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

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116 Part II — Statutory Interpretation may be treated as applicable to the use of the term in the first Act. This may be done even where the definition is contained in a later Act. Thus in Wood v Commissioner of Police of the Metropolis [1986] 1 WLR 796 the Divisional Court construed the undefined term 'offensive weapon' in the Vagrancy Act 1824, s 4, in the light of the definition of that term laid down for different though related purposes by the Prevention of Crime Act 1953, s 1(4). Where Parliament passes an Act which on one (but not the other) of two disputed views of the existing law is unnecessary, this suggests that the other view is correct. Thus in Murphy v Duke [1985] QB 905 it was held that since the meaning of the House to House Collections Act 1939 which was applied in Emanuel v Smith [1968] 2 All ER 529, would render the Trading Representations (Disabled Persons) Act 1958 unnecessary the latter case must be held to have been decided per incuriam. (This sensible view was dissented from on doubtful grounds in Cooper v Coles [1987] QB 230.) Where it is clear that an enactment proceeds upon a mistaken view of earlier law, the question may arise of whether this effects a change in that law (apart from any amendment directly made by the enactment). Here it is necessary to remember that, except when legislating, Parliament has no power authoritatively to interpret the law. That function belongs to the judiciary alone. When legislating, Parliament may, with binding effect, declare what the law is to be considered to be or have been. But a declaratory enactment must be intended as such. A mere inference that Parliament has mistaken the nature or effect of some legal rule does not in itself amount to a declaration that the rule is other than what it is (Dore v Gray (1788) 2 TR 358, 365; IRC v Dowdall, O'Mahoney & Co Ltd [1952] AC 401, 417, 421; IRC v Butterley & Co Ltd [1955] 2 WLR 785, 807-808). However the view taken by Parliament as to the legal meaning of a doubtful enactment may be treated as of persuasive, though not binding, authority (Cape Brandy Syndicate v IRC [1921] 2 KB 403, 414; Camille & Henry Dreyfus Foundation Inc v IRC [1954] Ch 672, 690). The court will not only be guided by later Acts, but by later delegated legislation which is in pari materia with the enactment being construed. (R v Newcastle-upon-Tyne Justices, ex pane Skinner [1987] 1 WLR 312.) Under the doctrine of precedent or stare decisis dynamic processing of an enactment by the court produces sub-rules which are of either binding or persuasive authority in relation to the future construction of the enactment. Where Parliament subsequently indicates that it adopts any such subrule, the status of the sub-rule becomes equivalent to that of legislation. If Parliament has a subsequent opportunity to alter the effect of a decision on the legal meaning of an enactment, but refrains from doing so, the implication may be that Parliament approves of that decision and adopts it (eg Denman
Guides to Legislative Intention I: Rules of Construction 117 v Essex Area Health Authority [1984] 3 WLR 73). This is an aspect of what may be called tacit legislation. The House of Lords held in Otter v Norman [1988] 3 WLR 321 that the provision of one meal only a day, namely continental breakfast, amounted to 'board'. In so holding it was influenced by the fact that Parliament had impliedly adopted a similar ruling on the meaning of this term laid down by the Court of Appeal in Wilkes v Goodwin [1923] 2 KB 86. The court may treat as of persuasive authority in the construction of an enactment the view of an official committee reporting on the meaning of the enactment (eg Mohammed-Holgate v Duke [1984] QB 209). Plain meaning rule Where the meaning is plain it must be followed, but for this purpose a meaning is 'plain' only where no relevant interpretative criterion points away from it. It is thus a rule of law (which may be called the plain meaning rule) that where, in relation to the facts of the instant case, (a) the enactment under enquiry is grammatically capable of one meaning only, and (b) on an informed interpretation of that enactment the interpretative criteria raise no real doubt as to whether that grammatical meaning is the one intended by the legislator, the legal meaning of the enactment corresponds to that grammatical meaning and is to be applied accordingly. As it is put in Halsbury's Laws of England: If there is nothing to modify, nothing to alter, nothing to qualify the language which a statute contains, the words and sentences must be construed in ±eir ordinary and natural meaning. (4th edn, Vol 36 para 585.) The plain meaning rule determines the operation of nearly every enactment, simply because nearly every enactment has a straightforward and clear meaning with no counter-indications. Rule where meaning not 'plain' Where on the facts of the instant case the enactment is grammatically ambiguous, the legal meaning is determined by weighing the interpretative factors in the manner explained in the previous chapter. Where the enactment is semantically obscure, the interpreter first arrives at the 'corrected version' (see pp 89-90 above). This is then treated as if it were the actual text, of which the meaning may be either 'plain' or not. In other words the plain meaning rule either will or will not apply to the corrected version. Effectiveness rule (ut res tnagis valeat quant pereat) It is a rule of law that the legislator intends the interpreter of an
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