Separation of Powers and Statutory Interpreting as Vital Parts of Legislation

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In this essay I will discuss the rules of interpreting status and make attempts to understand why statutory interpretation is so vital in our legal system. Statutory Interpretation is the process of interpreting statues. It was established in Ireland on 20th October 1975, pursuant to section 3 of the Law Reform Commission Act, 1975. It was introduced in an effort to reduced ambiguity and allow flexibility in judicial decisions. No Court ought to depart from the plain meaning of plain English words, unless coerced to do so by some very serious injustice, a hardship which would arise from a literal interpretation, for instance, where the legal interpretation would, in the opinion of the Court, operate so harshly that the Court would be driven to suppose that there must have been some clerical mistake in the language of the Act, or deed, or whatever may be under consideration. Judicial decisions on statues are generally final word on the statutory meaning and will determine how the law is carried out. Once a decision has been made about a particular statue, it must be followed by all lower courts in the hierarchy. This along with the separation of powers, allows ensured the integrity of our law system. Separation of powers is a key aspect of this piece of legislation, it ensures that the legislator o f a law cannot also be the judiciary. There are three main rules that judges follow when interpreting status, the literal rule, the golden rule and the mischief rule. Although referred to as ‘rules’ they are not strictly binding, and some commentators have argued that they are used to justify a decision rather than assisting the decision-making process.

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The primary rule of interpretation is the Literal rule. Under this rule the courts give the statue its “ordinary or colloquial meaning “. It is the most relevant rule used in interpreting status as it restricts the role of the judge by not allowing them to use their own opinions or prejudices when ruling on a case. This is a very positive thing as it reinforces the separation of powers. This approach was used in Inspector of Taxes V Kiernan. Kiernan purchased pigs, fattened them and then sold them. He was assessed for income tax for the years 1965-6 and 1966-7 under r. 4 of Case III in Schedule D of the Income Tax Act, 1918; and for the year 1967-8 under s. 78 of the Income Tax Act, 1967. Those two statutory provisions are not materially different, so for either or both to apply to the taxpayer it would be necessary to show that he was in the years in question ‘a dealer in cattle or a dealer in or a seller of milk. When the case came up before Cavan circuit court in November 1969. The judge ruled that the use of the word “cattle” did include pigs. Dissatisfied with this ruling Kiernan appealed to the High court where it was ruled, inter alia, that ‘cattle’ did not include pigs. Judge Henchy agreed with Kiernan’s counsel that there was no evidence that cattle included pigs, to the ordinary person, cattle, sheep and pigs are distinct forms of life stock. I found this case particularly interesting as Judge Henchy could have ruled in either parties favour depending on how he interpreted this statue. Judge Henchy used literal approach when interpreting this case , however , had he adopted a schematic/ teleological approach I believe that the court would not have ruled in Kiernan’s favour as the purpose of the act was to raise revenue for the government from those profiting in the agriculture sector. Under section 78 of the Income tax act.

The golden rule is a modification of the literal rule. It is only used in cases where the use of the literal rule would lead to absurdity. Lord Wensleydale believe that the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther. The issue with the golden rule is that judges are able to add to or change the meaning of statues, thereby becoming law makers. This interferes with the separation of powers. This approach is used in Adler v George [1964] 2 QB 7. Adler had been arrested under section 3 of the Official Secrets Act 1920, as he obstructed HM forces “in the vicinity of a prohibited place”. He argued that he was “on the station” and could not be “in the vicinity” of the station. The court held that the words “in the vicinity” of the station should be interpreted to mean ‘on’ or ‘near’ the prohibited place and therefore he was found guilty. In this case the judge applied a schematic approach to this issue, they chose to consider the intend of the legislation in question rather than the literal wording. Had the Judge used a literal approach instead it is highly probable, in my opinion, that Adler would not have been charged, which would have resulted in an absurdity, as a person in vicinity of a prohibited place would be arrested but a person in the prohibited place would not. This case is proof of the flexibility within interpreting statues. The golden rule provides no clear means to test the existence or extent of an absurdity. It seems to depend on the result of each individual case. Whilst the golden rule has the advantage of avoiding absurdities, it therefore has the disadvantage that no test exists to determine what an absurdity is. One of the main benefits regarding the golden rule is that it allows for error or loopholes in statues to be adjusted immediately. However, this rule allows Judges to depart from a statues normal meaning therefore allowing more freedom in decision making, and since Judges can interpret a status in line with their own beliefs this could result in bias. 

The last rule of interpretation which was established in Heydon’s Case [1584] EWHC Exch J36 , is the Mischief Rule. This rule requires the court to look to what the law was before the statute was passed in order to discover what gap or mischief the statute was intended to cover. The court is then required to interpret the statute in such a way to ensure that the gap is covered. While the mischief rule helps to eradicate loopholes in law and allows for the improvement and modernisation of outdated laws, it creates as much problems as it solves. The lack of restrictions allows judges to bring their own views, sense of morality and prejudices to a case. This rule was adopted in Elliot v Grey [1960] 1 QB 367. This is a somewhat topical case due to the fact that the judge in question did not just apply the mischief rule to the provision he created a crime after the event thus infringing on the rules of law. The defendant was charged under the Road Traffic Act of 1930 for having an uninsured vehicle on the road. The car was parked on the road, jacked up and had its battery removed. The defendant argued he was not ‘using’ the car on the road as clearly it was not driveable. The court applied the mischief rule and held that the car was being used on the road as it represented a hazard and therefore insurance would be required in the event of an incident. In this case decided that the word “use” includes “moving” but it is not to be equated with propulsion of movement. It is hard to tell whether the judge used a literal or schematic approach in this essay. The literal meaning of the act in question was applied, the defendant had an uninsured car on the road regardless of whether it was road worthy or not, but the judge also used a schematic approach as the intention of the act was taken into consideration, the main objective of adopting the Road Traffic Act 1930 section 35 was to ensure that 3rd party victims of a traffic accident would be compensated. The mischief rule is a flexible rule where it could be applied to many different cases. However, this rule also has many disadvantages. This rule would indirectly make the judge have the responsibility to make the law. Thus, the separation of power would be voided in this kind of circumstances.

The words used in the statute are the main focus of the interpretation exercise and limit the freedom of the court. This reinforces the separation of powers within our law system If any injustice occur after a statute was interpreted, the court is not free to create laws to fill the gap. The literal rule theoretically respects parliamentary sovereignty, as the judges applys the words used by Parliament and does not attempt to substitute their own meaning for them. While this verifies that authority exists there is little to no flexibility when it comes to this rule as judges are required to adopt the “literal or colloquial “ meaning of the provision. Despite the fact the golden rule has an equal amount of flexibility it potentially gives a lot of power to the judges, interfering with the separation of powers. While the major benefit of the golden rule is arguably its ability to avoid absurd outcomes of the literal rule, it has been criticised on the grounds that there is no agreed definition of what will amount to an absurd outcome in any given case. Finally the mischief rule has been similarly criticised for its flexibility as it allows judges to craft statutory provisions as they wish to aid particular objectives. However, it does appear to be rather more satisfactory than the alternatives. The other two rules of statutory interpretation pay no regard to the objectives of legislation and in this sense are too rigid, focusing as they do on the meaning of particular words rather than their aims. Throughout my essay I have concluded that the rules of interpretation are flexible, and authority exists. This justifies whatever meaning the court attributes to the provision which is being interpreted. However this is a broad statement and does not apply to each rule of interpretation but to the three rules combined, each rule is not without fault but in my opinion the pros of the rules regarding statutory interpretation outweigh the cons. 

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