Conflicts Between Judges and Parliament

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  • Topic: Statutory interpretation, Statutory law, Law
  • Pages : 6 (2097 words )
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  • Published : July 20, 2012
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‘The approach of the Law Lords to statutory interpretation has been radically changed by the Human Rights Act. Judges now see themselves as legislating human rights through their interpretation of Acts of Parliament.’

In Duport Steels Ltd v Sirs, Lord Scarman stressed: ‘In the field of statute law the judge must be obedient to the will of Parliament as expressed in the enactments. In this field Parliament makes and unmakes the law, the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what justice requires. Interpretation does, of course, imply in the interpreter a power of choice where differing constructions are possible. It has to be understood that the primary duty of judges is to interpret the law not to make but after the enactment of Human Rights Act 1998 judges could be able to contribute the law making process through the interpretation of the ECHR rights. Some people say that this might abolish the long going principle of Parliamentary Sovereignty but they might forget that the intention behind the making of Human Right Act is to giving the people the convention rights from Home not to abolish the Parliamentary sovereignty. So if the judges use the purposive approach then they might be able to draw a line between the Act of Parliament and Human Right Act 1998. There are three basic rules of statutory interpretation:

It is often said that there are basic rules of statutory interpretation – the literal rule, the golden rule and the mischief rule. It is important to appreciate that this classification is a considerable oversimplification of the process of the statutory interpretation. The literal rule:

According to the literal rule, it is the task of the court to give the words to be construed their literal meaning regardless of whether the result is sensible or not. Lord Esher put the proposition succinctly in 1892: “ if the words of an Act is clear you must follow them, even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity.” The literal rule appears at first sightto be the least problematic method of interpreting legislation. Under this rule, the court obviously appears to be recognizing their limitations by following the wishes of the parliament as expressed in the words of the legislation under consideration. The Golden rules:

The rule is generally considered to be an extension of the literal rules. The best way to understand the golden rules is to look the definition given by the Lord Blackburn, the use of the rule actually involves the judges in finding what they consider the statute should have said or provided, rather their what it actually did state or provide.

The mischief rule:
The classic statement of the mischief rule is that given by the Barons of the Court of Exchequer in Heyden’s case : “And it was resolved by them, that for the sure and true interesting of all statutes in general (be they penal or beneficial, extractive or enlarging the common law), four things are to be discerned and considered: a. What was the common law before making the Act?

b. What was the mischief and defect for which the common law did not provide? c. What remedy for that mischief had parliament intended to provide? d. What was the reason for parliament adopting that remedy? The mischief rule (now a days called the purposive approach) is a very great improvement on the other two, in that it at least encourages the court to have regard to the context in which the doubtful words appear. It is therefore entirely different from the literal and golden rules which direct attention instead purely at the words themselves. The mischief rule is designed to get the court to consider why the Act was passed and then to apply that knowledge in giving the words under that knowledge what in giving the words under consideration whatever meaning will best accord with...
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