LAWS1010 Legal System And Method I

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LAWS1010 Legal System And Method I

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LAWS1010 Legal System And Method I

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Course Code: LAWS1010
University: The University Of Newcastle

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Country: Australia

Question:
Describe English Legal Systems and the institutions within which law in England and Wales is administered. Looking at how law is made and developed including examining case law and statutory interpretation. Engaging with their own personal and professional development and having an awareness of academic integrity. 
Demonstrate a range of skills to assist future careers as well as key legal skills including legal research, academic writing and academic study skills to underpin the university level learning. 
Be able to reflect on the development of these skills through& nbsp; an awareness of their own learning and being able to act independently in planning and managing tasks. 
Answer:

The case of Magor and St Mellons Rural District Council v. Newport Corporation is the landmark precedent where the Court of Appeal in its judgment said that it strives to fill in the gap that a statute may have to which the Parliament intends to have an effect[1]. The judges opined that Right to Compensation could be incorporated within the ambit of company property under Corporations Law. In this case, Lord Denning held that the judges’ foremost duty is to ascertain the intentions of the Parliament and execute them, even if it requires filling the gaps or lacunas of the legislations.  It was argued that courts should construe the substantive or procedural meanings in a narrow way and should not try to rectify the shortcomings or wrongs made by the legislature. It was also added that the court had limited power to interpret the words of the legislature and has no right to fill the gaps of the statute. Disagreeing with Lord Denning, Lord Simonds was of the opinion that filling the gap of the legislation would simple result in interfering with the function of the legislature in the disguise of interpretation. The paper strives to discuss the principles of interpretation of statutes and its impact on Parliamentary Sovereignty.
Lord Simonds opined that it is the duty of the judge to interpret the laws passed by the parliament irrespective of the fact whether they are ambiguous or incomplete. Therefore, it may not always be simple and straightaway grammatical in sense. The principles of interpretation of statute helps the judges and other legal persons to comprehend and interpret the letters of the law in the way the Parliament intended while making them. However, in Whitley v. Chappell, Lord Hailsham stated that most of the cases dealt by the House of Lords and Court of Appeal involves the use of the literal meaning of the words contained in the statutes.[2] The Interpretation Act of 1978 assists the judges to interpret the statutes and refrains them from acting on their whims and fancies[3]. For example the provisions referring to a ‘he’, most necessarily cover a ‘she’ as well; similarly the provisions referring to a singular entity would definitely include plural and vice versa[4].  The three rules of interpretation of Statue – the literal, the golden and the mischief rule covers the entire method of interpretation of the laws by the court.
The Literal Rule
The literal rule or the grammatical rule of interpretation lays down the literal and ordinary meaning of the words. It refers to the simple grammatical or dictionary meaning of the words used in the statutes. It strictly follows the literal meaning that a man of ordinary prudence would understand by going through the legislations to interpret the intention of the Parliament[5]. However, this rule sometimes create ambiguity, which leads the court to look for other ways to interpret. In Whitley v. Chappell the defendant had voted by impersonating a dead person, while the law said that it would be unlawful to impersonate ‘any person’ who is entitled to vote[6]. Therefore, by applying the literal rule, the court acquitted the defendant, as a ‘dead person’ is no person in literal sense and therefore has no right to vote. Similarly, in London and North Eastern Railway Company v. Berriman it was held that compensation would be granted to the survivor of the deceased only if the deceased died in the course of employment[7]. In this case, the deceased was doing certain maintenance work on the railway track when he died, however the court held that the deceased was not particularly ‘repairing or relaying’ the tracks as the requirement of the employment and the relevant statute. In I. R. C. v. Hinchy, it was held that the court could only understand the basic intention of the Parliament by interpreting the words of the statute by interpreting them by using the literal rule and therefore, the courts sometimes avoid implementing other rules, which involves critical analysis and consumes more time[8]. Emphasizing on the same matter, Lord Reid stated in Jones v. DPP that there are limitations to which a judge may interpret a statute using the literal rule. He said that the court must judiciously decide the meaning of words that may reasonably have proximity with the particular statute concerned[9]. The literal rule does not bear many advantages for the court to have a wider scope to interpret statutes as it strictly follows the grammatical or dictionary meaning of the words, respecting the sovereignty of the Parliament. This does not let the courts to enjoy an unlimited power over interpretation of statutes. One of the biggest lacunas of this rule is the ambiguity of meanings of the words as dictionaries have multiple meanings of a single word, therefore making it confusing to choose. As Glanville Williams observed that the literalness of the words of statute cannot be applied successfully all the time, as it tend to leave significant aspects behind while following the literal meaning of the words stringently[10]. Lord Denning added that the courts do not construe the literal meaning of the statutes by following the literal rule, but looks deep into the objectives of the legislation and the particular case in question, and then interpret the statute according to the need of the hour[11]. This paves the way for deviating from the traditional and conventional way of interpreting statutes, giving an opportunity to the other rules of interpretation.
The Golden Rule
The Golden rule comes as a solution the absurdity and ambiguity of the literal rule. In support of the golden rule, Lord Wensleydale in the case of Grey v. Pearson held that it is important to adhere to the ordinary sense of the words; however, in terms of ambiguity of meanings the ordinary sense can be deviate from to an extent, which does not destroy the essence of the word[12]. In the case of R v. Allen, the court held that the term ‘married’ is to be read and considered as ‘been through a ceremony of marriage’ as it is not possible to be married twice. The court held the defendant for breaking the law by applying the golden rule, which otherwise would not have been possible with the literal rule[13]. According to Professor Zander, the golden rule acts as a safety valve that helps to escape the absurd and ambiguous effects of the literal rule[14]. Therefore, it provides more scope and power to the judges to make a better interpretation of the statutes, exploring the intention of the Parliament.
The Mischief Rule
The Mischief or Hayden’s rule talks about the four factors: (a) before the statute, what was the law, (b) what is the mischief or lacuna that the common law failed to check, (c)what is the remedy that the Parliament is trying to provide, and (d) why is the remedy required. These factors govern the mischief rule and helps the court to interpret statutes in a much more efficient manner. Voicing against the decision in Royal College of Nursing v. DHSS, it was claimed by Lord Wilberforce and Edmund Davies that the court is ‘rewriting’ the legislation instead of interpreting it[15]. In this case, the concerned statute implied that ‘registered medical practitioner’ that excludes the nurses, should carry out abortions. The court interpreted that to ensure safety during emergencies, nurses’ participation in the abortive surgery cannot be considered as unlawful. Such arguments against the wide scope of mischief rule has been claimed by many jurists over the passage of time stating that such wide deviation from the statute does not imply interpretation but alteration of it. It proves that the court has gained power and authority in terms of interpretation with the growing number of cases that have its own peculiarity.
The rules of interpretation have a heavy impact on the sovereignty of the Parliament that is applied by the court to understand the statutes, their purpose and application in a wider sense. In Bromley London Borough Council v. Greater London Council, it was observed that the court did not obliged with the decision of the elected body of the country whose sole purpose is to make laws, instead the court choose to interfere with the purpose and function of such elected body[16]. It is evident by the conduct of the court that it would chose to deviate from the letters of the law on every instance or chance it gets. The court tend to constantly interferes with the function of the Parliament by altering the statutes in the name of ‘interpretation’, thus violating the theory of Separation of Power postulated by Montesquieu[17]. The Dworkin’s theory claims that the judges tends to travel outside the ambit of the intention of the Parliament and develop a theory of their own highlighting the strictness and technicalities they are dealing with while interpreting a statute[18]. The courts claims that their hands are tied when they are bound to deviate from the literal meaning of the word and reshape it as per the necessity of the case. They held that it is not their primary intention to depart from the literal meaning that the statute construe, but they must deliver for the best interest of the petitioners and aggrieved parties. This paves the way for the judiciary to be more coherent and have a clear direction to function. It makes the courts more efficient and flexible yet complex and controversial.
Therefore, it can be concluded that the judiciary has been enjoying a supremacy over the Parliament in terms of the interpretation of statute. The judiciary has been deviating and interfering with the function of the Parliament to alter a statute, giving rise to unnecessary controversies and violating the theory of Separation of Power. As Lord Denning claimed that, the court do not tamper with the ‘language of the Parliament and make nonsense out of it’. He argued that the judges take the responsibility to fill the lacunas and gaps that the Parliament leaves behind in a statute in order to deliver justice efficiently. Lord Denning is of the opinion that such filling of the gaps by applying the rules and aids of interpretation enable them to make an appropriate sense out of the enactments, which otherwise fails to serve the need at times.  However, there will always be strict criticism pertaining to the interpretation of statute by the courts as political leaders and jurists do not prefer the tendency of the court to violate the clear distinction of the organs of government and destroy the watertight compartment, as demanded by Montesquieu.
References
Baude, William, and Stephen E. Sachs. “The law of interpretation.” Harv. L. Rev. 130 (2016): 1079.
Bromley London Borough Council v Greater London Council [1983] 1 AC 768
Duku, Moses George, and Jessica Guth. “ATH Smith, Glanville Williams: Learning the Law.” (2014): 133-135.
Grey v. Pearson [1857] 6 H.L.C. 61
R. C. v. Hinchy [1960] AC 748
Jones v DPP [1962] 46 Cr App R 129
London and North Eastern Railway v Berriman [1946] AC 278A
Mackie, John L. “The third theory of law.” The Rule of Law and the Separation of Powers. Routledge, 2017. 173-186.
Magor and St Mellons Rural District Council v. Newport Corporation [1951] 2 All ER 839, [1952] AC 189
Pepper v Hart [1993] HL
R v. Allen (1872) LR 1 CCR 367
Royal College of Nursing v DHSS [1981] 2 WLR 279
Shackleton, Robert. “Montesquieu, Bolingbroke, and the separation of powers.” Charles-Louis de Secondat, Baron de Montesquieu. Routledge, 2017. 405-418.
The Interpretation Act 1978
Whitley v. Chappell [1868] 4 LRQB 147
Zander, Michael. The law-making process. Bloomsbury Publishing, 2015.
[1] Magor and St Mellons Rural District Council v. Newport Corporation [1951] 2 All ER 839, [1952] AC 189
[2] Whitley v. Chappell [1868] 4 LRQB 147
[3] The Interpretation Act 1978
[4] London and North Eastern Railway Company v Berriman [1946] HL
[5] Baude, William, and Stephen E. Sachs. “The law of interpretation.” Harv. L. Rev. 130 (2016): 1079.
[6] Whitley v. Chappell [1868] 4 LRQB 147
[7] London and North Eastern Railway Company v Berriman [1946] HL
[8] I. R. C. v. Hinchy [1960] AC 748
[9] Jones v. DPP [1962] 46 Cr App R 129
[10] Duku, Moses George, and Jessica Guth. “ATH Smith, Glanville Williams: Learning the Law.” (2014): 133-135.
[11] Pepper v. Hart [1993] HL
[12] Grey v. Pearson [1857] 6 H.L.C. 61
[13] R v. Allen (1872) LR 1 CCR 367
[14] Zander, Michael. The law-making process. Bloomsbury Publishing, 2015.
[15] Royal College of Nursing v. DHSS [1981] 2 WLR 279
[16] Bromley London Borough Council v. Greater London Council [1983] 1 AC 768
[17] Shackleton, Robert. “Montesquieu, Bolingbroke, and the separation of powers.” Charles-Louis de Secondat, Baron de Montesquieu. Routledge, 2017. 405-418.
[18] Mackie, John L. “The third theory of law.” The Rule of Law and the Separation of Powers. Routledge, 2017. 173-186..

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