Statutory Interpretation Flashcards LAW1200

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  • Created on: 04-01-16 11:14
The nature of statutes?
Language is monotone and language is compressed. Complexity [fotherfill v monarch] 1981.
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What is stated in First Report "The legislative Process" House of Comons Session 1997-1998 (Cmnd. 190)
A bill cannot set about communicating with the reader in the same way which other forms of writing do. It cannot use the same range of tools. As a result legislation speaks in a monotone and its language is compressed.
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Quote in Fothergill? Regarding for whom its written.
The audience that parliament chooses to address is the judiciary, whose function is to resolve any doubts as to what written laws mean. (Lord Diplock)
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Problems of interpretation?
Unforeseen developments (Royal College of Nursing v DHSS 1981), Intentional obscurity, European Communities Act 1972 s. 2(4), draftsmans error (Adler v George 1964), Unforeseen complexity (Barrett v DPP 2009), uncertainty (Cutter v Eagle Star/Slim)
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How is interpretation justified?
On the basis that it reflects the intention of parliament.
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Whose intention counts? Explain the 3 judicial approaches. (1 and 2)
1) to put itself in he shoes of the draftsman, to consider his knowledge and what objective he had (Lord Simon in Maunsell v Olins), 2) Interpretation myst be concerned with the reasonable expectations who may be affected (Lord Simon, Black Clawson)
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3rd judicial approach to stat int
3) Seeking the meaning of the words which parliament used. Not seeking what parliament meant but the true meaning of what they said (Lord Reid, Black Clawson 1975)
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Summary of judicial position on interpretation by Lord Nicholls?
Statutory interpretation is an exercise which requires the court to identify the meaning bourne by the words in the particular context. Identify the intention of parliament expressed in the language under consideration.
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What is the literal approach?
– the plain, literal meaning of the words are used. This was set out in Duport Steel v Sirs [1980],
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Duport v Steel Quote
Lord Diplock said that where “the meaning of the statutory words is plain and unambiguous it is not for judges to invent ambiguities as an excuse for failing to give effect for the plain meaning… because they consider the consequences unjust or immor
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Define Golden Rule
Put the section in context and give the words their ordinary meaning unless this produces an absurd outcome. If it is, then the judges will try to give the words another contextual meaning.
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Define Mischief Rule
Looks at the history of the act, and the problem that was trying to be solved by the act, and what parliament was trying to solve. Often intrinsic aids are used such as the preamble.
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Define purposive or contextual approach
Try to find what parliament intended by examining the general purpose of the section and the social, economic or political context. Lord Simon explained the purposive approach in Maunsell v Olins[1975] AC 373
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R v Harris 1836 (L)
) it was an offence to ‘stab, cut or wound’ another person. Harris but off her friend’s nose in a fight and was not guilty, as the statute was pointing towards a weapon, and teeth are not a weapon.
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Cutter v Eagle Star Insurance 1998 (L)
S.145(3)(a) RTA 1998 required that a policy must ensure the policy holder in respect of any liability which may be incurred by the use of the vehicle on a road. • Was a car park a road?HLDs said that a car park was not in fact a road.
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Fisher v Bell (L)
In Fisher v Bell, an act of 1959 made it an offence to ‘sell or hire or offer for sale or hire’ certain offensive weapons such as flick knives. Bell placed a flick knife in a shop window. He was not guilty as placing an item on display is not the sam
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Adler v George 1964 (G)
• Adler v George [1964] 2 QB 7 • An offence under official secrets Act to obstruct HM forces ‘in the vicinity’ of a military base. • Here they went inside the military base and argued that they were in the base, not in the vicinity. However guilty.
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R v National Insurance Commissioners (ex parte Connor) 1981 (G)
• Social and Security Act 1975 s.24 (1) • “A woman who has been widowed shall be entitled to widow’s allowance”. This did not entitle woman who killed husband to get allowance.
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Royal College of Nursing v DHSS 1981 (M)
• Royal College of Nursing v DHSS [1981] AC 800 • ‘carried out by registered medical practitioner’. • The purpose was to make abortion safe, but there was a dispute as to whom could carry out the procedure. Was a nurse covered by this term?
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DPP v Bull 1994 (M)
Street Offences Act 1959 s.1(1) offence for 'common prostitute to loiter or solicit in a street or public place for purpose of prostitution'.
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Pepper v Hart 1993 (P)
The courts now adopt a purposive approoach which seeks to give effect to purpose of legislation and are prepared to look at extraneous information that bears upon the background against which the legislation was enacted (Lord Griffiths)
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Lee v Knapp (G)
Road Traffic Act 1960 s.77 (1) A momentary pause is not sufficient as to count for a stop after an accident. Must get out of car etc.
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Smith v Hughes (M)
Street Offences Act 1959 s.1(1) offence for 'common prostitute to loiter or solicit in a street or public place for purpose of prostitution'. Selling sexual services from a window. Was guilty to try and clean up the streets.
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Purposive/contextual approach as defined by Law Commission, Interpretation of Statutes (Law Com 21, 1969)
"A purposive construction is one that gives effect to etgislation purpose by: 1) following literal meaning of enactment where that meaning is in accordance with legislative purpose 2) applying a strained meaning where the literal meaning doesn't comp
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What is the current approach?
The contextual approach is mostly used. However judges seek to find the most appropriate interpretation of legislation. Labels are usually made in hindsight.
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How many stages of contextual approach?
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First stage of contextual approach?
Judge must give effect to grammatical meaning and ordinary or appropriate technical meaning of the words in he general context of the statute. He must also determine the extend of general words with reference to that context.
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Second contextual approach?
`if judge considers application of literal wording would produce a result contrary to purpose of statute, he may apply a secondary meaning which they are capable of bearing.
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Third contextual approach?
Judge may read in words which he considers necessarily implied by words which are already in the statute.
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Stage 4 of contextual approach?
In applying the above rules, the judge may resort to aids to construction and presumptions.
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Barrett v DPP 2009
• What is a road? • ‘Any highway and any other road to which the public has access.’ • In this case there was a private park with open gates with a route to the beach. Was it a road under this definition? • Was held to be a road
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Maunsell v Ollins 1975
The House of Lords had to determine whether a farm cottage attached to farmhouse constituted ‘premises’ for the purposes of the Rent Act. Lord Simon set out the two tier test to be taken under the purposive approach.
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Lord Simons in Maunsell v Ollins
‘The first task of a court of construction is to put itself in the shoes of the draftsman – to consider what knowledge he had and, importantly, what statutory objective he had …being thus placed…the court proceeds to ascertain the meaning of the stat
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Wills v Bowley.
Section 28 of the Town Police Clauses Act protected the police, if they honestly if mistakenly believed on reasonable grounds that they have seen an offence being committed.
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McGonagle v Westminster County Council 1990
Premises where entertainments, which are not unlawful , provided by one or more one persons without clothes. McGonagle owned sex encounter establishment. Defence was that his activities in his premises were unlawful, so he did not need a licence.
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Interna elements to help with interpretation?
other sections, long title, heading, side notes, punctuation, noscitur a sociis, ejusden generise, expressio uni ext exclusion alterius, presumptions (sweet v Parsley)
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Noscitur a sociis?
A thing is known by its associates
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ejusden generise
General words that follow particular words are to refer to same kind.
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expressio unius est exclusion alterius
Where specific words are used without addition of general words, the list is closed.
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External aids to be used?
Other statutes (i.e. RCN) historical background, dictionaries, treaties, (fothergill), committee reports, EU legislation, Parliamentary materials.
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mandala v dwell lee
School refused to admit sikh. The school denied that being a Sikh was a membership of a racial or ethnic group. Held: Sikhs were a racial group defined by ethnic origins for the purpose of the Race Relations Act.
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Fothergill v Monarch Airlines 1981
'The material must be 'public and accessible and clearly point to a definite legislative intention'. However reference to travail preparatories may not be useful.
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sweet v parsley
The common law required knowledge of the activities in order to impose liability. Thus the presumption that statutes do not change the common law was applied in addition to the presumption that mens rea is required where the offence is a true crime.
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Davis v Johnson 1979
This case concerned the interpretation of the Domestic Violence and Matrimonial Proceedings Act 1976. At the Court of Appeal Lord Denning referred to Hansard stating, that not to do so would be like 'groping in the dark without switching on the light
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Pepper v Hart 1993
The House of Lords had to decide whether a teacher at a private school had to pay tax on the perk he received in the form of reduced school fees. The House of Lords departed from Davis v Johnson and took a purposive approach to interpretation.
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R v Sec of State for Home Dept ex p. Hickey 1995
Reference to hansard statement which was made after act was passed.
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Sec of state for social security v Remilien 1998
Hasard was not clear.
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Sec of state for the environment ex p path holme ltd
Conditions are strict and hansard is the exception, not the rule.
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European Teleological Approach
CJEU has a focus on the underlying aim and purpose of legislation provisions rather than their strict working.
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Van Gend en Loos v Nederlandse tariefkommissie
Is a move towards a more teleological approach inevitable in hight of the fact that domestic courts now have to interpret continental legislation.
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HRA s3 - R v A 2003
In accordance to s3, it will sometimes be necessary to adopt an interpretation which linguistically may appear strange to keep it in accordance.
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Sec of state for the environment ex p path holme ltd
Where words in hansard aren't clear, cannot use hansard.
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Van Gend en Loos v Nederlandse tariefkommissie
established that provisions of the Treaty Establishing the European Economic Community were capable of creating legal rights which could be enforced by both natural and legal persons before the courts of the Community's member states.
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Conditions of pepper v hart
1) ambiguoty in statute, 2) clear statement 3) by promoter of bill.
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European Communities Act 1972
Affects all approaches. Effect must be given to EU law, teleological approach is necessary, encourages wide purposive approach in domestic cases.
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s3 HRA?
all legislation must be read as far as possible to give effect to the ECHR.
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HRA interpretive obligations?
Applies pre and post HRA (even in absence of ambiguity - Brind), should s.3 be extensive or restrictive, when should declaration be used?
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Approach of Ghaidan v Godin-mendoza
Leading case, rejects a narrower view. New approach: Read down words to narrow construction, read words in, translations that are incompatible are to be re read.
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What does 'as far as possible' mean?
Reasonable interpretation? Linguistic gymnastics? Wider than purposive? Does date of statute marred?
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ECA s 2 (4)
'So far as it is possible to do so, primary and subordinate legislation myst be read and given effect in a way which is compatible with the convention rights.
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mills v cooper 1967
• D was charged with a contravention of s. 127 Highways Act 1959 – offence ‘if, without lawful authority or excuse… a gypsy… encamps on a highway’. • Meant either a traveller, or a person of a specific race (Romany heritage).
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Jenner v Allen West and Co 1959
• Concerned the use of crawling boards. Used planks instead of crawling boards. Argued that planks were boards and they were being crawled on. However, in building context they meant the technical rather than the ordinary meaning.
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Newberry v Simmons 1961
• car was on a road but had no engine because the engine had been stolen. Had to pay road tax. In context of statute, if engine was put back in, it would work so had to pay tax.
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Smart v Allen 1963
• Engine rusted, no gearbox etc. Did not have to pay tax as it would never move again, so tax would be inappropriate.
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Mandala v dowell lee
• Problematic as all dictionaries vary, and have multiple meanings. Not specific as to what one is relied on.
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Advantages/disadvantages of literal rule?
Advantages of Literal Rule: a) Respects Parliamentary sovereignty as it does not involve judges making or stretching the law. Disadvantage: a) It may lead to unfair or unjust decisions b) May not reflect parliaments true intentions.
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Advantages of golden rule
Advantages: a) Useful where there is confusion within the act. b) Avoids absurd outcomes. c) Errors in drafting can be corrected immediately e.g.: Allen d) Decisions are generally more in line with Parliament's intention e) Closes loopholes f) Oft
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Disadvantages of golden rule
a) No guidance as to whether something is absurd or ambiguous? b) Dictionaries do not define in a useful way when something is absurd or ambiguous. c) Some judges go beyond examining words and look at the purpose of the statute. d) Judges are able
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R v Allen 1872
the defendant was charged with the offence of bigamy under s.57 of the Offences Against the Person Act 1861. The court applied the golden rule and held that the word 'marry' should be interpreted as 'to go through a marriage ceremony'. Conviction uph
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Re Sigworth
A son murdered his mother. She had not made a will. Under the statute setting the law on intestacy he was her sole issue and stood to inherit her entire estate. The court applied the Golden rule holding that an application of the literal rule would l
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Stock Frank v Jones
Departure from the literal rule only when: a)There is a gross and clear anomaly b)Parliament could not have envisaged the anomaly and would not have accepted its presence c) The anomaly wont detriment to legislative intent d) lang allows
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Grey v Pearson
something cannot be seen as an anomaly just because it seems to be contrary to one’s sense of justice.
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R v S of S for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) [2003]
The Human Fertilisation and Embryology Act 1990 granted the Authority the right to license research with embryos, defined in the Act as ‘a live human embryo where fertilization is complete’. However, embryos created using cloning aren't fertilised
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R v S of S for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) [2003] ruling
The House of Lords held that the cloned embryos were covered by the statute taking a purposive approach to statutory interpretation.
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advantages of purposive approach
Advantages: a) It is a flexible approach which allows judges to develop the law in line with Parliament's intention (e.g. Maunsell v Olins) b) It allows judges to cope with situations unforeseen by Parliament (e.g. Quintavalle)
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ads of purposive continued.
a) It allows the law to develop to cover advances in medical science (e.g. Quintavalle) b) It allows the courts to give effect to EU Directives (Pickstone v Freemans) c) Allowing reference to Hansard makes it easier for the courts to discover Parliam
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Disads of purposive
a) Judges are given too much power to develop the law and usurping the power of Parliament b) Judges become law makers infringing the Separation of Powers (Montesquieu) c) There is scope for judicial bias in deciding what Parliament intended
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disadvantages of purposive continued
a) It assumes Parliament has one intention and ignores the fact that Parliament is divided on party lines b) Allowing reference to Hansard may lead to prolonged examination of irrelevant material by lawyers which adds to the cost and length of litiga
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4 part test for mischief rule
• What was the common law before act? • What was the mischief for which the common law did not provide? • What remedy did parliament intend to provide? • What was the true reason for that remedy?
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When was mischief rule established?
Heydon's Case [1584] EWHC Exch J36. In Re Sussex Peerage, it was held that the mischief rule should only be applied where there is ambiguity in the statute. Under the mischief rule the court's role is to suppress the mischief the Act is aimed at.
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Black Clawson on extrinsic aids?
Lord Diplock, said that reference to any ‘extraneous’ documents’ should be used carefully.
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advantages of mischief
a) Closes loopholes b) allows the law to develop and adapt to changing needs e.g. Royal College of Nursing v DHSS
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disadvantages of mischief
a) Creates a crime after the event e.g. Smith v Hughes, Elliot v Grey thus infringing the rule of law b)  Gives judges a law making role infringing the separation of powers. c) Judges can bring their own views, sense of morality and prejudices to a c
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disadvantages of mischief continued
a) Judges have not traditionally been able to use many sources to discover the mischief. b) Mischief is not easy to define. c) There may be more than one mischief in a case, e.g. Gorris v Scott (1874).
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Benne Esse?
where a reference is allowed to be used, but the court the court will not make a ruling on whether it is accepted until the case has been fully argued.
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R v Deegan
Waller LJ stated that Hansard was not admissible evidence in his judgement regarding the interpretation of a ‘folding knife’ contrary to section 139 of the Criminal Justice Act 1998.
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Facts of Ghaidan v Godin-Mendoza [2004]
The respondent lived in a homosexual relationship with the deceased. The Rent Act 1977 provided only for rights of succession for a person living with the tenant ‘as his or her husband or wife’. The respondent claimed that this unfairly discriminated
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• What does Lord Nicholls say about when s.3 should be used (e.g. to resolve ambiguities; when reasonable? etc.)?
Section 3 can allow the intention of parliament to be ignored to be compliant with the convention rights, depending on the intention reasonably to be attributed to the parliament
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• How does HRA s.3 potentially produce a problem in seeking the ‘intention of Parliament’? (think about the relationship between the intention behind pre HRA legislation and what is required post HRA)
Section 3 allows] a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant.
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do you think that HRA s.3 is a radical departure from the traditional interpretive obligation to find the will of Parliament, or simply a natural extension to it?
Lord Steyn said that section 3 creates a strong presumption that acts must be consistent with the convention, but this is rebuttable, therefore it is just a wider interpretation of parliamentary intent that can be set aside if there is conflict.
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Outcome of Ghaidan v Godin-Mendoza [2004]
The HLDs reinterpreted the act to allow succession to any couple who had been living together in a stable relationship.
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Lord Nicholls quote in Ghaidan
the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is ‘possible’, a court can modify the meaning, and hence the effect, of primary and secondary legislation.
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R (Anderson) v. Secretary of State for the Home Department [2002]
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Card 2


What is stated in First Report "The legislative Process" House of Comons Session 1997-1998 (Cmnd. 190)


A bill cannot set about communicating with the reader in the same way which other forms of writing do. It cannot use the same range of tools. As a result legislation speaks in a monotone and its language is compressed.

Card 3


Quote in Fothergill? Regarding for whom its written.


Preview of the front of card 3

Card 4


Problems of interpretation?


Preview of the front of card 4

Card 5


How is interpretation justified?


Preview of the front of card 5
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