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Chapter 5: Statutory interpretation (5.7 Advantages and disadvantages of…
Chapter 5: Statutory interpretation
5.7 Advantages and disadvantages of the different approaches to statutory interpretation
5.7.1 The literal rule
Advantages
Follows wording of parliament
Prevents unelected judge making law
Makes the law more certain
Easier to predict how the judges will interpret the law
Disadvantages
Not all acts are perfectly drafted.
Words have more than one meaning.
Can lead to unfair or unjust decisions.
5.7.2 The golden rule
Advantages
Respects the words of Parliament.
Allows the judge to choose the most sensible meaning.
Avoids the worst problems of the literal meaning.
Disadvantages
Can only be used in limited situations.
Not possible to predict when courts will use it.
It is a 'feeble parachute'. (Zander)
5.7.3 The mischief rule
Advantages
Promotes the purpose of the law.
Fills in the gap in the law.
Produces a just result.
Disadvantages
Risk of judicial law making.
Not as wide as the purposive approach.
Limited to looking back at the old law.
Can make the law uncertain.
5.7.4 The purposive approach
Advantages
Leads to justice in individual cases
Allows for new developments in technology.
Avoids absurd decisions
Disadvantages
Difficult to find parliaments intention.
Allows judges to make law.
Leads to uncertainty in the law.
5.6 The effect of the human rights act 1998
Section 3 of the human rights act says that so far as it is possible to do so, legislation must be read and given effect in a way which is compatible with the rights .
This only applies when rights are involved.
Examples:
Mendoza v Ghaidan (2002) - Rent Act only applied to someone who had the tenancy of a property that died. It allowed unmarried partners to be able to take over the tenancy. Acting as a married couple as it sharing a bed. Human rights had to come in that meant men and women partners could take over the tenancy even if they were same sex partners.
5.5 The effect of EU law
5.5.1 Interpreting EU law
They have to interpret it in the light of the wording and purpose of European law.
the purposive approach is the preferred approach in most European countries.
Affected courts by first they have to accept that for law which has been passed as a result of having to conform to a European law. Another is that they have to use the purposive approach.
5.4 Internal and external aids
5.4.1 Internal (intrinsic) aids - In the act.
Short title
Long title
Pre-amble - not common in modern law
Interpretation - explains what the words mean
Headings
Schedules - extra information
5.4.2 External (extrinsic) aids
Dictionary of the time - Oxford English Dictionary
Previous acts of Parliament on the same topic
Earlier case law
Historical setting - culture of the time
Courts attitudes changed:
Hansard - that is the official report of what was debated in parliament and what was said.
Until 1992 there was a firm rule that courts could not look at what was said in the debates in Parliament. However the case of Pepper v Hart (|1993) the House of Lords relaxed the rule and said it could be used in a limited way.
Reports of law reform bodies such as the Law Commission which led to passing the act.
International conventions, regulations or directives which have been implemented by English legislation.