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Foreign Compensation Commission

“The purposive approach to statutory interpretation allows individual judges to give free rein to their personal preferences and prejudices. ” Discuss (Answer should be illustrated by relevant examples) The question at hand here asks do we believe that Judges within our legal system make law. It is common knowledge that the legislature makes the law whilst the judicature simply interprets and applies it to given situations. Legal documents especially Statutes are very complex and the subject matter extremely difficult whilst being long-winded.

Despite complicated ordinary language there is a mix of technical slang. Critics are constantly writing how ‘personal preferences’ and ‘prejudices’ free rein our judges yet do they not realize the strict principal rules of statutory interpretation including the literal rule, golden rule and mischief rule that leads them in their interpretations. Is the Judges within our society not the best person to interpret such complicated chaos, could a normal citizen even attempt to start untangling the statutes?

Every Judge within our legal system is surely highly qualified in at least interpreting statues. However statutes can not be applicable to every possible situation, hence the Judges do have a chance to express their own opinion in the final interpretation. Each Judge

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inevitably will have different views and opinions on matters within the statutes so can be seen where “personal preferences” and “prejudices” is derived from in the public eye yet the term “free rein” is absurd to an extent.

Judges have to interpret each individual case whenever it comes before them and obviously there is going to be differences between judgments as every individual judge is entitled to their own set of beliefs and morals in coherence with the statutes and public interest. As Sir Carlton Allen talked about problems regarding statutory interpretation ‘we are driven in the end to the unsatisfying conclusion that the whole matter ultimately turns on impalpable and indefinable elements of judicial spirit or attitude. ‘ 1 Broadly speaking there are two main methods of interpreting Statutes, The Literal or Purposive interpretation.

The literal approach is that words reasonably capable of only one meaning must be giving that meaning whatever the result. 2 Where as The Purposive approach, seeks a closer look at the purpose of a law while interpreting it. The Purposive approach can also be termed in some cases the “Mischief Rule. ” This rule if applied looks at the common law before the Act was passed, and the mischief that the statute was planned to resolve. The act is then to be construed in such a way as to suppress the mischief and advance the remedy.

Yet today this approach is considerably wider than simply establishing the mischief as it does not presume that all statutes are set about as solutions to mischief. The Judge in each case has to make a judgment with relevance to a statute. With examination of both the statute and the case at hand the Judge has to draw a conclusion from the Statute, in that it is not the precise definition of the words included in the statute (the literal approach) that is important but what the statute is attempting to achieve. Look at this example. The bear trainer comes to the station with his bear and sees a sign, “No dogs allowed on the trains.

” By applying the saying expressio unius exclusio alterius, his claim he would be entitled to take the bear on the train as it does not state that bears are not allowed. Yet the argument here is that if dogs are not allowed on the train, a fortiori by analogy, bears are not either. 4 Here we need to examine exactly what the rule is set out to accomplish and apply an interpretation that suits the objective intention. This is the basis for every Judges interpretation using the purposive approach in my opinion it is hardly giving free rein to their personal preferences and prejudices if they are using such a universal foundation.

It was not until 1992 that one could look at parliamentary debates (Reported in Hansard) for interpretation purposes. This was down to a Tax Case before the House of Lords namely, Pepper (Inspector of Taxes) v Hart (1993). 5 In this case it was held that reference to parliamentary material was allowed to aid the construction of legislation if the legislation is unclear or vague or if the literal implication of the legislation leads to silliness. This was a ground breaking decision made by seven of the Judges from the House of Lords.

This is now since 1992 very helpful to the Judges as Statute Law is preserved in Acts of Parliament hence they can refer back to the parliamentary debates in Hansard to reach a finale of what the law is. This example does particularly show Judges having free rein as literally they can chop and change laws as best to suit their own opinion. This shows only seven judges is needed to make a revolutionary decision that even Lord Denning’s when master of the Rolls, could not shift. 6 Yet David Robertson argues that if to give the law a sensible interpretation of changing times.

7 Really then if such is true then allowing this free rein openly to judges is not such a sharp idea moreover it can lead too the adverse outcome for the case due to their personal preferences and prejudices. Really the question raised here is who in this day and age can make a statement, with absolutely certainty that “this is the law. ” Hence is it just our Judges that have free rein in their personal preferences and prejudices in our legal system or is a total restructuring of the Legal System in the United Kingdom the only way to move forward in the 21st Century. Pepper v.

Hart means that the wish of parliament will more regularly be adhered to, thus strengthening parliamentary control. One wonders do judges really set out to interpret Acts in harmony with the intention of Parliament. An example here would be the case of Fisher v. Bell (1961). The decision was in Parliament’s sense so bad that indeed they overruled it by law the same year the actual judgment was made. Also here another example in the case of Anisminic ltd v. Foreign Compensation Commission (1969)8 where Parliaments views were overlooked in that a statute saying ‘decisions’ of the commission should ‘not be called in question in any court.

‘ This clearly is a statement of authority by which the courts are really showing that the control is in their part, in that no decisions what so ever where to be queried. Exemplified in these two illustrations is clearly that Judges have absolute power and it is very exceptional when they are overruled. Also demonstrated here is that Parliaments power depends solely on the application of its Statutes and that control depends on the compliance of the courts to the authority of Parliament.

Yet one thing the courts can not do is fill in any missing gaps as in they are not allowed to take an approach of what would parliament have done if the facts had of been before this. Hence in one sense this limits free rein within the system. However it seems slightly pointless for Parliament to create laws if the courts are not ready to enforce them agreeing to Parliaments objectives. Court interpretation is a free for all by parliament. Nevertheless Parliament has tried and still composing Acts to reduce the amount of interpretation that is required by the court system.

Subsequently this is a means of trying to deal with the amount of free rein permitted to the court and therefore a reduction in personal preferences and prejudices shown by some of the Judges. An Example of the Purposive approach lies in the case of Corkery v Carpenter (1951). Where a law which allows the rest of anyone found drunk ‘in charge of a carrier’ was interpreted as including anyone found in charge of a bicycle, as Parliament had intended. 9 This case does not leave much to be interpreted by the court in reality if all cases in our society were as simple as this then one would not be so critical of our court system.

The Human Rights Act of 1998 has added a new aspect to interpreting Statutes. In that now all primary and secondary legislation has to be ‘compatible with convention rights’ section three. 10 Its quiet apparent that this new section indeed will change the way in which statutes are to be dealt with convention rights are at risk. Now section three will not allow judges to continue in their old ways, section three does not enable the Judges to act as Legislators, how can one possibly say Judges demonstrate free rein.

Perhaps in previous years Judges could dominate but in the 21st Century such behavior is not tolerable in the Legal System. In R v. A 11 demonstrated how the boundary between interpretation and legislation was exceeded by the House of Lords where the protection given to rape victims was the subject matter. It is set out with certain circumstances how the Judge can give leave to allow the questioning of a victim. This prevented questioning about the defendant’s relationship with the complainant. This led to disagreement within the Judge’s in the House.

The line was taken that Parliament did intend that a defendant should not have permitted to ask the disputed questions. 12 Section three then generates tension between judges not only in their interpretations but also as quasi-legislators. Yet this Act does give the courts wider powers and freedoms it could be argued in that it can grant assistance, relief, remedies or orders to what it actually finds appropriate. So in this sense a lot of free rein is given, but the courts can only order what is in their power at the end of the day.

Overall I think this Human Rights Act has made the Court System more effective as everything has to be compatible with the convention limiting personal preference and prejudice of the within our legal system and hence advancing efficiency. The chore of statutory interpretation is one that takes up a large amount of judges’ time. Every case that comes before our courts need some type of interpretation. If we glance back to the case of R v. Z where Girvan J. had to decide whether ‘Irish Republican Army’ was an illegal organization for the purposes of the Terrorism Act 2000 included the Real IRA.

13 He held it did not yet the Court of Appeal and the House of Lords reversed the decision. Every separate case was so unique that the interpretation placed on it by judges will rarely be relevant to the interpretation of other legislation even if the very same words are used. So Judges have to use carefully set approaches such as the purposive approach for interpretation that then is applicable to all statutes. So when one implies that the Judges work is so simple that it can be free reining then such above measures would be not necessary. Yet in no one book can it be explained how exactly to interpret the difficulties in statutes.

Yet we can see two cases that illustrate the ways courts have dealt with the problems of trying to reconcile statutory words with shifting times. For example, Ex p. Adedigba and Re Bravda14 Both required interpretation of statutes that were more than a hundred years old and been interpreted on several occasions. Thus interpreting statutes is a skill only learnt through time and experience, therefore such free rein is not as simplified as it seems. Hence personal preferences and prejudices, can not exactly be shown in as such as the above cases.

The classic case of purposive interpretation is in River Wear Commissioners v Adamson (1876-77) . This case demonstrates the context aids the interpretation. We can really only overcome such problems by trying to interpret exactly what parliament were setting out to do, as in looking at the purpose of the act. The core question here is how do judges choose to explain the construction they have placed on the statute? Willis15 explained that there is not “one great sun of a principle/the plain meaning rule. ” In that there is no one rule that says a literal meaning must be looked at first.

Many Judges within our legal system uses this as their starting point as they do not want to be seen as wanting to create the law. Realistically this is not showing that all Judges are as free reined as one makes them out to be. Taking the first step using the literal approach safe guards them from any criticisms. In conclusion I think that to a certain extent Judges obviously use there own personal preferences and prejudices when determining a case yet with all the rules and regulations in place when interpreting Statutes today no Judge can ever have free rein when determining a case.

It comes to a point where Judges are challenged with a radical re-think of certain legislations and whether these are still applicable to the modern day and age. Yet how can one put it as simply as Judges use their own beliefs, there decisions are based on a long drawn out procedure of referral to statutes and certain legislation. If the literal approach can not be applied then the purposive approach has to be carefully examined.

Look at this example when there are a number of Judges on a panel in one case how can one say that all their beliefs and personal opinion’ s are going to be the same and therefore how can free rein even come onto the equation. Hence I can see where the statement put forward in the question is coming from yet I can not fully agree with it. The purposive approach does not allow free rein as regards personal preferences and prejudices yet they do have free rein in what way they can interpret statute and in what statutes they want to use in conjunction with the case before them.

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