Introduction: The Modern Executive

Introduction: The Modern Executive and Statutory Interpretation.

Statutes, or primary legislation, are laws that owe its existence to no higher legislative body, and form the starting point to interpret laws in any given area. Because the idea of legislative supremacy has been recognized to be a general principle of the constitution, it follows that statutes cannot be struck down in a Court of law.

Through the passage of time, the United Kingdom has been compelled to adapt to the increasing interconnectedness of life and changing expectations of the government. Consequently, the scope and burden of governance, whose principal elements include the constitution, the legislature, the executive and the judiciary, has broadened considerably. Due to the growth in these areas of responsibility, the Legislature has not only greatly increased the number of statutes it has passed compared to the last century, but has also accorded statutory powers to the Executive to undertake the detailed decision making on ground rules that Parliament itself, is not institutionally well placed to undertake because it is by nature, not a specialized body possessing specific means to acquire niche information.

As a result, statutes passed by Parliament are framed in open ended, broad provisions. This can lead to the perpetuation of faults and obscurities for several reasons. Firstly, statutes can be ambiguous because the lexicon they employ are polysemic and/or denied its normal, literal meaning. Secondly, a statute, in itself, cannot predict or cover the advent of independent developments characteristic of a dynamic world; “no draftsman can envisage all the circumstances which may possibly arise” . In such cases, the Courts are required to interpret and ascertain a statute’s meaning to properly apply it to a case at hand. As expounded by Feldman, the general methods of interpreting a statute include interpreting its literal meaning (as how the reasonable person would read it), or making use of a purposive method of interpretation by either (1) reading statutes in light of the problem of which they were a response towards (mischief rule), (2) ascertaining the statute’s legislative intention (or lack thereof), and (3) extrapolating its ‘true meaning’.

The trend discerned in Lord Diplock of the Courts moving away from a literal interpretation towards a more purposive one is desirable to a larger extent in practice because it not only circumvents the problems associated with a constrained, literal interpretation of statutes, but furthermore functions to ensure that immediate remedies are provided to ameliorate the exigent concerns of each case. On wider consideration, constitutional statutes are simultaneously “philosophy, politics, sociology, and law” ; the judiciary has a strong obligation to go beyond the literal interpretation of statutes and to explore its implications in the context of political developments or to account for shifts in values. At the same time however, moving towards a purposive method of interpretation in the absence of firm guidelines can potentially risk the Courts overstepping its interpretative function, causing a destructive breach in the separation of powers that could result in the judges acting as unconstrained legislators.

Purposive Approach: Preserving the Court’s adjudicative function

The essay must firstly concede that it is inherently artificial to assert that in drafting a statute, there is a “legislative intent” in the first place: Parliament is not an individual draftsman, but comprised of a collection of teams competing in a partisan environment to have their policies recognized . Nonetheless, the legal fiction of making use of a supposed legislative intent, of which can be derived from a statute’s preambles, what is fair, just or reasonable or by looking at the White paper that displays the problems that the legislation intended to solve, is still valuable because it provides a framework which can guide the Courts in making meaning out of an otherwise ambiguous provision. As such, a purposive approach to statutory interpretation accords the Courts with a flexible approach to develop the law, allowing judges to place themselves in the shoes of the draftsman and to consider his knowledge and statutory objective in order to ascertain the meaning of statutory language . In contrast, employing an exclusively literal construction of statutory interpretation would not provide further assistance in interpreting an ambiguous provision because it does not allow the Courts to make use of external aids to decipher what a provision means or ought to mean, consequently retarding its ability to adjudicate on legal disputes.

A purposive approach to statutory interpretation is also helpful in enabling the judiciary to resolve conflicts between statues, where each possessing different ‘intentions’. In R v Transport Secretary ex Parte Factortame (No. 2), the Merchant Shipping Act 1988 was invalidated to the extent that it was incompatible with the 1972 European Communities Act in order to give effect to EU Community obligations. In the absence of a purposive approach, the Courts would not have been able to prioritize the preservation of Community Law obligations or to justify their act of giving effect to the provision that Acts of Parliament should be construed and have effect subject to EU Law. On the question of whether this is desirable, Wade’s view of the Factortame decision as a “judicial revolution” that reformulated the fundamental rules about the effectiveness of Acts of Parliament suggests that the adoption of a purposive approach accords judges with too much power to develop the law and potentially supplant Parliament’s legislative function and in doing so risks breaching the separation of powers, with the Courts abusing their adjudicative function. At the same time however, a constructive breach in the separation of powers that might occur as part of a purposive approach to interpretation would be desirable because it is not synonymous with an abuse of power- but rather displays the Court’s rightful performance of its adjudicative function to preserve the rule of law and give effect to newfound obligations that exist in light of changes to the political structure. The latter interpretation is consistent with the decision in Thoburn v Sunderland City Council, which allows the ECA to be viewed as a constitutional statute whose intention of giving effect to Community Law takes precedence over ordinary legislation such as the MSA.

Purposive Approach: Protecting Human Rights

The trend towards a purposive approach in the interpretation of statutes has also been employed in the protection of Human Rights. In particular, Section 3 of the HRA accords the Court with the power to read statutes and subordinate legislation in a way, which is compatible with convention rights “so far as it is possible to do so”. This confers the Courts with the power to read beyond the literal meaning of the statute and in doing so, alter the content of a statute in order to ensure an outcome that is compatible with Human Rights. This is achieved by (1) ascertaining the natural meaning of the provision, (2) seeing if the natural meaning of the provision would yield an outcome that would infringe a convention right, (3) if so, determining if the provision can be read and given effect such that it would be compatible with the relevant convention rights . In Ghaidan v Godin-Mendoza, a literal approach to the interpretation of the 1977 Rent Act would have resulted in the defendant being evicted from his home because the fact that he was in a same sex relationship would not have satisfied the definition of a “statutory tenant”. However, because s3 of the HRA empowered the Courts to read words into a statutory text to change its meaning to make it compliant with convention rights , paragraph 2(2) of the Rent Act had to be construed as including individuals in a same-sex relationship.

The decision of the majority, and the use of a purposive interpretation is a desirable one for it pays proper attention to the defendant’s rights under Article 8 and 14 of the ECHR, which was given effect after the Rent Act was passed. This is not only consistent with the Executive’s aim of creating a welfare state that requires the appropriate institutions to intervene and deliver appropriate public services, but furthermore displays the flexibility accorded by a purposive interpretation to enable the judiciary to account for the potential developments that occur after the passing of a statute. In the words of Lord Nicholls, “the precise form of words read for this purpose is of no significance, it is their substantive effects which matters” . Similarly as per Lord Steyn, the HRA has created a “new legal order… in which the United Kingdom assumes all obligations to protect fundamental rights” . The literal meaning of a statute by nature remains static because the words that comprise it do not change in the absence of amendment or repeal. Thus, the responsibility falls on the judiciary to interpret a statute to ensure a fair, just and equitable result that is appropriate for the current societal context, taking into account any political development or changes in norms that would affect its modes of interpretation.

On balance, the Courts have also recognized that the use of a purposive interpretation to protect Human Rights have to be tempered by a respect for the separation of powers, and can only be exercised insofar as it does not “alter the underlying concept of the legislation” . However, the lack of a definition of what an “underlying concept” or a “fundamental feature” of a statute actually is makes the term open textured and difficult to pin down in the absence of clear statutory direction. Similarly, terms like “as far as possible” or “within the permissible bounds of interpretation” are equally empty of content. The uncertainty that follows is undesirable because it results in judges focusing on different ‘intentions’ when interpreting a given statute. In Lord Millet’s dissent in Ghaidan, he employed a more restrictive view of the range of individuals the statute was supposed to protect (heterosexual couples). In doing so, he not only placed emphasis on the literal, gender-specific terms construction of the legislation and examined its historic, initial purpose of conferring protection to widows before being extended to cover widowers and relationships akin to marriage. The lack of a unanimous judgment in this case points towards a potential decay in consistency and legal certainty, of which is held to be a fundamental tenet in a procedural conception of the rule of law. In doing so, under Raz’s theory, the Courts risk exercising their power in an arbitrary (albeit masqueraded) fashion that could potentially destabilize the relationship between the state and its citizens.

At the same time, Raz’s theory can be refuted on two main points. Epistemically, it is difficult to draw a principled distinction between formal and substantive concepts because the legitimacy of a law’s form requires an appreciation of its content . The reasonable person analyses the Rule of Law, and interprets statutes with a set of values in mind; in order to understand why traits like procedural fairness and predictability are considered desiderata in Raz’s conception, one must first hold the substantial belief that human dignity is in itself, a fundamental principle that deserves protection. On a normative level, it would be unfair to judge the desirability of the Court’s employment of purposive interpretation based on a purely procedural conception when they are, in practice, bound to give effect to bodies of Community Law which are given effect in bodies of domestic law like the 1998 HRA, some of which, protect substantial, moral principles.

A second limitation that exists in the desirability of a purposive construction of statutory provisions to protect Human Rights is the risk run by the Courts to compromise the interests of a party in favour of another. In the decision of R v A (No. 2), the Court re-read the section 41(3)(b) of the Youth Justice and Criminal Evidence Act 1999 to allow the admission of evidence so relevant to the case if excluding it would endanger the fairness of the trial , contrary to the section’s natural meaning as absolutely barring the admission of any evidence of any prior consensual sexual relationship. By assuming that the right to a fair trial was an absolute unqualified right, the Courts effectively re-wrote section 41(3)(b) in favour of the defendant and imposed an impliedly upheld hierarchy of rights prejudiced towards upholding the trial’s truth-seeking function. Accordingly, this not only compromised on the rape victim’s competing right to private life, but also failed to accord her with the adequate protection to prevent her from reliving the trauma of her experience. The decision in Ghaidan can be read similarly vis-à-vis the landlord. The criticisms suggest that an unregulated purposive construction of statutory provisions can result in judicial bias, with the Courts being prejudiced towards a specific facet constituting Parliament’s intention. This is clearly undesirable especially in situations where the statute concerns polycentric subject matters that the Courts lack the institutional competence in determining because doing so could potentially call into question issues of social policy and administrative feasibility . Such concerns explain the decision in Bellinger v Bellinger to give the terms “male” and “female” in the Matrimonial Causes Act 1973 their literal, ordinary meaning to avoid interference with the entrenched, traditional concept of marriage.

Purposive approach: the use of external aids in Pepper v Hart

The trend towards a purposive approach of statutory interpretation would also be undesirable in instances where its exercise is extended to the point where it compromises on the efficiency of the litigation process. In Pepper v Hart, the House of Lords relaxed the rule excluding reference to Parliamentary material to aid statutory construction, permitting its use where legislation (1) was ambiguous, obscure or absurd, (2) the material relied upon consisted of clear statement(s) by the Minister or any supporter of the Bill and (3) any other Parliamentary material necessary to understand the statements mentioned in (2) . This enabled the appellant to rely on a statement in Hansard in interpreting the Finance Act 1976. In theory, the decision made by the majority is sensible: it fulfils the Court’s task of giving effect to the intention of Parliament by allowing the admission of evidence that clearly indicates what the legislature actually intended. In Lord MacKay’s partial dissent on the relaxing the Hansard Rule, he warned that such an approach would immensely increase the cost of litigation as lawyers in the future would have to examine the whole proceedings of a Bill “in practically every case” . Such a consequence as a result of adopting a purposive interpretation is undesirable seeing that the minimization of litigation costs is a key factor in preserving the right of access to Courts, which is a desideratum in upholding the rule of law. On balance, it would be undesirable for the trend of adopting a purposive interpretation if it compromises on a fundamental procedural tenet of the rule of law and the efficacy of the litigation process.

Indeed, it has long been established that the Courts may look beyond the statute to identify the mischief parliament was seeking to remedy

Conclusion: Middle grounds

Golden Rule of Interpretation

Acknowledging that the Courts make use of literal and purposive interpretations and that the behind every theory of statutory interpretation is a theory of how the administrative state is supposed to run- “constitution of will” v “constitution of thought”