Rules of construction
From Wikipedia, the free encyclopedia.
"'Rules of construction"' is a phrase used to distinguish the rules of statutory interpretation from other rules or aids for the interpretation of law in the United Kingdom (UK). Within this legal context, the use of the word "construction" is equivalent to "interpretation." The following rules are not binding and are better seen as different methods of approaching the interpretation of statutes.
| Contents |
Literal rule (plain meaning)
Meaning
According to this rule, words must be given their plain, ordinary and literal meaning. If the words are clear, they must be applied, even though 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 Cl&F 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 unambiguous, 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 intention of the law giver."
Problems
This is the oldest of the rules and is still used today, primarily because judges may not legislate. As there is always the danger that a particular interpretation may be the equivalent of making law, some judges prefer to adhere to the law's literal wording. Ironically, however, use of the literal rule may defeat the intention of 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 entitled to vote" at an election, because the person he impersonated was dead. Using a literal construction of the relevant statutory provision, the deceased was not "a person entitled to vote."
This, surely, cannot have been the intention of Parliament. However, the literal rule does not take into account the consequences of a literal interpretation, only whether words have a clear meaning that makes sense within that context. If Parliament does not like the literal interpretation, then it must amend the legislation.
Golden rule (words to be taken in their ordinary sense)
Meaning
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 the extent 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 which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity or inconsistency, but not farther." (Lord Wensleydale in Grey v. Pearson (1857; 6 HL CAS 61))
Use
This rule may be used in two ways. It is applied most frequently in a narrow sense where there is some ambiguity or absurdity in the words themselves. For example, imagine you see a sign saying "Do not use lifts (elevators) in case of fire." If you interpret this sign literally, you will never use the lifts just in case there is a fire.
The second use of the golden rule is in a wider sense, to avoid a result that 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 interpretation of the word "issue" used in s.46.
Mischief rule (ascertaining the legislator's intention)
Meaning
"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 intended to remedy in the light of four principles:
- What was the law before the statute was passed (i.e., common law)?
- What was the "mischief and defect" that was not remedied by the existing law?
- What remedy did Parliament propose to put it right?
- What is the true reason for the remedy?
Use
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, only where the statute was passed to remedy a defect in the common law. However, one could argue that every statute is passed for a reason, and therefore the rule could be applied to any statute.
Purposive approach (legislation implementing European Community Law)
Under the European Communities Act 1972, the court must adopt a purposive approach in construing legislation that implements EC law. I.e., the court interprets legislation in the light of the purpose behind that legislation.
European Community legislation is drafted in a very different way from UK statutes. It follows the civil law tradition, which favours simplicity of drafting and a high degree of abstraction, rather than the exhaustive approach adopted in the UK. This means that a purposive approach is vital when interpreting legislation, and 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 that implemented a European Community 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" as a reason connected with the transfer. This was necessary to achieve the purpose of the EC Directive, which was to protect the employees on the transfer of a business.
Although this could not have been achieved using the literal rule, a similar result could have been achieved using the mischief rule or, probably, the golden rule. I.e., one hour could still have 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 this court are binding in the UK, its rules of legal reasoning are of increasing importance in the UK legal system and have an indirect influence on interpretation, even when the legislation does not originate from the European Community.
