Rules of construction

"'rules of construction"' is a term used to distinguish the "rules" of statutory interpretation from any other rules or aids. Note the use of the word "construction" which in a legal context means the same as "interpreation". It is important to realise that not only are these "rules" not binding, they are really different methods of approaching the interpretation of statutes (instead of aids or guidelines).

1. THE LITERAL RULE (PLAIN MEANING RULE)

1.1 Meaning of the Rule

Words must be given their plain, ordinary and literal meaning. If the words are clear, they must be applied, even tough the intention of the legislator may have been different or the result is harsh or undesirable.

An explanation of the rule was given in the sussex peerage case(1844) 1 c1 &fin 85: The only rule for construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the Statute are in themselves precise and unabiguous, then no more can be necessary than to expound those words in that natural and ordinary sense. The words themselves alone do, in such a case, best declare the intetion of the law giver.

This is the odelst of the rules and it is still "popular" today.

1.2 problems with the Rule

Another reason for the popularity of this rule is that judges are not supposed to make law. There is always the danger that a particular interpretation may be the equivalent of making law, and therefore some judges prefer to stick to the literal rule so as to avoid this danger.

However, the irony of this rule is that its very use may defeat the intetion od Parliament.

For instance, in the case of Whiteley v. chappel(1868) LR 4 QB 147 the court came to the reluctant conclusion that Whiteley could not be convicted of impersonating "any person etitled to vote" at an election, because the person he impersonated was dead, and on a literal construction of the relevant statutory provision, the deceased was not "a person entitled to vote".

This surely cannot have been the intetntion of Parliament. However, the literal rule does not take into account the consequences of a literal interpretation, only wheter words have a clear meaning which makes sense in that context. If Parliament does not like the literal interpretation, then it can always amend the legislation.

2. THE GOLDEN RULE (WORDS TO BE TAKEN IN ORDINARY SENSE)

2.1 Meaning of the Rule

The golden rule is an adaption of the literal rule. It provides that words should be given their ordinary meaning as far as possible, but only to extend that they do not produce an absurd or totally obnoxious result:

... the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or inconsistency with the rest of the instrument, in wich case the grammatical and ordinary sense of the words may be modified, so as to avoid that absordity or inconsistency, but not farther. (Lord Wensleydale in Grey v. Pearson (1857) 6 HL CAS 61)

This rule may be used in two ways

2.2 Use of the Rule

The golden rule is applied most frequently in a narrow sense where there is some ambiguity or asurdity in the words themselves.

For example, imagine you see a sign saying "Do not use lifts in case of fire" If you interpret this sign literally you will never use the lifts just in case there is a fire.

2.3 Other Use of the Golden Rule

The second use of the golden rule is in a wider sense; to avoid a result which is obnoxious to principles of public policy, even where words have only one meaning.

In Re v. Sigsworth [1935] Ch 89 the court decided that a son who had murdered his mother could not inherit her estate under s. 46 of the Administration of Estates Act 1925, even though there was only one literal interpreation of the word "issue" used in s. 46.

3. THE MISCHIEF RULE (ASCERTAINING THE LEGISLATOR'S INTENTION)

3.1 Meaning of the Rule

"Mischief" is itself a good example of a word having more than one meaning. The original meaning which is the one intended here, was "harm or Wrong". The court considers what "mischief" the statute was inteded to remedy in the light of four principles: (a) What was the law before the statute was passed (i.e. common law)? (b) What was the "mischief and defect" which was not remedied by the existing law? (c) What remedy did Parliament propose to put it right? (d) What is the true reason for the remedy?

3.2 Use of the Rule This rule is of narrower application than the first two rules, in that it can only be used to interpret a statute and, strictly speaking, onley where the statute was passed to remedy a defect in the common law. However one could argue that every statute passed for a reason, and that therefore the rule coud be applied to any statute.

4. THE PURPOSIVE APPROACH: LEGISLATION IMPLEMENTING EUROPEAN COMMUNITY LAW

Under the European Communities Act 1972, the court must adopt a purposive approach in construing legislation which implements EC law. It essentially means that the court interprets legislation in the light of the purpose behind that legislation.

European Community legislation is drafted in a very different way from English statutes. It follows the civil law tradition, which favours simplicity of drafting and a high degree of abstraction, rather than the exhaustive appraoch adopted in the UK. This means that a purposive approach is vital whan interpreting legislation, so that questions of wide economic or social aims are often considered by the courts.

In Litster v. Forth Dry Dock and Engineering Co. Ltd [1989] 1 ALL ER 1134, employees were dismissed one hour before a business was transferred to a new owner. The employees claimed they were unfairly dismissed. Regulation 5 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1981 No. 1794) (a statutory instrument which implemented an EC Directive), provided that The House of Lords read in the additional words "or would have been so employed if he had not been unfairly dismissed before the transfer" for a reason connected with the transfer. This was necessary to achive the purpose of the EC Direvitve, which was to protect the employees on the transfer of a business.

Altough this could not have been achieved using the literal rula, a similar result could have been Achieved using the mischief rule or, probably, the golden rule. That is to say that one hour could still habe been interpreted as "immediately" before the transfer.

The purposive approach is a feature of the reasoning of the European Court of Justice. Because decisions of the European Court of justice are binding in the UK, its rules of legal reasoning are of increasing importance in the legal system of the UK and have an indirect influence on interpretation, even where the legislation does not originate from the European Community.