Parliamentary Sovereignty And Statutory Interpretation Essay, Research Paper
Parliament can make or unmake any law whatever and nobody can challenge or set aside the will of Parliament. This quote is a very short but to the point explanation for Parliamentary Sovereignty. This means that Parliament is answerable to no one and can make new laws, abolish old ones and adapt existing ones as they go along. However the sovereignty of Parliament is questionable since we joined the European Union because we would have to adhere to any ruling laid down by European law even if it should go against the will of Parliament.
The House of Commons and The House of Lords make up two thirds of Parliament. There is a third power, The Judiciary, which is a totally separate body that is in place to implement and enforce the legislature that Parliament creates. This has to be a completely stand-alone establishment with no ties or connection to Parliament. Without this Separation of Powers it is possible that the public may not get a fair and impartial trial because Parliament could have to much influence over the judges. This in turn could give the Government to much power (they are often the ones, which propose a new law to Parliament) and we may become a tyrannical society. The Courts must follow the laws of Parliament and cannot ever challenge them if they think they are ineffective or ridiculous. The Separation of Powers is an essential part of our unwritten constitution. To strengthen the separate role of the Courts, Judges are very well paid and their salaries are not subject to Parliamentary review which helps to protect them from politically influenced pressure. They also have excellent job security so that they are able to pass judgement on everyone who breaks the law including those in power, without fear of losing their jobs.
There are three different approaches to statutory interpretation the Literal Rule, the Golden Rule and the Mischief Rule. Here are some examples of each;
The Literal Rule
Lord Esher, in 1892, said If the words of an Act are clear you must follow them, even though they lead to a manifest absurdity. This means that the Courts must follow the laws passed by Parliament, to the letter even if the interpretation were to bring about a ridiculous conviction or acquittal. The case of Fisher V Bell is a good example of the literal approach. A shopkeeper had a flickknife on display in his shop window, this was brought to the attention of he Police and the man was arrested. He was charged with offering for sale a flickknife contrary to the Offensive Weapons Act 1959. He was found not guilty of the offence although the weapon was clearly for sale. According to the law of contract the display of an article with a price on it is merely an invitation to buy it is not an offer of sale. By following the Literal Rule the courts carried out the written wishes but not the intended will of Parliament.
The Golden Rule
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. B Parke 1836. This means that if the Judge thinks that the actual words of the Act are going to lead to an absurd conviction or acquittal that would not follow the intentions of the Act, then he may look for another possible meaning. The case of R V Allen demonstrates how the Golden Rule can be applied. Bigamy is defined in the Act as, Whosoever being married shall marry another person during the life of the former husband or wife shall be guilty of bigamy . Under English law it is illegal for a married person to marry again therefore bigamy in the literal sense of the word would be impossible. So the word marry was taken to mean go through the ceremony of marriage again and Allen was found guilty of the offence.
The Mischief Rule
The Mischief Rule or Purposive Approach is sometimes known as the Rule in Heydons Case 1584 and states that the court should look at the Act carefully to see what defect in common law it was trying to protect. There are four questions to consider before applying the Mischief Rule;
What was the common law before the Act was passed?
What was the mischief for which the common law did not provide?
What remedy had Parliament resolved to provide?
What was the true reason for the remedy?
The rule allows the courts to look at the Act from a wider perspective and decide what exactly Parliament meant when they wrote it and the reasons it was passed. During the case of Smith V Hughes in1960 the Mischief Rule was used in the following way. “To solicit for sex in a street or public place” is a criminal offence, Smith has charged with this offence however she was working from inside her own home. Literally she was not on the street or a public place however the judge chose to look at the mischief for which the Act was passed and she was found guilty because the Act was written to outlaw prostitution in its entirety.
Following the literal rule is justified because the courts are supposed to operate totally independently from Parliament, so they should, in theory not have any room for interpretation of the Act. The Act has been drafted by experts and should do exactly what it sets out to do. To stray from the literal interpretation of the Act would be blurring the boundaries of the separate powers. However the complexity of the English language can sometimes cause problems when trying to follow the literal rule. The case of Whiteley V Chappel 1868 is an example of this. The defendant was charged with “impersonating another person entitled to vote” he had stolen their voting cards of lots of people who were dead and use their voting rights. The problem occurs because dead people are not entitled to vote at all so by following the literal ruling you effectively cancel out the very offence for which the Act was written. The defendant was found not guilty which was ridiculous verdict, brought about by following the text of the Act so closely.
The justification in using the purposive approach is that it gives Judges the chance to avoid absurd convictions in court which come about from following legislation to the letter. By following the mischief rule it allows them to fill in the blanks to reach the true intention of Parliament. However in the case of the Royal College of Nursing V DHSS 1981 some problems arose. The Abortion Act of 1967stated that because to carry out an abortion needed a surgical procedure, they could only be performed by a doctor. Towards the early 1980 s a drug was introduced which a woman could take to induce the termination. The drug was easy to administer and was very often given by a nurse, this was technically illegal as the abortion was being carried out by someone other than a doctor. When the House of Lords voted on this they used the purposive approach to say that because the women were not being placed in danger by the nurses administering the drug then no laws were broken. However several of the Lords thought that because the issue of abortion was such a delicate moral issue they had no right to interpret the Act themselves and should have turned back to Parliament for new legislation.
The significance of the decision in the case of Pepper v Hart means that the judiciary moved a massive step away from the absurd decisions, that could sometimes be reached using the literal ruled. More importantly they do not have to speculate on the interpretation of the act for themselves, but can now use extrinsic aids such as Hansards (parliamentary records) and Law Commission reports. This is now accepted by most as the main rule of interpretation and is not seen as questioning the will of Parliament.