Judges, especially Supreme Court judges, in the UK are often accused of using the system of precedent and the UK's loose application of the principle of separation of powers in order to make law. Such statements are now frequently attributed to the new and unprecedented opportunities offered to judges by the HRA 1998 to declare a previous Act incompatible with the Act.[1] But has this new opportunity changed the approach of judges to statutory interpretation, thus leading to an alleged usurpation of the legislative function by an allegedly active UK judiciary?
The essay will attempt to disprove this hypothesis by suggesting that statutory interpretation techniques remain largely unaffected by the introduction of the HRA. A further analysis of the continuing restrictions on statutory interpretation juxtaposed with the new liberties introduced by EU membership and the HRA will offer an alternative approach to the debate: the HRA is not the direct culprit, but a significant contributor, to a recent judicial activism in the field of human rights.
In the UK there never was a sole and unique method of statutory interpretation.[2] Instead of going down the comforting certainty of a civil law route of concrete, exhaustive, and written [albeit inflexible and inherently general] compilations of statutory interpretation rules, the UK chose the familiar common law route of conventions. As these entered the system at various times historically, and were inevitably attached to specific cases thus being limited by considerations of equity and fairness to the specific litigants, statutory interpretation rules tend to be in existence in parallel.
Historically one can identify the literal, the mischief, the Golden, and recently the purposive approaches to interpretation. Briefly the literal rule evident in Sussex Peerage case (1844) 11 Cl & F 85; 8 ER 1034 demands that, if the words in an Act are precise and unambiguous, judges must simply expound these words in their natural and ordinary sense. As a response to the inequitable decisions brought about by the strict application of the literal rule[3], the mischief rule, evident in Heydon (1854) 3 Co.Rep.7a; 76 ER 637, demands that the judge identifies the mischief or problem which led to legislative intervention, identifies the remedy now provided by the law, suppresses anything that would lead to continuance of the mischief[4], and finally advances the remedy according to the true intent of the legislator. Of course, the assessment on the true intent and the true remedy could be undertaken in departure from the literal meaning of the text. This could be of benefit to a judge trying to avert a judgement that would prove inequitable yet religious to the text. But would be of danger for the purposes of legal certainty and legitimacy in the hands of a judge in the habit of missing the boundaries of the three functions of the state. And so a combination of the mischief and literal rule produced the Golden rule, evident in Lord Atkinson in Victoria (City) v Bishop of Vancouver Island [1921] AC 384, where the judge declared that ..."In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless they be something in the context, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense different from their ordinary grammatical sense". So, when the literal rule produces inconsistency or absurdity, the more creative and activist mischief rule can be used to correct the error. But, as stated in the Law Commission's Report 1969, the subjectivity of what is absurd and the lack of clear tests for the classification of a result as absurd rendered the Golden rule less popular in the UK compared to other common law jurisdictions [hence my quote of a Canadian case]. In 1993, starting with Pepper v Hart [1993] 1 All ER 42 at p.50, senior UK judges introduced the notion of a multi-dimensional interpretation of legislation taking into account the ordinary meaning of words [so the literal rule considerations]; plus the context, namely the subject-matter, scope, purpose[5], and background of the Act, including Parliamentary debate as evidenced in Hansard.[6]
And so the question is whether the current prevalence of purposive interpretation can be attributed to,
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or at least comes as a direct or indirect consequence of, the alleged increased liberties offered to UK judges via the HRA 1998. I find it difficult to support the view that it is the HRA which changed the approach of UK judges to a more activist approach of interpretation contributing to a tolerance of judge made law in the general sphere of human rights. Although an empirical analysis of each of the judgements produced in application of s.3 HRA would have made an eloquent argument either way[7], this seems to me to be outside the scope of an essay of this length. And so one can only resort to qualitative analysis. It is interesting to note that purposive interpretation came about in 1993, about 5 years post the passing of the HRA: and so time-wise one could suggest that the moment was opportune. But although purposive interpretation may be attributed in part to the new judicial liberties resulting from the power to declare Acts incompatible by use of the HRA, purposive interpretation does not depart from the UK tradition of statutory interpretation as much as some UK common lawyers suggest. Judges still have to, and largely do, comply with the limits set to them by the limited necessity of statutory interpretation, and by presumptions and maxims that delimit their alleged tendency to judicial activism, and set clear guidelines as to how statutory interpretation must take place irrespective of what rule is to be used.[8]
There are limits and restrictions inherent in the UK system of statutory interpretation whose legal value and consequent application in practice remains unaffected and continues to qualify all rules of statutory interpretation, including purposive interpretation.[9]
Firstly, interpretation is only invited when the meaning of words is unclear or disputed. So purposive interpretation is not needed and therefore not invited or tolerated for the purposes of everyday construction and application of the law. Interpretation is therefore limited to the extraordinary, albeit frequent, cases where there are either problems of drafting arising from the words of the statute alone, before any set of facts has been presented for its application; or problems of uncertain application arising in the process of applying the words of a statute to a set of facts.
Secondly, even under these exceptional circumstances judges can only use interpretation for the purposes of clarifying ambiguous legislation; and supplementing the legal provisions in cases of a casus omissus. But in both these circumstances of possible judicial creativity the legislature have either consciously decided or managed to bring themselves in the unfortunate position of being silent. And so the judiciary have legitimacy in their activist role of the applicator of the law and the legislator through case law.
Thirdly, judges continue to be bound by presumptions and maxims. And so, when using purposive interpretation judges continue to work within the limits of constitutional and legal conventions. As a result, a latter law continues to repeal an earlier law that is inconsistent with the later law. A new law continues to be prospective in character and not retrospective in operation. Laws continue to be adopted for frequent and future cases. A liberal construction continues to be desirable in the interpretation of a statute. A passage continues to be best interpreted by reference to what proceeds and what follows it. The meaning of a doubtful word continues to be sought by reference to words attached to it.[10] There still is no need to interpret that which has no need of interpretation. The express mention of one thing is still the exclusion of another. Statutes on the same subject-matter are still to be read together. General words following particular or specific words are still construed as of the same kind or class as the particular or specific words. Perhaps more importantly, there still is a maxim that Parliament legislated for a reason. And that one must interpret the laws to give effect to the will of the Parliament.[11]
I think that these three points demonstrate effectively that UK judges are not left to use purposive interpretation when and as they see fit or opportune. And that although and alleged activism can be attributed to the liberalism of statutory interpretation, at the end of the day this is well balanced by the checks and balances inherent to the UK constitution.
But does that mean that the approach to statutory interpretation remains completely unmoved in the last few years? I believe that the recent approach of UK judges to statutory interpretation has changed but not as a direct and sole consequent of the introduction of the HRA. The new liberal approach simply reflects modern considerations of regional legal globalisation [with specific reference to the EU's requirements for teleological judicial interpretation] while maintaining the main UK common law principles of statutory interpretation.
Can UK judges make law? Does the principle of precedent allow UK judges to form legislative precedent thus allowing them to legislate, albeit within the limits quoted above? Although UK Supreme Court judgements are binding on all inferior courts, since 1966 they cannot bind the Court itself. And so
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although UK Supreme Court judges formulate a legal position that is carried down to all inferior courts, that legal position can change rather easily when the issue is reconsidered by virtue of another case. So, one could argue that compared to the omnipotence of the House of Lords before 1966, the possibility of introducing judge made law offered to the Supreme Court is now rather diminished.
However, even before 1998, UK judges enjoyed a level of discretion that seems disproportionate to that allowed to their European civil law counterparts. Although the UK approach to the principle of the separation of powers prevents judges from declaring an Act obsolete or unconstitutional, the principle is not applied strictu sensu. In the past this allowed the Lord Chancellor's participation in all three functions of the state.
And more recently UK judges have been offered unprecedented access to manipulation of national legislation as a means of squeezing it within the telos and text of EU legislation [under Marleasing] and of the HRA[12]. But this new liberty should not be viewed narrowly. It is a similar liberty, and onus, offered to the national judges of the member states of the EU and of the states signatory to the ECHR. It is not special to the HRA or indeed to UK judges. It can be attributed to the increasing demand placed to national judiciaries for smooth, and therefore inherently flexible, approximation between national and regional/international instruments resulting from legal globalisation.
So, has the approach of the Law Lords to statutory interpretation been radically changed by the Human Rights? Of course not. Suggesting that the implementation of the HRA has changed the ethos of UK statutory interpretation would disregard the continuing prevalence of the literal rule when the text is clear, the exceptional use of purposive interpretation when the text is unclear or its application uncertain, the extra-ordinary use of statutory interpretation as a concept, and the continuing prevalence of maxims and presumptions that delimit the scope of any judicial activism made possible by s.3 HRA.
Do judges now see themselves as legislating human rights through their interpretation of Acts of Parliament? Only an empirical analysis of all relevant judgements could provide a conclusive answer to that question. From a qualitative, and therefore inherently subjective, point of view I think not. UK judges simply enjoy, and suffer under, the obligation to marry national laws with EU legislation and the ECHR as expressed by the HRA.
But is this not a privilege worth offering to our judges? Would the alternative not condemn the UK legal system to the chaotic uncertainty of an uncontrolled and dangerous series of implied repeals caused by inconsistencies between previous legislation and the HRA? And, after all, who would be called upon to pronounce these express repeals other than the same UK judges that are now accused of judicial law making?
Kavanagh,"The Elusive Divide between Interpretation and Legislation under the Human Rights Act 1998" 24 [2004] OJLS, p. 259
R. Graham, "A unified theory of statutory interpretation" 23 [2002] Statute Law Review, p. 91, at 134.
Sir Frederick Pollock, "Essays on Jurisprudence and Ethics", 1882
Lord Reid, "The Judge as Law Maker" 12 [1972] Journal of the Society of Public Teachers of Law, p. 28
G. MacCallum, "Legislative Intent" in R. Summers (ed), Essays in Legal Philosophy (1968, Blackwell, Oxford), p. 237, at 240.
J. van Zyl Smit, "The New Purposive Interpretation of Statutes:HRA Section 3 after Ghaidan v Godin-Mendoza" 70 (20 [2007] MLR, p. 294.
F. Bennion, 'A Human Rights Act Provision Now in Force' 163 JP 164.
P. Sales and B. Hooper,"Proportionality and the Form of Law" 119 [2003] LQR, p. 427.
Stock v. Frank Jones (Tipton) Ltd [1978] ICR 347, at 354; Bulmer Ltd v. Bollinger [1974] Ch 401, at 425.
R (McCann) v. Crown Court at Manchester [2003] 1 AC 787, at §16-18.
Learned Hand J in Cabell v. Markham (1945) 148 F 2d 737, at 739; Lord Bingham in R (Quintavalle) v. Secretary of State for Health [2003] 2 AC 687, at §8; Lord Hoffmann in ICS v. West Bromwich Building Society [1998] 1 WLR 896, at p.913; Wilson v. First County Trust (No. 2), at §114-117.
Magor and StMellons Rural District Council v Newport 1952 AC189, 191 per Lord Simonds.
River Wear Commissioners v. Adamson (1877) 2 AC 743, at 763, per Lord Blackburn; R (Westminster CC) v. National Asylum Service [2002] 1 WLR 2956, at §5, per Lord Steyn.
See Editorial, "Legislative Intent", Statute Law Review 29(2), p. ii; Black-Clawson International Ltd v. Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, per Lord Reid; R v. Secretary of State for the Environment, Transport & the Regions, ex parte Spath Holme Ltd [2001] 2 AC 349, at 395, per Lord Nicholls; Wilson v. First County Trust (No. 2) [2004] 1 AC 816, at §111, per Lord Hope.
Rights BroughtHome, Cm3782 (1997) para 2.7 ■
NOTES
[1] A. Kavanagh,"The Elusive Divide between Interpretation and Legislation under the Human Rights Act 1998" 24 [2004] OJLS, p. 259, at 279-282.
[2] R. Graham, "A unified theory of statutory interpretation" 23 [2002] Statute Law Review, p. 91, at 134.
[3] Sir Frederick Pollock 'Essays on Jurisprudence and Ethics', 1882, p. 85; Lord Reid, "The Judge as Law Maker" 12 [1972] Journal of the Society of Public Teachers of Law, p. 28; Stock v. Frank Jones (Tipton) Ltd [1978] ICR 347, at 354; Bulmer Ltd v. Bollinger [1974] Ch 401, at 425.
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[4] R (McCann) v. Crown Court at Manchester [2003] 1 AC 787, at §16-18.
[5] G. MacCallum, "Legislative Intent" in R. Summers (ed), Essays in Legal Philosophy (1968, Blackwell, Oxford), p. 237, at 240.
[6] Learned Hand J in Cabell v. Markham (1945) 148 F 2d 737, at 739; Lord Bingham in R (Quintavalle) v. Secretary of State for Health [2003] 2 AC 687, at §8; Lord Hoffmann in ICS v. West Bromwich Building Society [1998] 1 WLR 896, at p. 913; Wilson v. First County Trust (No. 2), at §114-117.
[7] For an individual case analysis see Jan van Zyl Smit, "The New Purposive Interpretation of Statutes: HRA Section 3 after Ghaidan v Godin-Mendoza" 70 (20 [2007] MLR, p. 294.
[8] Bennion, 'A Human Rights Act Provision Now in Force' 163 JP 164.
[9] Magor and StMellons Rural District Council v Newport 1952 AC189, 191 per Lord Simonds.
[10] River Wear Commissioners v. Adamson (1877) 2 AC 743, at 763, per Lord Blackburn; R (Westminster CC) v. National Asylum Service [2002] 1 WLR 2956, at §5, per Lord Steyn.
[11] See Editorial, "Legislative Intent", Statute Law Review 29(2), p. ii; Black-Clawson International Ltd v. Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, per Lord Reid; R v. Secretary of State for the Environment, Transport & the Regions, ex parte Spath Holme Ltd [2001] 2 AC 349, at 395, per Lord Nicholls; Wilson v. First County Trust (No. 2) [2004] 1 AC 816, at §111, per Lord Hope.
[12] Rights BroughtHome, Cm3782 (1997) para 2.7; P. Sales and B. Hooper, "Proportionality and the Form of Law" 119 [2003] LQR, p. 427.
Lábjegyzetek:
[1] The author is Academic Director, Sir William Dale Centre IALS (University of London).
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