Statutory Interpretation The Technique of Statutory ... - Francis Bennion

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*** Page 104 - Chapter Nine Guides to Legislative Intention I: Rules of Construction As we saw in the previous chapter, the law lays down various guides to legislative intention, or interpretative criteria. Now examining these more closely we see that they can be identified as consisting of the following: six common law rules, a varying number of rules laid down by statute, eight principles derived from legal policy, ten presumptions as to legislative intention, and a collection of linguistic canons of construction which are applicable to the deciphering of language generally. These criteria are described in detail in this and the next three chapters. The six common law rules of statutory interpretation are: 1 the basic rule, 2 the informed interpretation rule (recognising that the interpreter needs to be well informed on all relevant aspects), 3 the plain meaning rule, 4 the effectiveness rule {ut res magis valeat quam pereat), 5 the commonsense construction rule, and 6 the functional construction rule (concerning the function of different elements in an enactment, such as long title and sidenotes). In addition there are various statutory rules, usually laid down for the purpose of shortening the verbiage used in legislation. Basic rule of statutory interpretation The basic rule of statutory interpretation is that it is taken to be the legislator's intention that the enactment shall be construed in accordance with the guides laid down by law; and that where in a particular case these do not yield a plain answer but point in different directions the problem shall be resolved by a balancing exercise, that is by weighing and balancing the factors they produce. For at least the past half century the teaching of this subject has been bedevilled by the false notion that statutory interpretation is governed by a mere three 'rules' and that the court selects which 'rule' it prefers and then applies it in order to reach a result. The error perhaps originated in an article published in 1938 by J Willis, 104
Guides to Legislative Intention I: Rules of Construction 105 a Canadian academic. After warning his readers that it is a mistake to suppose that there is only one rule of statutory interpretation because 'there are three—the literal, golden and mischief rules', Willis went on to say that a court invokes 'whichever of the rules produces a result which satisfies its sense of justice in the case before it' (Willis 1938, p 16). Academics are still producing textbooks which suggest that the matter is dealt with by these three simple 'rules' (see eg Zander (1989) pp 90-114). However, as demonstrated at length in my 1984 textbook Statutory Interpretation, and more briefly in this part of the present book, the truth is far more complex. Willis, and those who have followed him, are wrong in two ways. First, there are not just three guides to interpretation but a considerable number. Second, the court does not 'select' one of the guides and then apply it to the exclusion of the others. The court takes (or should take) an overall view, weighs all the relevant factors, and arrives at a balanced conclusion. What is here called the basic rule of statutory interpretation sets out this truth. It is a rule because it is the duty of the interpreter to apply it in every case. (Thus Cotton LJ said in Ralph v Carrick (1879) 11 Ch D 873, 878 that judges 'are bound to have regard to any rules of construction which have been established by the Courts'.) It is the basic rule because it embraces all the guides to legislative intention that exist to be employed as and when relevant. Informed interpretation rule Next it is a rule of law, which may be called the informed interpretation rule, that the interpreter is to infer that the legislator, when settling the wording of an enactment, intended it to be given a fully informed, rather than a purely literal, interpretation (though the two usually produce the same result). Accordingly, the court does not decide whether or not any real doubt exists as to the meaning of a disputed enactment (and if so how to resolve it) until it has first discerned and considered, in the light of the guides to legislative intention, the overall context of the enactment, including all such matters as may illumine the text and make clear the meaning intended by the legislator in the factual situation of the instant case. This rule is a necessary one, for if the drafter had to frame the enactment in terms suitable for a reader ignorant both of past and contemporary facts and legal principles (and in particular the principles of statutory interpretation), he would need to use far more words than is practicable in order to convey the legal meaning intended. In interpreting an enactment, a two-stage approach is necessary. It is not simply a matter of deciding what doubtful words mean. It must first be decided, on an informed basis, whether or not there is a real doubt about the legal meaning of the enactment. If there is, the interpreter moves on to the second stage of resolving the
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