Statutory Interpretation Is Indeed a Crucial Issue

Statutory interpretation is indeed a crucial issue in English law and an aspect of the legal system which definitely is controversial and ambiguous at times. Professor John Willis memorably and successfully analysed statutory interpretation in a famous article written decades ago (1938), but which still remains relevant today. That article dictated that, "a court invokes whichever of the rules produces a result that satisfies its sense of justice in the case before it. Although the literal rule is the one most frequently referred to in express terms, the court treats all three as valid and refers to them as occasion demands, but, naturally enough, do not assign any reason for choosing one rather than another."

This simply implies that at sometimes it will be useful to interpret laws in regards to the mischief rule; with other cases the reverse would be most suitable. Fundamentally, things need to be approached on a case by case basis. However, the fact remains that the issue of statutory interpretation remains so controversial to this day because it has to be treated in such a case by case manner, something which leads it to be misinterpreted as many have argued. However, when one looks at the statement: "The use of statutory interpretation by judges leads to mis-interpretation of statues and the law not being applied as parliament intended" is inherently false. The entire point of statutory interpretation is so that judges are able to better pinpoint the desires and intentions of parliament. If history is any guide, the British legal system has not been perfect, but it has always attempted to harness the powers of statutory interpretation to the best of its ability so that the law is completely and fully upheld and the objectives of parliament fulfilled.

"Lord Nicholls has observed that the three traditional rules of statutory interpretation (literal, golden, and mischief) have given way to a rather different method, that of the 'purposive approach.'"

There are a variety of cases which support this "purposive approach" and which demonstrate that more often than not judges harness statutory interpretation in order to best interpret the law as parliament intended and to benefit the legal process as a whole. For example, the treatment of Ouster Clauses in the English legal system has been done effectively as a result of statutory interpretation. Ouster clauses are vital in the English Court system and without them fundamentally little would get done. "The interests of smooth administration are significantly hampered if the decision-making process can be drawn out over months or years by appeals and applications for judicial review. The review process, although often faster than the standard courts and appeals processes, is nevertheless a long one."

This is crucial because the costs of delays are the ones felt by the entire public body and by taxpayers; thus, an effective legislative tool is absolutely needed to expedite the entire legal process, when valid and necessary. Review applications for a review of decisions need to be limited once a decision has been announced or to forbid review entirely in particular situations.

This means that Ouster Clauses are tools to be employed by the legal system which can be used to make it more effective as a whole. Misuse of Ouster Clauses means that justice is not being served.

However, history reflects that judges have been able to use them with a strong legal dexterity, while harnessing the dynamic of statutory interpretation in order to use them to facilitate the process of justice. A clear example of this occurred in Anisminic Ltd. v. Foreign Compensation Commission where " the House of Lords determined that ouster clauses in and of themselves are not illegal, and will be effective in protecting from judicial review any decisions which are not 'a nullity'. The effect of this ruling has been to prevent frivolous and malicious applications for review, amongst other practices."

This was a case that prevented time from being wasted and thus taxpayer money from being frittered away; the function of statutory interpretation allowed judges to deem that Ouster Clauses were in fact valid in this case and use them as a means of expediting things along.

It's important to note that some ouster clauses don't function as a full-stop preventative measure to thwart review; rather they simply put a time limit upon when an application can be made. The usage of these time-limit ousters shows another way in which judges have used statutory interpretation to facilitate justice. For instance, the case R. v. Secretary of State for the Environment, ex-parte Ouster [1972] demonstrates a time when the judge deemed Ousters to be legal s that the public interest could best be served and timely reviews could be encouraged.

On the other hand, the Ouster Clause can also be deemed invalid was also determined in the case Anisminic Ltd. v. Foreign Compensation Commission. In this case, "A statute said that 'decisions" of the Commission should 'not be called in question in any court'…"

The Foreign Compensation Act of 1950 was the one that originally set up the commission, deeming that its claimant company was unable to create a claim for compensation for the bulk of its Egyptian assets in response to the Suez crisis of 1956.

This case represents a clear example of sheer judicial creativity in that the court maintained its jurisdiction in spite of this unambiguous and lucid provision; the court decided that their decision was ultra vires and thus not a decision at all, described ultimately as a nullity.

Thus ruling, and fundamentally, this usage of statutory interpretation means that courts have now taken a more restrictive usage of statutory interpretation on ouster clauses "on the grounds that Parliament should be presumed to have not intended to deny the public its right to judicial review. Following Anisminic, there has been some debate about what constitutes a nullity' under the terms of the ruling.

This question was answered in Re Racal Communications [1981], where the court ruled that "any error of law" would take a tribunal "outside of its jurisdiction."

This demonstrates a truly useful aspect of statutory interpretation, which is that each unique or creative (though effective) usage of statutory interpretation leads the government to learn from those episodes, so that ultimately it can inform the legal system at large of the best ways in which to deal with certain issues, conundrums and questions of justice which arise.

The purposive and modern approach of statutory interpretation can be seen in statute cases like IRC vs. McGuckian, a famous case concerning tax avoidance. "The questions of general interpretative significance to which it gave rise were, first, whether fiscal legislation was to be interpreted literally regardless of the purpose of the disputed section and secondly, whether the courts were obliged, in dealing with tax avoidance schemes, to adopt a step-by-step analysis, treating each step as a distinct transaction, producing its own tax consequences irrespective of the purpose of their sequence which was to avoid the payment of tax."

Ultimately, the courts, by determining that all of the actions, individually and collectively that had been engaged by McGukian, were solely just to gain a tax advantage and not to achieve a higher business purpose and the illegalities deemed in connection with these actions, fundamentally demonstrates the ideal use of statutory interpretation at work. The role of the courts is to determine the intention of Parliament, and in this case they were able to do exactly that.

Another two examples which demonstrate cases where statutory interpretation was used and used successfully to remove judicial uncertainty were in the cases Safeway Stores v Burrell [1997] IRLR 200. In this case it was not clear or concretely decided if a "bumped" redundancy could be viewed as a legal redundancy; in this case it was asserted that the function of the employee who "bumps" the employee in questions is not truly in danger of redundancy.

Ultimately, the EAT decided that, "a 'bumped' dismissal was a proper redundancy situation because the dismissal was caused by a diminution in the requirements for employees to carry out "work of a particular kind." And this work of a particular kind referred to in the statute does not need to be the work of the dismissed employee."

This type of wise statutory interpretation was repeated in Murray v Foyle Meats Ltd. [1999] IRLR 562, where the House of Lords decided that it endorsed the reasoning and conclusions drawn in Burrell; this indicated that "bumping" was part of the statutory definition of redundancy and that an employee who has experienced this can be made redundant as long as the required causal relationship has been established.

This created a broader sense of "work of a particular kind" in s.139 (1) as found in the Employment Rights Act of 1996, which means that work done does not actually have to be completed by the dismissed employee. This case is such a meaningful and illustrative usage of statutory interpretation as it demonstrates how the courts can harness their own judgment and sense of propriety in order to uphold the needs and rights of workers. In this case, a greater amount of illumination was rained down on the Employment Rights Act and was done so in a way which better protected workers.

"Another important development with respect to statutory interpretation in the UK is to be found in the Human Rights Act of 1998. This states in s.3(1) that so far 'as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

This showcases yet another benefit and possibility of statutory interpretation as it widens the amount of freedom that judges have when using a purposive approach. While many of them are taking advantage of this freedom, the bulk of the legal system is benefiting from it as it makes the legislation that is more antiquated have the ability to "breathe" and engage more like living documents that are applicable to modern times of humanity, while judges and courts are able to pinpoint what the spirit and intention of parliament was."The Human Rights Act 1998 (also known as the Act or the HRA) came into force in the United Kingdom in October 2000. It is composed of a series of sections that have the effect of codifying the protections in the European Convention on Human Rights into UK law.

All public bodies (such as courts, police, local governments, hospitals, publicly funded schools, and others) and other bodies carrying out public functions have to comply with the Convention rights."

Fundamentally, the existence of the act and its refinement over time means that people can engage in these cases in domestic courts, no longer needing to wait to go to the European Court of Human Rights, something which makes engaging in the justice process much more applicable and accessible for the average citizen of the UK. Rights protected under the Human Rights are the right to life, freedom from torture or degrading treatment, right to liberty and security, freedom from slavery and forced labour, right to a fair trial, respect for your private and family life, home and correspondence, freedom of thought, belief and religion, freedom of expression.

The proper protection and deduction of these rights is made possible in case after case because of statutory interpretation. As stated earlier, the provision given to judges within the Human Rights Act has granted them a considerable interpretative freedom.

Even so, it would be faulty to think that the literal rule is dead; this is not at all the case. "The judges will not give a text a strained construction which turns the words in the text into something which they are not even if a functional argument would suggest that a strained construction is desirable."

This again demonstrates how statutory interpretation can truly transform older, outdated legislation into living, relevant documents, as well as improve upon poorly written forms of legislation so that they don't wield such a narrow or constrictive interpretation of the law. Judges have a great deal of creative freedom when it comes to statutory interpretation and there simply isn't a practical way to properly limit it.

The judge needs to be receptive to the subtleties and complexities of language, to the fallibility of draftsmen and the range of interests that can be held in legal documents; at the same time a judge needs to be cognizant of the limits of language and not force on the disputed words a meaning that they would not fairly bear.

Thus there's a balance that needs to be taken between intelligent interpretation and creative function.

This was certainly the case in Clarke v. Kato which is a case about the actions of an uninsured driver. In this case, there was an issue about the events which occurred in a car park and whether or not this car park could be considered a road. "Lord Clyde agreed with the County Court judge in that the car park taken by itself was not a road although found the Court of Appeal was wrong to take account of the passage. Lord Clyde found that the character and the function of the car park did not change although one can drive a motor cycle or push a pram through the passage in order to enter or leave the car park."

Ultimately, the court decided that just because the passage within the car park became a road or was used as a road did not at any point mean that the car park became a road. The Lord Clyde decided that ultimately it was a need for the legislature to determine in terms of policy whether or not a remedy can be offered for these cases.