Statutes are all around us. They can be old[1] or new[2]. They can be relatively short[3] or inordinately long[4]. Some statutes are rigorously detailed[5] while others are extremely vague[6]. Some are not even in English[7]. Like them or not, statutes have effect until Parliament repeals them.
To properly give effect to these Acts, they must first be interpreted. In the UK, the current judicial practice starts from the Courts attempting to give effect to the plain meaning of the statute[8]. If the plain meaning is in doubt, the Court may resort to a purposive enquiry to determine the purpose and intent behind a statutory provision[9]. However, this approach is problematic because it is not exactly clear when a Court may be allowed to depart from the plain meaning of the text.Additionally, attempts to rationalise the Court’s interpretative methods have been treated with disdain by Courts[10] and commentators[11] alike, thereby depriving the subject of critical theoretical study[12].
This article seeks to shine a modest light on the theoretical issues surrounding statutory interpretation. The article will attempt to condense the vast world of interpretative methodologies by first introducing the modus oprendi of each interpretative method before showing its real-life application by common law Courts. Then, without taking a normative stance, the article will highlight the general implications of choosing an interpretative methodology over another.
In order to achieve the above aims, this article will start in Section I by introducing the prevalent interpretative methodologies. In Section II, the article will then highlight the constitutional tensions that accompany the choice of an interpretative method.
I. Interpretative Methodologies
In this section, the different methods of statutory interpretation will be introduced. To help illustrate the modus operendi and the differences between each method, the following hypothetical[13] will be used.
Motor Vehicle Control Act 1900
1. No vehicles shall be allowed into any city park.
Query: Are 18 wheelers, horse-drawn carriages, bicycles, mobility scooters and a road-going garden tractor a ‘vehicle’ under this Act?
A. Literalism
The literalist method of interpretation may be described as an approach that solely focusses on the grammatical meaning of a text without regard to the text’s context or purpose[14]. For instance, under Section 6(1) Protection of Birds Act 1954, it was an offence to ‘offer for sale’ certain species of birds. Although the broad wording of s6(1) Protection of Birds Act 1954 to restrict sales of wild birds potentially implies that ‘offer’ should be interpreted simply as to ‘proffer’ or to ‘provide an opportunity’, this was ignored in Partridge v Crittenden[15]. Instead, the court held that, under a literal interpretation, ‘offer’ referred to a manifest intention to enter into legal relations.
Applying this to the Motor Vehicle Control Act hypothetical, a literalist would first consult the dictionary definition of ‘vehicle’. According to the Oxford English Dictionary[16], a vehicle is ‘a thing for transporting people or goods, especially on land’. Thus, the literalist would likely conclude that under this plain definition of ‘vehicle’ all the contentious examples listed in the ‘Query’ above are ‘vehicles’ for the purposes of the Act as each is capable of transporting people or goods. Thus, as only the plain meaning is consulted, the context and purpose of the Act are invariably ignored.
B. Purposivism
In contrast to the literalist method, a purposive construction approaches a statute by considering what Parliament intends to achieve in passing a particular piece of legislation before reading the words in question in compliance with that intention[17]. To Barak, legislative intention is a mixture of two distinct intentions[18].
Firstly, Barak argues that Parliament has a ‘subjective intention’ when passing legislation[19]. This can be to criminalise a certain conduct for penal statutes or to contribute to the nation’s purse for tax statutes. Such an intention is ascertain able from the face of the statute and, potentially, from legislative records when it passes an Act[20]. This intention can also be abstracted by the Courts as the problem that Parliament intends to solve may not be clear. For instance, in UBS/DB[21], the United Kingdom Supreme Court (‘UKSC’) read anti-tax avoidance into a tax statute which did not textually curtail tax avoidance. In its reasoning, the UKSC justified its approach by reasoning that in imposing a tax, a reasonableParliament must have intended the tax statute to be hostile to tax-avoidance schemes. Thus, according to the Court, the intention of a tax statute is not simply limited to contributing to the State’s coffers. It includes the moral obligation to pay taxes as well.
Additionally, Barak observes that Parliament also has an ‘objective intention’, or the intention of the reasonable legislator/system[22]. This intention includes the judicial presumptions that Parliament intends to uphold human rights, substantive rule of law and other core legal values.
Thus, a purposivist may approach the above hypothetical in the following way. Firstly, although the text and the clear purpose of the Act is to prohibit vehicles from entering city parks, a purposivist could consider that an abstract purpose of this Act is to preserve the beauty of city parks as the Act is broadly termed as the‘Motor Vehicles Control Act’.[23] As such, although the term ‘vehicle’ plainly refers to a thing used to transport goods or persons, this definition may be over inclusive in light of the Act’s purpose. Thus, a purposivist might construe the Act as prohibiting a‘vehicle’ if the ‘vehicle’ is a thing used to transport goods or persons that would also cause a destruction to the beauty of city parks. Under this definition, an 18-wheeler and horse drawn carriages are likely prohibited from entering city parks due to its destructive potential while a bicycle and mobility scooter are allowed as they do not impact the beauty of city parks.However, a road-worthy garden tractor may potentially be allowed into city parks as it may be able to improve the aesthetic value of the parks.
C. Textualism
Textualism, in the modern sense, may be defined as a method where an interpreter ascertains the meaning of texts based on the choice of words used and the text’s context[24]. In practical terms, this means that an interpreter must first ascertain the natural meaning of a text in question before considering how the context[25] of the text influences the choice of permissible textual meanings. For instance, in the American case of McBoyle v United States[26], the Supreme Court of the United States (‘SCOTUS’) had to determine whether ‘motor vehicles’ for the purposes of the National Motor Vehicle Theft Act applied to aeroplanes. Holding that it does not, Holmes J reasoned that although the term ‘motor vehicle’ could technically include an aircraft, the context of the National Motor Vehicle Act clearly suggests that the definition of a ‘motor vehicle’ is limited to the colloquial definition of a thing that conveys goods by land.
Applying this method of reasoning to the hypothetical above, a textualist (like the literalist) would first ascertain the plain meaning of the term ‘vehicle’ using the dictionary. Having established that ‘vehicle’ refers to a thing used to transport persons or goods, the textualist would consider other contextual clues for meaning. In particular, the textualist would consider that the term ‘vehicle’ is used in the context of the ‘Motor Vehicle Control Act’ and that the purpose of Section 1, on the face of the statute, is to prohibit ‘vehicles’ from entering city parks. Thus, because of these contextual factors, a textualist would likely conclude that a ‘vehicle’ must be a machine that is commonly used on roads which may transport persons or goods or other purposes. Under this definition, only the 18-wheeler and road-worthy garden tractor are prohibited under the Act.
D. Consequentialism
The final mode of interpretation considered in this article is not strictly a method of interpretation. Rather, it is an outcome-driven approach where an interpreter’s construction of a text is driven by the outcome the interpreter wants to reach.
This might bean interpretation that does ‘practical justice’. For instance, in the UBS/DB[27] case, a cunning tax avoidance scheme was struck out by the UKSC even though the scheme was formally within the letter of the law. It might be argued that the UKSC was influenced by the fact that both schemes were used by large banks to lessen the tax burden on large bonuses. Thus, given that tax avoidance is now perceived as a social and moral wrong, the Court might have been influenced to reach a morally and politically just result—namely to oust the Banks’ tax scheme.
Alternatively, an interpretation might be rendered to support a certain ideology. For instance, in the Dred Scott[28]case, the SCOTUS held that the United States Congress could not legislate to outlaw slavery in US Territories (as opposed to States) even though they had the power to do so under the plain text of Article 4 § 3 of the United States Constitution. Gorsuch[29] argues that this is an ideological outcome. This is because, at the time the case was heard, the United States was deeply divided over the question of slavery.[30] The Northern States spearheaded the abolitionist movement whilst the SouthernStates fought to preserve a white man’s misconceived right to own slaves. Thus, by departing from the original and plain meaning of Article 4 § 3, the Court was essentially compromising on the text of the Constitution to protect some interests of Southern slave states, thereby signalling that the Court was potentially more interested in ideological compromises than authoritatively declaring the correct interpretation of the constitution.
Applying this to the hypothetical, it is feasible that a city might ask the Court to consider whether a road-going garden tractor is a ‘vehicle’ as defined in the Act. That city might argue that to include a road-going garden tractor as a ‘vehicle’ is absurd as it forces the city to undertake additional expenditure to hire more expensive landscape specialists who do not use such garden tractors to maintain city gardens. In light of this economic fact, a consequentialist Court intending to minimise administrative costs might be persuaded that the Act does not prohibit road-going garden tractors under the guise of a purposive interpretation under subsection B. By contrast, a Court which ignores such consequentialist arguments might reach a textual or purposive solution which depends on the independent juristic views of the Court.
II. Why Interpretative Methodologies Matter
Having discussed a wide variety of interpretative methods, this section will briefly discuss the impacts of the interpretative methods on parliamentary sovereignty, separation of powers and the rule of law in the United Kingdom.
Parliamentary sovereignty may be neatly described as the principle that Parliament has the supreme legal authority to make and unmake any law she wishes. In practical terms, this means that, when interpreting a statute, the Court must be faithful to Parliament’s commands as expressed in an Act. Thus, as a matter of interpretation, the consequentialist method can potentially fall foul of this principle as, in reaching a contemporaneous or a consequentialist interpretation, the Court may be disregarding the plain text of a statute and thereby frustrating Parliament’s commands. Additionally, literalism and textualism can be criticised under this heading as it is arguable that the exclusive focus on the text to derive meaning may blindside the Courts from expounding on whatParliament subjectively intends to achieve, violating parliamentary sovereignty.
As a corollary to parliamentary sovereignty, the separation of powers denotes that no branch of government may trespass into the prerogative of another branch. Relevant for the Courts is the idea that a Court should not legislate from the bench, since legislation falls within Parliament’s prerogative. To that end, criticisms can be levelled against the method since, in determining what a reasonable legislature would have sought to achieve in an Act, the Courts are necessarily behaving as though they are the legislature even though they have no expertise and democratic mandate to do so.
Finally, the rule of law mandates that, at minimum, the law is certain and visible to the public. To that end, the purposive method may be attacked because, in relying on a Court to determine the legislative purpose the Court is necessarily departing from the letter of an Act and into judicial abstraction, thereby reducing the certainty of enacted law. Furthermore, purposivism, which may rely on extratextual evidence, may be criticised on openness or cost grounds. This is because, in order to run a purposive argument, litigants may rely on extratextual arguments. To do so, the litigants would have to spend time and resources trawling through additional writings rather than simply focusing on the text to substantiate their arguments. Thus, since substantial resources are required to access the law, this suggests that the law may not be sufficiently open.
Conclusion
In conclusion, this article has illustrated the prevailing interpretative methodologies that have been applied by common law courts. Additionally, this article has also briefly analysed some of the juridical implications of selecting a particular methodology is chosen. Thus, it is hoped that this deep dive into different interpretative methodologies allows for a critical appraisal of the interpretative methodologies currently used in practice and whether such methods should remain in use.
[1] Prescription Act 1832
[2] Coronavirus Act 2020
[3] Law Reform (Frustrated Contracts) Act 1943
[4] Companies Act 2006
[5] Land Registration Act 2002
[6] Part 5 Finance Act 2013 describing the General Anti-Abuse Rules
[7] Treason Act 1351
[8] Warburton v Loveland [1832] 5 ER 499
[9] Daniel Greenberg, Craies on Legislation (12th edn, Sweet & Maxwell 2020) 18.1.14
[10] Mykoliw v Botterill [2010] CSOH 84
[11] Daniel Greenberg, ‘All Trains Stop at Crewe: The Rise and Rise of Contextual Drafting’ (2005) 7(1/2) European Journal of Law Reform, Sir William Dale Memorial Issue 31–46
[12] Lord Justice Sales, 'Modern Statutory Interpretation' [2017] 38(2) Statute Law Review 125-132
[13] Example adapted from HLA Hart, 'Positivism and the Separation of Law and Morals' [1958] 71(4) Harvard Law Review 593, 607, and Scalia and Garner, Reading Law (Thomson/West 2012) 36
[14] Bennion, Understanding Common Law Legislation (OUP 2001) 36
[15] 2 All ER 421
[16] Oxford English dictionary, 'Vehicle' (OED, June 2021) <https://www.oed.com/view/Entry/221903?rskey=FrZtYQ&result=14&isAdvanced=true#firstMatch> accessed10 September 2021
[17] Supra note 14 at 38
[18] Aharon Barak, Purposive Interpretation in Law (Princeton University Press 2005) 120, 148
[19] Ibid at 120
[20] Ibid at 135-140
[21] [2016] UKSC 13
[22] Supra note 18 at 148
[23] Objective purpose not considered as the statute does not directly implicate an objective purpose that is presumed.
[24] Scalia and Garner, Reading Law (Thomson/West 2012) 33
[25] Ie. Low level purpose of the statute and surrounding semantic context
[26] 283 US 25 (1931)
[27] Supra note 21
[28] 60 US 393 (1857)
[29] Neil M. Gorsuch and others, A Republic, If You Can Keep It (Crown Forum 2019)
[30] JS Gersen, 'The Importance of Teaching Dred Scott' (The New Yorker, June 2021) <https://www.newyorker.com/news/our-columnists/the-importance-of-teaching-dred-scott> accessed 10 September 2021
