Francis Bennion portrait

Home

Human Rights

Law

Politics & Government

Professionalism

Sexual Ethics

Religion & Belief

Poetry Fiction Drama Other

About FB

Google

www this site

SITEMAP

 

ABOUT FB

. . CV

. . Autobiographical

. . Life photos

. . FB's Scrapbook

 

WRITINGS BY FB

. . Chronological

. . Complete list

. . The Bennion Code

. . FB books

. . FB articles etc.

. . FB press letters

. . Book reviews

. . Blogs

. . Archive

. . Acts mentioned

. . People mentioned

 

WRITINGS BY OTHERS

. . Chronological

. . Index

. . Press cuttings

. . Reviews-FB books

. .

OTHER MATERIAL

. . Photograph Album

. . Document list

. . Audio and video

 

Abbreviations

 

 

Note:Francis Bennion sadly died on 28 January 2015.

Contact Webmaster

 

Copyright

Disclaimer

 

Acrobat reader
     

Article in Justice of the Peace

 

172 JPN (6 Dec 2008) 822-825

Doc. No. 2008.032 JPN075A

 

Page 822

Statutory Interpretation: Teaching and Practice – Part 2

FRANCIS BENNION

The Practitioner’s Bible

 

The Hon. J. J. Spigelman, Chief Justice of New South Wales, said in 2007 that the law of statutory interpretation has become the most important single aspect of legal practice.1 My large book on it was generously described by a former Chief Justice of Australia as “the standard English text on statutory interpretation”.2 A number of commentators have been so kind as to call it the practitioner’s bible. One of these was Murray Hunt in a 1999 article.3 This shows the difficulty of writing a book intended both for students and practitioners. The introduction to my book explains the problem:

 

“This book has been called the practitioner’s bible. However it is also a treatise for academics, as it propounds a theory.”4

 

The theory it propounds is of course a theory of statutory interpretation considered as an area of legal practice, not a theory of how to teach it.

 

Murray Hunt treats the book as if it were solely a practitioner’s guide, which I suppose is what it looks like at first glance. There is also the difficulty that it is far too long to be conveniently absorbed by students, though I certainly hope they find it useful all the same. To help students further I have reduced the theoretical aspect to a more manageable compass in a much smaller book.5

 

What does this theoretical treatment of statutory interpretation considered as an area of legal practice amount to? I will attempt a summary of my theoretical scheme, otherwise known as the common law or Global system,6 which I have thought out with much effort over a period of some thirty years.

 

The larger book consists of a Code with extensive critical comments. The theoretical scheme, is composed of a central structure with accompanying individual features. The central structure is headed by section 193 of the Code, which lays down the basic rule:

 

“The basic rule of statutory interpretation is that the legislator’s intention is taken to be that in any case of doubtful meaning the enactment shall be construed in accordance with the general guides to legislative intention laid down by law; and that where these conflict the problem shall be resolved by weighing and balancing the interpretative factors concerned.”

 

The central structure then gives meaning to the term “the general guides to legislative intention laid down by law”, otherwise referred to as the interpretative criteria. They fall into four different groups, which may be respectively identified as rules, principles, presumptions and canons. Expanding this slightly, we may say these are:

 

1. Common law and statutory rules.

 

2. Rebuttable principles derived from legal policy.

 

3. Rebuttable presumptions based on the nature of legislation.

 

4. Rebuttable linguistic canons applicable to any piece of prose.

 

Expanding further, we can broadly distinguish the above interpretative criteria from one another as follows. A rule of construction (item 1) is of binding force, but in cases of real doubt rarely yields a conclusive answer. A principle of construction (item 2) reflects legal policy, and is mainly persuasive. A presumption of construction (item 3) arises from the essential nature of legislation, affording a prima facie indication of the legislator’s inferred or imputed intention as to the working of the Act. A linguistic canon of construction (item 4) arises from the nature and use of language and reasoning, and is not especially referable to legislation. I will now give the main constituents of this central structure.

 

Common law rules of construction (item 1)

 

Plain meaning rule

Rule where meaning not “plain”

Commonsense construction rule

The rule ut res magis valeat quam pereat (it is better that a thing succeed rather than fail)

Informed interpretation rule

Functional construction rule

 

Statutory rules of construction (item 1)

 

Rules laid down by Interpretation Act

Definitions etc in individual Acts

 

Principles of construction reflecting legal policy (item 2)

 

Principle against doubtful penalisation

Law should serve the public interest

Law should be just and fair

Law should be certain and predictable

Law should not operate retrospectively

Law should be coherent and self-consistent

Law should not be subject to casual change

Municipal law should conform to international law

 

Interpretative presumptions based on the nature of legislation (item 3)

 

Presumption that enactment to be given a purposive construction

Presumption that court to apply remedy provided for the “mischief”

 

Page 823

 

Presumption that text is primary indication of legal meaning

Presumption that literal meaning to be followed

Presumption that consequential construction to be given

Presumption that rectifying construction to be given

Presumption that updating construction to be given

Presumption that “absurd” result not intended

Presumption that evasion of Act not to be allowed

Presumption that ancillary rules of law apply

Presumption that ancillary legal maxims apply

 

Linguistic canons of construction (item 4)

 

Construction as a whole

Use of deductive reasoning

Treatment of different types of term

Rank principle

Latin maxims such as noscitur a sociis, ejusdem generis, expressio unius etc.

 

The theoretical scheme goes on the explain how these interpretative criteria are deployed in a particular case. Where there is an applicable enactment about which there is real doubt as to its legal meaning it is necessary to determine, having in mind the relevant facts of the case, which of the criteria are relevant. Where, as is usual, each side in the dispute wishes to put forward a different legal meaning of the enactment, the relevant criteria are applied to the opposing constructions. This yields what the theoretical scheme calls factors favouring one side or the other. As section 186 of the Code says, it is then necessary for the interpreter to assess the respective weights of the relevant interpretative factors and determine which of the opposing constructions they favour on balance.

 

That is the gist of the theoretical scheme. The accompanying individual features of the scheme which are referred to above include the concepts of legal meaning, real doubt and its causes, factual outline and legal thrust, and grammatical and strained meanings.

 

For the purpose of referring to the theoretical scheme outlined above I have coined the acronym NESSSI. This stands for “New Scientific System of Statutory Interpretation”, which echoes Blackstone’s term “a liberal science” referred to earlier.7

 

Back To Wilberforce And Reid

 

I now need to return to Lords Wilberforce and Reid. I cited above some comments they made in the 1966 Lords debate on the Law Commission’s first report. Now I must give fuller extracts from that.

 

The essence of Wilberforce’s contribution falls into three parts. The first was:

 

“I have always doubted whether statutory interpretation is a genuine subject for the Law Commission at all. I suspect it is what is nowadays popularly called a non-subject. I do not think that law reform can really grapple with it. It is a matter for educating the Judges and practitioners and hoping that the work is better done.”

 

The reference to the Law Commission suggests that Wilberforce was referring to statutory interpretation considered as an area of legal practice when he spoke of it as being a non-subject, yet he goes on to refer to education. He offers no opinion on how judges and practitioners should be educated in this “non-subject”.

 

Next Lord Wilberforce turns his fire on the legislative drafters:

 

“I think that the problem really is one of legislative drafting rather than one of interpretation. [These are] the very men whose technique causes all the trouble we experience in the courts. [We might say:] ‘Let us get some men less ingenious, some men of less intricate minds, some more plainspoken men, to show us how to do this legislative work in a different way.’ I feel that that would be a superficial approach to the problem, which in truth is rather more difficult, because the real trouble, as with the fiscal Statutes, is not in the drafting so much as in the nature of the legislation itself, having regard to the nature of the legislative programme of to-day. It is not only much too large in quantity, but much too detailed in substance—the preoccupation with every minute case which has to be regulated and dealt with.”

 

This is poor argument. The initial suggestion is that the courts’ difficulties with statutory interpretation are caused by faulty drafting technique, but no attempt is made to substantiate this. Instead there is a shift towards blaming governments for the large quantity of the legislation they think necessary. It is surely the duty of the Judges to cope with the legislation that comes their way; failing to do this is not what they are paid for. At the same time they should, in my submission, strive to reach an adequate theory of how that task is to be performed.

 

Finally Lord Wilberforce says this:

 

“But as legislators, we have a responsibility in this matter, which one can perhaps define by saying that we should endeavour, so far as we can, to resist this process of detailed and excessive regimentation and try to press for a wider mesh in our legislation than we are getting.”

 

What this means in other words is that the Judges (or some of them at least) would like more legislative power. The wider the mesh, the more scope there is for what I have called interstitial articulation by the Judges. But pressing for this is again not what they are paid for.

 

Turning to Lord Reid’s remarks in the same debate, I will mention only the following:

 

“We are always told that construing Acts of Parliament is a mystery, and books have been written about the subject. I always advise young men ‘Don’t read them’, because the rules are extremely simple. One looks at the words of the Act and asks, ‘What is their natural meaning?’. That requires a knowledge of the English language. Then, having found out if they have one—and sometimes they have not; but assuming the words to have a natural meaning—one sees whether the natural meaning is going to produce reasonable consequences. If it is, one adopts it. If it is not, one looks for another meaning. It is extremely difficult, in fact almost impossible, to draft

 

Page 824

 

any Act of Parliament or any other document which is not ambiguous. One can almost always find a secondary meaning if one wants to. Then you ask, ‘Is this going to produce a reasonable result?’. If you think it will, well and good. If it does not produce a reasonable result, then what I do is to say, “Parliament got us into this mess; let us leave Parliament to get us out of it.”

 

As I have mentioned, Sir Rupert Cross regarded Reid as one of the great Judges of the twentieth century, and said that his own book on statutory interpretation owed much to Reid’s views. This is borne out by the fact that my large book cites no fewer than forty-five of Reid’s dicta. So we have to accept that he was a great Judge and had a low opinion of the books then available on statutory interpretation.

 

More remarkable is Reid’s remark that “the rules are extremely simple”. In fact they are not simple, and have not been simple for centuries – if indeed they ever were simple. And Reid’s prescription if the consequences of the natural meaning are “unreasonable” has not been law since Coke’s day in the seventeenth century.

 

The conclusion I draw is that the attitudes displayed by Lords Reid and Wilberforce in that House of Lords debate of 1966 displayed the ancient view of the profession that you learn on the job by watching closely what your seniors do. In other words it is a matter of practice not theory.8 Hoping that the work is better done is but a vague aspiration unless practical steps are taken to further it. But the great drawback to this timeworn empirical method is that it leaves little room for improvement in the vital techniques of statutory interpretation.

 

Current Legal Education

 

In many common law jurisdictions statutory interpretation is still badly taught. Part of the problem is that because most law teachers were themselves taught it badly, they still see it as being a non-subject. The same of course applies to practitioners, including some Judges. One consequence of this, I am told by those who know, is that teaching statutory interpretation, along with the rest of legal method, tends to be given either to the most junior members of staff or to those who are simply putting in time until retirement.

 

In England in the whole of a course the subject of statutory interpretation tends to get little more than one lecture and one tutorial or seminar, though the position is better in countries such as Australia which are more advanced in the subject. Added to this, teaching colleagues tend to treat the cases in their own subjects as establishing propositions of law in that subject, rather than being interested in how the courts came to formulate those propositions in the way that they did. I myself decided to give up my lectures on statutory interpretation to Bar students in the 1980s when I was asked by the CLE to limit citation of cases to those that had an importance in the legal subject with which they were concerned.

 

To this bleak view of legal education there has to be added the equally bleak fact, mentioned at the beginning of this article, that many Judges, especially in England seem uninterested in framing their judgments according to any developed theory of statutory interpretation. There are many court citations of my large book, as can be gathered from the internet. Very few mention section 193, the basic rule.9

 

The trouble starts in the law schools. Oliver Jones, an Assistant Professor in the Faculty of Law in the University of Hong Kong, suggests an answer. Often, statutory interpretation remains only part of a subject, even if it has been upgraded from module to major component. Further, it is taught at the outset of the undergraduate legal curriculum, when, says Jones, the legal brain is embryonic. Students need to receive a brief introduction to the discipline at the beginning of their studies. “However, it must also become an entire compulsory subject at an advanced stage of the law degree.”10

 

Jones points out that the modern approach to statutory interpretation is completely different from what it was in the recent past. There is no doubt, he says, that “statutory interpretation is now a bespoke exercise”.11 It involves the application of an entire process and mindset which can, and must, be learned before it is first attempted in professional life. The Commonwealth Legal Education Association (CLEA) has suggested that Jones produce a model curriculum for an advanced core subject on statutory interpretation. He has invited me to join him in this project, and I have been pleased to do so.

 

Conclusions

 

My aim in this article has been to clarify a number of points concerned with statutory interpretation. I hope it has established the following propositions.

 

1. A distinction needs to be drawn between theories of statutory interpretation when it is considered as an area of legal practice and theories regarding the best method of teaching that.

 

2. When Lord Wilberforce doubted whether statutory interpretation is a genuine subject for the Law Commission, and suspected it to be a non-subject, he was considering it as an area of legal practice. His statement was with respect mistaken. The Law Commission is charged by statute with the function of codification of the law. My book Bennion on Statutory Interpretation has at its heart a code which as an experienced legislative draftsman I drafted in a form suitable for being adopted as an Act of Parliament. The Law Commission could perfectly well have so adopted it in pursuance of their statutory function. They have shown no interest in doing so.

 

3. My own theory of statutory interpretation considered as an area of legal practice is outlined in some detail above. Willis, as I have said, produced the theory that there were but three interpretative criteria. In Canada Elmer Driedger produced a famous theory12, which I have ventured to criticise.13 Then we have Eskridge’s dynamic theory in the US.14 There have been other such theories.15 The leading Australian text, Pearce and Geddes16, does not purport to lay down a theory, though the expert Jeffrey Barnes says that underlying their book is an unstated theory:

 

“In this sense I would agree that Pearce and Geddes is a contribution to theory, but my view is that Pearce and Geddes set out the law or describe the law rather than theorise it in the sense of ‘give a conception of”, present the topic in a fresh and original light, draw out unstated assumptions, present a framework of the law, etc.”17

 

Page 825

 

All this further refutes the Wilberforce claim that statutory interpretation is a non-subject.

 

4. Many English Judges, no doubt influenced by the Wilberforce claim, continue to avoid propounding any general theory of statutory interpretation considered as an area of legal practice. I maintain that they are misguided and that they should adopt my own theory, which is securely based in law and practice as prevailing in England and Wales or adopted in other common law countries.

 

5 I further maintain that there should be an established theory of teaching statutory interpretation, and that this should not be done exclusively “on the job” through quasi-apprenticeships. Such a theory cannot be established unless there is in place beforehand a generally accepted theory of statutory interpretation considered as an area of legal practice.

 

6. It may well be desirable to develop separate theories for teaching statutory interpretation in academic institutions such as universities (which needs to be done) and teaching it in vocational training institutions.

 

7. More time and attention should be given to teaching this essential subject, which is deployed across the board in today’s legal practice.18

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

 

1. 81 ALJ (2007), 601-608.

2. Murray Gleeson CJ, “The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights”, Victoria Law Foundation Oration, Melbourne, 31 July 2008, p. 11, http://www.highcourt.gov.au/speeches/cj/cj_31jul08.pdf.

3. Murray Hunt, ‘The Human Rights Act and Legal Culture: The Judiciary and the Legal Profession’, 26.1 Journal of Law and Society, March 1999, pp 86–102.

4. Op. cit., p. 1.

5. F A R Bennion, Understanding Common Law Legislation: Drafting and Interpretation (Oxford University Press, 2001). The OUP are shortly to republish this as a paperback.

6. This system, based on the common law, excludes European principles. In Bennion on Statutory Interpretation European matters are dealt with separately in Division Seven.

7. An example of NESSSI in action is given in my article “The Real IRA Is Proscribed After All” in 168 JPN (4 September 2004) 694, www.francisbennion.com/2004/020.htm. On the teaching of statutory interpretation using NESSSI see www.francisbennion.com/2007/nfb/005.htm. For a case which has used NESSSI see Medical Council of Hong Kong v Chow (2000) 3 HKCFAR 144; [2000] 2 HKLRD 674; [2000] 2 HKC 428, at [28], http://www.hklii.org/cgi-hklii/disp.pl/hk/jud/eng/hkcfa/2000/FACV000003_2000-21991.html?query=title+%28+%22medical+council%22+%29.

8. Some modern Judges are more advanced, e.g. Arden LJ, who has just published an article suggesting two theories of statutory interpretation, which she calls the Agency Model and the Dynamic Model: see “The Changing Judicial Role, Human Rights, Community Law and the Intention of Parliament”, 67 Cambridge Law Journal (Nov. 2008) pp. 487-507.

9. For a rare exception see Medical Council of Hong Kong v Chow (2000) 3 HKCFAR 144; [2000] 2 HKLRD 674; [2000] 2 HKC 428 at [28], http://www.hklii.org/cgi-hklii/disp.pl/hk/jud/eng/hkcfa/2000/FACV000003_2000-21991.html?query=title+%28+%22medical+council%22+%29.

10. Oliver Jones, “Statutory Interpretation: the Case for a Core Subject”, 5(2) Journal of Commonwealth Law and Legal Education (2008), pp. 85-96 at 88.

11. Ibid.

12. See Ruth Sullivan, Sullivan on the Construction of Statutes (5th edn, 2008), ch.1.

13. MSee entries under Dreidger’s name in the index to Bennion on Statutory Interpretation (5th edn, 2008).

14. William Eskridge, Dynamic Statutory Interpretation (Cambridge, Massachusetts: Harvard University Press, 1994).

15. See, eg, “A Unified Theory of Statutory Interpretation” by R N Graham, Assistant Professor, Faculty of Law, University of New Brunswick, drawn from “A Unitarian Theory of Statutory Interpretation”, R N Graham, 1999, York University.

16. Pearce and Geddes, Statutory Interpretation in Australia, 5th edn, Butterworths, Australia, 2001.

17. S J GrPrivate communication to author.

18. I am grateful to various colleagues, notably Jeffrey Barnes, Oliver Jones and Ian McLeod, for helpful comments on drafts of this article.