB 539; Re Vexatious Actions Act, 1896 [1915] 1 KB 21; R v. Nat Bell Liquors [1922] 2 AC 128;Goldsake v. Shore [1950] 1 KB 708; Francis v. Yiewsley and West Drayton Urban District Council[1957] 2 QB 136.

114 Scott v. Avery (1856) 5 HL Cas 811.115 Dr Albert K Fiadjoe, Judicial Approaches to Constitutional and Statutory Exclusion of Judicial

Review in Commonwealth Caribbean Public Law: Commonwealth Caribbean Legal Studies, Ed GKodilinye & PK Menon, p.161.

116 [1957] AC 101 at p.111, affirmed in [1958] AC 532.

Classification

Ouster clauses may be classified under three heads:• constitutional ouster clauses;• statutory ouster clauses;• non-statutory ouster clauses.

A constitutional ouster clause is usually found in modern writtenconstitutions, where a provision of the constitution would aim at ousting orrestraining the jurisdiction of the courts on certain matters. When a statuteousts or restrains the jurisdiction of the courts in respect of certain matters theouster is referred to as a statutory ouster clause. Apart from constitutions orstatutes, an agreement, a treaty or the rules of a voluntary organisation maycontain clauses that may be termed non-statutory ouster clauses.

In considering a non-statutory ouster clause a contract was held to beillegal on the ground of public policy, in so far as its terms forbade the partiesto seek remedy in a court of law.117 Agreements which provide for thesubmission of disputes to arbitration form an exception to this rule. Czarnikovv. Roth, Schmidt & Co118 is authority for the proposition that the parties to anagreement cannot wholly exclude access to the courts by making the decisionof an arbitration final.

In Baker v. Jones,119 the court held that a provision in the rules of avoluntary association making its governing council the sole and ultimatearbiter on the legal construction of the rules of the association was contrary topublic policy and thus void. Where a testator made a will incorporating anouster clause, it was held that a testator cannot wholly deprive the courts oftheir jurisdiction to construe the terms of a will.120

Ouster clauses may take different forms. Attaching finality to the decisionsof an administrative authority was the first formula used by ParliamentaryCounsel to provide for the ouster clause. It has been extended to excludecertiorari, and other formulae: ‘shall not be questioned’ clauses, time-limitclauses, conclusive evidence clauses, ‘as if enacted in this Act’ clauses, HenryVIII clauses, ‘if satisfied’ clauses, and exclusive jurisdiction or exclusiveremedy clauses.

Final Decisions

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117 Bennett v. Bennett [1952] 1 KB 249.118 [1922] 2 KB 478.119 (1954) 1 WLR 1005; and see also Walton v. Holland (1963) NZLR 729.120 Re Raven [1915] Ch 673; Dundee General Hospital v. Walker [1952] 1 All ER (HL) 896.121 (1760) 2 Burr 1040.

In R v. Morely121 it was held that provision which provided that a decisionshall be final excluded only appeals and was thus not applicable to certiorari.In Fraser v. City of Fraserville122 it was held that in making, under a statute,the award of an arbitrator final and without appeal, the findings of fact of thearbitrator were not free from challenge if there had been an excess ofjurisdiction, such as by assessing the value of the wrong thing.

Section 36(3) of the National Insurance (Industrial Injuries) Act, 1946123

provided that ‘... any decision on a claim or question ... shall be final …’ Thissection was considered in R v. Medical Appeal Tribunal ex p. Gilmore.124 Theapplicant, a colliery pick sharpener, sustained an injury to his good eye whileat work. The applicant claimed for a disablement benefit under the Act. Thefinal medical board made no award. The applicant then appealed to a medicaltribunal which, in making its award, assessed the injury at only 20%. TheDivisional Court refused leave to apply for certiorari, so the applicant thenmoved the Court of Appeal which granted the request. Denning LJ said:

The word “final” is not enough. That only means “without appeal”. It does notmean “without recourse to certiorari”. It makes the decision final on the factsbut not on the law. Notwithstanding that the decision is by statute made“final”, certiorari can still issue for excess of jurisdiction or for error of lawon the face of the record.125

In Pearlman v. Keepers and Governors of Harrow School,126 the words‘such determination shall be final and conclusive’ were considered. LordDenning MR said that the

words “final and conclusive” have been considered by the courts a hundredtimes. It has been uniformly held that they preclude any appeal to a highercourt .... But those words do not preclude the High Court from correcting theerrors of the lower tribunal by means of certiorari – now called judicialreview. Notwithstanding that a decision is by a statute made “final andconclusive”, certiorari can still issue for excess of jurisdiction or for error oflaw on the face of the record ... or a declaration can be made by the HighCourt to determine the right of the parties.127

In Jones v. Department of Employment128 the words ‘shall be final’ wereagain considered. Glidewell L.J. observed in an obiter dictum129 that if the

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122 [1917] 34 DLR 211.123 9 & 10 Geo 6 Ch 62.124 [1957] 1 QB 574.125 At p.583.126 [1979] QB 56.127 At p.68.128 [1988] 2 WLR 493; [1989] 1 QB 1.129 At p.19.

decision-making process is flawed, as shown by error of law on the face of therecord, certiorari would issue to quash the decision. In South East Asia FireBricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing EmployeesUnion & Others130 the court was faced with the interpretation of s.29(3)(a) ofthe Industrial Relations Act, 1967.131 The section provided that,

an award of the [Industrial] Court shall be final and conclusive, and no awardshall be challenged, appealed against, reviewed, quashed or called in questionin any court of law.

An application was made by the company to the High Court for an orderof certiorari to quash the award made by the Industrial Court. The ground ofthe application was that there were errors of law on the face of the record. TheHigh Court held that the words of s.29(3)(a) were wide enough to oust thejurisdiction of the High Court to review the decisions by certiorari, but thatthe provision would not exclude the jurisdiction of the High Court if theIndustrial Court had exceeded its jurisdiction. Accordingly, there was power togrant certiorari for an error of law on the face of the record of the awardwhich did not affect the jurisdiction of the Industrial Court. However, since theapplication was based on errors of law on the face of the award, the HighCourt had no jurisdiction to grant an order for certiorari, because there wereno such errors.

In R v. Coldham ex p. Australian Union132 the court held that s.60(1) of theConciliation and Arbitration Act 1904 did not operate to confer anyconclusive or quasi-conclusive character on the Commission’s finding onpreliminary questions. In Griffith v. Barbados Cricket Association,133 it washeld by the Judicial Committee of the Privy Council that s.6 of Act No. 12 of1933[B], which had provided that ‘... the decision ... made shall be bindingand conclusive on all the parties without appeal’ could not exclude thejurisdiction of the court where an allegation of a breach of natural justice hadbeen made.

No Certiorari

An Act of Parliament may provide that, ‘No proceedings touching theconviction of an offender against this Act shall be removed by certiorari’.134

In R v. Wood135 there was a conviction under a by-law issued under the Public

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130 [1981] AC 363.131 No.35 of 1967 (Malaysia).132 (1983) 49 ALR 259.133 (1989) 41 WIR 48.134 Taken from s.137 of the Public Health Act of Canada.135 (1855) 5 E & B 49; 119 ER 400.136 11 & 12 Vict c.63.

Health Act 1848.136 As a defence the validity of the by-law had beenchallenged but the magistrate had refused to inquire into the challenge. On anapplication for certiorari, the appellate court held that since the magistrate hadrefused to hear the defence, the accused had been denied jurisdiction. The writof certiorari was granted.

Under the Public Health Act 1848, the right to certiorari is expressly takenaway by statute, but the courts would have none of that; they would rely on arestrictive interpretation, or upon the proposition that Parliament could nothave intended that a tribunal with limited jurisdiction should have the right toexceed its authority without the possibility of direct supervision by theappropriate higher court. Thus the courts have persistently declined to applythe rule of literal interpretation in the circumstances. The position then is this:that certiorari would be issued notwithstanding the presence of words takingaway the right to apply for it. The grounds for the interference by the courtsare that

(a) the inferior tribunal

(i) was improperly constituted, as where some of the members of thetribunal had interests which should have been disclosed137;

(ii) lacked or exceeded its jurisdiction because of the nature of the subject-matter or the failure to observe the essential preliminaries138;

(iii)had deviated from the prescribed procedure139;

(b) the act in question is an infringement of a rule of natural justice140;

(c) there is a total absence of jurisdiction.141

The early leading case on certiorari is Colonial Bank of Australia & Otherv. William.142 That case laid down the proposition that the effect of a ‘nocertiorari’ clause is not to oust entirely the powers of the superior court toissue certiorari. If a party makes a fraudulent use of the processes of a court,and no remedy is to be had in that court, the parties aggrieved may obtainrelief by regular suit in the appropriate competent court. In R v. MedicalAppeal Tribunal ex p. Gilmore143 the Court of Appeal considered the finalityand no certiorari clauses. Referring to the no certiorari clause, Denning LJobserved:

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137 R v. Cheltenham Commissioners (1841) 1 QBD 467.138 R v. Hurst ex p. Simth [1960] 2 QB 133.139 R v. Chairman of General Sessions at Hamilton ex p. Atterby (1959) W W R 800 at p.806.140 Ridge v. Baldwin [1964] AC 40.141 Ex p. Bradlaugh [1878] 3 QB 509.142 (1874) LR 5 PC 417 at p.442.143 [1957] 1 QB 574.

I find it very well settled that the remedy by certiorari is never to be takenaway by any statute except by the most clear and explicit words.

It is submitted that even clear and explicit words are not enough to oust thejurisdiction of the courts. In Anisminic v. Foreign Compensation144 the Houseof Lords stated:

Mandamus, prohibition, certiorari and habeas corpus are all writs which willbe granted where what the inferior tribunal has done is a nullity ….

The root principle is that if the order, decision or determination is not adetermination at all, it is not within the Act and there is nothing on which theouster clause can bite.

Shall not be questioned

Anisminic Ltd. v. Foreign Compensation Commission145 laid to rest the use inan Act of Parliament of the expression shall not be questioned in a court oflaw. In that case the Foreign Compensation Act 1950146 provided in s.4(4) thata determination by the Commissioners shall not be called in question in anycourt of law. The dispute arose from an agreement between the Governmentof Egypt and the government of the United Kingdom that a sum of money bepaid by the Government of Egypt to provide compensation for the benefit ofBritish companies and of persons whose property had been lost or damaged inthe 1956 Suez incident, and subsequent expropriations of British property bythe Government of Egypt.

The United Kingdom Government entrusted the distribution of thecompensation to the Foreign Compensation Commission. The statutoryinstrument defining the powers of the Commission in relation to applicationsarising out of the Suez incident contained provisions, complicated andobscure, as to the nationality of applicants for compensation.

The object was to ensure that only those of British nationality receivedcompensation, be they the original owners of the property lost or damaged, ortheir successors in title. Anisminic Ltd. was a British company but its propertyhad been first sequestrated and then sold to an Egyptian organisation.

The Commission interpreted the statutory instrument defining applicantsfor compensation as excluding Anisminic because their successor in title wasof Egyptian nationality. The House of Lords held that the Commission hadmisconstrued the instrument because where the original owner of the propertyclaimed that he was British, the nationality of his successor in title wasirrelevant.

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144 [1969] 2 AC 147 at pp.164-165.145 [1969] 2 AC 147.146 14 Geo 6 Ch 12.

The Commission had considered a matter totally irrelevant to the questionswhich they had been granted jurisdiction to determine. Accordingly they hadexceeded their jurisdiction and their purported determination was not valid. Assuch it was not protected by the provision preventing a proper determinationof the Commission being questioned in the courts.

Anisminic established the basic principle that if an authority or tribunalexceeds its jurisdiction then its decision is regarded by the courts as invalidand beyond the protection of any exclusionary formula previously used byParliamentary Counsel. In Attorney-General v. Ryan the Privy Council heldthat a Minister’s refusal of an application for citizenship without a fair hearingcould be challenged notwithstanding a provision that such a decision shall notbe subject to appeal or review in a court of law.

In R v. Miall,147 s.41(3) of the Criminal Justice Act 1988148 was inquestion. The section provided that a magistrate court’s decision to commit adefendant for trial under s.41(1) of the Act ‘… shall not be subject to appealor liable to be questioned in any court’. It was held that these words did notprevent the quashing of a criminal order which went beyond the powersconferred by s.41(1). Tudor Evans J said149:

We interpreted the language of sub-section (3) as meaning that a lawfuldecision by a Magistrates’ Court cannot be subject to appeal or questioned,but that, where the court has reached a decision for which there is no legalbasis whatsoever and has therefore acted in excess of jurisdiction, then … thedecision is a nullity and an application lies to quash the decision to commit.

Time limit clause

The form of this type of ouster clause may be as follows:

(3) Where a person aggrieved by an order desires to question its validity onthe ground that the order is not within the powers of this Act or that arequirement of this Act has not been complied with, that person may, withinsix weeks after the publication of the notice of confirmation, make anapplication to the High Court ….

(4) … an order shall not, either before or after its confirmation be questionedby prohibition, or certiorari or in any legal proceedings, and shall becomeoperative on the expiration of six weeks from the date on which notice of itsconfirmation is published ….

It appears that if the application is made to the High Court within sixweeks, the normal rights of appeal to the higher courts may be exercised

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147 [1992] 3 All ER 153 at p.158.148 C33.149 At p.158.150 See (1975) 38 MLR 274 (J Alder).

without restriction as to time. But this statutory formula has generated manyproblems150 of which three in particular stand out:

(a) is the judicial review absolutely cut off after six weeks?

(b)what is the scope of the review if the action is duly brought within the sixweeks?

(c) what is the meaning of ‘a person aggrieved’?

Before Anisminic, the authorities held that after the expiry of the specifiedperiod judicial review of the validity of the order was absolutely cut off. InSmith v. East Elloe Rural District Council,151 it was alleged that a localauthority had taken land for housing under a compulsory purchase order madewrongfully and in bad faith. The House of Lords refused to allow the action toproceed since it was brought outside of the specified period, that is, more thansix weeks after publication of the notice of confirmation. Viscount Simondssaid that

anyone bred in the tradition of the law is likely to regard with little sympathylegislative provisions for ousting the jurisdiction of the court, whether in orderthat the subject may be deprived altogether of remedy or in order that hisgrievance may be remitted to some other tribunal ….

... two things may, I think, fairly be said. First, if the validity of such an orderis open to challenge at any time within the period allowed by the ordinaryStatute of Limitations with the consequence that it and all that has been doneunder it over a period of many years may be set aside, it is not perhapsunreasonable that Parliament should have thought fit to impose an absolutebar to proceedings even at the risk of some injustice to individuals. Secondly,the injustice may not be so great as might appear. For the bad faith or fraud onwhich an aggrieved person relies is that of individuals, and this very caseshows that, even if the validity of the order cannot be questioned and hecannot recover the land that has been taken from him, yet he may have aremedy in damages against those individuals.152

East Elloe was distinguished in Anisminic. Lord Reid did not regard theformer case (in which he had dissented) as very satisfactory. It was not certain,he said, whether the plaintiff was claiming that the authority which made theorder had itself acted in bad faith, in which case the order would be a nullity;or whether the plaintiff was alleging that the clerk had fraudulently misled theCouncil and the Ministry, in which case the result would be different.

East Elloe was considered by Lord Reid and Lord Pearce as not a bindingauthority and Lord Wilberforce said that he could not regard it as a reliablesolvent of a similar case. The House of Lords did not suggest that there was a

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151 [1956] AC 736.152 At pp.750, 752.

fundamental difference between an absolute ouster clause and an ouster clausewhich operated only after a prescribed period; if anything they tended toemphasise their similarity. The question therefore is whether an orderprotected by a time limit ouster clause can be challenged in proceedingsbrought after the expiry of the time limit on any grounds which would renderit ultra vires, such as bad faith, wrong grounds or a violation of a rule ofnatural justice, in accordance with the principles of Anisminic.

It may be argued that public authorities would be in an impossible positionif compulsory purchase orders, housing orders, planning orders and similarorders were exposed to invalidation by the courts after public money had beeninvested in, say, building on land compulsorily acquired. It may be furtherargued that there is a clear distinction between a complete ouster clause and atime limit ouster clause.

The latter might well be regarded not as ousting the jurisdiction of thecourts but merely confining the time limit within which it can be invoked.Also, these time limit clauses may be considered as being analogous tolimitation of actions. There is no judicial criticism of statutes of limitationwhere after a certain period of time a claim is time-barred and the jurisdictionof the courts to entertain a suit is ousted; and their effect is exactly akin to thatof an ouster clause. On this basis East Elloe and Anisminic can be reconciled.

The time limit ouster clause again came in issue in R v. Secretary of Statefor the Environment, ex p. Ostler153 in which the Court of Appealdistinguished Anisminic from East Elloe and applied the decision in EastElloe. The details of the case were that a breach of natural justice and bad faithwere alleged in a case of a compulsory purchase order for a trunk roadscheme, under which much work had already been done, but which thecomplainant had not challenged within six weeks because he had not knownof the supplementary plans which would affect his property.

Lord Denning MR expressly mentioned the analogy with a limitationperiod and pointed also to the public interest in imposing finality where actionhad already been taken under the disputed orders. The House of Lords refusedleave to appeal.

In R v. Cornwall County Council, ex p. Huntington,154 paragraph 12 ofSchedule 15 of the Wildlife and Countryside Act, 1981,155 was in issue. Thatparagraph provided, inter alia, that,

if any person is aggrieved by an order … he may within 42 days … make anapplication to the High Court … Except as provided by this paragraph, thevalidity of an order shall not be questioned in any legal proceedings

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153 [1977] QB 122.154 [1992] 3 All ER 566.155 C.69.

whatsoever.

It was held that where a statute contained a standard form of preclusiveclause proscribing an opportunity for challenge on specified grounds togetherwith the period within which that challenge could be made and proscribing achallenge outside that period, questions as to the invalidity of action takenunder that statute could only be raised on the specified grounds in theprescribed time and manner.

The jurisdiction of the court was excluded in the interest of certainty inrespect of any other challenge irrespective of whether the body whosedecision was sought to be impugned was quasi-judicial or administrative andwhether or not the decision sought to be impugned was fundamentally invalid.It followed that the court had no jurisdiction to grant judicial review of a rightof way order and the grant of leave to apply for judicial review wouldaccordingly be set aside. East Elloe and ex p. Ostler were applied.

But is the decision in ex p. Huntington correct? The facts of East Elloe andex p. Ostler were different from the facts of Huntington; here, lack ofjurisdiction and fundamental invalidity were in issue. It could be argued thatwhen an order is made without jurisdiction, it is not tenable in law, but itshould not be argued that Parliament had the intention of protecting an invalidorder after the lapse of the prescribed time. In the instant case, the applicantwas waiting for a local inquiry and the time lapsed. Was the applicant at fault?Should not the court have made an adjudication on the allegations made by theapplicant?

Conclusive evidence clause

Section 98(2) of the Companies Act 1948156 provided that a certificate givenby a Registrar for the registration of a charge in pursuance of that Act, statingthe amount thereby secured, was ‘conclusive evidence’ as to the compliancewith the requirements of the Act. In R v. Registrar of Companies, ex p. CentralBank of India,157 it was held that the section precluded the court fromconsidering evidence to show that the requirements as to registration had notbeen complied with. But the European Court of Justice in Johnson v. ChiefConstable of the Royal Ulster Constabulary158 held that making a certificateconclusive evidence is unlawful.

It does appear that, on the authority of these cases, a challenge which doesnot depend on evidence relating to the correctness of the certificates will notbe excluded. Where a certificate is obtained by forgery, challenges would be

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156 11 & 12 Geo 6 Ch 38.157 [1986] 1 QB 1114.158 [1987] QB 129.159 [1990] 96 ALR 251.

available – a forged certificate is a nullity. In Sharpe v. Goodhew159 it was heldthat the conclusive evidence provisions in a 1916 Australia Act could not givepower to an officer to validate anything which was void ab initio.

As enacted in this Act

There have been instances where an enabling Act has provided thatsubordinate legislation made thereunder has effect as if enacted in this Act.The intention would appear to be to make such subordinate legislationimmune from review in the same way as the parent legislation is immune fromreview. In Institute of Patent Agents v. Lockwood,160 a majority of the Houseof Lords held that the provision made the Regulations unquestionable by acourt of law as if they were actually incorporated in the Act. But in 1931, theHouse of Lords found a more reasonable solution in a case under the HousingAct 1925,161 Minister of Health v. ex p. Yaffe.162 Here the Minister of Healthhad power to confirm a housing scheme and the Act had provided that theorder when made shall have effect as if enacted in this Act. It was held that theMinister

was empowered to confirm only schemes which conformed to the Act; if thescheme itself conflicted with the Act, the order was not an order within themeaning of the Act, and was not saved by the clause.

Yaffe was followed by the Manitoba Court of Appeal in MacCharles v.Jones.163 In the latter case the Court questioned the validity of rules that weredeclared by the legislature to have effect as if embodied in and as part of theAct under which they were made. Until the later part of the nineteenth century,it was not unusual for an Act of Parliament to provide that Regulations madeunder the Act would have the same effect as if enacted in the Act. A statute ofthat nature would confer authority to make Regulations, but might notexpressly confer authority to prescribe penalties for breach of a regulation.The statute itself would prescribe a penalty but only for breach of a provisionof the Act. The provision that the Regulations should have the same force andeffect as if enacted in this Act was regarded as incorporating the Regulationsinto the Act for the purpose of making the penalty section applicable to abreach of the Regulations.

Henry VIII clause

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160 [1804] AC 347.161 15 Geo 5 Ch 14.162 [1931] AC 494.163 (1939) 1 WLR 133.

Parliament may delegate to a subordinate authority a power to amend an Actof Parliament. This is not desirable but it has been done and still could bedone. The clause by which it originated was referred to as the ‘Henry VIIIclause’ – because ‘that king is regarded popularly as the impersonation ofexecutive autocracy’.164 The object was to assist in bringing a new Act intoeffect, particularly in cases where previous legislation had been complicated,or where there might be local Acts of Parliament which had to be harmonised.Examples are to be found in many Acts.165

A Henry VIII clause was considered by the House of Lords in the Instituteof Patent Agents v. Lockwood.166 It was held that the courts would not interfereto scrutinise the validity of a scheme made under a wide statutory provision. Itis submitted that if the modification or amendment affected is beyond theintention of the legislature, the door would be open to judicial review on apurely jurisdictional ground. This type of provision is now used to amend theSchedule to an Act and would not be used to achieve a substantive amendmentof the law.

Subjective formulae – if the Minister is satisfied

In delegating statutory powers, an Act of Parliament may provide that theMinister or the relevant authority may perform a certain function if theMinister is satisfied ... or if it appears to the Minister so to do …

The intention is to make the Minister or the relevant authority the solejudge of the existence of the conditions which make the power exercisable. Ithad been argued that in such a case instead of judging objectively whether theconditions do, in fact, exist, the court is merely to judge subjectively whetherthe requisite state of mind exists in the Minister or the relevant authority. Butthe courts detest legislative devices that make public authorities the solejudges of the extent of the powers conferred which in effect exempt suchauthorities from judicial control.

There is a subjective element in the exercise of a discretionary power.Expressions such as if the Minister is satisfied differ only in degree from apower to act as the Minister thinks fit. The limits of that type of power are thatthe Minister must act reasonably, in good faith and upon proper grounds. Butthen in using subjective language, the discretion granted may be exceptionallywide. Regulation 18B of the Defence (General) Regulations, 1939, gives avery wide discretion: if the Secretary of State had reasonable cause to believe

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164 Report of the Committee on Ministers Powers (Donoughmore Report), 1932 Cmnd 4060.165 For example, National Insurance Act, 1911; Factories Act, 1961; Sex Discrimination Act, 1975,

European Communities Act, 1972.166 [1894] AC 347.167 [1942] AC 206.

a person to be of hostile origin or association, the Secretary of State woulddirect that person to be detained.

Matters came to a head in Liversidge v. Anderson.167 The House of Lordseventually held that the discretion conferred on the Secretary of State underRegulation 18B was a matter outside the control of the courts. The courtscould not inquire into the necessity of the exercise of the discretion. LordAtkin dissented. His judgment is regarded today as the correct one. In R v.Inland Revenue Commissioners ex p. Rossminster,168 Lord Diplock stated thatfor his part he thought

the time [had] come to acknowledge openly that the majority of [the House ofLords] in Liversidge v. Anderson were expediently and, at that time, perhapsexcusably wrong and [that] the dissenting speech of Lord Atkin was right.

In Thornloe & Clarkson Ltd. v. Board of Trade,169 the Board of Trade wasauthorised to establish by order a development council for an industry wherethe Board or the Minister was satisfied that the establishment was desired by asubstantial number of persons engaged in the industry. It was held that it wasfor the Minister or the Board to assess whether the requirement had beenfulfilled. In Chitambazam v. King Emperor,170 the Act under considerationauthorised the Governor to issue a Proclamation if at any time the Governorwas ‘satisfied that a situation has arisen in which the government of Burmacannot be carried on’. A Proclamation was issued in which it was recited thatthe Governor was so satisfied. Lord Wright171 citing as authority Liversidge v.Anderson172 said that,

as no suggestion is made that the Governor acts otherwise than in good faith,this declaration cannot be challenged.

In Jones v. Robson,173 it was held that the fact that a Secretary of Statemade an order was sufficient evidence that the Secretary of State was sosatisfied. In R v. Comptroller General of Patents ex. p. Bayer Products Ltd174

Scott LJ said that,

the effect of the words “as appears to him to be necessary or expedient” is togive to His Majesty in Council a complete discretion to decide what

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168 [1980] AC 952.169 [1950] 2 All ER 245. See also Adegbenro v. Akintola [1963] AC 614.170 [1947] AC 200.171 At p.207.172 [1942] AC 206.173 [1901] 1 QB 673.174 [1941] 2 KB 306.175 At pp.311, 312.

regulations are necessary for the purposes named in the subsection. That beingso, it is not open to His Majesty’s Courts to investigate the question whetheror not the making of any particular regulation was in fact necessary orexpedient for the specified purposes.175

In Point of Ayr Collieries v. Lloyd George176 the court again consideredsimilar provisions and held that the court had no jurisdiction to interfere withthe Minister’s decision, and that the Minister was the sole judge whether ornot a case for the exercise of the powers had arisen. In the ChemicalsReference177, Chief Justice Duff held that every Order-in-Council, everyregulation and every rule derives its legal force solely from the enabling Act ofParliament which creates the power and not from the executive body by whichthey are made. He refused to entertain any arguments based upon theconsiderations which led to the making of the Regulations.

It is submitted that if on the face of the Regulations it is apparent that theregulation-making authority could not have been satisfied as to the existenceof certain facts as required by the statute, the Regulations would presumablybe ultra vires. Thus the court can inquire into the validity of a set ofRegulations, although the regulation-making authority was satisfied with thenecessity for making it, if other conditions are not fulfilled, e.g. publication,laying before Parliament, good faith, reasonableness, consultation, error ofmaterial fact or of law.178

In Ross-Clunis v. Papadopoullos & Others,179 the Privy Councilconsidered the words if satisfied and held:

If it could be shown that there were no grounds on which the appellant couldbe so satisfied, a Court might infer that he did not honestly form that view orthat, in forming it, he could not have applied his mind to the relevant facts.

In Secretary of State for Employment v. Associated Society of LocomotiveEngineers and Firemen and Others (No. 2)180 the Secretary of State hadstatutory power to seek a secret ballot order where it appeared to him thatcertain circumstances existed. Could the correctness or reasonableness of theSecretary of State’s belief as to the existence of those requisite circumstancesbe challenged? Lord Denning MR said that,

the Minister’s decision is [not] put beyond challenge. The scope available to thechallenger depends very much on the subject matter with which the Minister isdealing. In this case I would think that, if the Minister does not act in good faith,

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176 [1943] 2 All ER 546.177 [1943] SCR 1 at p.13.178 Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] AC

1014; Laker Airways Ltd. v. Department of Trade [1977] QB 643.179 [1958] 2 All ER 23 per Lord Morton of Henryton at p.33.180 [1970] 2 QB 55 at p.493.

or if he acts on extraneous considerations which ought not to influence him, or ifhe plainly misdirects himself in fact or in law, it may well be that a court wouldinterfere; but when he honestly takes a view of the facts or the law which couldreasonably be entertained, then his decision is not to be set aside simply becausethereafter someone thinks that his view was wrong.

He then excused the emergency procedure by saying:

It has to be set in motion quickly, when there is not time for minute analysisof fact or of law.

Exclusive remedy

An Act of Parliament may make specific provision for the availability of aparticular remedy to persons adversely affected by action taken by anadministrative agency under the Act. The question then arises whether thatremedy should be considered as exclusive of other remedies. We are hereconcerned, however, with the situation where no such express statement ofstatutory intention can be found. In what circumstances will the courts inferfrom the provisions of a specific remedy that that remedy is to be exclusive?

In Barraclough v. Brown,181 a harbour authority was empowered by statuteto recover from a vessel’s owner the expenses it had incurred in removing thevessel from the harbour in which it had sunk. The expenses, which would nothave been recoverable at Common Law, were under the statute maderecoverable summarily before the magistrates. The harbour authority soughtinstead a declaration from the High Court as to its entitlement to the expenses.The House of Lords refused to grant a declaration and held that the only rightconferred by statute is to recover such expenses from the owner of the vesselin a court of summary jurisdiction.

The Barraclough principle was applied in Healey v. Minister of Health.182

It was held that the procedure by way of a declaration could not be resorted to,in a case where the statute has provided a different remedy in respect ofdisputes in question. Even if the statute did not mention the remedy to beexclusive, it would be considered as being exclusive. But in Pyx Granite Co.Ltd. v. Minister of Housing,183 the appellants sought a declaration of theirCommon Law rights to quarry their land without the need to obtainpermission under the Town and Country Planning Act 1947.184

It was urged that the appellant had to apply to the local planning authority,with a right of appeal therefrom to the Minister, whose decision was to be

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181 [1897] AC 615.182 [1954] 2 QB 221.183 [1970] AC 260. See also Slough Estates v. Slough Borough Council [1968] Ch 299.184 10 & 11 Geo 6 Ch 51.

final. The House of Lords rejected this argument and held that the principle inBarraclough v. Brown did not apply. Viscount Simonds explained:

The appellant company are given no new right of quarrying by the Act of1947. Their right is a Common Law right and the only question is how far ithas been taken away. They do not uno flatu claim under the Act and seek aremedy elsewhere. On the contrary, they deny that they come within itspurview and seek a declaration to that effect. There is, in my opinion, nothingin Barraclough v. Brown which denies them that remedy, if it is otherwiseappropriate.

Constitutional ouster clauses

Where a constitution provides for ousting the jurisdiction of the courts, aserious problem arises in the interpretation of such ouster clauses. It had beenargued185 that these clauses must be taken at face value since they representthe clear policy intent of the founding fathers of the constitution that certainquestions should not be reviewed by the courts. This argument may applywhere the constitution specifically ousts the jurisdiction of the courts inrespect of certain discretions ascribed to the Head of State. The Head of Statehas certain immunities from civil and criminal proceedings during theprescribed term of office. Thus an ouster clause protecting the discretion of theHead of State from interference by the courts is made in conformity with theimmunities enjoyed by the Head of State.186

Thus where the constitution itself ousts the jurisdiction of the courts, ‘thecourts lose their jurisdiction to entertain those questions altogether becausethey have no power to override the constitution and the questions, accordingly,become unjusticable.’ This view was applied by Hyatali CJ in Harrikissoon v.Attorney-General of Trinidad and Tobago.187 He said he was

firmly of the opinion that a court would be acting improperly if a perfectlyclear ouster provision in the constitution of a country which is its supreme lawis treated with little sympathy or scant respect, or is ignored without strongand compelling reasons.

Does this mean that the door is left open to review a constitutional ouster

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185 Dr Basu, Constitution of India (1965) Vol 1 p. 338.186 See, for example, the Constitution of the People’s Republic of Bangladesh. The proviso to clause (3)

of article 48 protects the advice tendered by the Prime Minister to the President from any questionin a Court Clause (5) of article 55 protects the President’s attestation or authentication of an order.Article 5 provides for the Immunities of the President from legal proceedings Article 98(2) of theConstitution of Trinidad and Tobago provides for the protection of the President’s discretion.

187 [1981] AC 265.

clause in the face of ‘strong and compelling reasons’? If so, what would thosereasons be? Dr Albert K. Fiadjoe188 supplies a very rational answer:

‘Any evidence of an “offence” against the constitution is enough to satisfy thetest of strong and compelling reasons without necessarily having to draw thedistinction between administrative, judicial and quasi-judicial functions.’

In Kesavananda v. State of Kerala189 the Supreme Court of Indiaconsidered a constitutional ouster clause. Article 13c of the Constitution wasincorporated by way of the Twenty-fifth Amendment to the Constitution. Itprovided that

Notwithstanding anything contained in article 13, no law giving effect to thepolicy of State … shall be called in question in any court.

The Supreme Court held this ouster clause of the Constitution to be ultravires the Constitution and declared it invalid. The second part of that articlewhich ousted the jurisdiction of the courts was struck down. But, forconstitutional cases, the most important case is Smt. Indira Gandhi v. RajNarain.190 It arose from a dispute over Mrs Indira Gandhi’s election to theLok Sabha in 1971 when the validity of the Constitution (Thirty-ninthAmendment) Act 1975 was challenged.191 By that Amendment Act, Article329A(4) and (5) was inserted.

The amending article provided that a dispute as to the election of the PrimeMinister and of the Speaker would be resolved by Parliament itself, that theexisting law for determining election disputes would not apply to the electionof the Prime Minister and of the Speaker, that the disputed election of thePrime Minister, Mrs Indira Gandhi, was valid and that the election petitionagainst her abated. The Supreme Court declared the Amendment Act invalidand held that Parliament, by declaring the disputed election ‘valid’, exerciseda judicial power not vested in it by the Constitution.

Again in 1980, the Supreme Court of India considered anotherconstitutional ouster clause. Article 368(4) of the Constitution wasincorporated by the Forty-second Amendment to the Constitution. In MinervaMills Ltd. v. Union of India192 it was held that the consequence of exclusion of

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188 Judicial Approaches to Constitutional and Statutory Exclusion of Judicial Review in CommonwealthCaribbean Public Law, Commonwealth Caribbean Legal Studies, p.165.

189 ALR (1973) SC 1461.190 AIR (1975) SC 2299.191 Mrs Indira Gandhi was elected to the Lok Sabha, that is, the Lower House of Parliament. The elec-

tion was challenged by Raj Narain, a contesting candidate, on an election petition. The petition wasallowed and the election was declared void by the Election Tribunal on the ground that Mrs IndiraGandhi had adopted corrupt practices in the election She appealed to the Supreme Court. Duringthe pendency of the appeal, Parliament passed that Thirty-ninth Amendment Act inserting article329A(4) and (5).

192 AIR (1980) SC 1789.

the power of judicial review would be that, in effect and substance, thelimitation on the amending power of Parliament would, from a practical pointof view, become non-existent and by the exclusion of judicial review theamending power of Parliament would stand enlarged.

This would undoubtedly damage the basic structure of the Constitution intwo ways:• the limited power of Parliament to amend the Constitution; • the power of judicial review which gives the mandate to the Supreme

Court to examine whether an authority under the Constitution hasexceeded the limits of its powers.

Bhagwati CJ reiterated his views expressed in Smt. Indira Gandhi v. RajNarain193 that judicial review was a basic and essential feature of theConstitution of India, and no law passed by Parliament could abrogate or takeit away. The legality of the exercise of the powers of the Executive and of theLegislature could not be decided by the Executive or the Legislaturethemselves.

In Guyana the courts took the clear position that the ouster clause in theConstitution could be reviewed on the ground of jurisdictional error. In ReSarran194 Cummings JA said:

It means no more than that there can be no enquiry by a court into the validityof an act that the Commission is legally authorised to do; this does not meanthat if the Commission or person does something which it has no jurisdictionto do, or which is beyond its or his power, as defined in the Constitution, thatthat act cannot be enquired into by the courts.

In Farrell v. Attorney-General of Antigua195 the Court of Appeal of theAssociated States considered the ouster clauses in the Industrial Court Act1976 and held that the provisions of the Act, in so far as they purport ins.17(4) to divest the Supreme Court of its supervisory jurisdiction were inconflict with the Constitution and, therefore, void. In Tomas v. A-G196 theJudicial Committee of the Privy Council held that it was for the court and notfor the Police Service Commission to determine what, on the true constructionof the Constitution, were the limits to the functions of the Commission. If theCommission did something beyond its functions or the validity of which waschallenged as a contravention of the rights guaranteed by the Constitution, s102(4) of the 1962 Constitution would not oust the jurisdiction of the courts.

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193 AIR (1975) SC 2299.194 (1981) 32 WIR (PC) 375.195 (1979) 27 WIR 377.196 (1989) 41 WIR 299.

197 (1981) 32 WIR (PC) 375.

In 1989 the Court of Appeal of Trinidad and Tobago considered s.129(3)of the Constitution of Trinidad and Tobago. In Jones v. Soloman,197 the Courtheld that although s.129(3) of the Constitution precluded any court frominquiring into the validity of the performance of the functions vested in aservice commission by the Constitution, the courts were not absolutelydebarred from reviewing the decisions of such commissions if, for example, aCommission had acted capriciously or arbitrarily. In Sundry Workers v.Antigua Hotel and Tourist Association,198 s.17(6) of the Industrial Court Act,1976 was considered in the light of s.122 of the Constitution of Antigua andBarbuda 1981 by the Judicial Committee of the Privy Council. Subsection (1)of s.17 of the Act prescribes certain grounds for appeal from an order or awardof the Industrial Court to the Court of Appeal. Subsection (4) prohibits anyother remedy.

The question for decision was whether an appeal lay to Her Majesty froma decision of the Court of Appeal of Antigua and Barbuda determining anappeal from a judgment of the Industrial Court. The Privy Council held thats.17(6) was not a bar, and that the right of appeal to Her Majesty-in-Council isa constitutional one.

From these cases the conclusion could be drawn that constitutional ousterclauses are no longer a bar to judicial review – nor are they any different fromstatutory ouster clauses.

The determination and the ingenuity of judges have led to a dislike ofouster clauses. The Committee on Ministers’ Powers 1932199 recommendedthat ouster clauses should, in all but the most exceptional cases, be abandoned.In 1957 the Franks Committee200 recommended that no statute should containwords purporting to oust the prerogative remedies. The Tribunal and InquiriesAct 1971201 replacing the Act of 1958,202 has pointed the way in respect of thelatter recommendation. Section 14 of that Act provides that,

Any provision in an Act passed before 1st August, 1958, that any order ordetermination shall not be called in question in any court, or any provision insuch an Act which by similar words excluded any of the powers of the HighCourt, shall not have effect so as to prevent the removal of the proceedingsinto the High Court by order of certiorari or to prejudice the powers of theHigh Court to make orders of mandamus.

A review of most of the cases on ouster clauses would seem to suggest

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198 (1993) 42 WIR 145.199 Cmnd 60 p.65.200 Cmnd 218 para 117.201 C 62.202 6 & 7 Eliz 2 Ch 66.203 C.56.

that, whatever the form of the wording, an ouster clause may fail to protect anultra vires decision or act. However, the form is not yet dead. Section 7 of theInterception of Communications Act 1985203 establishes a tribunal toinvestigate complaints relating to the interception of communications underthe Act. Subsection (8) provides that,

the decisions of the Tribunal including any decision as to their jurisdictionshall not be subject to appeal or liable to be questioned in any court.

Are the words ‘including any decision as to their jurisdiction’ an attemptto defeat Anisminic?

Rules of Natural Justice

The presumption of natural justice is a corollary to the presumption that anAct of Parliament does not intend to exclude the jurisdiction of the courts oflaw. It requires that an authority shall not be a judge in its own cause, thatthere is no bias, that a party to an action or any other proceedings is notcondemned without a hearing, that the party concerned shall be informed ofthe reason for the decision given.204 It does not mean that the authorityexercising a quasi-judicial function must of necessity observe the procedureand follow the technical rules of evidence practised in a court of law. It issufficient that the authority adopts a procedure that affords to a party to theproceedings an opportunity to produce evidence, an opportunity to challengeor contradict prejudicial statements.

In fine, the authority is required to hear all the parties to the dispute and,generally, observe what a layman would describe as fair play. The courts willinterfere where grave injustices might be done or where justice might not beobserved since a decision which offends the principle of natural justice isoutside the promise of the decision-making authority.205 In FairmountInvestments Ltd. v. Secretary of State for the Environment206 Lord Russellstated that,

it is to be implied, unless the contrary appears, that Parliament does notauthorise by the Act the exercise of powers in breach of the principles ofnatural justice, and that Parliament does by the Act require, in particularprocedures, compliance with those principles.

The use by Lord Russell of the words, unless the contrary appears, createsthe impression that Parliament would expressly or by necessary implication

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204 Hood Phillips, Constitutional and Administrative Law, 4th ed p.634.205 Attorney-General v. Ryan [1980] AC 718; Isaacs v. Robertson [1985] AC 97.206 [1976] 1 WLR 1255 at p.1263.207 1934 SA(AD) 11 at p.38.

exclude the presumption that the principles of natural justice need beobserved. Indeed, South Africa is replete with examples in which the courtshave decided that statute has excluded the principles of natural justice. In themost important case on the matter, Sachs v. Minister of Justice,207 StraffordACJ said:

Sacred though the maxim audi alteram partem is held to be, Parliament is freeto violate it. In all cases where by judicial interpretation it has been invoked,this has been justified on the ground that the enactment impliedly incorporatedit. When, on the true interpretation of the Act, the implication is excluded,there is an end of the matter.

Retroactive and Retrospective Operation of Statutes

A statute may be said to be retroactive or retrospective in operation. The twowords are often used interchangeably,208 but there is a distinction, howeversubtle that distinction is. Driedger209 establishes that there is a differencebetween retroactive and retrospective even if in the dictionaries the definitionof the one word includes that of the other.

A statute could be • retroactive but not retrospective;• retrospective but not retroactive;• both retroactive and retrospective.And statutes that are both retroactive and retrospective could be, and usuallyare, prospective in character.

It is a fundamental rule of English law that no statute is construed to have aretrospective operation unless that construction appears very clearly in theterms of the Act, or arises by necessary and distinct operation.210 Thepresumption against retrospective operation applies in the interpretation oflegislation of a penal nature and is based on the general principle that penalenactments are construed strictly and not extended beyond their clearmeaning.211

The presumption applies to both retrospective and retroactive operation ofthe law, but the test of retroactivity is different from that of retrospectivity. Forretroactivity the question is whether there is in the Act, read as a whole,anything which indicates that the Act must be deemed to be the law from a

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208 See, for example, C K Comans, The Power of the Commonwealth Parliament to make Retrospectiveor Retroactive Laws is Well Established, 27 Australian Law Journal.

209 Construction of Statutes, p.186.210 Phillips v. Eyre (1870) LR 6 QB p.23.211 See, for example, Attorney-General for Canada v. Hallet and Carey [1952] AC 427.

date antecedent to its enactment? For retrospectivity the question is whetherthere is anything in the Act which indicates that the consequences of anearlier event are changed, not for the time before the enactment, butprospectively from the time of the enactment, or from the time of thecommencement of the Act.

The application of the presumption against the retrospective operation ofstatutes is a difficult problem in the process of statutory interpretation. Thereis a confusion between presumptions: the presumption against interferencewith vested rights and the presumption against the retrospective operation ofthe law.

A statute that interferes with or destroys a previously acquired right couldnot be said to be retrospective. Thus in West v. Gwynne,212 the question fordetermination was whether s.8 of the Conveyancing and Law of Property Act1892213 was of general application; or whether its operation was confined toleases made after the commencement of the Act. It provided that in a leasecontaining a covenant against assigning or under-letting without licence orconsent, the covenant should be deemed to be subject to a proviso to the effectthat no fine was payable for the licence or consent.

It was argued that a statute is presumed not to have a retrospectiveoperation unless the contrary appears by express language or by necessaryimplication. Cozens Hardy MR assented to that general proposition, but hesaid that he failed to appreciate its application to the present case. To BuckleyLJ the issue of retrospection was irrelevant. ‘Retrospective operation is onematter. Interference with existing rights is another.’

West v. Gwynne also supports the proposition that there are two distinctkinds of requisites for the application of a statute ‘drawn from time antecedentto its passing’. The first is a characteristic, the second an event. A statutecannot be said to be retrospective merely because it is brought into operationby a characteristic or status that arose before it was enacted. That in my viewwould make it retroactive.

The second is a fact situation which occurred, or a status which wasacquired, before the commencement of the statute. A statute is retrospective ifit is brought into operation by a prior event described in it. In West v. Gwynne,there was a fact-situation which could be described as a characteristic only andnot an event.

Language is not always precise. Hence the difficulty in saying preciselywhether the words in an Act setting forth a fact-situation are intended todescribe an event or a characteristic. For example, a provision of an Act that

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212 [1911] 2 Ch 1.213 55 & 56 Vict Ch 13.214 (1875) LR 10 QB 195.

the Act applies to a person who was employed on 1 January 1970, has twoelements. One, that the person referred to took employment on that day – anevent. Two, that the person referred to was an employee on that date – acharacteristic, a status.

In R v. Vine214 it was provided that ‘every person convicted of a felony’should be disqualified from selling spirits by retail. The court, by a majority,interpreted that provision to mean a convicted person, therefore applying thestatute to persons convicted before the statute came into being. Lush Jdissenting, said the phrase meant ‘every person who shall hereafter beconvicted’. To the majority there was a disability, attached to a characteristic.A person who was caught within the ambit of that provision had acquired astatus, that of a convicted person – whatever the date of the conviction. That,clearly, is a retrospective operation of the statute.

A retroactive statute is one that states, simpliciter,

This Act shall be deemed to have come into force on the first day of July,1980.

when its date of enactment is, say, June, 1985.A retrospective statute operates for the future. It is prospective in character

but imposes new results in respect of a past event or transaction. A retroactivestatute does not operate backwards; it operates forwards from a date prior toits enactment. A retrospective statute operates prospectively but attaches newconsequences for the future to an event that took place before the statute wasenacted. A retroactive statute changes the law from what it was, or from whatit otherwise would be with respect to a prior event or transaction.

In West v. Gwynne the true reason for holding that the statute in questionwas not retrospective was that there was no reference in the statute to a pastevent or transaction – the only reference was to leases of a certain kind. YetBuckley LJ rejected the presumption because the statute was not operative asof a past time. His definition of retrospectivity was in fact a definition ofretroactivity. He said:

If an Act provides that as at a past date the law shall be taken to have been thatwhich it was not, that Act I understand to be retrospective.

Phillips v. Eyre215 dealt with an Act of Indemnity. The Act was ‘expressedto be operative with respect to past transactions as of a past time’ and thus wasin essence retroactive. Where an Act attaches an obligation or disability orimposes a duty as a new consequence, prejudicial in most cases, of a priorevent, then it can be said to be retrospective. In Re A Solicitor’s Clerk216 thestatute provided that,

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215 (1870) LR 6 QB 1.216 [1957] 1 WLR 1219.

Where a person who is or was a clerk to a solicitor ... has been convicted oflarceny ... or any other criminal offence in respect of any money or propertybelonging to or held by the solicitor ... an application may be made ... that anorder be made directing that ... no solicitor shall ... take or retain the saidperson into or in his employment.

It was held that the making of an order in respect of a clerk who had beenconvicted prior to the enactment of the statute was a retrospective operation.Goddard LCJ said that in his opinion the

Act is not in truth retrospective. It enables an order to be made disqualifying aperson from acting as a solicitor’s clerk in the future and what has happenedin the past is the cause or reason for the making of the order, but the order hasno retrospective effect .... This Act simply enables a disqualification to beimposed for the future and in no way affects anything done by the appellant inthe past.

Indeed, the dictum of Goddard LCJ is in fact a classic statement of what aretrospective statute is. The fact situation here was the characteristic of theclerk as a convicted person. Similarly in R v. Vine,217 the statute imposed adisability on ‘every person convicted of a felony’. That person had acquired astatus, that is, the status of a convicted person. The statute attached a disabilityto a characteristic and not to the felonious act or the conviction qua conviction.

According to Driedger, there are three kinds of statutes that can properlybe said to be retrospective:

(a) statutes that attach benevolent consequences to a prior event;

(b) statutes that impose a penalty on a person who is described by reference toa prior event, but the penalty is not a consequence of the event;

(c) statutes that attach prejudicial consequences to a prior event.Of these, only the last attracts the presumption against the retrospectiveoperation of the law.

It is not difficult to identify a retroactive statute. There is a specificstatement that it shall be deemed to have come into force on a date prior to itsenactment. Or it is expressed to be operative with respect to past transactionsas of a past time.218 What is difficult is first to identify a retrospective statuteand then to distinguish between those retrospective statutes that attract thepresumption and those that do not. The latter may be illustrated by twoexamples219:

A person convicted of impaired driving is disqualified from holding a licence.

This provision imposes a new disability and the courts would in all

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217 [1875] LR 10 QB 195.218 Driedger, Construction of Statutes, p.186.219 Taken from Driedger, Construction of Statutes, p.198.

likelihood hold that the statute would be given retrospective effect if it wereapplied in respect of prior convictions. A person convicted of impaired drivingshall pay an additional insurance premium of $100 to the GovernmentInsurance Commission. Here there is a further penalty imposed in respect of aconviction. But would a Court following R v. Vine and Re A Solicitor’s Clerk hold that its application in respect of prior convictions is not retrospective?

In the second example, where an Act provides that:

A person who has attained the age of eighteen years is qualified to vote at anelection,

no one would say that the Act applies only to persons who attained the age ofeighteen years after its enactment. This is a beneficial provision. But if theAct provided that,

The lands of a person who has been convicted of the offence of treason areforfeited to the State,

no one would want to apply that Act to convictions before its enactment. Thisis a prejudicial provision. The situations in between these two extremes are thedifficult ones.

The principle is that the presumption applies if the statute would attach anew duty, disability, or penalty, that is to say, a prejudicial consequence, to aprior event.

To discover when a prejudicial provision is a consequence of an event andwhen it is not, it is instructive to examine cases like R v. Vine. As stated above,in that case the statute considered provided that,

Every person convicted of a felony shall forever be disqualified from sellingspirits by retail, and no licence to sell spirits by retail shall be granted to anyperson who shall have been so convicted ....

The question, as stated by Cockburn CJ, was whether a person who had beenconvicted of a felony before the Act was passed became disqualified on thepassing of the Act. There was no provision in the Act that could be construedas a rebuttal of the retrospective presumption. Cockburn CJ said:

Here the object of the enactment is not to punish offenders, but to protect thepublic against public houses in which spirits are retailed being kept by personsof doubtful character.

He obviously construed the words ‘Every person convicted of a felony’ asreferring to a status or characteristic only, and not to a past transaction. Themajority regarded the new disability as a protection to the public, and not as anew punishment. Archibald J said:

It is an enactment with regard to public and social order, and the infliction of

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220 [1894] 1 QB 725.

the penalty is merely collateral.

In his view the statute was retrospective since he considered that a newdisability was attached to past events. On Cockburn’s view the statute wasprospective only since the fact-situation described in the statute was acharacteristic that arose in the past and not a past event.

In Re Pulborough Parish School Board Election,220 the Court of Appealconsidered a provision of the Bankruptcy Act 1883. It provided that where adebtor is adjudged bankrupt, he should be subject to certain disqualifications,including election to the office of member of a school board. The question waswhether the Act applied to a person who had been adjudged bankrupt beforeits enactment. The majority held that it did not. Lopes J said:

It has been contended that the words “is adjudged bankrupt” are to be read,“has been adjudged bankrupt either before or after the passing of this Act”. Icannot so read those words …. Under s.32 of the Bankruptcy Act 1883 therespondent on being adjudged a bankrupt is disqualified from being elected amember of the school board until the adjudication of bankruptcy against himis annulled, or he obtains from the court his discharge, with a certificate to theeffect that his bankruptcy was caused by misfortune, without any misconducton his part … A new disability, therefore, is imposed upon him, anddisabilities are imposed on other persons which had no existence before theBankruptcy Act of 1883. Having regard to the scope of the Act, and the ruleof construction applicable to statutes, I am confirmed in my view that the truemeaning of the words in s.32 “is adjudged bankrupt”….

Davey CJ stated:

It has been suggested that the words be read as meaning “where a man is anadjudicated bankrupt”. The answer seems to me to be that those are not thewords before us, and that the words we have to construe are grammaticallydifferent. I think the words “is adjudged” are the verb, whereas in theparaphrase suggested the word “adjudicated” would be an adjective. The oneform of sentence points to an event to happen, whereas the form suggestedpredicates a certain quality of the subject which may just as well attach to himby a previous adjudication as by a subsequent one.

Lord Esher dissented. In his opinion section 32

is not penal within the meaning of the proposition, which states that a penalstatute must be construed strictly, and in my opinion it is not, in the true senseof the term, retrospective. To my mind, to say that the legislature intended topunish a debtor of whom that can be said would be to charge the legislaturewith injustice. The disqualifications are intended solely for the protection of

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221 Construction of Statutes, p.202.

the public, and not by way of punishment. The case of R v. Vine is a strongauthority to show that under such circumstances that which is enacted is notpenal.

Driedger221 considers that if the intent is to punish or penalise a person forhaving done what he did, the presumption applies because a new consequenceis attached to a prior event. If the new punishment or penalty is intended toprotect the public, the presumption does not apply. In R v. Vine the majorityheld that the object of the statute was not to punish offenders but to protect thepublic. Lush J, however, considered the Act a highly penal enactment, and onthat view the presumption would apply.

In Re Pulborough, the majority held the disabilities to be added to thoseset out in the Bankruptcy Act. Lord Esher did not think that the newdisqualifications were intended as punishment but that they were intendedsolely for the protection of the public.

In summary it may be stated that,222

(a) an Act is retroactive where it changes the law from a date prior to the dateof its enactment;

(b)an Act is retrospective where it attaches new consequences to an event thatoccurred prior to its enactment;

(c) an Act is not retrospective by reason only that it adversely affects anantecedently acquired right;

(d)an Act is not retrospective unless the description of the prior event is thefact-situation that brings about the operation of the Act;

(e) the presumption against the retrospective operation of an Act does notapply,

(i) where the consequences attaching to the prior event are prejudicialones, namely, a new penalty, a new disability or a new duty;

(ii) if the new prejudicial consequences are intended as protection for thepublic rather than as punishment for a prior event;

(f) Regulations can not be given retrospective or retroactive effect unless theenabling Act so authorises, expressly or by necessary implication;

(g) there is one exception to the presumption against retrospective operation of anAct, that is, where an enactment is repealed and replaced, the new enactmentis retrospective so far as it is a repetition of the former enactment.

Conformity with the Rules of International Law

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222 Construction of Statutes, pp.202-203.223 (1883) 8 P D 101 at p.104.

There is a presumption that an Act of Parliament will not be interpreted so asto violate a rule of international law. The courts will not construe an Act so asto bring it into conflict with international law. In Bloxham v. Favre223 it wasstated that,

every statute is to be so interpreted and applied, as far as its language admits,as not to be inconsistent with the comity of nations or with the establishedprinciples of international law.

This does not mean that an Act of Parliament would be declared ultra viresas being in contravention of an international law, but that the Courts will desistfrom a construction that would lead to a breach of an accepted rule ofinternational law.224

The courts therefore take judicial notice of international law, but treaties donot form part of the municipal law. They need incorporation into themunicipal law by the legislature or through the constitutional processesrequired by each jurisdiction. In Salomon v. Customs and ExciseCommissioners,225 it was held that where the evidence was clear that theenactment is the direct result of a Convention, the Convention would be readin the interpretation of the enactment even though the Convention is notspecifically mentioned in the enactment.226

It is thus instructive to consider what Lord Denning said in TrendtexTrading Corporation v. Central Bank of Nigeria227:

The doctrine of sovereign immunity is based on international law. It is one ofthe rules of international law that a sovereign state should not be impleaded inthe courts of another sovereign state against its will. Like all rules ofinternational law, this rule is said to arise out of the consensus of the civilisednations of the world. All nations agree upon it, so it is part of the law ofnations. To my mind this notion of a consensus is a fiction. The nations arenot in the least agreed upon the doctrine of sovereign immunity. The courts ofevery country differ in their application of it…. There is no consensuswhatever. Yet this does not mean that there is no rule of international lawupon the subject. It only means that we differ as to what that rule is ….

A fundamental question arises for decision. What is the place of internationallaw in our English Law? One school of thought holds to the doctrine ofincorporation. It says that the rules of international law are incorporated inEnglish law automatically and considered to be part of English law unlessthey are in conflict with an Act of Parliament. The other school of thoughtholds to the doctrine of transformation. It says that the rules of international

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224 Cheney v. Conn Airways [1968] 1 All ER 779; Corocraft Ltd. v. Pan-Am Airways [1969] 1 QB 616.225 [1967] 2 QB 116.226 See also Post Office v. Estuary Radio [1968] 2 QB 740; Corocraft Ltd. v. Pan Am Airways [1969] 1

QB 616.227 [1972] QB 529 (CA) at pp.552-554.

law are not to be considered as part of English law except in so far as theyhave been already adopted and made part of our law by the decisions of thejudges, or by Act of Parliament, or long established custom. The difference isvital when you are faced with a change in the rules of international law. Underthe doctrine of incorporation, when the rules of international law change, ourEnglish law changes with them. But, under the doctrine of transformation, theEnglish law does not change. It is bound by precedent. It is bound down tothose rules of international law which have been accepted and adopted in thepast. It cannot develop as international law develops. As between these twoschools of thought, I now believe that the doctrine of incorporation is correct.Otherwise I do not see that our courts could ever recognise a change in therules of international law. It is certain that international law does change ...and the courts have applied the changes without the aid of any Act ofParliament .... It follows ... that a decision of this Court – as to what was theruling of international law fifty or sixty years ago – is not binding on thisCourt today. International law knows no rule of stare decisis.

Action or Conduct Lawful

There is a presumption in the construction of a statute that a reference to anaction or a conduct, unless a contrary intention appears, is a reference to alawful action or lawful conduct. A power conferred by statute enabling a thingto be done is a power conferred that what is allowed to be done shall be donelawfully. Otherwise there is a breach for which the courts will enforce theappropriate remedy. In Wolverhampton New Waterworks Co. v.Hawkesford,228 Willes J said:

There are three classes of cases in which liability may be established bystatute: There is that class where there is a liability existing at Common Lawwhich is only remedied by the statute with a special form of remedy: thus,unless the statute contains words expressly excluding the Common Lawremedy, the plaintiff has his election of proceeding either under the statute orat Common Law. Then there is a second class, which consists of those casesin which a statute has created a liability but has given no special remedy for it:thus the party may adopt an action of debt or other remedy at Common Lawto enforce it.229 The remedy which by law is properly applicable to the rightor the obligation flows as an incident.230 The third class is where a statutecreates a liability not existing at Common Law, and gives also a particular

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228 (1859) 6 C B (N S) 336 at p.356. See also Dawson & Co. v. Bingley Urban District Council [1911]2 KB at 149 at p.156.

229 In such a case the Common Law will, in general, give a remedy suited to the particular nature of thecase: Doe d Bishop of Rochester v. Bridges (1831) 1 B & Ad 847, 859, Lord Tenterden CJ; See alsoDevonport Corporation v. Plymouth, etc, Tramways Co. (1884) 52 L T 161, 164.

230 Per Kennedy LJ in Dawson & Co. v. Bingley UDC [1911] 2 KB 149 at p.159.

remedy for enforcing it. ... With respect to that class it has always been heldthat the party must adopt the form of remedy given by the statute.

Malfeasance, Misfeasance, Non-feasance

In dealing with lawful acts or lawful conduct three things need to bedistinguished: malfeasance, misfeasance and non-feasance. Malfeasance isevil conduct, that is, doing an act or thing which is clearly unlawful. It dealswith what should not have been done at all, or the unjust performance of whata person had no right to do. It could be a wrongful act which affects, interruptsor in any way interferes with the lawful performance of an official duty. It isan act for which there is no authority or legal basis.

Mis-feasance is the negligent doing of an act for which there is legalauthority. It is equivalent to negligence in the discharge of a statutory duty.Non-feasance is the failure to do what is lawfully permitted.231 These twoinstances often involve the breach of a statutory duty, whether ministerial orjudicial. In order to succeed in an action based on a statutory breach threethings need to be established:

(a) that the injury which is the cause of action was contemplated by thestatute;

(b) that the person who has suffered as a result of the breach is a person whofalls within the ambit of the statute; and

(c) that the damage falls within the injury contemplated by the statute.232

Application to Crown or Republic

Interpretation Acts usually provide that the Crown, State or Republic is notbound by legislation unless there are express words which provide that the Actbinds the State, or there are words to that effect, or the State is named bynecessary implication. It is also a well settled principle of construction that anAct does not affect the prerogatives, rights and interests of the Crown unless

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231 Vaughan v. Taff Vale Railway (1860) 5 H & N 679.232 East Suffolk Rivers Catchment Board v. Kent [1914] AC 74; Mersey Docks & Harbour Board v.

Gibbs (1866) LR 1 HL 93; Geddis v. Proprietors of Bann Reservoir (1878) 3 App Cas 430;Longhurst v. Metropolitan Water Board (1948) 64 T LR 579; Bank View Mill Ltd. v. NelsonCorporation [1943] KB 337.

233 Attorney-General v. Hancock [1940] 1 KB 427.234 Attorney-General for Ceylon v. AD Silva [1953] AC 461; China Ocean Shipping Co. v. South

Australia (1929) 27 ALR 1.

there are clear words in the Act that indicate interference.233 This is foundedon the presumption that an Act of Parliament does not bind the Crown in theabsence of an express provision or necessary implication,234 which is a long-standing rule of interpretation which applies in the case of a Republic. TheCrown Proceedings Act 1947235 expressly refrains from altering this long-standing rule.

Words to have the same meaning

There is a presumption that words in a statute are strictly and correctlyused.236 Lord Hewart CJ in Spillers Ltd. v. Cardiff Assessment Committee,237

stated:

It ought to be the rule and … it is the rule that words are used in an Act ofParliament correctly and exactly and not loosely and inexactly. Upon thosewho assert that the rule has been broken, the burden of establishing theirproposition lies heavily, and they can discharge it only by pointing tosomething in the context which goes to show that the loose and inexactmeaning is to be preferred.

But the warning given by Lord Loreburn LC in Nairn v. University of St.Andrews238 should be taken into account:

It is a dangerous assumption to suppose that the legislature foresees everypossible result that may ensue from the unguarded use of a single word, orthat the language used in statutes is so precisely accurate that you can pick outfrom various Acts this and that expression, and, skilfully piecing themtogether, lay a safe foundation for some remote inference.

In other words, the words of an Act of Parliament should not be construedwithout reference to the context. Thus an Act is read as a whole, for thelanguage of one section may affect the construction of another. This pre-supposes that a word is used to mean one thing and is not used in an Act ofParliament to mean different things. Nor are different words used to mean thesame thing in an Act of Parliament; synonyms do not have a place inlegislation. In Giffels & Vallet v. The King,239 it was said:

It is not to be forgotten that the first inference is that a word carries the same

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235 10 & 11 Geo 6 Ch 44.236 Law Society v. United Services Bureau [1934] 1 KB 343.237 [1931] 2 KB 21 at p.43; See also New Plymouth Borough Council v. Tara Electrical Power Board

[1933] AC 680 at p.682.238 [1909] AC 147 at p.161.239 [1955] 1 DLR 620 at p.630.240 [1909] 2 KB 61.

connotation in all places when it is found in a statute.

Territorial Operation

Tomalin v. J Pearson & Son Ltd240 is authority for the presumption that, unlessthere is a contrary intention expressly stated or to be inferred from thelanguage of the Act, its legislative history or subject-matter, an Act ofParliament does not operate outside the jurisdiction. The presumption is inconsonance with Bloxham v. Favre,241 where it was said that,

every statute is to be so interpreted and applied, as far as its language admits,as not to be inconsistent with the comity of nations or with the establishedrules of international law.

Surplusage

In Auchterarder Presbytery v. Lord Kinnoull,242 Lord Brougham said that ‘astatute is never supposed to use words without meaning’. Yet occasions stillarise when verbosity has caused ambiguity. The courts must still construe thelanguage used, and in such cases the courts will adopt a ‘construction whichwill give some effect to the words rather than that which will give none.’ InHill v. William Hill (Park Lane) Ltd.243 Viscount Simon said:

It is observed that though a Parliamentary enactment (like parliamentaryeloquence) is capable of saying the same thing twice over without addinganything to what has already been said once, this repetition in an Act ofParliament is not to be assumed. When the legislature enacts a particularphrase in a statute, the presumption is that it is saying something which hasnot been said immediately before. The rule that a meaning should, if possible,be given to every word in the statute implies that, unless there is good reasonto the contrary, the words add something which has not been said immediatelybefore.

Much, much earlier in Harcourt v. Fox,244 Lord Holt had said:

I think we should be very bold men, when we are entrusted with theinterpretation of Acts of Parliament, to reject any words that are sensible inthe Act.

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241 (1883) 8 PD 101 at p.104.242 (1839) 6 Cl & F 646 at p.686.243 [1949] AC 530 at p.546.244 (1693) 1 Show 506 at p.532.245 R v. East Ardsley (Inhabitants) (1850) 14 QB 793 at p.801.246 (1876) 1 CPD 691 at p.701.

The courts will not, however, hesitate to reject words as surplusage whereto give a meaning to every word would make the Act of Parliamentunintelligible.245 In Stone v. Yeovil Corporation,246 it was held that,

it is a canon of construction that, if it is possible, effect must be given to everyword of an Act of Parliament or other document, but that if there be a word ora phrase therein to which no sensible meaning can be given, it must beeliminated.

Chapter 6

Maxims

General

A maxim is the quintessence of an experience, so in law a maxim is anattempt to capture the essential principle of a rule of law or conduct. However,a maxim only becomes reliable when the extent of its application has beentested by cases brought before the courts. Acquiescence, reasonableness, timeand usage are the mothers of a maxim of the law.

In this Chapter an attempt is made to deal with some, but by no means all,of the maxims that have a bearing on the interpretation of a statute. Indeed,some of the maxims used in the interpretation or construction of an Act ofParliament have been dealt with in the course of explaining the approach ofthe courts in the interpretation or construction of statutes. They form a generalview of a practical utility in this area of the judicial function.

As we have seen, an Act of Parliament may need to be interpreted orconstrued in order to get to the meaning of the Act or words in the Act whenthat is called in question. There must be rules to guide the courts in such animportant role. The maxims here discussed are some to the principles that helpthe courts in the task of giving effect to an Act of Parliament – when itslanguage is called in question.

A later law repeals an earlier law that is inconsistent with the later law

In the cases where there is inconsistency between provisions within the sameAct, the courts modify the grammatical or ordinary meaning of the words inorder to achieve a meaning in consonance with the scheme of the Act. Thisthey do by relying on the principle of construction either that the generalwords control the meaning of the special words or the special words controlthe meaning of the general words.1 The same principles will be used wherethere is a conflict between different Acts.

Where the conflict between different Acts cannot be reconciled the courtsgo by the principle that a later law repeals an earlier law that is inconsistentwith the later law. This is based on the assumption that Parliament is aware ofthe contents of the statute book. And, since one Parliament cannot fetter thehands of a subsequent Parliament, an earlier Act must give way to a later Act

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1 Seaward v. Vera Cruz [1881] 10 App. Cas. 59 at p.68; North Level Commissioners v. River WellandCatchment Board [1938] Ch.379.

where the two Acts cannot be reconciled. This principle is also reflected insection 2 of the Interpretation Act 19782 which states that an Act may bealtered, amended or repealed in the same session in which it was passed.

Not only does the maxim apply as between earlier and later Acts, but italso applies to oust the operation of the common law where there is a conflictbetween the common law and statute law.3 Equally, when an ancient custom isrepugnant to the express words of an Act of Parliament that custom standsabrogated.4

A new law ought to be prospective in character and not retrospective inoperation

Willis J, in Phillips v. Eyre,5 stated the principle of the application of themaxim:

Retrospective laws are, no doubt, prima facie of questionable policy, andcontrary to the general principle that legislation by which the conduct ofmankind is to be regulated ought, when introduced for the first time, to dealwith future acts, and ought not to change the character of past transactionscarried on the faith of the existing law … Accordingly, the courts will notascribe retrospective force to new laws affecting rights unless by express wordsor necessary implication it appears that such was the intention of the legislature.

The application of the maxim has already been discussed.6

Laws are adapted to frequent cases

Legislation is enacted on the basis that it shall deal with cases as they arise. Itis intended to deal with present circumstances, but with the implied projectionthat it shall deal with future cases. Hence the prospective nature of an Act ofParliament, unless otherwise stated or by necessary implication, as we havelearnt from the preceding maxim. However, an Act of Parliament cannot be sodrafted that it will include every possible case; Parliamentary Counsel andParliament are not that clairvoyant. When in Miller v. Salomans7 it was arguedthat King George III having died, the oath specified under s.1 of the TreasonAct 17668 could not be applied because the late King was specificallymentioned in the oath, Baron Parke stated:

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2 C.46.3 Stevens v. Chown [1921] 1 Ch.894.4 Green v. R (1876) 1 App. Cas. 573.5 (1890) LR 6 QB 1 at p.23.6 See Chapter 5 pp.116-172.7 (1852) 7 Exch. 475 at pp.549-553.8 6 Geo. 3 c.53.

If in the vast majority of possible cases – in all ordinary occurrence – the lawis in no degree inconsistent or unreasonable, construed according to its plainwords, it seems to me an untenable proposition, and unsupported by authority,to say that the construction may be varied in every case, because there is onepossible but highly improbable one in which the law would operate with greatseverity, and against our own notions of justice. The utmost that can bereasonably contended is, that it should be varied in that particular case, so asto obviate that injustice – no further …

It is clear that the legislature meant the oath to be taken always thereafter, andas it could not be taken in those words during the reign of a sovereign not ofthe name of George, it follows that the name George is merely used by way ofdesignating the existing sovereign, and the oath must be altered from time totime in the name of the sovereign. This is an instance in which the language ofthe legislature must be modified, in order to avoid absurdity or inconsistencywith its manifest intentions.9

A liberal construction is desirable in the interpretation of a statute

In the interpretation of a statute, the intention of the law-giver is to be found inthe language of the Act or by general inference drawn from the subject-matterof the Act. Thus an Act should be construed according to the intention of thelegislature. That means that an Act will be construed so that effect is given toit rather than so as to stultify the intention of the legislature. However, wherethe intention of the legislature is not clear the courts will adhere to the naturalimport of the language of the statute. Thus in New Windsor Corporation v.Taylor10 it was stated:

Where an Act of Parliament has, according to its true construction …“embraced and confirmed” a right which had previously existed by custom orprescription, that right becomes henceforward a statutory right, and … thelower title by custom or prescription is merged in and extinguished by thehigher title derived from the Act of Parliament.

In the construction of penal statutes a liberal approach is adopted. Thuswhere the intention of the legislation is not clear the courts will adopt aconstruction which will not impose a burden on the subject. Furthermore, asstated by Lord Westbury in Dickson v. R,11 fiscal legislation

[is] not to be extended by any laboured construction, but you must adhere tothe strict rule of interpretation; and if a person who is subjected to a duty in aparticular character or by virtue of a particular description no longer fills that

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9 See also Dixon v. Caledonian Ry Co. (1882) 5 App. Case 820 at p.838.10 [1899] AC 41 at pp.45, 49.11 (1864-65) 11 HL Cas 175 at p.184.

character, or answers that description, the duty no longer attaches upon himand cannot be levied.

A passage is best interpreted by reference to what precedes and whatfollows it

This really means that an Act of Parliament should be read as a whole and thatevery part of it should be taken into account. This is desirable if only

because one assumes that in drafting one clause of a Bill the draftsman had inmind the language and substance of other clauses, and attributes to Parliamenta comprehension of the whole Act.12

It is by reading the Act as a whole that one can really determine whetherthere is an ambiguity or not, whether it can be said that there is vagueness orthat the words of a particular section are not clear. Viscount Simonds put itthis way:

It must often be difficult to say that any terms are clear and unambiguous untilthey have been read in their context. That is not to say that the warning is tobe disregarded against creating or imagining an ambiguity … It means onlythat the elementary rule must be observed that no one should profess tounderstand any part of a statute or of any other document before he has readthe whole of it. Until he has done so he is not entitled to say that it or any partof it is clear and unambiguous.13

Every piece of legislation has its own legislative scheme. Each word in anAct is intended to bear a particular meaning. If a section of an Act appears tobe obscure its true meaning can only be ascertained by reference to whatprecedes it as well as to what follows it. Lord Wright in James v.Commonwealth of Australia14 showed how the word free is itself vague andindeterminate. Within the context in which it is used, however, its particularmeaning becomes clear. The words of an Act of Parliament cannot be read inisolation.

The meaning of a doubtful word may be sought by reference to themeaning of words attached with it

This maxim is similar to a familiar adage: ‘show me your friend and I will tellyou your character’ and is closely related to the previous maxim. It is,however, wider in scope. Said Stamp J in Bourne v. Norwich CrematoriumLtd.:15

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12 Inland Revenue Commissioners v. Hinchy [1960] AC 748 at p.766 per Lord Reid.13 Attorney-General v. Ernest Augustus (Prince) of Hanover [1957] AC 436 at p.463.14 [1936] AC 578 at pp.627-628.15 [1967] 2 All ER 576.

English words derive colour from those which surround them. Sentences arenot mere collections of words to be taken out of the sentence definedseparately by reference to the dictionary or decided cases, and then put backagain into the sentence with the meaning which you have assigned to them asseparate words, so as to give the sentence or phrase a meaning which as asentence or phrase it cannot bear without disturbing the English language.

Thus in Corkery v. Carpenter,16 Daisy Bell and her stylish marriage didnot help a defendant who argued that carriage as used in s.12 of the LicensingAct 187217 did not include a bicycle. It was held that bicycle fell within thewords ‘drunk while in charge in any highway of any carriage …’. The‘meaning of a doubtful word might be ascertained by reference to the meaningof words associated with it’.18

There is no need to interpret that which has no need of interpretation

This is a maxim of common sense. No court of law will attempt to interpret orconstrue an Act of Parliament contrary to the express words of the Act. AsLord Denham observed in Everard v. Poppleton19:

Nothing is more unfortunate than a disturbance of the plain language of thelegislature, by the attempt to equivalent terms.

The express mention of one thing is the exclusion of another

This is a maxim of long standing and importance. In Blackburn v. Flavelle20 itwas stated:

If there be any one rule of law clearer than another, it is this, that, where thelegislature have expressly prescribed one or more particular modes of dealingwith property, such expression always excluded any other mode, except asspecifically authorised.

The maxim can be put no higher than as stated in Whiteman v. Sadler21:

Express enactment shuts the door to further implication.

But in a Southern Rhodesia case, R v. Barrington,22 it was held that themaxim will not apply where its application ‘would obviously defeat the

Maxims 183

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16 [1951] 1 KB 102 at p.103.17 35 & 36 Vict. c.94.18 Per Lord Diplock in Peart v. Stewart The Times, 14 March 1983.19 (1884) 5 QB 181 at p.184.20 (1886) 6 App. Cas. 628 at p.634.21 [1910] AC 514 at p.517.22 1969 (4) SA 179 (RAD) at pp.182-3.

intention of the legislation and permit the very mischief which the statute isdesigned to prevent’. Said Beadle CJ:

To make it an offence to offer gold for sale and not also make it an offence tooffer to buy gold, would … appear to be most illogical because to do thismight encourage the very mischief which the Act is designed to stop. Forexample, if a man made it widely known among the employees in a mininglocation that he was always prepared to buy unwrought gold, this wouldundoubtedly be an encouragement to employees to misappropriate gold inorder to sell it to him. I cannot conceive that the legislature did not intend toprohibit unlawful buyers from canvassing for the purchase of gold.

A distinction is often drawn between absolute enactments and directoryenactments. An absolute enactment must be obeyed or fulfilled exactly asexpressed by the Act, otherwise what is done will be treated as unlawful andtherefore invalid. A directory enactment need only be obeyed substantially.23

In Liverpool Borough Bank v. Turner24 Lord Campbell stated:

No universal rule can be laid down as to whether mandatory enactments shallbe considered directory only or obligatory with an implied nullification fordisobedience. It is the duty of courts of justice to try to get at the real intentionof the legislature by carefully attending to the whole scope of the statute to beconstrued.

This was approved in Howard v. Bodington25 by Lord Penzance:

I believe, as far as any rule is concerned, you cannot safely go further thanthat in each case you must look to the subject-matter, consider the importanceof the provision and the relation of the provision to the general object intendedto be secured by the Act, and upon a review of the case in that aspect decidewhether the enactment is what is called imperative or only directory.

Statutes on the same subject-matter are read together

Statutes are said to be of the same subject or matter where they relate to thesame thing or person or they have a common purpose. Such statutes are read,construed or applied together so that the intention of the legislature isdiscovered from the whole set of enactments on the same subject-matter. Thismaxim is only applied in cases where a particular Act of Parliament isambiguous. In R v. Loxdale,26 Lord Mansfield stated the rule that wheredifferent statutes deal with the same subject-matter even when made atdifferent times, expired, or not referring to each other, they shall be taken andconstrued together, as one system and as explanatory to each other.

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23 Woodward v. Sarsons (1875) LR 10 CP 733 at p.746.24 (1861) 30 LJ Ch.379 at p.380.25 (1877) 2 PD 203 at p.211.26 (1755) 1 Burr. 445 at p.447.

A consolidation Act is a collection of the statutes bearing on the samesubject-matter brought up to date in a comprehensive whole; a restatement ofthe law which was scattered about in various statutes as at the time of theconsolidation. Therefore, in the construction of consolidation Act, statutes thatare repealed but substantially reproduced in the consolidation Act areconsidered as of the same kind. Equally, the case law on a statute that isrepealed can be used to construe an Act which is substantially identical to arepealing Act.27 However, the Acts will not be treated as if, together, they areparts of the same Act. There must be a clear indication before the principlecan be applied that the Acts are on the same subject-matter.28

It is also not uncommon for an Act of Parliament to provide that it shall beread as one with another Act. In such cases the later Act is construed as if ithad been contained in one Act,

unless there is some manifest discrepancy making it necessary to hold that thelater Act has, to some extent, modified something found in the earlier Act.’29

In cases, however, where there is a material difference between the wordsused in statutes on the same subject-matter, the presumption is that there wasan intention to change the meaning.30 In Lord Howard de Walden v. InlandRevenue Commissioners,31 Lord Uthwatt said that,

the introduction of new words into an existing section may alter the meaningof words already there. But no such alteration can result unless, (1) therequirements of the English language demand it or, (2) those requirementspermit it and the sense of the section demands it.

The Interpretation Act 1967-68 of Canada provides in s.14(2) that,

Where an enactment contains an interpretation section or provision, it shall beread and construed

(a) as being applicable only if the contrary intention does not appear, and

(b) as being applicable to all other enactments relating to the same subject-matter unless the contrary appears.

There is a similar provision in the Interpretation Act of most Common-wealth countries.

Maxims 185

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27 Inland Revenue Commissioners v. Hinchy [1960] AC 748.28 Blake v. Attersoll (1824) 2 B & C 875 at p.882.29 Canada Southern Railway v. International Bridge Co. (1883) 8 App. Cas. 723 at p.727.30 R v. Price (1871) LR 6 QB 411 at p.416; R v. Buttle (1870) LR 1 CCR 248 at pp.251, 252.31 [1948] 2 All ER 825 at p.830.

General words following particular or specific words are construed as ofthe same kind or class as the particular or specific words

In Great Western Railway Co. v. Swindon and Cheltenham Extension RailwayCo32 Lord Bramwell said:

As a matter of ordinary construction, where several words are followed by ageneral expression which is as much applicable to the first and other words asto the last, that expression is not limited to the last, but applies to all. Forinstance, “horses, oxen, pigs, and sheep, from whatever country they maycome” – the latter words would apply to horses as much as to sheep.

In a New Zealand case, Cooney v. Covell,33 a question arose as to whetherthe words ‘advertisement or other publications’ applied to a pamphlet whichwas an appendix to a medical work. Williams J stated:

There is a very well known rule of construction that if a general word followsa particular and specific word of the same nature as itself, it takes its meaningfrom that word, and is presumed to be restricted to the same genus as thatword. No doubt that rule is one which has to be followed with care; but if notto follow it leads to absurd results, then I am of the opinion that it ought to befollowed.

This maxim of construction of a statute is on a par with the other maximwhich states that the meaning of a doubtful word may be sought by referenceto the meaning of words associated with it. However, in order that the formermaxim will apply, there must be one category to which both words belong.34

Therefore, where the words used are wider in their meaning the maxim willnot apply.35

He who sticks to the letter of the law only gets to the bark of the tree

The principle here is that the substance of the law, the effect of the law, arematters far weightier than the niceties of form or circumstances. The reasonbehind the law makes the law what it is. For ‘reason is the soul of the law, andwhen the reason of any particular law ceases, so does the law itself’.36 Lawsare not enacted for the mere purpose of enactment. They are intended in theirapplication to achieve a purpose. That should be borne in mind when

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32 (1884) 9 App. Cas. 787 at p.808.33 (1901) 21 NZLR 106 at p.108.34 Tillmans & Co. v. S.S. Knutsford [1908] 2 KB 385 at p.403; [1908] AC 207.35 Corporation of Glasgow v. Glasgow Tramway and Omnibus Co. Ltd. [1898] AC 631 at p.634. See

also National Association of Local Government Officers v. Bolton Corporation [1943] AC 166;Coleshill and District Investment Co. Ltd. v. Minister of Housing and Local Government [1968] 1All ER 62 at p.65.

36 See for example, Edwards v. Porter [1925] AC.

interpreting or construing an Act of Parliament. The present maxim is thespirit behind many rules of construction, such as

(a) that the construction of a statute depends upon the intention of the law-maker, which intention is to be collected from the words used in thestatute37;

(b) that statutes should be construed according to the ‘intention ofParliament’38;

(c) that the words in a statute should be read in their popular, natural andordinary sense.39

Afterword

Law is an instrument of justice. Its original purpose may have been political,in order to remove evils considered political by the body politic, but itsprogress has been dictated by experience. From taboos to custom, fromcustom to legislation, law has been and still is through legislation a greatinstrument of social change and the orderly development of society. Its reasoncannot be hampered by mere niceties of language and form. Nor can thedevelopment of legislation be arrested by slavish adherence to principleswhich retard the purposes for which legislation is enacted. Necessity is themother of invention; so is reason the necessity for legislation.

Legislation involves a choice of values. Those values depend upon thevalues of a given society. Its interpretation and construction must thus takeaccount of its province as a tool for the development of society. To understandan Act of Parliament is to understand the law of language, the language of thelaw and the law in language.

Maxims 187

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37 Fordyce v. Bridges 1 HL Cas. 1.38 Director of Public Prosecutions v. Schildkamp [1971] AC 1 at p.10.39 Attorney-General v. Ernest Augustus (Prince) of Hanover [1987] AC 436.

Appendix A

Classification of Statutes

Affirmative statutes

An affirmative statute is an Act of Parliament drafted in affirmative ormandatory terms. It commands the doing of an act or declares the conduct oraction required by the law. It is opposed to a Negative statute which is one thatprohibits the doing of an act.

Criminal statutes

These are Acts of Parliament, in some jurisdictions referred to as Codes, suchas the Criminal Code or the Criminal Procedure Code, which define, classifyand provide for criminal offences and the sanctions attached to each offence.In a Procedure Code the law governing the procedures to be followed in theprosecution of crimes is set out and the procedural rules for the trial ofcriminal offences are dealt with. In some cases it contains the rules of courtdealing with such matters as arrests, detention, searches, the questioning ofpersons suspected of having committed as a criminal offence, and theprocedure for the granting of bail.

Declaratory statutes

A declaratory statute is enacted for the purpose of removing doubts or settlingthe law where there are conflicting decisions of the courts. It declares what thelaw is on a particular matter. It may state categorically what the Common Lawis on a particular matter or state the meaning or effect of a provision of an Actof Parliament. A declaratory statute is also used to correct what is consideredto be a judicial error. It is normal to have a preamble to a declaratory statute toexplain why the statute is being declared and enacted.

Enabling statutes

These are pieces of legislation enacted to empower agencies, corporations orpersons to do what they could not do before the enactment of the Act. Theycan prescribe imperative or absolute formalities or formalities which aremerely directory.

Expository statutes

These are like declaratory statutes. They are enacted to explain the meaning ofa previous provision of an Act of Parliament or its tenure. They may alsodeclare the extent of the application of a previous Act.

General statutes

Most Acts of Parliament are general statutes. They apply to the people of agiven jurisdiction as a whole. There are no limits as to area or effect in theapplication of a general statute as regards a particular jurisdiction.

Local statutes

A local statute is one that operates over a particular area of a jurisdiction anddoes not apply to the whole country. (However, the term ‘local law’ or‘municipal law’ is used in contradistinction to laws which operate in thesphere of international law.)

Negative statutes

These Acts are expressed in negative terms. They prohibit the doing of an act,declaring what shall not be done.

Penal statutes

Like criminal statutes, penal statutes in general define criminal offences andthe sanctions applicable to those offences. They deal with offences of a publicnature or acts against the State which are prohibited.

Perpetual statutes

Most statutes remain in force ‘for ever’. They contain no provision for theirrepeal or as to their duration. They operate without limitation as to time,unlike temporary statutes which by their nature have temporary operation (e.g.an Appropriation Act).

Personal statutes

These have for their objects a particular person. The operation of a personalstatute affects only the person named, that is, it is for that person’s sole benefitor disadvantage.

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Private statutes

Private statutes are like personal statutes in that they operate only on particularpersons or private concerns. They operate to administer, define, enforce orregulate the relationship among certain associations, corporations orindividuals. The term is used in contradistinction to public statutes. A privatestatute needs to be proved in court. It is not judicially noticed.

Public statutes

A public statute, like a general statute, states a universal rule applicable to thejurisdiction as a whole. It does not restrict its application to certain individualsor a particular class of people. It does not concern itself with particularpersons nor does it affect people’s private rights, except in a general way.Public statutes are concerned with organisation of the affairs of governmentand the relationship that exists between the government and the public as awhole. They operate in the sphere of public law and are not restricted to aparticular area of the jurisdiction. Public statutes are judicially noticed.

Punitive statutes

Punitive statutes, like penal statutes, relate to punishment and imposepenalties, in some cases, including forfeiture.

Real statutes

These statutes deal principally with real property and only with people in sofar as they relate to issues of property.

Reference statutes

These statutes are in the area of referential legislation: they refer to otherstatutes, making the referred statute part of the legislation concerned. In suchcases parts or the operation of other Acts of Parliament are made part of thelegislation. In other words parts of an Act of Parliament are incorporated oradopted in the legislation.

Remedial statutes

Remedial statutes, as the name implies, provide the means or the proceduresto be used or applied in order to obtain redress or relief. They afford remedies

Classification of statutes 191

or improve existing remedies for the enforcement of rights. They do notmodify the existing law, nor affect substantive rights, but merely provide themethods for obtaining redress.

Revised statutes

Revised statutes are the result of Statute Law Revision. The whole corpus ofthe statute law is revised, collected into Chapters and arranged in subject-matter order. The existing statute law as so revised and arranged is enacted asa whole and supersedes the separate Acts of Parliament.

Special statutes

Special statutes are like Private Acts of Parliament. They are enacted forindividual cases or for particular purposes rather than for the public as a whole.

General

Statutes were originally classified as general and special. General statuteswere judicially noticed by the judges in much the same way that they noticedthe Common Law. Special statutes were treated as exceptions to the generallaw and would thus require proof.1

In time statutes were classified as Public statutes and General statutes todistinguish them from Private statutes and Special statutes.

It is obvious from the above classifications that statutes can be broadlyclassified as

(a) public general statutes;

(b) public local statutes;

(c) public special statutes;

(d) private local statutes;

(e) special local statutes;

(f) private personal statutes.

All these lend themselves to two main categories of statutes:

(A) statutes which apply to the public at large as one unit, whether directlyor indirectly. The courts take judicial notice of these statutes. Theircommon characteristic is that

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1 Craies on Statute Law p 55.

(a) they operate on all persons or things or upon all persons of a class;

(b) they operate only on a particular class of persons or a particularclass of things;

(c) they operate only in a given part of a jurisdiction.

(B) statutes which deal more with private interests and as such are notjudicially noticed and need to be pleaded.

A further classification is possible:

1. Public statutes

(a) general statutes;

(b) special statutes, private or local;

(c) local statutes, or special statutes.

2. Private statutes

(a) special statutes;

(b) personal statutes.

The Classification can be further narrowed down:

(a) public general statutes;

(b) local statutes;

(c) private and personal statutes.

Public statutes, whether general, special or local, have variouscharacteristics:

(a) temporary or perpetual;

(b) retro-active, retrospective or prospective;

(c) declaratory;

(d) permissive;

(e) prohibitive;

(f) remedial;

(g) directory;

(h) mandatory;

(i) repealing;

(j) affirmative or negative;

(k) civil or penal.

Statutes can also be classified under subject, such as statutes dealing withreal property etc.

Classification of statutes 193

Appendix B

Note – This is a preliminary Draft of a Bill for an Interpretation Act. A student should be able tofind as many faults as possible in the Draft. It should be a pleasant exercise. Note the placementof the marginal notes. It is the practice in some jurisdictions.

A Bill for an Interpretation Act

Arrangement of Clauses

Clause

1. Short title

Interpretation2. Meaning of certain expressions 3. Application of Act4. Application of rules of construction

Enacting Clauses5. Words of enactment

Public and Private Acts6. Public Acts7. Provisions in private Acts

Application8. Application of enactments9. References to Head of State

10. Substantive enactments

Aids to Construction11. Aids to interpretations or construction12. References in enactments13. Amending provisions

Operation of Statutes14. Date of commencement of enactments15. Publication and Commencement16. Expiration of enactments17. Exercise of powers before commencement of enactment18. Statutory functions19. Errors and omissions20. Provisions as to holders of offices21. Effect of words of incorporation22. Offences and penalties

Procedure of Courts etc.23. Rules of procedure of courts and tribunals24. Service of documents25. Deviation in forms26. Oaths, affirmations and declarations

Repeals etc.27. Cessation of operation of enactments 28. Effect of repeal29. Effect of substituting enactment

Enactment always Speaking30. Enactment always speaking31. Expressions in statutory instruments

Application of Definitions etc. 32. Application of interpretation provisions 33. Parts of speech34. Names commonly used35. Rules as to gender and number36. Construction of “shall” and “may”37. Distances38. Time39. Statutory boards, etc.40. Definitions for legislative purposes41. Definitions for judicial purposes42. Definitions for executive purposes43. References relating to land44. Miscellaneous definitions45. Assignment of Ministerial responsibilities

Delegation etc.46. Delegation of functions47. Signification of delegation 48. Instruments under the Public Seal49. Citation of Acts

196 Understanding Statutes

DRAFT OF A BILL

FOR

AN ACT to provide for the operation and interpretation of enact-ments and for other matters connected therewith.

ENACTED by the Parliament of [Ruritania].

Short title1. This Act may be cited as the Interpretation Act, [...].

InterpretationMeaning of certain expressions

2. In this Act, unless the context otherwise requires,

‘Act’ means an Act enacted by Parliament;

‘Assent’ means the Assent of the [Head of State];

‘constitutional instrument’ means an instrument made pursuant to apower conferred in that behalf by the Constitution;

‘enact’ includes to issue, make or establish;‘enactment’ means an Act of Parliament, or a statutory instrument, or

a constitutional instrument, or a provision of an Act ofParliament, or of a constitutional instrument, or of a statutoryinstrument;

‘instrument’ includes a notice, scheme, Rules, Regulations, By-Lawsor a Proclamation, an order, or a warrant, other than an ordermade or a warrant issued by a court of competent jurisdiction;

‘private Act’ means an Act for the purpose of affecting or benefiting aparticular person passed in accordance with the StandingOrders of [both Houses of] Parliament;

‘statutory instrument’ means an instrument made, whether directly ofindirectly, under a power conferred by an Act of Parliament;

‘statutory document’ means a document issued under an Act, otherthan a statutory instrument or an order of a court of competentjurisdiction.

Application of this Act3 (1) This Act applies to an enactment whether enacted before or after

the coming into force of this Act, unless a contrary intentionappears in that enactment.

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(2) This Act applies to this Act as it applies to an enactment asspecified in subsection (1) and references in this Act to anenactment so passed shall be construed accordingly.

Application of rules of construction4. Nothing in this Act shall be construed as excluding the application to

an enactment of a rule of interpretation or construction applicablethereto and not inconsistent with this Act.

Enacting ClausesWords of enactment

5 (1) The words of enactment shall follow the Preamble where there isone, or the Long Title to the Act, and the several sections withinthe body of the Act shall follow in a concise and enunciative form.

(2) In a Bill presented to the [Head of State] for the Assent, other thana Bill presented under article … of the Constitution, the words ofenactment shall be,

‘Enacted by the Parliament of [Ruritania.]’

(3) In a Bill presented to the [Head of State] for the Assent underarticle … of the Constitution, the words of enactment shall be,

‘Enacted by the Parliament of [Ruritania] in accordance with theprovisions of article … of the Constitution.’

(4) In a Bill presented to the [Head of State] for the Assent underarticle … or … of the Constitution, the words of enactment shallbe,

Enacted by the [Head of State] by and with the advice and consentof the [House of Representatives] in accordance with theprovisions of article … or article … of the Constitution and by theauthority of the same.’

(5) In a Bill passed in accordance with the provisions of article … ofthe Constitution, the words of enactment shall be

‘Enacted by the [Senate and the House of Representatives] inaccordance with the provisions of article …. of the Constitutionand by the authority of the same.’

Public and Private ActsPublic Acts

6. An Act is a public Act and shall be judicially noticed as such,unless the contrary is expressly provided by the Act.

Provisions in private Acts7. A provision in a private Act does not affect the rights of a person

not specifically mentioned in the private Act.

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ApplicationApplication of enactments

8. An enactment shall, unless the contrary intention appears, apply tothe whole of [Ruritania.]

References to [Head of State]9 (1) A reference in an enactment to the [Head of State] shall be

construed as a reference to the [Head of State] for the time being inoffice.

(2) An enactment does not bind or in any manner affect the[Crown] [Republic] [State] or the rights and prerogatives of the[Crown] [Republic] [State] unless it is expressly stated therein thatthe [Crown] [Republic] [State] is bound thereby.

(3) This Act binds the [Crown] [Republic] [State].

(4) A private Act shall be construed as containing a saving forthe rights of the [Crown] [Republic] [State].

Substantive enactments10. A provision of an enactment has effect as a substantive enactment

without introductory words.

Aids to ConstructionAids to interpretation or construction

11 (1) Where a court is concerned with ascertaining the meaning ofan enactment, the court may have recourse to

(a) all indications provided by the enactment as printed,published and distributed by the Government Printer;

(b) a report of a Commission, Committee or other bodyappointed by Government or authorised by Parliament,which has been presented to Government or laid beforeParliament;

(c) a relevant treaty or other international agreement which hasbeen ratified by Parliament or is referred to in theenactment of which copies have been presented toParliament or where the Government is a signatory to thetreaty or other international agreement;

(d) an agreement which is declared by the enactment to be arelevant document for the purposes of that Act.

(2) A court may, where it considers the language of anenactment to be ambiguous or obscure, have reference to andconsider

(a) the legislative antecedents of the enactment;(b) pre-parliamentary material relating to the enactment;

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(c) text-book, or other work of reference, a report or amemorandum published by authority in reference to theenactment, and any papers laid before Parliament inreference to the enactment; and

(d) the parliamentary debates prior to the passing of theenactment.

(3) Where a court has recourse to parliamentary debates undersubsection (2) the legislative intention lying behind the ambiguousor obscure words must be clearly disclosed in the parliamentarymaterial and the statement shall be one made by the Minister orother promoter of the Bill.

References in enactment12 (1) A reference in an enactment to any other enactment shall be

construed as a reference to that other enactment as amended by orunder any other enactment, including the enactment in which thereference is made.

(2) A reference in an enactment to a statute of generalapplication or to an instrument made under that statute, shall beconstrued as a reference to that statute or instrument as it applies to[Ruritania]; and that statute or instrument shall be read with therequisite alteration, modification or adaptation so as to make thatstatute or instrument applicable to the circumstances.

(3) Where in an enactment reference is made to a provision of astatute of general application and that provision is subsequentlyrepealed and re-enacted without substantial modification thatreference shall, if the context so requires, be construed as areference to the provision as so re-enacted.

(4) A reference in an enactment by number or letter to a Part,section, subsection, paragraph, sub-paragraph or other division ofany other enactment or of a statute of general application shall beconstrued as a reference to that Part, section, subsection,paragraph, sub-paragraph or other division of that other enactmentor statute as printed by authority.

(5) A reference in an enactment by number or letter to two ormore Parts, divisions, sections, subsections, paragraphs, sub-paragraphs, Schedules, instruments or forms shall be construed asincluding the number or letter first mentioned and the number orletter last mentioned.

(6) Where in an enactment reference is made to a Part, division,section, Schedule or form without anything in the context toindicate that a reference to a Part, division, section, Schedule orform of some other enactment is intended, the reference shall be

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construed as a reference to the Part, division, section, Schedule orform of the enactment in which the reference is made.

(7) Where in a section of an enactment reference is made to asubsection, paragraph, sub-paragraph or other division withoutanything in the context to indicate that a reference to a subsection,paragraph, sub-paragraph or other division of some other sectionor provision is intended, the reference shall be construed as areference to the subsection, paragraph, sub-paragraph or otherdivision of the section in which the reference is made.

(8) Where in a Schedule or Part of a Schedule to an enactmentreference is made to a paragraph, sub-paragraph or other divisionwithout anything in the context to indicate that a reference to aparagraph, sub-paragraph or other division of some otherenactment or division is intended, the reference shall be construedas a reference to the paragraph, sub-paragraph or other division ofthe Schedule or the part of the Schedule in which the reference ismade.

(9) Where in an enactment reference is made to a statutoryinstrument or statutory document, without anything in the contextto indicate that a reference to a statutory instrument or statutorydocument made under some other enactment is intended, thereference shall be construed as a reference to the statutoryinstrument or statutory document, made under the enactment inwhich the reference is made.

(10) A reference in an enactment to a power exercisable, or to astatutory instrument or statutory document made or issued or anact or a thing done, under an enactment or a statute of generalapplication, shall include a reference to a power exercisable, astatutory instrument or statutory document made or issued or anact or a thing done, by virtue of that enactment or statute or of astatutory instrument or statutory document made or issued under orby virtue of that enactment or statute.

Amending provisions13 (1) An Act may be amended, altered or repealed in the same

session of Parliament.

(2) An amending enactment shall, so far as consistent with thetenor thereof, operate and be construed as part of the enactmentwhich it amends and, without prejudice to subsection (1) of section12 shall, as from the date on which it comes into operation, haveeffect accordingly for the purpose of the construction andoperation of any other enactment which refers to, or isincorporated with, the enactment which it amends.

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Operation of EnactmentsDate of commencement of enactments

14 (1) The date of the commencement or coming into operation of anAct shall be the date on which the Assent is given or as otherwisespecified in the Act.

(2) The Assent and the day, month and year thereof shall beinscribed on an Act and the inscription shall be taken to be part ofthe Act.

(3) The date of the making of a statutory instrument shall be thedate therein expressed as the date of the making thereof, but wherethe instrument is made by two or more authorities jointly and istherein expressed to have been made by those authorities ondifferent dates, the date of the making thereof shall be the last dateso expressed.

(4) Where a statutory instrument made by an authority or aperson requires the concurrence or approval of any other authorityor person, the concurrence or approval shall be formally inscribedon the instrument,

(a) on or before the date of the making thereof; or

(b) within one month after the making of the instrument, if theother authority or person has before that date indicated anintention to concur in or approve of the making of theinstrument.

Publication and Commencement15 (1) An enactment shall be published in the Gazette and subject to

section 14, and unless the enactment otherwise provides, shall takeeffect and come into operation on the date of the publication.

(2) Where an enactment is expressed to come into force oroperation on a particular day, whether that day is before or after thedate of the passing of that enactment, or where the enactment is astatutory instrument, of the making thereof, and whether that day isnamed in the enactment or is to be appointed or fixed orascertained in any other manner, the enactment shall be construedas coming into force immediately on the expiration of the daybefore that particular day.

(3) Where an Act provides

(a) that it is to come into force or operation on a day or date tobe fixed or determined, or appointed by Proclamation, or

(b) that it is not to come into force or operation until a day ordate to be so fixed, determined or appointed,

that Proclamation

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(c) may apply to the whole of, or to a provision of, the Act, andmay be issued at different times in respect of that provision;or

(e) may specify different dates in respect of different provisionsof the Act.

Expiration of enactments16 (1) Where an enactment is expressed to expire or otherwise cease

to have effect on a particular day, the enactment shall, except asprovided by subsection (2), be construed as ceasing to have effectimmediately on the expiration of that day.

(2) Where a Bill is introduced into a session of Parliament forthe continuance of an Act limited to expire in that session and theAct expires before the Bill receives in that session the Assent andis published in the Gazette, then, subject to subsection (3), that Actshall be deemed to have continued as fully and effectively inoperation as if the Bill had received the Assent and been publishedin the Gazette before the Act expired.

(3) Subsection (2) shall not operate so as to render a personliable under the provisions of an Act which has expired to apenalty or forfeiture by reason of an act done by that person beforethe date on which the Bill for the continuance of that Act receivesthe Assent and is published in the Gazette.

Exercise of powers before commencement of enactment17. Where an enactment is not in force and it contains provisions

conferring power to make Regulations or to do any other thing,that power may, for the purpose of making the enactment effectiveupon its commencement be exercised at any time before itscommencement, but Regulations so made or a thing so done hasno effect until the commencement of the enactment, except in sofar as may be necessary to make the enactment effective upon itscommencement.

Statutory functions18 (1) Where an enactment confers a power or imposes a duty, the

power may be exercised and the duty shall be performed, asoccasion requires.

(2) Where an enactment confers a power to make a statutoryinstrument, the power shall be construed as including a power,exercisable in the like manner and subject to the like consent andconditions, to amend, alter, rescind, or revoke that statutoryinstrument and to make other statutory instruments, but thissubsection shall not apply to an order which is not made by a rule-making authority in the exercise of a statutory power which is of alegislative character.

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(3) Where power is given to a person or an authority to do an act orthing, or enforce the doing of an act or thing, the power so givenincludes all other powers as are reasonably necessary to enable thatperson or authority to do that act or thing, or enforce the doing ofthat act or thing, or are incidental to the doing or enforcementthereof.

(4) Where an enactment authorises or requires an act or thing to bedone collectively by more than three persons, a majority of thosepersons may do that act or thing, unless a quorum is fixed by thator any other enactment.

(5) A power conferred by an enactment to make a statutory instrumentor issue a statutory document may be exercised

(a) either in relation to all cases to which the power extends, orin relation to all those cases subject to specified exceptions,or in relation to any specified cases or classes of case; and

(b) so as to make, as respects the cases in relation to which it isexercised,

(i) the full provision to which the power extends or any lessprovision (whether by way of exception or otherwise);

(ii) the same provision for all cases in relation to which thepower is exercised, or different provision for different casesor classes of case, or different provision as respects the samecase or class of case for different purposes of the enactment;

(iii) any such provision either unconditionally or subject to anyspecified condition.

(6) Where an enactment confers upon a person or authority power tomake a statutory instrument, the statutory instrument so made

(a) shall be construed subject to the enactment under which it ismade;

(b) shall not exceed the power so conferred.

(7) Where an enactment confers upon a person or an authority powerto make a statutory instrument, an act done under a statutoryinstrument so made shall be deemed to have been done under thatenactment in so far as the act done is not inconsistent with, or incontravention of, the statutory instrument so made.

(8) A statutory instrument or a statutory document which is expressedor purports to be made or issued by a person or an authority undera specific enactment, shall be deemed also to be made or issuedunder all powers thereunto enabling that person or authority.

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(9) Where an enactment confers a power upon a person or anauthority to make a statutory instrument for a general purpose andalso for a special purpose incidental thereto, the enumeration of thespecial purposes shall not be construed as derogating from thegenerality of the power conferred with respect to the generalpurpose.

(10) Where an enactment confers a power to make a statutoryinstrument that power includes a power to provide

(a) a punishment by way of a fine or imprisonment or both for acontravention of that statutory instrument;

(b) that an offence against that statutory instrument may be triedsummarily or on an indictment.

Errors and omissions19 (1) Where an enactment confers a power or imposes a duty upon a

person to do an act or thing of an administrative or executivecharacter or to make an appointment, the power or duty may beexercised or performed in order to correct an error or omission in aprevious exercise or performance of the power or duty.

(2) The substantive rights of, or the procedures for redress by, aperson who has suffered loss or damage or is otherwise aggrievedas a result of an omission or error corrected under subsection (1)shall not be affected as a result of the correction of that omission orerror and an investigation, a legal proceeding or a remedy inrespect of a right, privilege, obligation or liability shall continue asif the omission or error had not been corrected.

Provisions as to holders of offices20. (1) Words in an enactment which authorise the appointment of a

person to an office confer, in addition, on the authority in whomthe power is vested,

(a) a power, at the discretion of the authority, to remove orsuspend that person;

(b) a power, exercisable in the like manner and subject to thelike consent and conditions applicable to the appointment,

(i) to reappoint or reinstate that person; or

(ii) to appoint any other person, whether substantively or in anacting capacity;

(iii) to determine the remuneration and the terms of payment ofthe remuneration applicable to the office.

(2) Where the power of appointment is exercisable only upon therecommendation or subject to the approval, consent or concurrenceof some other authority or person, the power of removal shall be

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exercised only upon the recommendation or subject to theapproval, consent or concurrence of that other authority or person.

(3) In an enactment a reference, without qualification, to theholder of an office includes a reference to a person for the timebeing holding that office, and, in particular

(a) words in an enactment directing, or empowering the holderof an office to do an act or thing, or otherwise applying tothe holder of that office, shall apply to the successors inoffice and to a deputy;

(b) where an enactment confers a power or imposes a duty onthe holder of an office, as such, the power may be exercisedand the duty shall be performed by the person for the timebeing charged with the exercise or performance of thepowers and duties of the office.

(4) Where the change of title of a public officer is notified in theGazette by a Government Notice setting out the former title andthe substituted title of the officer, a reference to the former title inan enactment or in a document made or issued under thatenactment shall be construed as a reference to the substituted title.

(5) Where a public officer is by reason of absence or incapacitythrough illness or any other sufficient cause unable to perform afunction conferred upon that officer by or under an enactment, thatfunction shall be performed by a public officer or persondesignated by the appropriate authority subject to the conditions,exceptions or qualifications specified by the appropriate authority.

Effect of words of incorporation21 (1) Where an enactment contains words establishing, or providing

for the establishment of, a body corporate the words operate

(a) to vest in that body when established

(i) the power to sue and be sued, to contract and be contractedwith, by its corporate name;

(ii) the right to have a common seal and to alter or change thatseal, which common seal shall be judicially noticed, andshall authenticate a document to which it is affixed andattested in accordance with the law applicable to theattestation of documents;

(iii) the right to acquire and hold real or personal property forpurposes for which the corporation is constituted and todispose of or charge that property;

(iv) the right to regulate its own procedure and business; and

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(v) the right to employ the necessary staff for the performanceof its functions;

(b) to vest in a majority of the members of that body corporatethe power, subject to a quorum fixed by the enactment underwhich it is established or by any relevant standing orders, tobind other members thereof; and

(c) to exempt from personal liability for the debts, obligations oracts of that body not being offences committed by that bodycorporate, the members thereof who do not contravene theprovisions of the enactment under which that body isestablished.

(2) Subsection (1) does not

(a) prevent additional powers being conferred by an enactmenton that body; or

(b) prevent the powers conferred by the subsection being limitedby an enactment; or

(c) prejudice or affect the liability of a member of that body tobe surcharged with the payment of an amount which may bedisallowed in the accounts of that body by an auditorwhether acting in pursuance of an enactment or otherwise.

Offences and penalties22 (1) Where an act or omission constitutes an offence under two or

more than two enactments or under an enactment or at commonlaw, the offender is liable to be prosecuted and punished undereither or any of those enactments or at common law, but shall notbe punished twice for the same offence.

(2) Where an offence under an enactment is committed by a bodycorporate the directors, the general manager, the secretary or othersenior officer of that body corporate shall be deemed to havepersonally committed that offence.

(3) A person shall not be convicted of an offence pursuant tosubsection (2) where it is proved to the satisfaction of the court thatthat person did not consent to, or did not connive at, thecommission of the offence, or did exercise such reasonablediligence as ought in the circumstances to have been exercised toprevent the commission of the offence, having regard to the natureof the offence.

(4) For the purposes of subsections (2) and (3), a body corporateincludes a firm or partnership and those subsections shall beconstrued accordingly in the case of a firm or a partnership.

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(5) Subsections (2) and (3) shall not operate so as to affect theliability of the members of the body corporate.

(6) A person shall not be charged under subsection (2) exceptwith the consent of the [Director of Public Prosecutions][Attorney-General].

(7) An enactment creating criminal liability for an act oromission which, apart from that enactment, would give rise to civilliability shall not operate to prejudice the civil liability; but thissubsection shall not be construed as excluding the application of arule of law which restricts the right to take civil proceedings inrespect of an act or omission which constitutes a felony.

(8) Where an enactment provides a punishment for an offenceagainst the enactment, the offence is punishable by a punishmentnot exceeding that so provided.

(9) Where an enactment creates an offence, an attempt tocommit that offence is an offence under the enactment and theattempt is punishable as if the offence itself had been committed.

(10) Where under an enactment an animal or a thing

(a) is or is ordered by a competent authority to be confiscated orforfeited, the forfeiture shall be to the state;

(b) ordered or deemed to be forfeited is sold, the net proceeds ofthe sale shall be paid into and form part of the ConsolidatedFund.

(11) Nothing in subsection (10) shall prejudice an enactmentunder which the whole or a part of a fine, penalty or forfeiture orthe proceeds of a forfeiture is recoverable by a person or may begranted by an authority to a person.

(12) A fine or pecuniary penalty imposed by or under anenactment shall be paid into the Consolidated Fund.

(13) Where in an enactment an offence is declared to bepunishable on indictment or summary conviction, the procedure inrespect of the trial and punishment of the offence and the recoveryof the penalty, and all matters incidental to, or arising out of thetrial and punishment of the offence or the recovery of the penalty,shall be in accordance with the law relating to the trial of offenceson indictment or the trial of summary offences.

Procedure of Courts and TribunalsRules of procedure of courts and tribunals

23 (1) Where an enactment confers jurisdiction on a court or othertribunal or extends or varies that jurisdiction, the authority having

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power to make Rules or Orders regulating the practice andprocedure of that court or tribunal may make the Rules or Ordersthat appear to the authority to be necessary for regulating thepractice and procedure of that court or tribunal in the exercise ofthe jurisdiction so conferred, extended or varied, and it shall not benecessary for any other enactment to confer power on the authorityto make Rules or Orders for these purposes.

(2) An authority empowered to make Rules or Orders regulatingthe practice and procedure of a court or a tribunal shall not, in theexercise of that power, make without the concurrence of theMinister responsible for Finance an order which

(a) directs money to be paid out of, or in aid of, theConsolidated Fund; or

(b) prescribes or alters court fees.

(3) The validity of Rules or Orders made pursuant to subsection(1) shall not in proceedings in a court or a tribunal be impugnedeither by the court or tribunal or by a party to the proceedings onthe ground only that the concurrence of the Minister responsiblefor Finance has not been given or is not expressed to have beengiven.

Service of documents24 (1) Where an enactment authorises or requires a document to be

served by post that document shall be sent by registered post to theperson on whom the document is to be served at that person’s lastknown place of abode or business.

(2) Where an enactment authorises or requires a document to beserved on a person without directing it to be served in a particularmanner the service of that document may be effected

(a) by personal service; or

(b) by post in accordance with subsection (1); or

(c) by leaving it with some adult person at that person’s usual orlast known place of abode or business; or,

(d) in the case of a corporate body, or of an association ofpersons (whether incorporated or not) by delivering it to thesecretary or clerk of the body corporate or association at theregistered or principal office of the body corporate orassociation or serving it by post on that secretary or clerk atthat office; or,

(e) where it is not practicable after reasonable enquiry toascertain the name or address of an owner, a lessee, or anoccupier of premises on whom the document ought to be

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served, by addressing the document to that person by thedescription of ‘owner’ or ‘lessee’ or ‘occupier’ of the premises(naming them) to which the document relates, and by delivering itto some person on the premises or, if there is no person on thepremises to whom it can be delivered, by affixing it, or a copy of it,to some conspicuous part of the premises.

Deviation in forms25. Where a form is prescribed or specified by an enactment,

deviations therefrom not materially affecting the substance norcalculated to mislead shall not invalidate the form used.

Oaths, affirmations and declarations26 (1) Where an enactment authorises or requires evidence to be

taken on oath, or authorises or directs an oath to be made, taken oradministered, the oath may be administered, and a certificate oracknowledgement of its having been made, taken or administeredmay be given by a person authorised by the enactment to take theevidence or by a judge of a court of competent jurisdiction, or anotary public, or a commissioner for oaths or a person soauthorised by any other enactment.

(2) In an enactment the word ‘oath’ or ‘affidavit’ includes anaffirmation or a declaration.

(3) A reference in an enactment to a statutory declaration shallbe construed as a reference to a declaration made

(a) by virtue of the enactment relating to statutory declarations,or

(b) under the enactment relating to the taking of evidence wherethe declaration is made before the appropriate competentauthority.

(4) A power conferred by an enactment upon a justice of thepeace to administer an oath or an affirmation, or to make anaffidavit or a declaration, may be exercised by a notary public or acommissioner for oaths.

Repeals etc.Cessation of operation of enactments

27. Where in an enactment it is declared that the whole or a part of anyother enactment is to cease to have effect, that other enactmentshall be deemed to have been repealed to the extent to which it isso declared to cease to have effect.

Effect of repeal28 (1) Where an enactment repeals or revokes an enactment, the

repeal or revocation shall not, save as in this section otherwise

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provided,

(a) revive an enactment or a thing not in force or existing at thetime at which the repeal or revocation takes effect;

(b) affect the previous operation of the enactment so repealed orrevoked, or anything duly done or suffered thereunder;

(c) affect a right, privilege, obligation or liability acquired,accrued or incurred under the enactment so repealed orrevoked;

(d) affect an offence committed against the enactment sorepealed or revoked, or a penalty or a forfeiture or apunishment incurred in respect thereof; or

(e) affect an investigation, a legal proceeding or a remedy inrespect of a right, a privilege, an obligation, a liability, apenalty, a forfeiture or a punishment;

and the investigation, legal proceeding or remedy may beinstituted, continued or enforced, and the penalty, forfeiture orpunishment may be imposed, as if the enactment had not beenrepealed or revoked.

(2) Nothing in subsection (1) shall be taken to authorise thecontinuance in force after the repeal or revocation of an enactmentof an instrument made under that enactment.

(3) Where an enactment expires, lapses or otherwise ceases tohave effect, this section shall apply as if that enactment had thenbeen repealed or revoked.

(4) The inclusion in the repealing provisions of an enactment ofan express saving with respect to the repeals affected thereby shallnot be taken to prejudice the operation of this section with respectto the effect of those repeals.

Effect of substituting enactment29 (1) Where an enactment repeals or revokes and re-enacts, with or

without modification, an enactment, a reference in any otherenactment or statutory document to the enactment so repealed orrevoked shall, without prejudice to the operation of subsections (2)and (3), be construed as a reference to the enactment as re-enacted.

(2) Where an enactment repeals or revokes an enactment, in thissubsection and in subsection (3) referred to as the ‘old enactment’,and substitutes another enactment therefor by way of amendment,revision or consolidation,

(a) a person acting under the old enactment shall continue to actas if appointed under the enactment so substituted;

(b) a bond or a security given by a person appointed under the

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old enactment remains in force and all books, papers and thingsused or made under the old enactment shall continue to be used sofar as is consistent with the enactment so substituted;

(c) a proceeding taken under the old enactment shall beprosecuted and continued under and in conformity with, theenactment so substituted, so far as it may be doneconsistently with the substituted enactment;

(d) in the recovery or enforcement of penalties and forfeituresincurred, and in the enforcement of rights, existing oraccruing under the old enactment, or in any other proceedingunder the old enactment, the procedure established by theenactment so substituted shall be followed so far as it can beadapted; and

(e) where a penalty, a forfeiture or a punishment is reduced ormitigated by a provision of the enactment so substituted, thepenalty, forfeiture or punishment, if imposed or awardedafter the repeal or revocation, shall be reduced or mitigatedaccordingly.

(3) Without prejudice to subsection (2), where an enactmentrepeals or revokes an enactment and substitutes another enactmenttherefor by way of amendment, revision or consolidation,

(a) all statutory instruments or statutory documents made,issued, confirmed or granted under the old enactment and alldecisions, authorisations, directions, consents, applications,requests or things made, issued, given or done thereundershall, in so far as they are in force at the commencement ofthe enactment so substituted, and are not inconsistenttherewith, have the like effect and the like proceedings maybe had thereon and in respect thereof as if they had beenmade, issued, confirmed or granted or made, issued, given ordone under the corresponding enactment so substituted; and

(b) a reference to the old enactment in an unrepealed orunrevoked enactment shall, in relation to a subsequenttransaction, matter or thing, be construed as a reference to somuch of the enactment so substituted as relates to the samesubject-matter as the old enactment; and, if nothing in theenactment so substituted relates to the same subject-matter,the old enactment shall stand good, and be read andconstrued as unrepealed or unrevoked in so far, and in so faronly , as is necessary to support, maintain or give effect tothe unrepealed or unrevoked enactment.

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Enactments always Speaking etc.Enactment always speaking

30. An enactment shall be construed as always speaking and anythingexpressed in the present tense shall be applied to the circumstancesas they occur, so that effect may be given to each enactmentaccording to its true spirit, intent and meaning.

Expressions in statutory instruments31 (1) Where an enactment confers power to make a statutory

instrument or issue a statutory document, unless a contraryintention appears,

(a) expressions used in the statutory instrument or statutorydocument have the same respective meanings as in theenactment; and

(b) the expression ‘the Act’ if used in the statutory instrument orstatutory document shall be construed as referring to the Actunder which the instrument is made or the document isissued.

Application of DefinitionsApplication of interpretation provisions

32 (1) Definitions or rules of interpretation contained in an enactmentapply to the construction of the provisions of the enactment whichcontain those definitions or rules of interpretation.

(2) An interpretation section or provision contained in anenactment shall be read and construed as being applicable

(a) only if the contrary intention does not appear in theenactment; and

(b) to all other enactments relating to the same subject-matter,unless a contrary intention appears in the enactment.

Parts of speech33. Where a word is defined in an enactment, other parts of speech and

grammatical variations of that word and cognate expressions shallhave corresponding meanings in that enactment.

Names commonly used34. In an enactment, a name commonly applied to a country, place,

Government department, body, corporation, society, Minister,officer, functionary, person, party, statutory provision, or otherthing means the country, place, Government department, body,corporation, society, Minister, officer, functionary, party, statutoryprovision or thing to which the name is commonly applied,whether or not the name is the formal or unabbreviated designationthereof.

A Bill for an Interpretation Act 213

Rules as to number and gender35. (1) Words in an enactment importing

(a) male persons include female persons; and

(b) female persons include male persons.

(2) Words in an enactment importing persons include male andfemale persons, corporations, whether aggregate or sole, andunincorporated bodies of persons.

(3) A reference in an enactment to a party aggrieved includes areference to a body corporate in every case where that bodycorporate is a party aggrieved.

Construction of ‘shall’ and ‘may’36. In an enactment the expression ‘may’ shall be construed as

permissive and empowering, and the expression ‘shall’ asimperative and mandatory.

Distances37. In the measurement of a distance for the purposes of an enactment,

the distance shall be measured in a straight line on a horizontalplane.

Time38 (1) In an enactment, words relating to time and references to a

point in time shall be construed as relating or referring to standardtime.

(2) In an enactment, the expression ‘standard time’ shall beconstrued as meaning the time specified by the appropriateauthority to be the standard time.

(3) Where in an enactment a period of time is expressed to beginon, or to be reckoned from, a particular day, that day shall not beincluded in the period.

(4) Subject to subsection (6), where in an enactment a period oftime is expressed to end on, or to be reckoned to, a particular day,that day shall be included in the period.

(5) Where the time limited by an enactment for the doing of athing expires or falls upon a Sunday or a public holiday, the timeshall extend to and the thing may be done on, the first followingday that is not a Sunday or a public holiday.

(6) Where a period of time prescribed by an enactment for thedoing of a thing does not exceed six days, Sundays and publicholidays shall not be included in the computation of the period.

(7) Where by an enactment a period of time is expressed as‘clear days’ or is qualified by the term ‘at least’, both the first day

214 Understanding Statutes

and the last day shall be excluded from the computation of theperiod.

(8) In an enactment

(a) a reference to midnight, in relation to a particular day, shallbe construed as a reference to the point of time at which thatday ends;

(b) a reference to a week-day shall be construed as a referenceto a day that is not a Saturday or Sunday;

(c) a reference to a month shall be construed as a reference to acalendar month;

(d) a reference, without qualification, to a year, shall beconstrued as a reference to a period of twelve months;

(e) a reference to a financial year shall be construed as areference to a period of twelve months as specified in theenactment.

(9) In an enactment, the expression ‘public holiday’ means aday that under the provisions of an enactment or other law is, or isdeclared to be, or is proclaimed as, a public holiday.

(10) An enactment requiring or authorising the doing of a thingbut not prescribing or limiting the period within which that thing isto be done, or may be done, shall be construed as requiring orauthorising that thing to be done with all convenient speed and nototherwise.

(11) Subsections (1) and (2) shall have effect in relation to deedsand other legal instruments as they have effect in relation to anenactment.

Statutory boards, etc.39 (1) The functions of a statutory board shall not be affected by a

vacancy in the membership of that statutory board.

(2) A power conferred by or under an enactment upon an authorityor a person to appoint the members of a statutory board includes

(a) the power to appoint the chairman of the statutory board;and

(b) the power to appoint an individual person as an alternativemember to act in the place of the member in respect ofwhom the alternate appointment is made.

(3) An alternative member when acting as such shall have andperform all the functions of the member in whose place thealternate appointment is made.

A Bill for an Interpretation Act 215

(4) An authority or person empowered by or under an enactmentto appoint or designate a person to be a member of a statutoryboard or to perform any other function may

(a) appoint or designate a person by name; or

(b) appoint or designate a person by reference to an office;

and the person so appointed or designated may perform thefunction in respect of which the appointment or designation ismade.

Definitions for legislative purposes40 (1) In an enactment, the expression

‘House’ means the lower or, as the case may be, the upper chamber of Parliament;

‘Parliament’ means Parliament as established under article...of the Constitution;

‘President’ means the President elected in accordance with article … of the Constitution;

‘session’ in relation to Parliament means the sittings ofParliament commencing when it first meets after adissolution or prorogation of Parliament at any time andterminating when Parliament is dissolved or prorogued;

‘sitting’ in relation to Parliament includes a period duringwhich either House is sitting continuously withoutadjournment and a period during which that House is incommittee;

‘Speaker’ means the person elected as Speaker by membersof Parliament..

(2) In an enactment the expression ‘statutory period’ in relationto a statutory instrument means a period of forty days or such otherperiod as may be prescribed by the enactment.

(3) Where an enactment provides that a statutory instrument

(a) shall be laid before Parliament, and

(b) may be annulled or approved by a resolution of Parliament,

the computation of the period within which the instrument shall belaid or annulled or approved, shall not take account of a periodwhen Parliament is dissolved or prorogued.

(4) A reference in an enactment to the laying of a statutoryinstrument or a statutory document or a report, an account or otherdocument before Parliament, shall be construed as a reference tothe taking, during the existence of Parliament, of the action

216 Understanding Statutes

(a) which, by or under a Standing Order, Sessional Order orother direction of the House before which the instrument ordocument is laid, constitutes the laying of the instrument ordocument before that House; or

(b) which is accepted by virtue of the practice and the procedureof that House as constituting the laying.

(5) The expression ‘subject to an affirmative resolution’ whenused in relation to a statutory instrument or a statutory documentmeans that the instrument or document shall be laid beforeParliament, and shall not come into operation unless it is approvedby a resolution supported by the votes of not less than [one-half ofall the members of each House].

(6) The expression ‘subject to a negative resolution’ when usedin relation to a statutory instrument or a statutory document meansthat the instrument or document shall be laid before Parliament butit shall cease to have effect when each House by a resolutionsupported by the votes of not less than [one-half of all themembers of each House] annuls the instrument or document.

(7) The annulment of an instrument or document by virtue ofsubsection (6) shall not affect the validity of any thing done underthe instrument or the document, or prejudice the making of a newinstrument or document.

Definitions for judicial purposes41. In an enactment, the expression

‘Chief Justice’ means the Chief Justice appointed under article … ofthe Constitution;

‘committed for trial’ includes

(a) committed by a court of competent jurisdiction; or

(b) committed on bail upon a recognisance to appear and standtrial before a court of competent jurisdiction;

‘court of summary jurisdiction’ means a magistrate exercisingstatutory summary jurisdiction;

‘Director of Public Prosecutions’ means the Director of PublicProsecutions appointed under article … of the Constitution;

‘High Court’ means the High Court of Justice established by article …of the Constitution;

‘indictable offence’ means an offence triable on indictment inaccordance with ….

‘Justice’ includes the Chief Justice and any other Justice of thesuperior courts of record;

A Bill for an Interpretation Act 217

‘Magistrate’ means a Magistrate appointed under ….

‘printed by authority of law’ means printed by the GovernmentPrinter;

‘Rules of Court’ when used in relation to a court means Rules made bythe competent authority to regulate the practice and procedure ofthe courts;

‘statute of general application’ means ….

‘summary conviction’ means conviction of a summary offence;

‘summary offence’ means an offence triable otherwise than onindictment;

‘Supreme Court’ means the Supreme Court of Judicature establishedby article … of the Constitution;

Definitions for executive purposes

42. In an enactment, the expression

‘appointed day’ for the purposes of an enactment means the dayspecified as such by the [Head of State] by Proclamation publishedin the Gazette;

‘Auditor-General’ means the Auditor General appointed under article… of the Constitution;

‘Cabinet’ means the Cabinet established by ….

‘Commonwealth’, means the countries specified or certified asCommonwealth countries in or under an Act of Parliament relatingto membership of the Commonwealth;

‘Commonwealth country’ means a country that is a member of theCommonwealth;

‘Consolidated Fund’ means the Consolidated Fund established byarticle … of the Constitution;

‘Gazette’ includes the Gazette published by order of the Governmentand supplements thereto;

‘Government’ means an authority by which the executive authority of[Ruritania] is duly exercised;

‘Government Notice’ means an announcement, whether or not of alegislative character, published in the Gazette by or with theauthority of the Government;

‘Government Printer’ includes a printer authorised by the GovernmentPrinter;

218 Understanding Statutes

‘Leader of the Opposition’ means the Leader of the Oppositionappointed under article of the Constitution;

‘Minister’ includes the Prime Minister and any other Minister for thetime being having responsibility for the subject-matter of theenactment in respect of which that expression is used;

‘payable by warrant’ means payable out of the Consolidated Fundupon the authority of a warrant under the hand of the Ministerresponsible for Finance;

‘Prime Minister’ means the Prime Minister appointed underarticle…of the Constitution;

‘prescribed’ means prescribed in or under the enactment in which thatexpression occurs;

‘prescribed by Parliament’ means prescribed by the authority ofParliament;

‘Proclamation’ means a Proclamation made by the [Head of State]under the Public Seal;

‘public corporation’ means a corporation or any other body of personsestablished by an Act of Parliament or set up out of funds providedby Parliament or by any other public fund;

‘public interest’ includes a right or an advantage which enures or isintended to enure for the benefit generally of the whole of thepeople of [Ruritania];

‘public office’ includes an office the emoluments attaching to whichare paid directly from the Consolidated Fund or directly out ofmoneys provided by Parliament and service with a publiccorporation established entirely out of public funds or moneysprovided by Parliament;

‘public service’ includes service in a civil office of Government theemoluments attaching to which are paid directly from theConsolidated Fund or directly out of moneys provided byParliament and service with a public corporation;

‘public officer’ includes the holder of a public office and a personappointed to act in that office;

‘Public Service Commission’ means the Public Service Commissionestablished by article…of the Constitution;

‘Public Seal’ means the Public Seal of [Ruritania]References relating to land

43 (1) In an enactment, the expression ‘land’ includes messuages,tenements, and hereditaments, corporeal or incorporeal, of every

A Bill for an Interpretation Act 219

kind and description and houses and other buildings of any tenure,and any estate, right, title or interest in, to or over land.

(2) In an enactment, the expression

‘registered land’ means land the title to which is registeredunder that enactment;

‘unregistered land’ means land the title to which is notregistered under that enactment.

Miscellaneous definitions44. In an enactment, the expression

‘act’ where used in reference to an offence or civil

wrong includes a series of acts, and words so used which refer toacts done extend to omissions;

‘coin’ means a coin which is legal tender in [Ruritania];

‘commencement’ when used with reference to an enactment means thetime at which that enactment comes into operation;

‘Commonwealth citizen’ means a person who by law has the status ofa Commonwealth citizen;

‘consul’ or ‘consular officer’ includes consul-general, consul, vice-consul, consular agent, and a person authorised to discharge theduties of consul-general, consul or vice-consul;

‘contravention’ in relation to an enactment, includes a failure tocomply with that enactment;

‘service by post’ means service in accordance with subsection (1) ofsection 24;

‘signature’ includes the making of a mark;

‘will’ includes a codicil;

‘writing’ or a term of like import includes words typewritten, printed,painted, engraved, lithographed, photographed or represented orreproduced by any mode of representing or reproducing words in avisible form;

(2) In an enactment, the expression

‘access’ includes ingress, egress and regress;

‘assets’ includes property or rights of any kind;

‘costs’ includes fees, charges, disbursements, expenses orremuneration;

220 Understanding Statutes

‘fault’ means wrongful act or default;

‘functions’ includes powers and duties;

‘goods’ includes movable property and animals;

‘individual’ means a natural person other than a corporation;

‘movable property’ means property of every description, includinggrowing crops, except immovable property;

‘perform’ in relation to functions includes exercise;

‘sale’ includes exchange or barter;

‘surety’ means sufficient surety;

‘vessel’ means a ship, boat, lighter or other floating craft used orcapable of being used for transport by water;

‘words’ when used in an amending enactment includes figures,punctuation marks and typographical, monetary, mathematical andscientific symbols.

Assignment of Ministerial responsibilities45. Notwithstanding anything to the contrary in an enactment, where a

change in the assignment or responsibility for the business ofgovernment is notified in the Gazette by a Government Noticesetting out the former assignment and the substituted assignment, areference to the former assignment in an enactment and in adocument made or issued under the enactment shall be construedas a reference to the substituted assignment from the date specifiedin the Government Notice.

Delegation etc.Power to delegate functions

46. Where by or under an enactment a function is conferred on aperson or authority other than a function in relation to the hearingof a petition or the making of subsidiary legislation that person orauthority may by instrument in writing delegate the performanceof those functions to a person either by name or as the holder of anoffice as is specified in the instrument subject to such conditions,exceptions and qualifications as are so specified.

Signification of delegation47 (1) A delegation made under section 46 shall, within twenty-four

hours, be published in the Gazette.

(2) A delegation made under section 46 may be revoked or variedby the like instrument or order as is respectively specified in thatsection; and the revocation or variation shall, within twenty-fourhours, be published in the Gazette.

A Bill for an Interpretation Act 221

Instruments under the Public Seal48 (1) A Proclamation, warrant or other instrument issued under the

Public Seal shall be signified under the hand of the [Head of State].

(2) Subject to subsection (1), a statutory instrument

(a) made by the [Head of State], may be signified under thehand of a Minister;

(b) made by the Cabinet, may be signified under the hand of theSecretary to the Cabinet.

(3) Prima facie evidence of a statutory instrument may be givenin proceedings before a court by the production of a copy of theGazette purporting to contain the statutory instrument.

Citation of Acts

49 (1) An Act may be cited by reference to its short title.

(2) Where a statutory instrument is published in the Gazette inaccordance with section 15, then

(a) without prejudice to any other enactment, the original of thatinstrument and a copy thereof printed by the GovernmentPrinter, is admissible in evidence without proof of theauthority, signature or capacity of the person by whom theinstrument is signed;

(b) a copy of that instrument printed by the Government Printershall, for all purposes, be evidence of the due making of thatinstrument and of its content; and

(c) a copy of that instrument purporting to have been printed bythe Government Printer shall be deemed to have been soprinted unless the contrary is proved.

(4) In an enactment a description of, or citation from, any otherenactment or from a document shall be construed as including theword, subsection, section, or other portion mentioned or referred toas forming the beginning or as forming the end of the portioncomprised in the description or citation or as being the point fromwhich or to which the portion extends.

222 Understanding Statutes

Appendix C

Bibliography

Adler, J., [1957] 38 Modern Law Review, 274

Allen, C. K., Law and Orders

Austin, John, Jurisprudence

Bacon, Francis, Essays

Bible, 1 Corinthians, 14, 8-9

Bennion, F.A.R., Statutory Interpretation

Blackstone, Commentaries 1766 Vol. 1

Burchfield, Robert, The English Language

Carroll, Lewis, Through the Looking Glass

Carter, James, Law: Its Origin, Growth and Function, Lecture IX

Chafee, Z., ‘The Disorderly Conduct of Words’, 41 Col LR 381

Cockram, G.,The Interpretation of Statutes

Coke, 4 Institutes

Commonwealth Law Bulletin (1986)

Coode, George, On Legislative Expression

Comans, C.K., ‘The Power of the Commonwealth Parliament to makeRetrospective or Retroactive Laws is well established’ 27 AustralianLaw Journal

Corry, J.A., Administrative Law and The Interpretation of Statutes, (1936) 1 UTLJ 286

Crabbe, V.C.R.A.C. , Legislative Drafting

‘Has Parliament An Intention’ Commonwealth Caribbean Legal Studies

Craies on Statute Law

Crawford, E.T., Construction of Statutes

Cross, Sir Rupert , Statutory Interpretation

Denning, Lord, The Discipline of Law

The Closing Chapter

de Smith, S.A., Constitutional and Administrative Law

Dickerson, Reed, Professionalising Legislative Drafting

‘The Difficulty of Choice Between And and Or’ A.B.A. Journal, 1960

Driedger, Elmer, The Composition of Legislation

Driedger, Elmer, The Construction of Statutes

Eliot, George , Mr. Gilfil’s Love-Story, Scenes of Clerical Life

Fiadjoe, Albert K., ‘Judicial Approaches to Constitutional and StatutoryExclusion of Judicial Review in Commonwealth Caribbean PublicLaw’ Commonwealth Caribbean Legal Studies

Freund, Ernest, ‘Prolegomena To A Science of Legislation’ 13 Illinois LR

Gibb, S.J., ‘Parliamentary Material as Extrinsic Aids to Statutory

Interpretation’, [1580] Stat LR

Guardian Gazette, No. 27 Vol. 24

Guardian Weekly, Vol. 146, No. 4, Week ending 26 January 1992

Hansard Parliamentary Debates (3rd Series)

Hewart, Lord, The New Despotism

Ilbert, Courtenay, The Mechanics of Law Making

Ilbert, Courtenay, Legislative Methods and Forms

Kaufman, Gerald, The Listener, 29th March, 1984

Legislation and Legal Rights and Plain English, Victoria, Australia

Lewis, Charles , The Truth About Statutory Interpretation, GuardianGazette

Locke, John, A Second Treatise of Government

Maitland, F.W., Forms Of Action At Common Law

Matthews, Law, Order and Liberty in South Africa

Maxwell, Interpretation of Statutes

Megarry, R.E., Miscellany-at-Law

Megarry, R.E., A Second Miscellany-at-Law

Megarry and Wade, The Law of Real Property

Meredith, Paul, ‘Legislation: Educational Reform’ MLR Vol. 52

Miers and Page, Legislation

224 Understanding Statutes

Namasivayam, S., The Drafting of Legislation

Ogden, C.K., & I.A. Richards, The Meaning of Meaning

Oliver of Aylmerton, Lord, ‘A Judicial View of Modern Legislation’ [1993]Stat LR

Parker, G., ‘Criminal Law – Statutory Interpretation – Use of ParliamentaryDebates’, (1982) 60 Can Bar Rev

Hood-Phillips, Constitutional and Administrative Law

Potter, Simeon, Language in the Modern World

Power, Vincent J.G., ‘Parliamentary History as an Aid to StatutoryInterpretation’ [1984] Stat. LR.

Preparation of Bills, 1948, HMSO

Richardson, S., Messages and Papers of Presidents

Renton, Lord, The Preparation of Legislation, Cmnd 6035

Rhodes, White and Goldman, ‘The Search for Intent: Aids to StatutoryConstruction in Florida’, (1978) 6 Fla H.U.L.Rev

Sacks, Vera , ‘Towards Discovering Parliamentary Intent’ [1982] Stat LR

Samuels, Alec , ‘The Interpretation of Statutes’ [1980] Stat LR

Shaw, George Bernard, Man and Superman

Stephen, Sir James, Digest of Criminal Law

Sutherland, Euan, ‘Clearer Drafting and Timeshare Act 1992: A ResponseFrom Parliamentary Counsel to Mr Cutts’ [1993] 14 Stat LR

Thornton, G.C.,Legislative Drafting

Thring, Lord , Practical Legislation

Turnbull, I.M.L., Problems of Legislative Drafting

Ullman, Stephen, Semantics: An Introduction to the Science of Meaning

Ullman, Stephen, Words and Their Meaning

Wade, ‘Covenants – A Broad and Reasonable View’ [1972B] CLJ 157

Walker, The Oxford Companion to Law

Williams, Glanville , ‘Language and the Law’, 61 LQR 71

Wurm, S.A., ‘Aboriginal Language and the Law’, 6 Annual Law Review,University of Western Australia

Bibliography 225

Abrogation, doctrine of, 58-59Acts of Explanation

function of, 76South Africa in, 77-78

Affirmative statutes, 189Ambiguity of statutes, 42-43

Civil law under, 93contextual, 43extrinsic aids to

interpretation and, 97Golden Rule and, 87-88judicial inventions and, 54-55Literal Rule and, 86long titles and, 19-20‘may’ and, 37Mischief Rule and, 84Pepper v Hart, rule in, and, 110, 112reasonableness of

legislation and, 121-128semantic, 42-43syntactic, 42verbosity, caused by, 177whole Acts and, 182

‘And’ or ‘Or’, legal effect of words and, 35-38

Antigua and Barbudaconstitutional ouster

clauses in. 163-164Appeal, right of,

word ‘shall’ and, 30Arbitration

finality of awards and, 148Assent, 16-18

Bills to, 14Canada in, 18Commonwealth countries in, 17-18Lord Commissioners,

declaration of, by, 11Norman French, declared in, 11querying of, 17Royal Commissions, given by, 17sovereignty and, 17validity of, courts’ declaration on, 17

AustraliaLaw Commission reports

interpretation aids as, 104-105Law Reform Committee of

Victoria in Plain English and, 12parliamentary materials,

availability of, in, 113Background information

on legislation, 3-4

Barbadosconstitution, conformity of

legislation with, in, 131-132Bill of Rights

parliamentary privilege and, 114-116Pepper v Hart, rule in, and, 110, 114

Bills,see also COMMITTEE STAGES,DEBATES, DRAFTING, MONEYBILLS, PREAMBLES, PROMOTERS,SCHEDULESamendments of, 14

Parliamentary Counsel, drafted by, 16

refusal of, 15Assent to, 14clauses of, 15guidance notes of officials and, 93headings, function of, 21Interpretation Acts and, 195-222interpretation section in, 22-23,

67-68long titles of, 19-20marginal notes,

construction, aid to, as, 21 function of, 20-21

memorandum to, 93, 102Ministers, comments on, 3money, 17Notes on Amendments of, 15Notes on Clauses and, 15, 102parts of, 22passing of, 14readings of, 14report stage of, 14sections of, 23-24short titles of, 19-20stages in Parliament of, 14-16Standing Committees of, 15titles of, 19-20

announcement of, 14Cabinet, 3Canada

Assent in, 18Case law,

see COMMON LAW, JUDGEScasus omissus

construction and, 52drafting and, 61-62Parliamentary counsel and, 61-62

Certaintyjudges of, 92

Index

precedents and, 55presumption of, 155

certiorari, 143-144Barbados in, 131-132convictions and, 149-151errors of law and, 149finality of decisions and, 147-149judicial review and, 143-151ouster clauses and, 146prohibition, compared with, 144-145

Civil lawambiguity under, 93intention of legislature and, 93

Clauses, Notes on, 15, 102Commission reports,

see also COMMISSIONS OF INQUIRY,LAW COMMISSIONSinterpretation, aids to, 103-106Royal, 17

Commissions of Inquiryinterest groups as, 2reports of, 94

interpretation aids as, 99Committee of Selection, 15Committee of the Whole House, 15Committee on Ministers’ Powers, 95Committee stage, 14-15

intention of Parliament and, 90legal history and, 99mistakes during, 15Notes on Amendments, 15-16Notes on Clauses, 15-16Parliamentary counsel and, 14Pepper v Hart, rule in, and, 14

Committeescabinet, 3reports of, 94

interpretation aids as, 99, 104-106Common law,

see also CASE LAW, JUDGESCommonwealth, inheritance

of, by, 58-59customary interpretation and, 68Ghana in, 59Heydon’s case, rule in, and, 82-83importance of, 44-47intention of Parliament and, 68, 72knowledge of Parliament and, 74-75object of, 2ousting of, 180presumption of

conformity with, 138-139

stare decisis and, 46statutes, distinguished from, 1-2

CommonwealthAssent in, 17-18

Royal Commission, given by, 17

common law, inheritance of, by, 58-59

constitutions of, 56-57Interpretation Act in, 69, 185Money Bills in, 17statutes, declarations of

illegality of, in, 56-57Communication of purpose, 44-47Conformity, presumption of, 129-138,

172-174Consistency, 68, 119-120Consolidation Acts, 75

amendment of pre-existing law and, 120

consistency of, 120maxim on, 185subsequent Acts and, 75

ConstitutionsCommonwealth, 56-57Ghana of, 59human rights and, 132illegality of legislation and, 56Jamaica of, 138ouster clauses and, 147presumption of conformity

with, 129-138validity of legislation under, 17

Construction,see also INTERPRETATIONcasus omissus and, 52equitable, 84liberal, maxim on, 181-182marginal notes, aid to, as, 21rules of

clarification of, 68subsequent Statutes and, 75whole Acts of, 59-62

Context, 39-41ambiguity and, 43literal rule and, 85-86purposive approach and, 97

Conventions,see TREATIES

Convictionscertiorari and, 149-151

Counseljuries, address to, 11

228 Index

Courts,see also JUDGESerrors by, 143-144function of, 49-65jurisdiction of, 141-142

ousting the, 145-147legislation and

declaration of illegality of, 52-58Criminal offences

mens rea needed for, 121Criminal statutes, 189Crown

presumption against application of Acts to, 175

Culturelanguage and, 10-11

Customsabrogation of, 180common law and, 68interpretation and, 52, 68precedent and, 68

Debates,see also HANSARD, Pepper v HartBills on, 14-15Ghana in, 102intention of Parliament and, 99interpretation of statutes and, 13, 89,

101-104non-admissibility of, 101-102value of, 98-99

Declaratory statutes, 189Definitions

extensive, 22Interpretation Acts and, 68-69restrictive, 22

Delegated legislation,see REGULATIONS

Delegation of powersamendment of

legislation and, 156-157ministers’ discretion and, 157-160

Departmental officialsinterest groups as, 2

Dictionaries, 73-74Discretion

delegation of powers and, 157-160duty, disguised as, 32judges of, 55‘may’, use of word, and, 32-35use of, 30

Drafting,see also PARLIAMENTARYCOUNSEL

casus omissus and, 61-62instructions on, 4-5legislative scheme and, 5-6Parliamentary Counsel by, 3process of, 5-6research on, 5vagueness of, 41

Dutiesdiscretion, disguised as, 32

Enabling statutes, 189English,

see also PLAIN ENGLISHstatutes first published in, 11

Equityconstruction of statutes and, 84function of, 45intention and, 84object of, 2statutes, distinguished from, 1-2

Errorscertiorari and, 149Committee stage, during, 15Courts by, 143-144rectification of, 95

Europeinterpretation of Acts in, 98, 105

Evidenceconclusive evidence

clauses and, 155-157interpretation and, 105natural justice and, 165

Exclusive remedies, 160-161Explanation, Acts of, 76-78Expository statutes, 190Federal States,

see also UNITED STATESlegislation of, 1

Finality of decisionsarbitration and, 148certiorari and, 147-149presumption of, 147-149public interest in, 154

Francetravaux preparatoires in, 99

‘Free’, meaning of, 73, 182General statutes, 190, 192-193Ghana

common law in, 59constitution of, 59debates in, 102English law in, 59legislative intent in, 101

Index 229

Golden rule, 86-88ambiguity and, 87-88function of, 82intention and, 28-29, 85objective standards and, 88subjective standards and, 88

Governmentintention of Parliament and, 90

Grey v Pearson, rule in, 82Guidance notes

bills on, 93Guyana

constitutional ouster clauses in, 163Hansard,

see also DEBATES, Pepper v Hart

availability of, 113interpretation and, 102-104refusal to consult, 97resolution on leave to use, 116

Headings, function of, 21Henry VIII clauses, 156-157Heydon’s case, rule in, 5

common law and, 82-83intention of Parliament and, 49-50judicial interpretation and, 51promoters of Bills and, 93rules on interpretation and, 81

Human rightsBarbados in, 131-132constitutions, conformity

with, and, 132South Africa in, 133-138Zimbabwe in, 136-8

IllegalityCommonwealth, declarations

of, in, 56-57constitutions and, 56legislation of, declaration

by Courts on, 52-58‘Includes’

meaning of, 68India

constitutional ouster clauses and, 162-163

judicial review and, 162-163Instability

words of, 43-44Intention

Bills, promoters of, 29, 92-93Committee stage and, 90common law and, 72debates and, 99equitable construction and, 84

Ghana in, 101Golden rule and, 28-29, 85Government and, 90Heydon’s case, rule in, and, 49-50Interpretation Acts and, 72judges and, 27, 49-65justice and, 95-96language, alteration of, and, 76literal interpretation and, 67, 81-82literal rule and, 81-82logical interpretation and, 52, 67meaning of, 90-96Parliament of, 13, 69,

89-96Parliamentary Committees

and, 90Parliamentary Counsel of, 91, 93, 96separation of powers and, 55, 90statutory definitions and, 72subsequent Acts and, 76

Interest groups, 2International law

adoption of, 173doctrine of incorporation of, 173doctrine of transformation and, 173precedents and, 173-174presumption of

conformity with, 172-174Interpretation,

see also AMBIGUITY,CONSTRUCTION, HANSARD,PRESUMPTIONSauthentic, 67casus omissus and, 62consistency and, 68customary, 52, 68debates in Parliament and, 13, 89,

101-104doctrinal, 52, 67Europe in, 98, 105evidence on, 105extensive, 52, 67extrinsic aids to, 97-117grammatical, 67, 88Heydon’s case, rule in, and, 51, 81history of, 68Judges, legislation of, 29, 49-65, 79liberal, 67logical, 52, 67modern approach to, 96-97obiter dictum and, 64-65objective, 64, 67-80Parliament and, 67-80

230 Index

Parliamentary debates and, 13Parliamentary Ombudsman and, 103precedents and, 55, 62-65promoters of Bills and, 89, 92-93punctuation and, 25, 69regulations of, 95remedial, 67repeals and, 68restrictive, 52, 67rules of, 81-117section, 22-23, 67-68separation of powers and, 54subjective, 64United States in, 97usual, 52whole Acts of, 59-62

Interpretation Acts, 68-72Bills and, 195-222Commonwealth in, 69, 185contrary intentions and, 72Crown, application of

legislation to, and, 175definitions and, 68-69intentions and, 72objective test and, 72presumptive provisions and, 69

Jamaicaconstitution, presumption

of conformity with, 138Judges

certainty and, 92customary interpretation and, 68discretion of, 55errors, rectification of, by, 95independence of, 56, 141-142innovation by, 79intention

legislators of, 49-65interpretation of legislation by, 29,

49-65, 79inventions of, ambiguities

causing, 54-55jurisdiction of, 141-142lawmakers as, 55, 90legislation, filling gaps in, by, 29

unjust, comments on, 56separation of powers and, 56social conditions and, 92

Judicial review, 142-172certiorari and, 143-151conclusive evidence

clauses and, 155-157exclusive remedies and, 160-161

final decisions and, 147-149grounds for, 143Henry VIII clauses and, 156-157India in, 162-163mandamus and, 144natural justice and, 165-166ouster clauses and, 145-147

constitutional, 161-165prohibition and, 144-145quo warranto and, 145regulations on, 156, 159subjective formulae and, 157-160time limit clauses and, 152-155

Juriescounsel’s address to, 11

Jurisdictioncourts of, 141-142judges of, 141-142ousting, 145-147presumption on, 176-177

Justiceintention and, 95-96

Language,see also LANGUAGESalteration of, 76changes in, 75-78criticism of, 12culture and, 10-11definition of, 9legal, 6-13

United States constitution and, 9subsequent Acts and, 75-78

Languages English, statutes first

published in, and, 11Latin, language of

statutes as, 11, 23-24Norman French, language

of statutes as, 11Latin

language of statutes as, 11, 23-24Law Commission reports

interpretation, aids to, as, 97Australia in, 104-105

Law Reform Commission of Victoria, Plain English and, 12

Lawful conduct, presumption of, 174-175

Legislative declarations, 76-77Legislative history, 99-101

interpretation, aid to, as,commissions as, 99Committee stage as, 99

Index 231

debates as, 99expense of, 100Ghana in, 101materials on, 99Pepper v Hart, rule in, and, 111-112previous statutes and, separation of powers and, 100-101speeches as, 99-100

travaux preparatoires and, 107United states in, 101

Literal rule, 81-82, 85-86ambiguity and, 86Barbados in, 131-132context of, 85-86intention and, 67, 81-82mischief rule and, 86Pepper v Hart, rule in, and, 111preambles and, 81-82Sussex Peerage, rule in, 81-82

Lobbyists, 2Local statutes, 190Long title, 19-20Lords CommissionersAssent, declaration of, by, 11Malfeasance, presumption against, 174-175mandamus, 144Marginal notes

construction, aid to, as, 21function of, 20-21

Maxims, 179-187Consolidation Acts and, 185directory enactments on, 184express enactments on, 183-184frequent cases on, 180-181liberal construction on, 181penal statutes on, 181-182prospective nature of Acts and, 180purpose of Acts and, 186-187reliability of, 179repeals on, 179-180retrospectivity on, 180statutes

conflicts between, and, 179-180same subjects on, 184-185

whole Acts, reference to, and, 182words on, 182-183, 185, 186

‘May’, 30-35ambiguity of, 37discretion and, 32-35enacting verbs as, 30-31purpose of, 32-35use of, 30

MemorandumBills to, 93, 102

Cabinet, 3Mens rea, 121Ministers

comments on Bills by, 3Committee on Powers of, 95regulations and,

discretion of, 157-160statements by, 110,

112-113, 115-116Ministries

Committee on Ministers powers and, 95

guidance notes of, 93sponsors of legislation as, 3

Mischief rule, 81-85ambiguity and, 84literal rule and, 86preambles and, 84research and, 5Sussex Peerage case, rule in, 86

Misfeasance, presumption against, 174-175

Money BillsCommonwealth countries in, 17

Natural justice, 165-166Negative statutes, 190New Zealand

parliamentary materials,availability of in, 113

Non-feasance, presumption against, 174-175

Norman FrenchAssent, declared in, 11statutes, language of, 11

Notes on Amendments to Bills, 15Notes on Clauses to Bills, 15obiter dictum

function of, 65interpretation and, 64-65

Objectsstatutes of, 2-5

Obsolete Statutes, 58-59Omissions, 61-62‘Or’,

see ‘AND’ OR ‘OR’Ouster clauses, 145-147

certiorari and, 146classification of, 146-147constitutional, 161-165constitutions and, 147Guyana in, 163India in, 162-163non-statutory, 147

232 Index

time limit clauses and, 152-155Trinidad and Tobago in, 163-164

Parliament,see also DEBATEScommon law

declarations of, on, 78knowledge of, and, 74-75

declaration of common law by, 78intention of, 13, 69,

89-96interpretation and, 67-80

debates and, 13judicial innovation in, 79legislative interpretation in, 78

Parliamentary Committeesintentions of Parliament and, 90interest group as, 2

Parliamentary CounselBills,

amendments to, drafting by, 16casus omissus and, 61-62committee stage and, 14criticisms of, 6, 13, 49drafting by, 3instructions to, 4intention of, 91, 93, 96intention of Parliament and, 13responsibilities of, 4-5

Parliamentary expositions, 76-77Parliamentary materials

availability of, 113expense of, 113interpretation aids as, 99

Pepper v Hart and, 110resolution on leave to use, 116

New Zealand in, 113Parliamentary Ombudsman

interpretation and, 103Parliamentary privilege, 114-116

Bill of Rights and, 114-116Pepper v Hart, rule in, and, 110, 114

Parliamentary proceedingsinterpretation and, 89-96

Parts,function of, 22Penal statutes

maxim on, 181-182meaning of, 190presumptions and, 124-125reasonableness of, 121retroactivity, presumption

against, 166retrospectivity, presumption

against, 166

Pepper v Hart, rule in, 90, 108-114ambiguity and, 110, 112Bill of Rights and, 110Committee stage and, 14legislative history and, 111-112literal rule and, 111Ministers’ statements and, 110, 112-113,

115-116official reports and, 112-113parliamentary materials

availability of, 113expense of, 113

parliamentary privilege and, 110purposive approach and, 96-97, 110, 113White Papers and, 112-113

Perpetual statutes, 190Personal statutes, 190Petitions

Preambles and, 19Plain English

Law Reform Commission of Victoria and, 12

Policydocuments, 104formulation of, 2-5

Political partiesinterest group, as, 2

Practice directions, 79Preambles, 18-19

challenges to, 18function of, 19literal rule and, 81-82Mischief rule and, 84petitions and, 19

Precedent, 11, 46, 62-65certainty of, 55international law and, 173-174interpretation of legislation and, 55

customary, 68Pressure groups

interest group as, 2Presumptions, 119-177

alteration of existing law against, 129-138

certainty of, 155common law, conformity

with, of, 138-139conclusive evidence

clauses and, 155-157consistency of, 119-120constitutions, conformity

with, of, 129-138equality of treatment of

persons of, 122

Index 233

exclusive remedies and, 160-161existing law, conformity

with, of, 141finality of decisions, of, 147-149injustice, against, 121-128international law, conformity

with, 172-174lawful conduct, of, 174-175mens rea and, 125-128natural justice, conforming

to rules of, 165-166ousting the jurisdiction

of the courts, against, 145-147,152-155

penal statutes, and, 124-125reasonableness of acts of, 121-128retroactivity against, 166-172retrospectivity against, 166-172statutes and

as enacted in this Act, 156shall not be questioned, 151-152

surplusage of, 177taxation and, 123-124territorial application of, 176-177vested rights, interference

with, against, 121-123, 167

words having same meaning, of, 176

Private statutes, 191Prohibition, 144-145Promoters of Bills

Heydon’s case, rule in, and, 93intention of, 29, 92-93interpretation and, 89-96ministerial statements and, 115-116statement of interests by, 101

Public statutes, 191Punctuation, 25

full stops and, 69Punitive statutes, 191Purpose,

see also MISCHIEF RULEcommunication of, 44-47‘may’ and, 32-35maxims and, 186-187

Purposive approachcontext and, 97Pepper v Hart and, 96-97, 110, 113

Queen’s speechlegislative proposals in, 3

Quia Emptores, 17quo warranto, 145

ratio decidendifunction of, 65precedent and, 62-63

Readings of Bills, 14Real statutes, 191Reasonableness

criminal offences and,mens rea needed to prove, 121

penal statutes of, 121presumption of, 121-128taxation legislation of, 121vested rights and, 121

Reference statutes, 191Regulations

interpretation of, 95judicial review and, 156, 159Minister’s discretion and, 157-160Standing Committee on

Delegated Legislation and, 95statutessame effect as, of, 156

validity of, 159Remedial statutes, 191-192Repeals

effect of, 140-141implied, 141Interpretation Act and, 68maxim on, 179-180Schedules in, 140sovereignty and, 179-180

Report stage, 14Reports

interpretation of statutes and, 98Pepper v Hart, rule in, and, 112-113

resolution on leave to use, 116Republic

presumption against application of legislation to, 175

Researchcost of, 113-114drafting process on, 5

Retroactivityretrospectivity, difference

between, 166-172Rhodesia in, 77-78South Africa in, 77Sri Lanka in, 58test for, 166

Retrospectivitymaxims on, 180retroactivity, difference

between, 166-172test for, 166types of, 169

234 Index

Revised statutes, 192Rhodesia

retrospectivity in, 77-78Rights of man, 91-92Royal assent,

see ASSENTRoyal Commissions, 17

interpretation aid as, 105Royal prerogative, 92Scandinavia

travaux preparatoires in, 99Schedules

forms in, 25function of, 24-25Henry VIII clauses in, 157repeals contained in, 140treaties texts of, in, 106

Sections, functions of, 23-24Select committees,

reportsinterpretation aids as, 105-106

Semantics, 10ambiguity of, 42-43

Sentencesmodifiers of, 42

Separation of powersintention of Parliament and, 55, 90interpretation of

legislation and, 54judges and, 56legislative history and, 100-101natural rights and, 92Sri Lanka in, 58travaux preparatoires and, 107

‘Shall’, 30-35enacting verb as, 30-31mandatory nature of, 31meaning of, 30obligatory nature of, 132right of appeal and, 30

Short titles, 19-20South Africa

Acts of Explanation in, 77-78constitution of, 58

presumption of conformity with, 133-138

English law and, 59human rights in, 133-138interpretation in, 69-71retrospectivity in, 77statutes, declarations on

validity of, 58Sovereign immunity, 173

SovereigntyAssent and, 17errors, rectification of, and, 95repeals and, 179-180

Special statutes, 192Speeches

Parliament and, 99-100Sri Lanka

separation of powers in, 58statutes in

declarations on validity of, in, 57-58retroactive, 58

Standing Committee on Delegated Legislation, 95

Standing Committees, 15stare decisis,

see PRECEDENTStatements by ministers, 110,

112-113, 115-116

Statute Bookdefinition of, 1

Statute Law Revision, 140Statutes

alteration of, 129-138Assent to, 16-18circumstances of

enactment of, 82classification of, 189-193common law, distinguished

from, 1-2conflicts between, 179-180definition of, 1-2equity, distinguished from, 1-2interpretation aid as, 99legislative history of, 94motives behind, 2obsolete, 58-59parts of,see BILLSphrases in,

‘as enacted in this Act’, 156‘shall not be questioned’, 151-152

previous,prospective nature of, 180-181purpose of, 186-187same subject matter on, 184-185subsequent,see Subsequent Actswhole Acts

ambiguity in, 182maxim on, 182meaning and spirit of, 59-62

Index 235

Statutory instruments,see REGULATIONS

Subsequent Acts, 74-78Consolidation Acts and, 75construction and, 75language and, 75-78legislative declarations and, 76-77Parliamentary expositions and, 76-77

Surplusage, 177Sussex Peerage Case, Rule in

literal rule in, 81-82mischief rule in, 86

TaxationPepper v Hart, rule in, and, 108-114reasonableness of legislation on, 121

Territorial applicationpresumption against application

outside jurisdiction and, 176-177Time limit clauses, 152-155Titles of legislation

announcement of, 14long, 19-20

ambiguity of, 19-20nature of measure

indicated in, 20short, 19-20

function of, 19-20travaux preparatoires

interpretation, aids to, as, 97-99, 106-108

France in, 99Scandinavia in, 99separation of powers and. 107United States in, 101

Treatiesconformity of legislation with, 173incorporation of, into national law, 173interpretation of, 98,

106-108schedules, texts of treaties in, 106

Trinidad and Tobagoconstitutional ouster

clauses and, 163-164United States

Bill of Rights, 1Congress, 1, 50constitution

conformity of legislation with, in, 130

legal language in, 9intention in, 50interpretation in

extrinsic aids to, 97-99, 105

legal language in, 9legislative intent in, 101State legislation, invalidity of, in, 57

Vaguenessgeneric character of words and, 38-39

Validity of legislationAssent and, 17constitutions under, 17Courts, declarations on, 52-58

Sri Lanka in, 57United States in, 57

regulations of, 159Vested rights

presumption against interference with, 121-123, 167

reasonableness and, 121White Papers

Pepper v Hart, rule in, and, 112-113policy formulation and, 2refusal to consult, 97

Words, 25-28 See also LANGUAGE, ‘AND OR OR’,‘MAY’, ‘SHALL’

ambiguity of, 38, 42-43clarity of, 82colour and context of, 39-41consistency of, 119-120definition of, 85-86dictionaries and, 73-74emotional responses to, 41‘free’, meaning of, 73-74‘includes’, meaning of, 68instability of, 43-44maxims on, 182-183, 185, 186morphemes and, 25-26same meaning, presumption of, 176vagueness of, 38-39

Zimbabweconstitution, presumption of

conformity with, 136-138

236 Index