Chapter 9 CLP: THE JUDICIAL PRACTICE OF STATUTORY INTERPRETATION An act of parliament is the exercise of the highest authority that

t this kingdom acknowledges upon earth. It hath power to bind every subject in the land, and the dominions thereunto belonging; nay, even the King hi !e"#$ i# parti%&"ar"' na e( therein) And it can not be altered, amended, dispensed with, suspended or repealed, but in the same forms and by the same authority of parliament. Blackstone, Commentaries

 arliament generally changes law for the worse, and . . . the business of the judges is to *eep the i!%hie# +# it! inter#eren%e ,ithin the narr+,e!t -+&n(!) ollock

 I shall . . . state, as precisely as I can, what I understand from the decided cases to be the principles on which the !ourts of "aw act in construing instruments in writing; and a !tat&te i! an in!tr& ent in ,riting. In a"" %a!e! the +-.e%t i! t+ !ee ,hat i! the intenti+n e/pre!!e( -' the ,+r(! &!e(. But, from the imperfection of language, it i! i p+!!i-"e t+ *n+, ,hat that intenti+n i! ,ith+&t in0&iring #arther, and seeing what the circumstances were with reference to which the words were used, and what was the object, appearing from those circumstances, which the person using them had in view; #+r the eaning +# ,+r(! varie!

a%%+r(ing t+ the %ir%& !tan%e! ,ith re!pe%t t+ ,hi%h the' ,ere &!e() "ord Blackburn in River Wear Commissioners v. Adamson #$%&&'

 I remember only too well my first intervention as a new (inister at the )reasury on the *inance Bill in the very early hours of the morning on a subject about which I knew absolutely nothing but on which I ha( a arve""+&!"' thi%* -++* +# -rie#ing #r+ the In"an( Reven&e. I appr+priate"' rea( +&t the re!p+n!e t+ !+ e (etai"e( p+int! that ha( -een a(e -' +ne +# the Opp+!iti+n !p+*e! en who stood up afterwards to say how well I had dealt with the point he had raised and welcomed my first intervention in *inance Bill !ommittees. H+,ever$ I (i!%+vere( #r+ ' private +##i%e a#ter,ar(! that I ha( rea( +&t the ,r+ng rep"' to

the amendment. !learly, it made not the slightest bit of difference. L+r( Ha'h+e, as reported in Hansard, 11 (arch $++,

 )his statement was reflecting upon the circumstances in which -explanations. on proposed legislation are given in parliament In the /estminster arliament, exchanges sometimes take place late at night in nearly e pt' %ha -er! while members have dinner, drink and discuss in places often away from the actual building but are called back to vote. O#ten a -i"" re#"e%t! a part' p+"iti%a" (e-ate ,ith part' 1,hip!2 en!&ring that part' e -er! v+te +n +ne !i(e or the other. )he 0uestions are +#ten (i##i%&"t -&t p+"iti%a" ,ar#are

!+ eti e! "eave! "itt"e ti e #+r re#"e%ti+n) The!e are n+t i(ea" %+n(iti+n! #+r the a*ing +# a&th+ritative !tate ent! a-+&t the eaning of a clause in a bill

1ew 2ection3 INTRODUCTION SI approach in general- Cannot be the only literal approach /e begin with a mixture of views on constitutionalism, political reality and separation of powers therein expressed. Stat&t+r' interpretati+n as performed by the judiciary is a !&-!et +# %+n!tit&ti+na" pra%ti%e) )he first, from 3"a%*!t+ne, can be seen as a representative statement of the doctrine of par"ia entar' !&pre a%'. )he second, from P+""+%*, may be seen as a more or less accurate

(e!%ripti+n +# the .&(i%ia" in(!et in 4i%t+rian ti e!.

 /hile the common law could be presumed to be the repository of the community.s collective wisdom as expressed through its judiciary, -&t "egi!"ati+n ,a! the i p+!iti+n +# a p+"iti%a" ,i"" #+r re#+r . )his could, and was perhaps best presumed to be, partisan and unreflective of the nuances of social life. Thi! appr+a%h "e( t+ re!tri%tive interpretati+n -' "itera"i!t eth+(! which !+ eti e! -"+%*e( !+%ia" pr+gre!!) It remained the approach of 4nglish judges until some time after /orld /ar II, but "ord 3"a%*-&rn5! %+ ent! 6a-+ve7 !h+, that it

i! n+t %+rre%t t+ h+"( that +ne appr+a%h (+ inate() "iteral approach simply show it is no enough

It is dynamic in nature- if other ise ill constraint )he first part of this chapter outlines the concept of the contemporary practice of statutory interpretation. Un(er!tan(ing !tat&t+r' interpretati+n ha! n+t -een he"pe( -' re#eren%e! 5 in decades of student orientated texts at least 5 to a +(e" +# 1r&"e!5 +# interpretation, which, if they ever did convey any feel of what went on, then they were a re"ative"' %+n!traine( a%%+&nt +# +pti+n! in pra%ti%e) Instead we need to see it as a ('na i% engage ent ,ith "ega" te/t!)

Recent development but here the limit /e will n+t in this chapter present a guide to interpretation; instead, after setting the scene, ,e ,i"" %+n%entrate &p+n %ertain re%ent (eve"+p ent!, namely3 the impact of Pepper v) Hart, E&r+pean eth+(! +# interpretati+n the interpretative provisions of the H& an Right! A%t 6HRA7$++%. 6ur stance is to focus on the parameters, or "i it!$ +# .&(i%ia" interpretati+n. Although the vast bulk of everyday practices of interpretation seem to pose few constitutional issues, we argue that3

 the genera" pra%ti%e +perate! ,ithin %+n!traint! +# in!tit&ti+na" "egiti a%'; any a%t +# !tat&t+r' interpretati+n inv+"ve! atter! +# %+n!tit&ti+na" pr+priet' .

 Indeed, writing in $+++ about the H& an Right! A%t$ L+r( Irvine spoke of the .&(i%iar' as -an integra" %+ p+nent in a constitutional machinery that !ee*! t+ !e%&re a%%+&nta-"e g+vern ent5. 2imilarly, L+r( Ste'n has argued3 -)he language used by arliament does not interpret itself. 2omebody must interpret and apply it. A (e +%ra%' a'$ an( a" +!t invaria-"' (+e!$ entr&!t the ta!* +# interpretati+n t+ the ne&tra" (e%i!i+n8 a*ing +# the .&(i%iar'5.

 /hat are the %&rrent "i interpretive role7

it! of this

/e will suggest that contemporary practice can be seen as evolving, informed by a democratic vision where the courts and arliament +perate in (ia"+g&e a-+&t the re"ati+n!hip +# "egi!"ati+n an( h& an right!.

Ne, Se%ti+n: STATUTORY INTERPRETATION AND INSTITUTIONAL LE9ITI:ACY SI !eep ithin constitutional constraint 2tatutory interpretation ha! ver' "itt"e t+ (+ ,ith !+8%a""e( 1r&"e!5 +# interpretati+n) /hether or not these rules accurately reflect the approach of the courts in the past, the' are "arge"' irre"evant t+ the %+nte p+rar' pra%ti%e.

 At best, the priority of the literal approach stressed a general problematic3 interpretati+n nee(! t+ -e *ept ,ithin %ertain %+n!tit&ti+na" %+n!traint!. In D&p+rt Stee"! Lt( v) Sir! #$+%8', "ord 2carman stressed3 i. -In the field of statute law the .&(ge &!t -e +-e(ient t+ the ,i"" +# Par"ia ent as expressed in the enactments. ii. In this field arliament makes and unmakes the law, the .&(ge5! (&t' i! t+ interpret an( t+ app"' the "a,, n+t t+ %hange it to meet the judge.s idea of what justice re0uires.

iii. Interpretation does, of course, imply in the interpreter a p+,er +# %h+i%e ,here (i##ering %+n!tr&%ti+n! are p+!!i-"e. iv. But our law re0uires the judge to choose the construction which in his .&(g ent -e!t eet! the "egi!"ative p&rp+!e +# the ena%t ent5 9p. $,+:.

 )he main 0uestion in this chapter is thus a variation on one of the key points of the previous chapter3 ,hat pi%t&re %an -e (ra,n +# the %+n!tit&ti+na" arrange ent! in ,hi%h interpretati+n takes place7 T+ ,hat e/tent %an interpretati+n -e !een a! "a, a*ing, and, if so, what are the a%%epta-"e %+n!traint! +# .&(i%ia" "egi!"ati+n7 )his is, of course, a 0&e!ti+n +# in!tit&ti+na" "egiti a%')

Concern of SI in ambiguous language or another method SI Interpretation takes place on a daily basis in such a fashion that the a.+rit' +# %a!e! (+ n+t appear t+ rai!e thi! pr+-"e +# ,here the -+&n(arie! +# interpretati+n "ie) If the "ang&age +# a !tat&te i! %"ear then interpretati+n i! pre!& a-"' entire"' !e%+n(ar' to the application of the statute to the facts.

 /e are more concerned in this text with the constitutional propriety of interpretation in th+!e in!tan%e! ,here: !tat&t+r' "ang&age i! a -ig&+&! +r %apa-"e +# %arr'ing (i##erent eaning! where the law places on judges a parti%&"ar !et +# interpretative (e an(! stemming either from E&r+pean "a, the interpretative provisions of the H& an Right! A%t. )he %h+i%e +# +ne eaning rather than an+ther a' a +&nt t+ "a, a*ing.

"ore important is here the boundary lies As the courts cannot be seen to overstep the boundaries in their legislative role, and intrude upon the province of arliament, the rea" i!!&e$ in ter ! +# the %+n!tit&ti+n +# the pra%ti%e$ i! ,here thi! -+&n(ar' "ie!)

SI not to impose rigid limit or generality In elaborating this issue, we need to remind ourselves of some important arguments from the previous chapter. 6ne should be careful when discussing rules of statutory interpretation n+t t+ i p+!e t++ great a (egree +# rigi(it' or level of genera"it' that #ai"! t+ re#"e%t ,hat the .&(ge! are a%t&a""' (+ing when they interpret statute.

It is #$udiciary% practice and no general rule )here are a couple of points to bear in mind. Any discussion of these -techni0ues. as -rules. is problematic, because we will be concerned with a pra%ti%e a! a r&"e in a n+n8"ega" !en!e3 a rule as a guide to action. *uture references of the rules of statutory interpretation will be understood as referring to the techni0ues that %+ p+!e .&(i%ia" pra%ti%e) )here is a second problem. 2tatements of practice in one case may or a' n+t -e

&n(er!tan(a-"e a! genera" the+rie! +# interpretati+n. J&(ge! ten( n+t t+ give eth+(+"+gi%a" !tate ent! that re#"e%t in a genera" !en!e what they are doing.

 )his begs another 0uestion3 if judges practice statutory interpretation without a textbook, then why do textbooks have chapters on statutory interpretation7 )his chapter offers an engagement with a number of key cases in order to try and (eter ine h+, (i##erent .&(ge! in (i##erent area! +# "a, (ep"+' the te%hni0&e! +# interpretati+n) It is only at this level that anything useful or relevant can be said about statutory interpretation.

&uropean '(ot &nglish) *urposive Interpretation It is worth considering another point that will run through this chapter. If we were trying to describe contemporary judicial practice, then we would have to ta*e int+ a%%+&nt E&r+pean 1p&rp+!ive5 eth+(! +# interpretati+n. )he rules of interpretation have the virtue of reminding us that 5 at least in a historical perspective 5 p&rp+!ive interpretati+n ,a! a",a'! part +# the %+ +n "a,. )he literal approach reflects the relatively recent dominance of arliament over the courts

It is -4nglish. purposive approach as it defer to arliament Indeed, )wining has argued that p&rp+!ive interpretati+n -' 3riti!h .&(ge! i! .&!ti#ie( n+t -' re#eren%e! t+ E&r+pean "a,, but to %+ +n !en!e) )wining /e also need to be careful with the argument that community or civilian manners of interpretation should be adopted, or are being adopted by 4nglish judges. )he pr+-"e is in part (e#initi+na". It is n+t entire"' %"ear what is meant by %+ntinenta" ,a'! 6E&r+pe7 +# interpretati+n, +ther than !tating that the' are p&rp+!ive)

 As the mischief rule is purposive, 4nglish judges have always had recourse to purposive interpretation; Re "arr would also suggest that the .&(ge! the !e"ve! (+ n+t ne%e!!ari"' !ee p&rp+!ive interpretati+n a! E&r+pean. It is a 0uestion more of pre!erving the i(ea that the %+&rt (e#er! t+ Par"ia ent. In 4uropean law purposive interpretation may be legitimate, but there is the risk that i# #+""+,e( t++ #ar$ it ,+&"( inv+"ve the %+&rt! in a*ing rather than interpreting the "a,)

 Besides, as )wining writes3 -the pragmatism of Eng"i!h .&(ge! makes discussion of the proposi5 tion that they +&ght in genera" t+ a(+pt a p&rp+!ive appr+a%h a "itt"e &nrea"i!ti%5. +eneral sense, literal then *ut for ard if absurd )wining argues that interpretation of statutes can be analysed as falling into two stages. )he #ir!t !tage is to a%0&ire a genera" !en!e of both the legal and factual context and the intention of the legislature; the next stage is to rea( the parti%&"ar ,+r(! in their pri ar' an( nat&ra" eaning, if they are ordinary words, or according to their technical meaning.

 If this "ea(! t+ an a-!&r( interpretation, the interpreter a' p&t #+r,ar( an interpretati+n that avoids the absurdity. /ith reference to this second stage, there are "i it! t+ the *in( +# ateria"! to which the interpreter can make use.

In ,act there is no clear cut bt literal and purposive Another i!"ea(ing a!pe%t of statutory interpretation is that it suggests that there may be +re +# a %"ear (i!tin%ti+n -et,een "itera" an( p&rp+!ive interpretati+n than there in fact is in practice. It suggests a rather artificial approach that imagines a judge asking first about whether the ,+r(! are &na -ig&+&! and i# n+t, then h+, %an the' -e rea( !+ a! t+ give e##e%t t+ the intenti+n +# Par"ia ent) 9"anvi""e ;i""ia ! has suggested that a more accurate description of the judge.s practice would read as follows3 i. ;/hat was the statute trying to do7

ii. /ill the proposed interpretation #be' ruled out by the language of the statute7. iii. /hat does this mean7 <e explains3 -"itera" an( p&rp+!ive interpretati+n a' -e !een t+ repre!ent var'ing e pha!e! on how these 0uestions are to be answered; in particular, on how far a judge is prepared to go in deciding whether a proposed interpretation is or is not sustained by the language of the statute. In short, %+nte/t$ "ang&age an( p&rp+!e are a"" re"evant, but there is still no settled priority rules for weighting these factors.. !ited in )wining 9$++=3 >,+:.

"odern -udicial *racticepragmatism and conte.tual engagement T,ining i! (e!%ri-ing +(ern .&(i%ia" pra%ti%e) It is largely determined by prag ati! , and an engagement with the "ang&age +# the A%t in 0uestion in its "ega" %+nte/t. )his goes a long way to suggesting how judges approach statutory interpretation in those cases ,here n+ E&r+pean +r h& an right! i!!&e! ight i pinge; or, indeed, ,here n+ re#eren%e t+ Pepper v) Hart i! ne%e!!ar'. /e need, therefore, to move towards an engage ent ,ith the!e pr+-"e ati% an( (eve"+ping area!)

*resupposition of modern practice in SI <owever, for the moment we can ask some further 0uestions about the !&pp+!iti+n! that in#+r +(ern pra%ti%e, and examine the r+"e +# the pre!&pp+!iti+n! of statutory interpretation. )he presumptions are; i. against the alteration of the common law; ii. that mens rea should be an element in criminal offences; iii. against the retrospective application of statute; iv. against the deprivation of individual.s liberty, property or rights;

v. a presumption that legislation does not apply to the !rown; vi. a presumption against breach of international law vii. a presumption that words take their meaning from their context )he presumptions re#"e%t the %a!t +# the %+ +n "a, and the +rientati+n +# pra%ti%e t+,ar(! prag ati% 0&e!ti+n! of %+nte/t an( !en!e. A revie, +# the pre!& pti+n! may develop this argument.

SI operate ithin legal conte.t /so even though it is practice as argued but it needed to be read and understand the conte.t first0 Against alter in common law )he first presumption, against the alteration of the common law, suggests that interpretati+n i! inherent"' %+n!ervative3 the "a, appear! a! a rep+!it+r' +# eaning! that are a&th+ri!e( -' it! hi!t+r'. )hus, rather than presuming a change in the law, a judge will presume that the "a, i! %+herent an( ,ith+&t gap!.

Against deprivation of <? )here are also presumptions that have a parti%&"ar !"ant t+,ar(! right! +r "i-ertie!) )he re0uirement that criminal offences have mens rea that statute does not apply retrospectively; that people are not to be deprived of rights and liberties )hat the <?A contains an interpretative provision suggests that the!e pre!& pti+n! a' n+t have -een a! e##e%tive a! the' ight have -een in pr+te%ting right! an( "i-ertie!. 1evertheless, we could say that %+ +n "a, interpretati+n appear! t+ have a",a'! ha(

a %+ it ent t+ pre!erving the!e va"&e!. Against breach of international law )he presumptions against breach of international law can be seen as informing a n+ti+n that %+ +n "a, i! %+herent ,ith internati+na" "a,, unless arliament has stated otherwise. It suggests some interesting points about the relationship of national and international legal norms, but we cannot engage with this material in this chapter.

1ot against !rown )he presumption that legislation does not apply to the !rown i! hi!t+ri% and suggests the privi"ege! a%%+r(e( t+ the Cr+,n. /ord take the meaning from !ontext )he seventh presumption reflects on the aids to %+n!tr&%ti+n that %an -e &ti"i!e(. /ithin this catalogue, there is a basic distinction between intrinsic and extrinsic evidence, and a grouping of rules that relate to presumptions about h+, %ertain ver-a" #+r &"ati+n! are t+ -e &n(er!t++()

 /e could say that this represents the legal employment of certain grammatical rules.

2ummary )hese rules reflect more upon the micro5economic level of interpretation, and stress that !tat&t+r' interpretati+n i! inherent"' a #+r +# te/t&a" %"+!e rea(ing) It is as much about resolving grammatical and syntactical problems as it i! a-+&t the +perati+n +# !pe%i#i%a""' "ega" prin%ip"e! +# interpretati+n) )hat mean interpretation can operates as in applying grammar )he presumptions remind us that !tat&t+r' interpretati+n i! a-+&t r&"e! that are ne%e!!ari"' inv+"ve( in a%t! +# rea(ing that +perate ,ithin a !pe%i#i%a""' "ega" %+nte/t)

Ne, Se%ti+n: PEPPER 4) HART )o return to our principle of analysis3 we will examine statutory interpretation through a close reading of some central cases. 6ne of the most important cases defining contemporary practice is Pepper v) Hart. <ere the H+&!e +# L+r(! !at nine strong 9over half of the total membership of the @udicial !ommittee: t+ hear an appea" in which the p"ainti## %"ai e( that the a(v+%ate! +# the -i"" ha( a 0&ite (i##erent intenti+n #+r the A%t than the one put forward by the Inland ?evenue.

 )he ini!ter had actually said on the floor of the <ouse of !ommons that tea%her! in private !%h++"! ,h+ ha( their %hi"(ren ta*e &p !pare p"a%e! at (i!%+&nte( #ee! ,+&"( n+t -e ta/e( +n the (i##eren%e as if this was a financial benefit in kind, ,herea! the In"an( Reven&e ,ante( t+ ta/ the tea%her! as if the teachers had received the benefit of the discounted school fees 9a! the %"ear ,+r(! +# the A%t !ee e( t+ in(i%ate:. )he L+r(! t++* the +pp+rt&nit' t+ %+n!i(er whether when applying a statute the judges should %+n!i(er +n"' the ,+r(! +# the A%t or ,hether the'

%+&"( "++* at Han!ar( to see evidence of the clear intention of the progenitors. The' (e%i(e( in #av+&r +# the tea%her!)

&ffect of decision in SI and forensic process )o what extent did epper v. <art revolutionise methods of interpretation by allowing judges access to arliamentary materials to which they would not otherwise have access7 )he case shows that defining the para eter! +# .&(i%ia" interpretative pra%ti%e inv+"ve! 0&e!ti+n! +# %+n!tit&ti+na" pr+priet' and the very function of the #+ren!i% pr+%e!!.

1ccasions to vie Hansard Indeed, the subse0uent case law attempts to define a line between the political and the judicial that a' -e ver' (i##i%&"t t+ h+"() Pri+r to epper v. <art, the %+&rt! ha( n+t -een a-"e t+ "++* at the Han!ar( debates a! an ai( t+ interpreting !tat&te. Although the case changed this rule, it went on t+ narr+,"' (e#ine the +%%a!i+n! when a court could make reference to <ansard.

 "ord Browne5/ilkinson.s guidelines show that a reference to <ansard is only acceptable when three conditions applied. *irst, the legislation in 0uestion was -a -ig&+&! +r +-!%&re$ +r "e( t+ an a-!&r(it'5) 2econd, that the material to which reference would be made were 1!tate ent! -' a ini!ter +r +ther pr+ +ter +# the 3i""5 with ateria" that ight !&pp+rt the!e !tate ent! which, third, had to themselves amount to a %"ear !tate ent )his clearly means that the %+&rt! %ann+t a*e &!e +#

!tate ent! a(e -' :P! in (e-ate +r arg& ent, and the !tate ent! the !e"ve! have t+ -e %"ear.

Reason for Hansard should be still prohibited "ord Browne5/ilkinson began the leading speech in epper v. <art by reviewing the arguments as to ,h' re#eren%e! t+ Han!ar( !h+&"( !ti"" -e pr+hi-ite() )he primary reason was %+n!tit&ti+na") )he courts must look only to the words used in the Act, as +ther,i!e there i! a ri!* +# .&(i%ia" "egi!"ati+n. "ord Browne5/ilkinson then touched upon a related issue. Han!ar( ateria" a' n+t -e #+ren!i%a""' !&ita-"e, as it may have been said in the heat +#

(e-ate, or from a p+"iti%a""' parti!an p+!iti+n)

 Di##i%&"tie! in pr+vi(ing a%%e!! t+ (e#initive te/t of debates, and %+!t i p"i%ati+n!, had also militated against the use of <ansard in the court. <owever, the "aw !ommission reporting in $+,+ and the ?enton!ommittee had re%+ en(e( that the r&"e +&t"a,ing the &!e +# Han!ar( -e re%+n!i(ere(

Reason for compel to change If these are the arguments for preserving the existing practice, what are the issues that compel change7 It would appear that pra%ti%e it!e"# has already +ve( -e'+n( the %+n!traint! +# the +"( appr+a%h3 the courts have departed from the old literal approach of statutory construction and now adopt a purposive approach, !ee*ing t+ (i!%+ver the Par"ia entar' intenti+n lying behind the words used and construing the legislation so as to give effect to, rather than th,art 6 7$ the intenti+n! +# Par"ia ent.

 /here the words used by arliament are obscure or ambiguous, the arliamentary material may throw considerable light n+t +n"' +n the i!%hie# ,hi%h the A%t ,a! (e!igne( t+ re e(', but also on the p&rp+!e +# the "egi!"ati+n an( it! anti%ipate( e##e%t 2upra

Affect by &uropean and Ambiguous issue )his speech stresses that there is a hi!t+ri%a" !hi#t in judicial interpretation. )his is, in part, (&e t+ the i pa%t +# p&rp+!ive !t'"e! +# E&r+pean interpretati+n; it is no wonder that epper builds on ickstone v. *reemans. 1ote that a difference has to be observed in the interpretation of domestic and E&r+pean "egi!"ati+n. It is with the "atter that the %+&rt %an -e 1 +re #"e/i-"e5) )he flexibility will have to be defined by subse0uent case

 <owever, there is another factor in the argument that !&gge!t! that p&rp+!ive interpretati+n %ann+t -e !+ neat"' "i ite( t+ E&r+pean "a,) "ord Ariffith.s speech elaborates this point. <e argued that the increasing volume of legislation carries with it the risk that 1a -ig&itie! in !tat&t+r' "ang&age5 are n+t apparent at the ti e the -i"" i! (ra#te(.

Hansard application <ow should the new approach be defined7 It is necessary to return to fundamental principles. )he task of the court is to interpret the intenti+n +# Par"ia ent) If the %+&rt %ann+t &!e Han!ar( t+ interpret a -ig&+&! "ang&age then it may become #r&!trate( in thi! ta!*.

Subse2uent case to sho the limitation In R) 6+n the app"i%ati+n +# Spath H+" e Lt(7 v) Se%retar' +# State #+r the Envir+n ent$ Tran!p+rt an( the Regi+n! <=>>?@, the <ouse of "ords considered an argument that it was necessary to make a reference to <ansard. )he reference would show that the powers of a minister granted by the "andlord and )enants Act $+%B to restrict rent increases were narrow and applied only to the restriction of inflation in the economy. #no important'

 ?ejecting this approach, the %+&rt !tre!!e( the i p+rtan%e +# the #ir!t "i - of the ratio of epper v. <art. rior to this, C v. / 9Attorney Aeneral Intervening: 1o. $ #$++&' 4u. "? 94u "aw ?eport: it was held that <ansard could be referred to even th+&gh the #ir!t part +# the Pepper v) Hart %+n(iti+n! (i( n+t app"'. Cnless this first condition was satisfied, there ,a! a (anger that any case that raised an issue of statutory construction would ne%e!!itate (i!pr+p+rti+nate %+!t! a! "a,'er! re!ear%he( the re"evan%e +# Par"ia entar' !tate ent!.

 <owever, there is also a %+n!tit&ti+na" e"e ent to the <ouse of "ord.s argument that returns us to one of the structuring concerns of statutory interpretation. /hereas it may be acceptable to rely on the statements of the ini!ter !p+n!+ring the bill, the %+&rt %ann+t %+n!i(er Par"ia entar' e/%hange! in (e-ate. 2uch atter! are &n!&ite( #+r the #+ren!i% pr+%e!!. *urthermore, such scrutiny comes close to breaching Arti%"e 9 +# the 3i"" +# Right!.

 )his pr+hi-it! the %+&rt #r+ 0&e!ti+ning pr+%ee(ing! in Par"ia ent) )he case concluded with the court asserting that as the eaning +# the re"evant !e%ti+n ,a! n+t a -ig&+&!, there was n+ nee( t+ a*e &!e +# Han!ar() 2path <olme "td thus goes some way to determining the form of the post5 epper v. <art practice.

 Subsequent case:- court will not rewrite the legislation In Chi"%+tt v) Reven&e an( C&!t+ ! C+ i!!i+ner! #=88+' 4/<! >=%& 9!h:. !ourt of !hancery rejected 5 the argument that in order to prevent an -injustice produced by a literal interpretation; arliamentary materials should be considered, and the court should read the relevant section of the Income and !orporation )axes Act -a! i# the &n.&!t pr+vi!i+n ,ere n+t in%+rp+rate(5. )hat mean argued for remove the unjust legislation

 )he %+&rt %+&"( re!+"ve a -ig&itie! in an Act, -&t it %+&"( n+t re8,rite "egi!"ati+n.

* v H although ne practice but still ithin constitutional settlement /e can see that, while epper v. <art acknowledges that a new practice js necessary, this pra%ti%e ha! t+ -e in#+r e( -' a %+nventi+na" &n(er!tan(ing of the role of the courts. )he techni0ues of purposive interpretation are thus -rev+"&ti+nar'5 +n"' t+ a (egree. )hey ,+r* ,ithin the e/i!ting %+n!tit&ti+na" !ett"e ent. It is worth clarifying this point still further.

 @ust because a ne, pra%ti%e i! &n(er (eve"+p ent, this (+e! n+t ean that the in!tit&ti+na" +r (+%trina" !tr&%t&re +# "a, i! a"!+ -eing tran!#+r e(.

 A !igni#i%ant (eve"+p ent in a practice is thus entire"' %+n!i!tent ,ith the %+ntin&it' +# +ther in!tit&ti+n!. *urthermore, the #&n(a enta" 1!hape5 +# the pra%ti%e re ain! %+ntin&+&! ,ith it! genera" +rientati+n$ despite its own transformation. urposive interpretation might thus realign, but it (+e! n+t #&n(a enta""' a"ter the re"ati+n!hip -et,een Par"ia ent an( the %+&rt!)

Ne, Se%ti+n: PURPOSI4E INTERPRETATION Changing to ard purposive 2o, might it be the case that the judicial practice of statutory interpretation is increasingly purposive7 It is interesting, in this respect, to consider an American authority from $+DB3 Learne( Han( J, explained in Ca-e"" v) :ar*ha that the -"itera" !en!e5 re ain! the 1 +!t re"ia-"e5 ,a' of interpreting words; -&t -a mature and developed jurisprudence. also -remember#s' that !tat&te! a",a'! have !+ e p&rp+!e +r +-.e%t t+ a%%+ p"i!h, whose

sympathetic and imaginative discovery is the surest guide to their meaning.. urposive interpretation has a",a'! -een a te%hni0&e of common law judges. "ord Blackburn in River ;ear C+ r! v) A(a !+n 9$%&&: L+r( 3ingha , who cited this case in R) 6A&intava""e7 v) Se%retar' +# State #+r Hea"th suggested that 5 in contemporary judicial practice 5 the -pen(&"& ha! !,&ng t+,ar(! p&rp+!ive eth+(! of construction..

 )hese interpretative tendencies have been en%+&rage( -' 1the te"e+"+gi%a" appr+a%h +# E&r+pean C+ &nit' .&ri!pr&(en%e, and the influence of 4uropean legal culture generally.. But, how purposive should a court be7 "ord Bingham argued that3 -the (egree +# "i-era"it' per itte( i! in#"&en%e( -' the %+nte/t, e.g. !+%ia" ,e"#are "egi!"ati+n and ta/ !tat&te! may have to be approached somewhat differently.. 2o, we might think that the extent to which a court will use a p&rp+!ive eth+( re"ate! t+

the area +# "a, under consideration.

&.tent of purposive approach in related area of la )his point appears to be confirmed by the main authorities. Euintavelle, and an important earlier case, ?oyal !ollege of 1ursing v. F<22, concerned advances in medical technology and techni0ues. !ould the relevant statutes be interpreted purposively so that they covered new concerns7

R+'a" C+""ege +# N&r!ing v) DHSS5 genus fact within policy "ord /ilberforce 9dissenting: pointed out that the starting point is to -have regard to the !tate +# a##air! e/i!ting, and *n+,n -' Par"ia ent t+ -e e/i!ting, at the ti e5 that the A%t -e%a e "a,) )he courts then have to consider whether a -fresh set of facts fall within the parliamentary intention.. "ord /ilberforce proposed a test. A new set of facts could be held to fall ,ithin Par"ia ent5! intenti+n i# the #a%t! %+ver 1the !a e gen&! +# #a%t! as those to which the e/pre!!e( p+"i%' has been formulated..

 )his is, of course, a rule of thumb . *urther guidance can be obtained by reference to -the nat&re +# the ena%t ent, and the strictness or otherwise of the words in which it has been expressed.. )hus, .&(ge! ,+&"( -e 1"e!! ,i""ing5 t+ 1e/ten(5 the meaning of a statute if -it is clear that the Act in 0uestion was designed to be re!tri%tive +r %ir%& !%ri-e( in it! +perati+n rather than "i-era" +r per i!!ive5. 4xtending the meaning of the Act would be even less permissible i# 1the !&-.e%t atter i! (i##erent in *in( +r (i en!i+n from that for which the legislation was passed..

 )he key point is that .&(ge! 1%ann+t #i"" gap!5.

1ote3 ?emember that we are n+t %+n%erne( with <?A or 4uropean Cnion law. /e are attempting to determine the acceptable degree of purposive interpretation outside of these areas.

A&intava""e 9later case:5 read in history context "ord Bingham provided an updating of "ord /ilberforce.s argument that the court could not fill in gaps. <e pointed out that a narr+, a(heren%e to the "itera" r&"e may even lead to the -#r&!trati+n +# the ,i"" +# Par"ia ent5 because -undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which arliament intended to achieve when it enacted the statute.. !ontext, for "ord Bingham as for "ord /ilberforce, is the guide3 -the controversial provisions should be rea( in the %+nte/t +# the !tat&te a! a ,h+"e, and the

statute as a whole !h+&"( -e rea( in the hi!t+ri%a" %+nte/t +# the !it&ati+n which led to its enactment.. /hilst the key points are clear, but these are still very general guidelines. <ow could they be applied7 /e can take up this 0uestion in our analysis of ?. v. <uman *ertilisation and 4mbryology Authority, ex parte Blood.

?. v. <uman *ertilisation and 4mbryology Authority, e/ parte 3"++() Gno A when highly sensitive and controversial ethical area )his case concerned (rs Blood.s argument that sperm from her terminally ill and unconscious husband could be used for her posthumous insemination. )he C+&rt +# Appea" re#&!e( t+ interpret the <uman *ertilisation and 4mbryology Act $++8 in such a way as t+ +-viate the nee( #+r ,ritten %+n!ent #r+ :r 3"++( for the -cryopreservation. of the sperm. )he applicant.s argument was that 5 given the context of their loving relationship, desire for a family, and her husband.s family.s consent

5 the relevant part of the statute could be interpreted as allowing an exception to cover those couples in a -common joint enter5prise.. 2ir 2tephen Brown did not accept this argument. /hy7 erhaps his reluctance to interpret the statute broadly was to do with the evidence that the court had heard3 he stressed that ta*ing the !a p"e! ,ere :r! 3"++(5! 1&ni"atera"5 (e%i!i+n. #no important' <owever, 2ir 2tephen Brown was also re"&%tant t+ interpret p&rp+!ive"' in such a -high"' !en!itive an( ethi%a""' %+ntr+ver!ia"5 area)

Controversial issue3 )his would seem a little strange, given that in Euintavalle, the court chose to interpret purposively in an area that was just as controversial3 regulations relating to embryo experiments. "ikewise, in ?oyal !ollege of 1ursing v. F<22, the court held that nurses could take part in a medical procedure not envisaged by the Abortion Act $+,&.

? v H5 -mischief and purpose. A great deal may depend on the actual wording of the statutes concerned; -&t$ +ther #a%t+r! are i p+rtant a! ,e"". /e can examine another authority. In an unrelated area of law, the <ouse of "ords held in R) v) B. #=88B' that the reference to the I?A as a prescribed organisation under the )errorism Act =888 could be interpreted to cover a breakaway organisation, the real I?A.

 2o, we have to ask 0&e!ti+n! +# %+nte/t. As "ord !arswell put it3 If the words of a statutory provision, when construed in a "itera"i!t #a!hi+n, pr+(&%e a eaning which is ani#e!t"' %+ntrar' t+ the intenti+n ,hi%h +ne a' rea(i"' i p&te t+ Par"ia ent, when having regard to the historical context and the mischief, then it is not merely legitimate -&t (e!ira-"e that the' !h+&"( -e %+n!tr&e( in the "ight +# the p&rp+!e of the legislature in enacting the provision. "ord !arswell.s reference to -the mischief. which the statute chooses to engage is not a reference to the mischief rule.

 ?ather, he i! i(enti#'ing the 1p&rp+!e +r i!%hie#. 5 that of %+ -ating terr+ri! 5 that allows the A%t t+ -e "egiti ate"' interprete( in a -r+a( anner.

 )o read back from this case to Regina v4 Human ,ertili5ation and4 &mbryology Authority, the decision to interpret purposively in one case and not in the other seems somewhat arbitrary; Two way of argument: surely it would be possible to have argued in the earlier case that the #a%t! ,ere !&%h that the' #e"" +&t!i(e +# the i!%hie# that Par"ia ent !+&ght t+ re!+"ve; )hat mean the Act did not intend to remedy the particular issue of the fact And 9arguably: that it was indeed possible to argue that 5 on the facts 5 %+n!ent %+&"( have -een (ee e( t+ th+!e in a .+int enterpri!e)

 )his mean that by A, Act can be broadly said that consent can be given in joint couples Conclusion- too many sub$ective factors )he general conclusion is that, whilst the general boundaries of the practice of purposive interpretation can be sketched with reasonable precision, -&t there are t++ an' !&-.e%tive #a%t+r! in p"a' t+ !a' ,ith great %ertaint' whether or not any given statute will be interpreted narrowly or broadly.