The SQE syllabus requires you to know some of the important modes of interpreting statute and some of the methods used by judges to reach desired outcome in the context of interpreting statute.
It is the role of the judiciary to read Acts of Parliament and to interpret what they mean. They have to apply them to the particular circumstances that they find before them. But often there are different modes applied by judges in reading pieces of legislation which can help them navigate difficulties in the law’s application. Here are the key modes of Statutory Interpretation that the SQE requires you to know.
The literal rule
The literal rule is arguably the most direct form of Statutory Interpretation. It states that words in a statute must be given their plain, ordinary and literal meaning. An example of the rules given in the Sussex Peerage case of 1844. This says that if the words in the statute are in themselves precise and unambiguous then no more can be necessary to expand 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.
This is the starting point of the interpretation of legislation – however this rule creates problems. The application of the literal rule may actually contradict the intention of Parliament or defeat it. It could lead to absurd results. This is why the literal rule is not the final word in the interpretation of statute.
In the case of Whiteley and Chappel  the Defendant pretended to be someone who was on the voters list but who had died. He was charged with impersonating a person entitled to vote but was found not guilty. The reluctant conclusion drawn by the Court was that Whiteley could not be convicted of the statutory offence because the person he impersonated was dead. On a literal construction of the relevant statutory provision the deceased was not a ‘person entitled to vote’. With Whiteley the law resulted in a declaration of innocence. This is an example of the literal rule leading to injustice.
The golden rule
The golden rule provides that where there are two meanings to a word or words they should be given their ordinary meanings as far as possible but only to the extent that they do not produce an absurd or totally obnoxious result.
A statement of this principle is found in Grey v Pearson  which states that 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.
One example of the golden rule is in Adler and George  where a Court decided it would be an absurd result for the Defendant to be found not guilty of an offence under Section 3 of the Official Secrets Act of 1920 merely because the strict literal reading of the Act precluded his liability. The Court accordingly read the Act in a way which allowed for a finding of guilt on the facts.
This rule can be applied in a narrow sense and in a wider sense. The narrower application of the golden rule allows judges to correct for an absurdity or obnoxious result arising out of the words themselves. This is the narrow application of the golden rule.
There is a wider sense of its application too this allows judges to avoid a result that is obnoxious to the principle of public policy even where the words only have one meaning. When we say ‘obnoxious’ we mean contrary to good governance in the broader sense. Examples of this include re: Sigsworth  CH89 and more recently Inco Europe Limited v First Choice Distribution  1WLR. In this case the House of Lords stated words could be added to a statute to resolve an obvious drafting error. In this instance a right of appeal from the High Court to the Court of Appeal was added to the Section 9 of the Arbitration Act of 1996 despite the absence of any words in the statute.
Part of the judgment gave this reading of the golden rule. “Several features make it plain that something went array in the drafting what the section was seeking to do on a literal meaning of the land which failed to achieve is abundantly plain. I am left in no doubt that for once the draughtsman slipped up. Given the intended object of this section is plain it should be read in the manner which gives effect to parliamentary intention.
The mischief rule
Applying the mischief rule allows judges to attempt to identify the ‘mischief’ that was identified by Parliament and to read the rule in a way which directly deals with this mischief. A good example of this rule is in DPP and Johnson  1WLR where the Court was required to consider the provisions of the Road Traffic Act of 1988 in relation to the consumption of alcohol. Sometime before the events in question the Defendant’s doctor prescribed an injection of acquiesce solution of benzoyl alcohol for a spinal injury.
The nature of the treatment involved the slow release of medical alcohol into the Defendant’s system later the police stopped the Defendant in his vehicle and his breath specimen showed him to be over the limit. The mischief rule allowed the judges to read the word ‘consuming’ in the Act as not restricted to oral intake and could include the injection of alcohol into the Defendant’s spine. This is because the legislation was concerned to prevent people driving under the influence of alcohol and was not concerned with the manner in which the alcohol was ingested.
The purposive approach
The purposive approach might be considered the more modern version of the mischief rule. Judges using this rule will look at the reasons why a statute was passed and its purpose even if that means departing from the ordinary meaning of the word. In the case of Lister v Forth Dry Dock & Engineering Co Limited  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) Regulation 1981 provided that a transfer shall not terminate the contract of any person employed immediately before the transfer. The House of Lords read in the additional words “or would have been so employed if they had not been unfairly dismissed before the transfer” for a reason connected with the transfer. This meant that the Court took the view that it was obliged to achieve the purpose of the EU directive which was to protect employees on the transfer of the business.
Aids to interpretation
In addition to using the rules of construction and language discussed above it is possible for the Courts to use intrinsic and extrinsic aids to interpreting legislation.
Intrinsic aids means that the judge can refer to other parts of the statute he or she is considering in order to decide the meaning of words. Extrinsic aids mean looking beyond the Act to help assist with the words contained in the Act under consideration. By way of example Section 6 of the Interpretation Act 1978 states that in all legislation the masculine will include the feminine and single nouns include the plural unless suggested otherwise.
Judges can also use dictionaries to ascertain the wider social meaning of a particular piece of legislation. Judges can also look at other statutes whether recent or longstanding to decide how words have been considered in other Acts.
They may also consult Hansard. Hansard is the verbatim reporting system of proceeding in Parliament. This could be a direct insight into Parliament’s intention behind drafting an Act.
Presumptions may also apply in interpreting legislation. A presumption normally applies where there is some longstanding principle at stake. It is always possible to rebut these presumptions but evidence would have to be presented as to Parliament’s contrary intention. There are a number of key principles of Statutory Interpretation. Here are some examples:
- There is a presumption against altering the common law. Unless Parliament directly expresses otherwise there is a presumption that common law is maintained through the passage of legislation.
- Presumption against the retrospective operation of statute. Again unless Parliament expressly states it there is a presumption that law will only apply to future actions.
- There is also a presumption against creating criminal liability without intention. There is a presumption in favour of ensuring a suspect has the mens rea or guilty mind in criminal matters. When creating new criminal offences Parliament does not always define the mens rea required in these cases the presumption will be applied but there cannot be a conviction without the Defendant having unnecessary mindset. We should be aware however that some offences are ones of strict liability where someone can be found guilty in any event. Needless to say legislation of this sort needs to be precise and specific for this principle to apply.