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Article in Justice of the Peace

 

172 JPN (6 Dec 2008) 802-804

Doc. No. 2008.031 JPN074A

 

Page 802

Statutory Interpretation: Teaching and Practice – Part 1

FRANCIS BENNION

Introductory

 

An ounce of practice is worth a ton of theory – or is it? I have been looking into the question why many judges seem uninterested in the theory of statutory interpretation. After all, as Murray Gleeson, Chief Justice of Australia, says,1 “Whether it is described as a science or an art, statutory interpretation is of central importance to the daily work of all judges”. I use “theory” in OED sense 4B, namely:

 

“That department of an art or technical subject which consists in the knowledge or statement of the facts on which it depends, or of its principles or methods, as distinguished from the practice of it”.

 

Consideration of this requires some investigation into legal education. It also requires us to distinguish clearly between a theory of statutory interpretation considered as an area of legal practice and a theory of how to teach it, so considered.

 

Nowadays we expect our lawyers to have received a formal university education in their life’s work, but it was not always so. Until William Blackstone stood up at Oxford on 25 October 1758 to deliver his first lecture as Vinerian Professor of English Law, that subject was not taught at the English universities. The education of Bar students was sketchy until 1852, when the Council of Legal Education (CLE) was set up; and relied largely on social mixing with seniors.2 Attorneys and solicitors learnt on the job, often beginning as articled clerks.

 

When I entered the Westminster Parliamentary Counsel Office in 1953 I received no formal instruction in legislative drafting. Again it was learnt on the job, a tyro working in conjunction with an experienced drafter in what Americans call the buddy system. To this day, most lawyers receive little or no training in how to handle statutes. Lord Wilberforce, a senior Law Lord, said extra-judicially in 1966 that statutory interpretation is “what is nowadays popularly called a non-subject”. Lord Reid, another distinguished Law Lord, said in that same House of Lords debate:3

 

“Many books are written about statutory interpretation. I always advise young men, ‘Don’t read them’ . . .”

 

In the early years of many learned professions, newcomers relied on practice rather than theory. By that I mean that they were given little or no formal instruction but were treated as apprentices to working practitioners acting as pupil masters. They watched the pupil master at work, helping to do that work, gradually being given scope to work on their own, and finally passing out as fully-fledged practitioners. Theory came into it hardly at all.

 

In this a contrast developed between vocational and academic teaching. A “non-subject” like statutory interpretation (as Lord Wilberforce and many others regarded it) fell into the vocational rather than the academic area of law teaching; and that is still largely the position.

 

William Blackstone

 

Blackstone found that his novel lectures in English law became very popular, so much so that, as he put it, “the knowledge of our laws and constitution was adapted as a liberal science by general academical authority”.4 Eager students took notes of his lectures, revised and transcribed these, and frequently lent the results to others. Blackstone describes what then happened.

 

“Hence copies have been multiplied, in their nature imperfect, if not erroneous; some of which have fallen into mercenary hands, and become the object of clandestine sale. Having therefore so much reason to apprehend a surreptitious impression, I chose rather to submit my own errors to the world, than to seem answerable for those of other men.”5

 

Thus the famous Commentaries came to be published in four volumes. Blackstone spared a mere ten paragraphs in five of their pages to describe what he called the rules to be observed with regard to the construction of statutes.6 Blackstone’s rules were among the sources which Lord Reid

 

Page 803

 

in his wisdom advised young men not to read. Nevertheless many did read them, and found them instructive as far as they went. I will now attempt a reduced version of the ten paragraphs because it is instructive to compare them with what is taught today. I mostly retain Blackstone’s language, modifying it slightly where necessary for modern conditions.

 

1. First Blackstone gave a summary of the rule in Heydon’s Case,7 stating that there were three points to be considered; the old law, the mischief, and the remedy. “And it is the business of the judges so to construe the Act as to suppress the mischief and advance the remedy.” He gave the following example. By the common law ecclesiastical corporations might let as long leases as they thought proper. The mischief was that they granted unreasonably long leases, to the impoverishment of their successors. The remedy applied by the statute 13 Eliz. 1 c. 10 was to make void all leases by such corporations for longer than three lives or twenty-one years. However this was construed as not applying to a serving bishop or dean who granted such a lease, for the Act was made for the benefit of successors.8

 

2. A statute which treats of things or persons of an inferior rank cannot by any general words be extended to those of a superior rank. So an Act treating of “deans, prebendaries, parsons, vicars, and others having spiritual promotion” is held not to extend to bishops even though they have spiritual promotion.9

 

3. Penal statutes must be construed strictly. Thus a statute 1 Edw. VI having enacted that those who are convicted of stealing horses should not have the benefit of clergy, the judges conceived that this did not extend to him that should steal but one horse.10

 

4. Statutes against frauds are to be liberally and beneficially expounded. This may seem a contradiction to the last rule; most statutes against frauds being in their consequence penal. But this difference is here to be taken: where the statute acts upon the offender, and inflicts a penalty, as the pillory or a fine, then it is to be taken strictly: but when the statute acts upon the offence, by setting aside the fraudulent transaction, here it is to be construed liberally.11

 

5. One part of a statute must be so construed by another, that the whole may if possible stand: ut res magis valeat, quam pereat.12

 

6. A saving totally repugnant to the body of the Act is void.13

 

7. Where the common law and a statute differ, the common law gives place to the statute; and an old statute gives place to a new one. But this is to be understood only where the later statute is couched in negative terms, or by its matter necessarily implies a negative.14

 

8. If a statute that repeals another is itself repealed afterwards, the first statute is thereby revived without any formal words for that purpose.15

 

9. Acts of Parliament derogatory from the power of subsequent Parliaments bind not. Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind the present Parliament.16

 

10. Lastly, Acts of Parliament that are impossible to be performed are of no validity;17 and if there arise out of them collaterally any absurd 18 consequences,19 manifestly contradictory to common reason,20 they are, with regard to those collateral consequences, void.

 

A striking feature of these ten precepts is that literal construction is not spoken of. They contemplate that the judges will sidestep elements in a statute that do not serve to remedy the mischief. Also remarkable is that Blackstone makes no attempt to form a theory of statutory interpretation. These are just workaday rules of thumb. There are theories aplenty scattered in the Commentaries, but statutory interpretation is not deemed worthy of any.

 

Blackstone’s Commentaries remained almost the sole prevailing work on English law for more than a century. I have an edition published in 1876.21 It has Blackstone’s same ten paragraphs on statutory interpretation, except that paragraph 8 is relegated to a footnote with a comment that the rule in question was abrogated by a predecessor to the Interpretation Act 1978.

 

However what came to be known as the literal rule later began to flourish, and tended to overshadow the mischief rule favoured by Blackstone.

 

Sir Rupert Cross

 

It took many years before any English academic lawyer saw the need for a thoroughgoing theory of statutory interpretation. The name of this pioneer was Sir Rupert Cross. A fellow of Magdalen College Oxford, he was a successor to Blackstone in the Vinerian chair, being appointed in 1964. He was blind from birth, and used to play chess with my own Balliol tutor Sir Theodore Tylor, who was also of impaired sight. Both went to school at the Worcester College for the Blind.

 

In 1976 Cross produced a little book titled Statutory Interpretation22 which ironically was dedicated to Lord Reid. The dedication runs: “To the memory of Lord Reid, one of the great judges of the twentieth century, to whose views on statutory interpretation this book owes so much”. I wonder whether Lord Reid, had he lived, would have excepted Cross’s book from those he advised young men not to read. Sadly he died in 1975.

 

The literal rule had obtained such a hold that it had come as a surprise when in 1938 a Canadian academic John Willis wrote a famous article pointing out that not only was there also a mischief rule but a so-called golden rule.23 Moreover, said Willis mischievously, a court invokes “whichever of the [three] rules produces a result which satisfies its sense of justice in the case before it”. A disgusted Rupert Cross said that the Willis thesis had been so persuasive “that the tendency of subsequent English academic discussion has been to do no more than treat the cases as illustrations of one or more of the three rules.24 He complained of this at length in the preface to his book, and said:

 

“When reading for a law degree at Oxford in the early 1930s, I studied jurisprudence, a subject which, then

 

Page 804

 

as now, was commonly assumed to include statutory interpretation. I was told to write an essay criticising the English rules and I dutifully said my piece about the literalism of the Courts, their failure to implement the purpose of the statutes with which they dealt and, worst of all, their intransigent refusal to consult travaux préparatoires. All the time I was experiencing a malaise which, I am bound to confess, was not wholly set at rest by my tutor, with regard to the nature of the English rules of interpretation. What were they? Where were they stated? I then practised law for a decade and it was as much as I could do to make sense of the day to day operation of the legislation that came my way . . . When teaching law at Oxford in the 1950s and 1960s . . . [e]ach and every pupil told me that there were three rules, the literal rule, the golden rule and the mischief rule . . . ”

 

The same still applies, to a large extent. Cross confessed that he wrote his little book of a mere 180 pages “in order to clarify my own mind as much as anyone else’s”. He intended the book, he tells us, both for students and practitioners. It was a start on a theoretical treatment, but scarcely sufficient considering the extent and complexity of the subject. I read it with great interest and took it as a challenge to produce something more comprehensive. The first edition of my own book with the same title was published in 1984 and ran to 904 pages. By the fifth edition, published this year, it has grown to 1578 pages.

 

------------------------

 

1. Murray Gleeson CJ, “The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights”, Victoria Law Foundation Oration, Melbourne, 31 July 2008, p. 4.

2. John Addington Symonds, writing of the year 1864, mentions moving to London “to eat dinners at Lincoln’s Inn, and to make a pretence of studying law”: The Memoirs of John Addington Symonds,ed. Phyllis Grossmith, Univ. of Chicago Press 1984, p. 150.

3. Debate on Law Commission’s first annual report, HL Deb. 16 November 1966 vol. 277 cols. 266-1343.

4. William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1st edn, 1765–1769), I i.

5. Ibid., I iii

6. Ibid., I 87-91.

7. (1584), 3 Co. Rep. 7a.

8. On Heydon’s Case see Bennion on Statutory Interpretation (5th edn, 2008), s. 291

9. See ibid., s. 387.

10. See ibid., Pt, XVI. By statute, references to the plural now include the singular: Interpretation Act 1978 s. 6(c).

11. This is not featured in modern books on statutory interpretation. It is to be distinguished from fraud on a statute: see ibid., Pt. XXII.

12. See ibid., s. 198.

13. This is not featured in modern books on statutory interpretation.

14. See ibid., p. 889.

15. This rule has been abolished by statute: see Interpretation Act 1978 s. 15.

16. See www.francisbennion.com/2004/028.htm.

17. See Bennion, ibid., s. 346.

18. On absurdity see ibid., Pt XXI.

19. On consequential construction see ibid., s. 286.y italics.

20. On the commonsense construction rule see ibid., s. 197.

21. The Commentaries “adapted to the present state of the law” by R. M. Kerr (London: John Murray).

22. London: Butterworths. A second edition edited by John Bell and Sir George Engle (lately first Parliamentary Counsel) was published in 1987, and a third so edited in 1995.

23. John Willis, “Statutory Interpretation in a Nutshell”, 16 Canadian Bar Review (1938) 1

24. Op. cit., p. 169.