LECTURE FIVE FORMULA THREE:
INTERPRETATION AND INTERPOLATION; CONSTRUCTION OR RECONSTRUCTION
Section 3 of the Human Rights Act 1998 relates to the "Interpretation of legislation" and I take it as the primary text for toady's lecture on the third formulation:
"3(1) 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.
3(2) This section
3(2)(a) applies to primary legislation and subordinate legislation whenever enacted;
3(2)(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
3(2)(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility".
I turn directly to the third formulation: The courts are bound to apply properly made Acts of Parliament according to their meaning. I argue that all Acts of Parliament must, in the process of application, run the gauntlet of judicial interpretation and construction, in the process of which the plain meaning of the Act mat be radically modified or even subverted. It is not clear whether this "limitation" upon Parliamentary Sovereignty is properly to be regarded as a legal or a non-legal limitation. On the one hand it is a necessary feature of the entire law-making enterprise, and therefore part and parcel of law. On the other hand, such limitations seem to be more a matter of fact and practical realities than of law and high constitutional theory.
My point of departure is the proposition that Sovereignty is essentially about the relationship between Parliament and the courts and my third formulation seeks to capture the orthodox understanding of this relationship. O.K., Courts are bound by Acts of Parliament - but if we probe the the proposition further and ask what is it precisely that the courts are bound to so, or what is meant by their being incapable of of declaring a statute invalid or unconstitutional, the most obvious answer is that courts are bound to apply acts according to their meaning. That is to say, if an Act of Parliament is so worded as to give a remedy to the Plaintiff then the court ought to grant the Plaintiff his or her remedy and ought not to find for the defendant.
Now, one way in which a court could find for the defendant in such a situation would be to declare the legislation invalid or unconstitutional. Where such a power exists, and the legislation upon which the Plaintiff's case is founded, disappears from the equation, the plaintiff's case, too, simply disappears. DO A SYLLOGISM ON THE BOARD: MP; mp; conclusion. This is the effect, putting it very simply, of constitutional litigation in such systems as America where the plaintiff claims a remedy against the defendant under a piece of state or federal legislation (or by virtue of a decision by a state or federal court) and where the defendant's counter-argument is not that the legal authorities cited fail to support the plaintiff's case, but that the legal authority founded upon is itself contrary to the American Constitution and must therefore be struck out as invalid. If the defendant's counter argument finds favour with the court, the putative legal authority falls and brings down the Plaintiff's claim with it.
But declaring legislation invalid is only one way in which the court can find for the defendant in the face of legislation that apparently justifies the plaintiff's claim. The English legal system allows - at least in practice - of other ways, some of which will be illustrated in this lecture.
Let us return to the reformulated version of the import of Parliamentary Sovereignty, namely that the courts are bound or are under an obligation to obey Acts of Parliament according to their meaning. This raises two problems:
1. What is meant by bound ? One might, with John Austin, interpret "obligation" as "liability to a sanction" or punishment; but whatever appeal that might have as to the legal obligations of ordinary people, and particularly in respect of obligations imposed by the criminal law, it seems inappropriate in the context of the relationship of Parliament and the courts. Better, perhaps, in such a context is Hart's conception of a duty-imposing rule as a standard of conduct supported by serious social pressure and thought to be important because it is believed to be necessary to the maintenance of social life or some highly prized feature of it. But I hope we can leave any further analysis of "obligation" to Jurisprudence lectures and tutorials because, whatever analysis of obligation is adopted, the full thrust of my objection to the doctrine of Parliamentary Sovereignty relies upon an analysis of the second issue, namely ...
2. ... what is understood by applying legislation according to its meaning ? Allow that the courts are bound (whatever that means) by Acts of Parliament. So what are courts bound to do? They are bound to apply Acts of Parliament to the facts of the dispute before them. How are they to do this ? Well by applying the Act according to its meaning. Who, then, is to say what an Act of Parliament means. Well, of course, at least ordinarily, Parliament is to be taken as meaning what it says, and - Humpty-Dumpty notwithstanding - meaning what it says. And it does this by way of a written formulation of words.
Lewis Carrol, Through the Looking Glass, Ch 6: ".. there's glory for you!". "I don't know what you mean by 'glory'", Alice said. Humpty Dumpty smiled contemptuously, "Of course you don't - till I tell you. I meant 'there's a nice knock-down argument for you!'". "But 'glory' doesn't mean 'a nice knock-down argument'", Alice objected. "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean - neither more nor less". "The question is", said Alice, "whether you can make word mean so many different things". "The question is", said Humpty Dumpty, "which is to be master - that's all".
So, who is to be master of the written words enacted by Parliament? Do we suppose that the meaning of words, in general or in legislation, is always transparent, unambiguous and never open to doubt? There are well founded philosophical theses relating to the inherent and inescapable open-texture of language and to the circumstances that general terms are inevitably fuzzy around the edges. These theses and their impact upon law are developed in Chapter VII of Hart's Concept of Law, on "Formalism and rule-scepticism" and many other have argued in similar vein. Thus Roberto Unger, in his Law and Modern Society [p 196] in tracing the reasons for a move away from strict formalism in legal reasoning to a purposive method includes, "Changes in the theoretical understanding of language [such that] language is no longer credited with the fixidity of categories and the transparent representation of the world that would make formalism plausible in legal reasoning". And that was then. Now we have the additional instruction of post-modernism generally and the notion of reading a text such that the reader is as important as the author in constructing or perhaps reconstructing the or perhaps one of the means of the text. Attractive as that postmodern perspective may be in the reading statutes, I have never quite convinced myself that when I read Hamlet, I am as important as Shakespeare!
A familiar jurisprudential example is that of a local authority bye-law prohibiting vehicles in the park. Do we really know what it means ? Well we might think that some instances are pretty clear. A motorist driving through the park simply to make a detour around a traffic jam seems to fall wholly within the rule and we might think quite mad anyone who maintained otherwise just as we might think quite mad - or "wholly unarguable" - Mr Colin Jordan's application for a writ of habeas corpus on the grounds that the Race Relations Act, 1965 (under which he had been imprisoned) was invalid as being a curtailment of free speech !
But if I press examples, perhaps our confidence that the meaning of even such a simple rule is crystal clear will wane. What of an ambulance driving into the park to pick up an injured child who has fallen from a tree ? Or a fire-engine coming in to extricate the kitten which the aforementioned child so conspicuously failed to rescue from its precarious perch high in the tree? Or a motorised lawnmower, the type on which a driver sits, operated by employees of the local authority? A stationary ice-cream van, parked just inside the gates in order that children might make their purchases safe from the traffic roaring past outside? A mother's perambulator? A child's pedal-car, scooter, tricycle, or bicycle ? A skate-board , roller -skates, or roller-blades? A remote-controlled model hovercraft? A motorised radio-controlled model aircraft? Well ??? What does the appointed gate-keeper say? How is the rule to be implemented? What, apart from the words of the rule, impacts upon the decision making process? Does the rule cover all the cases; i.e. is this an absolute rule? A rule with no exceptions whatsoever? Under any circumstances? At the very least we might wish to interpret the rule to allow the ambulance to enter .
If so, we interpret the general term "vehicle" , let it be represented by X, as X minus something, that is we readily allow the rule to have (tacit) exceptions, and it is a matter of fine judgment about which reasonable people might differ as to what should constitute an exception to a rule. (Exceptions to exceptions, the "no right turn on red" in some American cities (e.g San Diego)
What, then does the rule mean ? The usual answer is "It all depends ..." meaning thereby that it all depends upon the purpose of the rule or bye-law. But, like an Act of Parliament, the purpose of the bye-law is not manifest upon its face, and again reasonable people may legitimately differ as to the purpose they attribute to a statute, rule, or bye-law. Some, for example, might argue that the bye-law originated in the local authority's concern for safety; the view being that a park is a place of recreation where children might play free from the risks of being run over by vehicular traffic. On such a view, one might admit the pedal-car, scooter, and tricycle, but perhaps not the bicycle. Roller-skates might be alright, but skate-boards and roller-blades would be dubious. The model hovercraft or aircraft might be acceptable if not too large or dangerous, yet we might exclude the ice-cream van as constituting a hazard, both in being reversed into position, and as attracting children near to a busy road.
So we might take dangerousness as a criterion of exclusion, defining the range or scope of the bye-law and generating, a number of principled exceptions to the bye-law as written. But. alternatively it might be suggested that a park is a place of peace and tranquillity (Central Park, New York) away from the noise, bustle and scurry of the city streets. On that view we might allow bicycles in but exclude noisy toys such as model aircraft or motorised boats; we would allow the ice-cream van, provided that its chimes were not too strident., etc. The point is that the rival criteria of exclusion produce different outcomes in some of the cases contemplated and yet selection of such criteria is not exclusively, if at all, determined by the plain language of the rule or bye-law.
In thus framing the problem we have, of course, moved away from any rigid, literal approach ro statutory interpretation and adopted a teleological or purposive interpretation. Both approaches, literal and purposive, have their adherents and devotees amongst the judiciary and examples abound in the case reports. And because, apart from the very words, of the statute which are in dispute, there is no unequivocal indication of the purpose of the Acr, reasonable judges may reasonably differ. In the light of the decision in Pepper v Hart  AC 593 however, there is now room, in the case of ambiguity, to look behind legislation, to the Parliamentary debates as recorded in Hansard as an aid to interpretation and one may but may not find in such debates a clear indication of the one, true purpose of an Act. More often than not, however, the debates will reveal a wide variety of different opinion as to the purpose or purposes on an Act, and, even where a broad, general purpose is discernible, there will also be quite subtle differences and nuances in the detail. So pursuing the one true purpose in Hansard may be something of a wild goose chase. Of parliamentary intention it has been said that it is like looking for a very black cat in a very dark room .... only there is really no cat there ... but, every now and then, someone jumps up shouting, "I've found it, I've found it !".
Further, it is probable that many statutes have several purposes rather than only one and that, on occasion, these purposes might conflict. Further still, laws frequently endure where the reason for their enactment have passed. On all this, I recommend the first chapter of Twining and Miers, How to do things with Rules and Farrar's Introduction to Legal Method. I hope, however, that the discussion so far has encouraged in you the view that words, including words in statutes, are by no means always transparent and that meaning may have to be constructed rather then merely found.
Experience supports this theoretical conclusion. Disputes as to the meaning of words or phrases occur in virtually every litigated controversy; and lawyers advising clients are frequently careful to explain that their own reading of a statute of other legal provision is tentative and subject to a court's possibly different interpretation. It is a salient feature of the activity of lawyers, both in and out of court that the resolution of disputed meanings of words may resolve the dispute that divides their clients. The existence of courts, and especially a hierarchy of courts, strongly indicates a need for interpretation, and reinterpretation; for construction and reconstruction; that is a need to mediate between the abstract, general, hypothetical words of a statute made by Parliament and its untimate application in particular, concrete, actual fact situations.
So both theory and practice suggests that the non-transparency of language, its open-texture and fuzzy edges leaves open an area of judicial libery, if not licence -"leeways of choice" (Julius Stone), room for manouvre in the application of the statute to the facts of the case in hand. And, on occasion, that room for manouvre may well be exploited by judges, finding for the defendant even though an Act, prima facie, appears all for the Plaintiff. Therefore our judges never need to declare an Act of Parliament invalid or unconstitutional in order to modify or even thwart the plain meaning of legislation. They can achieve that effect by selective interpretation and construction.
Therefore it is extremely unlikely that judges wowuld ever need to take the extreme step of declaring an Act of Parliament invalid. They will say rather, that the plain or natural meaning of an Act is so absurd that Parliament could not have intended it and they will interpret it so as to avoid what they perceive as an "absurdity", and all the while blithely attributing the new, and perhaps quite strange, meaning to Parliament, as Parliament's true or real intention, in contradistinction to Parliament's apparent intention contained in the plain language of the Act.
I offer United Biscuits v Fall  IRLT 110 (March) as an extreme but illustrative example. Mr Justice Ackner (as he then was) may well have been thought to have ignored or rejected the plain meaning of a statute, namely s.13(1) of the Trade Union and Labour Relations Act, 1974. Apparently one Reginald Fall had caused a picket line to interfere with United Biscuits' own fleet of lorries and drivers (who were not parties to a dispute involving lorry drivers and the Road Hauliers Association) in their collection from their suppliers of raw materials. It seems from the report that United Biscuits were seeking to do no more than they had done prior to the dispute - that is to say they were not by the use of their own lorries seeking to make up a transport shortfall occasioned by the absence of normal deliveries by the rtriking lorry drivers. It seems, too, from thje report that the pckets invariable carried sledge-hammers, and pick-axe handles. This "secondary picketing" - as it was known - adversely affected United Biscuits' business and the company sought an interlocutory injunction against the pickets. The pickets claimed that s 13(1) granted them an immunity; the crucial part of the secvtion states: "An act done by a person in contemplation or furtherance of a trade dispute shall npot be actionable ..." Had access to Hansard then been an option for judges, Mr Justice Ackner wouldhave found that the then Labour Government had intended to confer the most sweeping immunities on trade unions and their activists but there was no ambiguity here that could have triggered a Pepper-and-Hart investigation, and in any event, the intention of the Government, of Parliament, and of the legislation was widely - indeed notoriously - known.
Despite the plain words of the Act, Mr Justice Ackner granted the injuction, saying, "the vital words upon which I must focus for the purpose of this appliation are the words 'in furtherance of a trade dispute ...' it seems to me to be quite clear that a totally unlimited construction of those words 'in furrtherance of a trade dispute'#' would mean that Parliament was writing a recipe for anarchy, a proposition I am quite unable to accept. There must be a presumption that Parliament does not intend to legislate to bring about its own destruction. Therefore the question I am concerned with, is what is the proper limitation to place on those words?
Thus Mr Justice Ackner held the crucial phrase to mean less than it might appear to on its face and therefore disqualified secondardy picketing. This appears to subvert part of section 15 which appeared to make secondary picketing lawful. The section privides that "It shall be lawful for one or more persons in contemplation or furtherance of a trade dispute to attend at or near (a) a place where another person works or carries on business; or (b) any other place where another person happens to be, not being a place hwere he resides; for the purposes of only of peacefully obtaining or communicating information or peacefully persuading any person to work or abstain from working". The crucial word is "another" in the phrase "another person". Perhaps had the section stated "such persons as are involved in the dispute", it might have ben capable of bearing the reastrictive interpretation favoured by Mr Justice Ackner. As it is, the section is quire clearly capable of including action against individuals who are not parties to the dispute. Parliament may have been foolish to pass such legislation but on the classical doctrine of Parliamentary Sovereignty, it is not for the judge to rewrite legislation more sensibly - whatever the provocation ! Mr Justice Ackner's interpretive approach challenges the classical doctrine, though he would be surprised by that conclusion, for, as he would say, he never called the validity Act into question, only its meaning. But the effect is potentially as dramatic in that a case interpretting an Act of Parliament becomes a precedent as to the (judicial) meaning of the legislation whatever the original (Parliamentary) meaning might appear to be.
In this case, however, the judgment was no precedent in that it was only an interlocuturt not a final judgmentt. Mr Justice Ackner might have been reversed on appeal, but the underlying dispute was settled, and the specific question whether picketing United Biscuits was lawful become moot. Such was the pace of Labour Law in these early heady days of Conservative government, that the decision in Fall was overtaken by two house of Lords decisions in 1980, Express Newspapers v McShane and Duport Steel v Sirs both of which were overtaken by the terms of the Employment Act, 1980, itself modified by the Employment Act, 1982, and subsequent legislation on labour relations.
In a rigorous constitutional framework such legislation might be disqualified as being "overbroad", - eg the contempt of court finding in AG v Times - that is as granting an immunity wider than is necessary to achieve the assumed objectives of the legislation - and a constitutional court might so rule. But our judges, without any constitutional recourse, can achieve the same effect, at least as it concerns the parties to the immediate case, by limiting the extent of a general terms or a section of an Act. In order to find for United Biscuits, Mr Justice Ackner had no need to declare s. 13(1) or 15(b) of TULRA, 1974 invalid or unconstitutional, indeed, on our overall analysis of the British Constitution so far, he has no power to do so. Yet he could so interpret the Act as to grant United Biscuits the remedy sought, notwithstanding the clear wording of the Act to the contrary.
Please understand that I neither commend Mr Justice Ackner's actual decisiom nor necessarily applaud the circumstance that judges inevitably have room for manouvre in interpreting statutes. I present it only as a necessary truth about legal systems. And it is an example that can be generalised. There are many so-called rules or principles, canons or maxims of statutory interpretation and construction. One remarkable feature of these rules is that they appear to contradict each other and the outcome of a case can therefore depende exclusively upon which maxim a judge founds upon. The most general of these rules of construction and interpretation are the literal rule, the liberal rule, and the mischief rule. I shall now say something about each, in turn. Some present may have enjoyed or suffered a parallel discussion in lectures given last term as a contribution to Introduction to Law but it is an important topic, and rightly or wrongly not all students opt for Introduction to Law, but I have tried to use different cases in the two sets of lectures. Moreover, the point here is to sharpen our critical appreciation of the doctrine of Parliamentary Sovereignty.
(1) "It is very desirable in all cases to adhere to the words of an Act of Parliament, giving to them the sens which is their natural import in the order in which they are placed" R v Inhabitants of Ramsgate (1827) 6 B&C 712, per Bayley, J.
(2) "If the words of an Act are clear you must follow them, even though they lead to manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity" R v The Judges of the City of London Court  1 QB 273, 290. Therefore if absurdity does arise, or if such an interpretation produces injustice, the remedy lies in the hands of Parliament; devotees of the literal rule maintain that it is not for judges to usurp (what they call) the function of Parliament:
(3) "It is infinitely better to adhere to the words of an Act of Parliament and leave the legislature to set it right than to alter these words according to one's notion of an absurdity" Hill v East and West India Dock Co (1884)9 App Cas 448, per Lord Bramwell (who, it seems did not always practice what he preaches here !). However, the literal rule seems to assume what is obviously open to question, that words are alweays clear. Then, of course, the literal rule can be applied: (4) "If the language of the statute be plain, admitting of only one meaning, the legislature must be taken to have meant and intended what it has plainly expressed" Vacher & Son v London Society of Compositors  AC 107, 121-2, per Lord Atkinson. But what, as sometimes, perhaps often, happens, if the meaning is not "plain"? Well we turn to ...
The Golden Rule
(1)"It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further" [Becke v Smith (1836) 2 M&W 195 per Parke B].
(2) "... we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency or an absurdity or incponvenience so great as to convince the court that the intention could not have been to use them in their ordinary significance and to justify the court in putting on them sdome other signification, which though less proper, is one which the court thinks the words will bear" [River Weir Commissioners v Adamson (1877) 2 App Cas 743, 764-5 per Lord Blackburn]
These dicta bespeak a readiness on the part of some judges to go beyond or against the plain meaning and that seems to be inconsistent with the classical doctrine of Parliamentary Sovereignty.
The Mischief Rule
Coke reportsd the decision of the Barons of Exchequer in Heydon's Case, as follows: "and it was resolved by them for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discussed and considered:
1st. What was the common law before the making of the Act?
2nd. What was the mischief and defect for which the common law did not provide?
3rd. What remedy the Parliament hath resolved and appointed to cure the disaease of the commonwealth?
And 4th. The true reason of the remedy; and the office of the judge is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico" (1584) 3 Coke Rep 7a Even 400 years ago judges had to be alert to the possibility that lawyers would offer "subtle inventions and evasions" in the private interest of their clients.(1)
However, an important point to note about these general "rules" is that they allow of conflicting decisions on the same facts and the same statute and that whereas some judges may be literalist and others liberal, other judges, again, might pick and choose their canons of interpretation as suits the case to hand. Thus as Lord Sankey put it in Edwards v AG for Canada  AC 124, 136-7: "There are statutes and statutes and the strict construction deemed proper in the case, for example, of an a penal or taxative statute [cf Mischief Rule], or one passedf to regulate the affairs of an English parish would often be subversive of Parliament's real intent if applied to an Act passed to encourage the peace and good government of a British Colony".
Let me offer some examples of the choice that is presented to a judge in interpreting a statute: In Seaford Court Estates v Asher  2 KB 481, Lord Denning posed the question whether the court is at liberty to extend the ordinary meaning of "burden" (a crucial term in the Rent Act, 1920) so as to include a contingent burden. He advanced a liberal construction. The decision was upheld by the House of Lords though Lord McDermott in his dissenting judgment advocated taking the literal meaning and criticised Lord Denning for stating the principles of construction "rather [too] widely" [1950 ! All ER 1018, 1029.(2)
In Magor & St Mellors RDC v Newport Corp  2 All ER 839, Lord Denning expressed impatience with "ultra-legalistic interpretation" and stated "We do not sit here to pull the language of Parliament and of Ministers to pieces and make nonsens of it. That is an easy thing to do, and it is a thing to which lawyers are too often prone. We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sesne of the enacxtment than by opening it up to destructive analysis". But Lord Denning's liberal approach did not find favour with the House of Lords. Only Lord Radcliffe regarded the literal approach as productive of "an injustice"  and Lord Simonds insisted that Lord Denning's approach in Asher and in Newport Corp could not be supported: "It appears ... to be a naked usurpation of the legislative function, under the thin disguise of interpretation". So we can distinguish law-applying and law-making; interpretation and interpolation but we should note that there may be a continuum whereby these activities, distinct enough at the extremes shade imperceptibly into each other.
The filling of gaps or omissions has long been seen by some judges as part of their role. As early as 1863 in Cooper v Wansworth Board of Works Byles J, reading conceptions of natural jusrtice into the statutory power of the Board of Works observed:"Although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law shall supply the omission of the legislature". This powerful dictum has been the source of much judicial law-making, especially in the field of administrative law, revealing quite clearly the constraining effect the organised judiciary actually have upon Parliamentary legislation.
1. As Jean Giradeax puts it in the Mad Woman of Chaillot 2, Adapted by Maurice Valency (1954): "You are an attorney. It is your duty to lie, conceal and distort everything, and slander everyone".
2. Jean Giradeax thought that "There is no better way of exercising the imagination than the study of law. No poet ever interpreted nature as freely as a lawyer interprets truth" Tiger at the Gate 2 tr. Christopher Gray (1935)... or one might add as Lord Denning interprets statutes !