I host the first Hamelin Lecture to be delivered this year by our very own Professor Andrew Burrows. I'd like particularly to take this opportunity to welcome the Hamelin Trustees to this event. including the chair of the Presbyterian Council of the Church.
Tonight's lecture is going to be chaired by Baroness David Richmond, the President of the Supreme Court, and without further ado, I will hand over to Bodie Hay. Well, good evening everybody and thank you for inviting me to introduce this, the 69th Hamelin Lecture. As deliverer of the 47th, it's a great pleasure to... be here with you again.
And of course Professor Burrows needs absolutely no introduction in this university where he's Professor of the Law of England, not Wales. Who knows, As well as being fellow horse-herders. What may not be so well appreciated is how much we have in common. We both began our academic careers in the University of Manchester, a university which has supplied Oxford with so many...
of its professors, has it not? We've both combined our academic careers with some practice at the bar, although he for rather longer and in more prestigious practice than I. We've both sat as judges, though I for rather longer than he. And above all, we've both been law commissioners. As a law commissioner, one has first to make sense of what the law currently is, then to work out what is wrong with it, then to devise ways in which that might be cured, and finally, and much the most difficult, to work with parliamentary council to produce draft legislation to put those proposals into legislative form.
One learns a great deal about legislation and the legislative process as a minister. result, does one not? Now Professor Varys is that type of legal academic which is increasingly rare in university law schools these days, though surely not in Oxford.
A doctrinal scholar who, while fully aware of the policy considerations behind the law and the context within which the law operates, writes about what the law is, as well as about what it should be, and in such a way that it is of real help to judges when they're trying to work out what the law is. There are few, if any, legal scholars whose writings are more frequently cited in our courts. We don't always agree with them, but that's a different matter.
And, of course, his specialism is the private common law in all its glory. And so, he is particularly well qualified to fulfill Miss Hanlon's dream of educating what she called the common people of the United Kingdom, I'm not quite sure how many of the common people are here present, or indeed who will read the eventual book, but let us assume that you are a goodly cross-section of society, so that they might, quote, realise the privilege of being a goodly cross-section of society. which in law and custom they enjoy in comparison with other European people. And realising and appreciating such privileges may recognise the responsibilities and obligations attaching to them. It has a certain contemporary ring, does it not?
So Professor Burrows joins a long list of illustrious panel lecturers, beginning with Lord Denning in 1949, who spoke of freedom under the law, and ending, until today, with the Chief Justice of New Zealand, Dame Charlotte Elias, who spoke on fairness in the criminal justice system. Over the years, subjects have developed beyond the glories of the common law and have been included in subjects which are principally developed by statute law. But there has been no series that I can detect devoted to thinking about statutes as such.
These days in the courts we spend most of our time construing statutes, far more than we do developing the common law. In fact I have spent the last day and a half in an attempt to work out whether a particular piece of legislation binds the Crown. which is exercise in statutory construction. So it is particularly apposite that Professor Burrows has chosen legislation as the subject of the 2017 series in three aspects, interpretation, interaction...
and improvements. And in this, the first, his subject is statutory interpretation, and I am expecting to learn a great deal from it, especially as to how I could do better. Professor Burrows.
Thank you. APPLAUSE Well, I consider it a great honour and privilege to be delivering this year's Hamlyn Lectures, and I'd like to thank the Hamlyn Trustees for inviting me. I'd like to thank you all for coming, and I particularly...
like to thank Lady Hale for chairing this lecture and for those very kind words of introduction and I cannot let this opportunity pass and I'm sure I speak here on behalf of everybody in the Oxford Law Faculty and indeed in the... the whole of the legal academy in the UK, just to say how thrilled we are, Brenda, with your elevation to the presidency of the Supreme Court. It's not only that massive achievement in its own right, but if I might say so, the manner in which you've reached that pinnacle that has been such an inspiration to so many of us.
Thank you. Now I did produce a handout but I can't see any of these handouts around so I'm going to have to assume that you haven't received a handout but there is one available afterwards. In the famous words of Guido Kierkegaard, Calabresi, we're in the age of statutes and it's indisputable that statutes are swallowing up our common law. Yet oddly, although they've been touched on, statutes have never been as Lady Hale indicated the focus of a Hamlyn Lecture Series.
Perhaps this reflects their status in UK legal academia, where the study of statutes as a coherent whole is sadly neglected, especially by those specialising in private law like me. While particular statutes within a particular area of substantive law are studied, albeit generally without much enthusiasm compared to the common law, statute law as a coherent whole tends to be treated... only at a basic introductory level in, for example, first year English legal system or legal skills courses. Even where statute law as a whole is taken more seriously, this is often...
often either at a theoretical level in jurisprudence courses or as a small part of the constitutional law syllabus. As Lord Steyn has said, the academic profession and universities have not entirely caught up with the reality that statute law is the dominant source of law of our time. So in these three lectures I want to rise to the challenge of thinking seriously and at a practical level about statute law. by examining three central aspects, which for shorthand I label interpretation, interaction and improvement. So in this first lecture, I'm looking at statutory interpretation.
And I should stress at the outset that my focus is on statutes, on primary legislation, that is Acts of Parliament, and not on secondary or delegated legislation contained in, for example, statutory instruments. So although almost all of what I'm going to say... is equally applicable to secondary legislation and putting to one side any distinct issues that may arise in relation to secondary legislation. So, for example, although a topic of great importance that's been brought into sharp focus by Brexit, I shall not be dealing with the divide between primary and secondary legislation and the use of so-called Henry VIII clauses. Now, I've divided tonight's lecture, had you...
you had the handout, you'd be able to see this all very clearly. Well, there is one coming around, so maybe you can just sort of pick it up as I'm going along. But what that handout gives you are the references and the quotations.
But what I've done is to divide tonight's lecture into four parts. First, I want to give an overview of the modern approach in English law to statutory interpretation. Secondly, I want to consider the extent to which...
If at all, statutory interpretation is best seen as affecting the intention of Parliament. Thirdly, I want to focus on the idea that a statute is always speaking. And fourthly, I want to compare and contrast statutory interpretation with some other forms of legal interpretation.
So first of all, what is the present English law on statutory interpretation? And before answering that... It should be stressed just how important in the practice of law statutory interpretation has become.
As Justice Kirby, formerly of the High Court of Australia, has said, as you can now see on your handout, the construction of statutes is now probably the single most important aspect of legal and judicial work. That is what I and every other judge in the countries of the world that observe the rule of law spend most of our time doing. Yet in line with the general neglect of statutes in our law school, statutory interpretation is rarely given the attention it deserves.
As Lord Justice Sayles said in his address to the Society of Legal Scholars here in Oxford last year, most of the law which the courts are called on to apply is statutory, yet statutory interpretation languishes as a subject of study. For the most part, law students are expected to pick it up by a sort of process. of osmosis.
And it follows that if I was to ask this distinguished audience tonight, what are the leading cases in English law on statutory interpretation, I suspect that I would be met with the exception of pepper and heart, with either a blank or a myriad of different cases referring to particular pockets. statute. I also hazard a guess that it wouldn't be long before somebody referred to the literal rule, the golden rule and the mischief rule.
Those rules have often been trotted out in basic textbook treatments. I remember I first came across them when reading Glanville Williams'Learning the Law before I came to university. But they cast very little light on the modern approach to statutory interpretation.
Indeed, you may ask, where does that three-fold categorisation come from? You don't find it in any case neatly labelled. The answer is that the literal rule, the mischief rule and the golden rule, as so packaged, come from a relatively little-known article.
I think this has to be the most referred to and yet least properly cited article of all time, entitled... Statutory interpretation in a nutshell, which appeared in the 1938 Canadian Bar Review, written by a Canadian academic, John Willis. Certainly, it isn't easy to pin down what the present approach of the courts is. Although said in 1956, the words of Lord Evershed remain accurate today, some judicial utterance, he said, can be cited in support of almost any proposition relevant to the problems of statutory interpretation. However, it is, I think, tolerably clear today that our judges have moved from an old literal to a modern contextual and purposive approach.
One no longer gives words their literal meaning or dictionary meaning insofar as the context and purpose of the statute indicate that that's not the best interpretation of what Parliament has enacted. So in IRC McGuckian... In 1997, Lord Steyn said, during the last 30 years there's been a shift away from the literate approach to purposive methods of construction. The modern emphasis is on a contextual approach designed to identify the purpose of a statute and to give effect to it.
And in Lord Bingham's words, in Crown and Secretary of State for Health, Ex Parti Quantavale, the court's task, within the permissible bounds of interpretation... is to give effect to Parliament's purpose. So the controversial provision should be read in the context of the statute as a whole and the statute as a whole should be read in the historical context of the situation which led to its enactment. And in the same case, Lord Steyn again emphasised that a purposive rather than a literal approach was now to be taken.
He said the pendulum has swung towards purposive methods of construction. Nowadays the shift towards purposive interpretation is not in doubt. Now, three specific points on the modern approach are, I think, noteworthy.
First, the modern approach has subsumed many of the old so-called canons of interpretation, such as the rule justem generis or the rule expressio unius, or to choose one not expressed in Latin, the rule that the scope of a criminal statute should be narrowly construed. While no doubt those canons or rules will continue to reflect what will... usually be the best interpretation.
They've lost primacy with the demise of literalism and have tended to be swallowed up by the modern contextual and purposive approach. Secondly, much of the legislative history is now admissible. For example, Law Commission reports, white papers, explanatory notes, and this includes, exceptionally and subject to constraints, parliamentary debates from Hansard following the landmark case of... Pepper and heart. And then thirdly, in Inco, Europe and First Choice distribution, the House of Lords accepted that very exceptionally, provided it's clear that there's been a drafting mistake and that it's clear what the statute was meant to say, the court can amend the words of a statute and that's been labelled rectifying construction or even just rectification.
Now, in understanding... This move that the courts have made from literalism to a contextual purpose of approach, it may be helpful to look at a couple of cases that epitomise the old literal approach. And in doing so, I am conscious that there have been traces of a contextual and purpose of approach throughout, going back to identifying the relevant mischief being cured in Hayden's case in 1584, so that some would argue that the modern move... is not as clear-cut as I've indicated, and that the literal approach I'm about to illustrate was not adopted by all judges. Nevertheless, the two cases I'm about to discuss, both from the 1960s, were decided as they were, and would, in my view, clearly be decided differently today.
So the first is Fisher and Bell. Defendant was charged with the offence of, quote, offering for sale... A flick knife, contrary to section 1 of the Restriction of Offensive Weapons Act 1959. He had displayed a flick knife in his shop window with a ticket behind it saying, ejector knife, four shillings. He was held to be not guilty because, according to the Divisional Court, applying the words literally in the light of the principles of contract law, the display was not an offer to sell.
but rather a mere invitation to treat. The offer was made by the customer to buy the knife and there was therefore no offer to sell by the shopkeeper. Although this interpretation was in conflict with the purpose of the act, as Lord Parker said, it sounds absurd that knives of this sort cannot be manufactured, sold, hired or given, but apparently can be displayed in shop windows.
That was a matter, he said. for the legislature, not the court, to sort out. And then Bourne, the second illustration, Bourne and Norwich Crematorium. Here the claimant ran a crematorium and sought a statutory tax allowance for expenses in improving the furnace chamber and chimney of the crematorium.
The allowance was applicable if the business could be said to be concerned with, quote, the subjection of goods or materials... to any process. Now the court held that those words did not cover the business of a crematorium because, quote, it's a distortion of the English language to describe the living or the dead as goods or materials.
Now again, I would suggest that applying a modern purposive approach, a different result would now be reached. Everything that I've so far said might be described as ordinary statutory interpretation, but although time prevents me in dealing with it in detail now, so treat this as an important footnote, very important footnote, in seeing the full picture on statutory interpretation, one should recognise the importance of non-standard interpretation, which for shorthand we can, I think, accurately refer to as conforming. interpretation and what I principally have in mind is the requirement under section 3 of the Human Rights Act 1998 that a statute should so far as possible be read in a way which is compatible with rights under the European Convention on Human Rights. A somewhat similar approach may also be seen as underpinning the Mar-Leasing case, which, at least until Brexit Day, possibly beyond Brexit Day, requires that a statute should, if at all possible, be read as conforming to any relevant EU law.
And that idea of conforming interpretation may further be regarded as embracing the so-called principle of legality, that a statute should be read down to avoid the removal of fundamental common law or constitutional rights, which I'll be looking at in my next lecture on the interaction of common law and statute. So if that's where we're at, my next heading and section is asking the question, is statutory interpretation seeking to effect the intention of Parliament? It's historically been very common and remains so. to refer to statutory interpretation as being concerned to effect the intention of Parliament.
Whether applying the old literal or the modern contextual and purposive approach, the cases are full of references to this being the ultimate aim, and I'm sure we've all ourselves used that language. Just to give one recent judicial example of it, in 2016 in Campbell and Gordon, the question facing the Supreme Court was whether there was a tort action for breach of statutory duty by the employer and director of a company in failing to insure an employee, contrary to the Employers'Liability Compulsory Insurance Act 1969. The Supreme Court held 3-2 that there was no such tort action. Now, my own view is that the dissenting judgments of Lord Toulson and Lady Hale are to be preferred, but it's noteworthy that in orthodox fashion... Lady Hale's judgment is formulated in terms of a search for Parliament's intention. So in her words, the question for this court is whether in 1969, when Parliament passed Sections 1 and 5 of the Employers'Liability Compulsory Insurance Act, it was intended that breach of those sections should give rise not only to criminal liability, but also to civil liability towards an employee who had been injured by the employer's breach of duty towards him and who, because of the failure to insure...
would otherwise not receive the compensation for his injuries to which he was entitled. In my view, it is absolutely plain that Parliament did intend there to be such civil liability, and Lady Hale, italicised, did intend. But what exactly does that reference to parliamentary intention mean?
Is it a helpful concept at all? Plainly what it can't mean is that one should be looking... at the actual subjective intentions of all those involved, the minister, the MPs, the lords, the drafters, the bills team, because plainly those intentions cannot be practically ascertained and in any event they are most unlikely to coincide other than at a very general and unhelpful level.
So three possibilities then present themselves. First, one might say that the intention in question is objective, not subjective, although this in turn raises questions as to what one here means by objective. So, for example, in Crown and Secretary of State for the Environment, Ex-Party Spatholme, Lord Nicholls said the intention of Parliament is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used.
It's not the subjective intention of the minister. or other persons who promoted the legislation, nor is it the subjective intention of the draftsman or of individual members or even of a majority of individual members of either house. These individuals will often have widely varying intentions. And similarly, but with a particular emphasis on the understanding of the reasonable reader, Lord Hoffman in Crown Ex-Party Wilkinson against the IRC said, by the intention of Parliament, one means the interpretation...
which the reasonable reader would give to the statute read against its background. A second view is that referring to the intention of Parliament is an unhelpful fiction that should be avoided altogether. Intention, it can be argued, is here being used as a conclusion for a decision as to what a statute means that is being reached on other grounds which should be openly recognised. So, for example...
Subtitles by the Amara.org community Justice Kirby, writing in 2002, said, it is unfortunately still common... to see reference to the intention of Parliament, Justice Code for those who don't know, in the High Court of Australia, Australian judge. I never use that expression.
Now, he said, it is potentially misleading. And Lord Justice Laws here, in this jurisdiction, takes a similar view. In his LQR review of our colleague Richard Eakin's 2012 book, The Nature of Legislative Intent, Lord Justice Laws writes, The notion of intention denotes a conscious state of mind whereby a person proposes to act... in a particular way. Since it denotes a state of mind which is characteristic of a single person, it cannot be possessed by a group or an institution.
And it is of course trite law that the legislature, unlike a company, is not treated as a legal person with capacity. However, law justice laws accepts that one can refer to the purpose rather than the intention of the legislature. And although some have argued that that is a distinction without a difference, I don't agree.
When one talks of the purpose, one is looking at the policy behind the statute. Indeed, if one regards legislative intention as an unhelpful fiction, it seems preferable to focus on the statute rather than the legislator, and to say that one is concerned with the meaning of the statute, ascertained by considering the statute's words. context and purpose. And certainly an advantage of that switch of focus is that it helps to clarify that what ultimately matters is the judicial analysis at the time a dispute arises of what the statute means. And then thirdly, there are those like Richard Eakins who argue that it's perfectly natural to recognise the intentions of a group as a rational agent.
So to take a simple example, we say... The intention of the team is to play attacking football and that does not involve aggregating, according to Dr Ekins, the intentions of individuals or picking out the intentions of certain leading individuals. The legislature, according to Dr Ekins, is a complex group that has a rational plan with linked procedures to change the law in some way. So in his view, no fiction is involved in perpetuating the long-standing tradition.
of referring to the intention of the legislature. Now, my own preference is for the second of those three views, whereby one avoids all reference to parliamentary intention. While speaking of parliamentary intention may be said to remind the courts of the need to avoid crossing the important constitutional line between interpretation and legislating, and in that sense... It's a constant reminder of the separation of powers.
It can too easily become a mask for judges to hide their true reasoning. Dressing a decision up as effecting parliamentary intention may divert attention away from scrutinising the judges, just as did the old fairy tale that the judges discover and do not make the common law. But it merely serves to obscure the power that judges are exercising.
in their interpretative role. Transparency dictates that the judge's true reasoning is not obfuscated by hiding away behind a fiction, but is brought out into the open and scrutinised for what it is. It follows that what Lady Hale really meant in Campbell and Gordon when she said that Parliament did intend there to be civil liability for breach of the statute, is that a plausible meaning of the statutory words was that they imposed civil liability and there were convincing reasons in achieving the statute's purpose why there should be civil liability even though the question of civil liability may never have crossed the minds of anyone in parliament.
Very importantly Lady Hale didn't ultimately hide behind the fiction of parliamentary intention but went on to articulate with rational clarity what those convincing reasons were. However, there may I think be more than just transparency of reasoning that's at stake here. Reference to the intention of Parliament easily leads to the fundamental error of treating the judge's interpretative role as in some sense frozen to the time the legislation was enacted.
That I think undermines the vital role the judges have of interpreting legislation with the benefit of hindsight. The hindsight in question may not only be the facts of the particular dispute, it's always easier to ascribe meaning when one has the facts of a dispute to resolve, but crucially it includes unforeseen changes that have occurred since the legislation was enacted. And I therefore want to turn in the third part of this lecture to the important insights for our understanding of statutory interpretation. that can be gleaned from cases dealing with the idea that a statute is quote always speaking. Now it is trite law that at least in general a statute is always speaking or as it's otherwise been expressed has an ambulatory meaning although what this precisely means is open to debate it's clear that a statute may apply to circumstances which could not possibly have been foreseen at the time the statute was passed.
And to make this point I'd like to refer to five case law examples of which the penultimate is the most important. First case Barker and Wilson, question in 1980 was whether the police were entitled under section 9 of the Bankers Book Evidence Act 1879 to inspect microfilm of the bank's records. It was held that they were so entitled because the words in the statute, bankers books, should be interpreted to include microfilm and that was so even though no one in 1879 could possibly have envisaged the invention of microfilm. Second illustration in Royal College of Nursing and Department of Health and Social Security, the question was whether abortions carried out under a new technique were lawful under the Abortion Act 1967. That act legalised, quote, termination of a pregnancy by a registered medical practitioner. Under the new technique, the abortion didn't involve surgery or an injection by a doctor, but comprised a nurse pumping a fluid into the womb.
And the nurse did that under the supervision of a doctor. who would be on call but might not be present. It was held in the House of Lords by a 3-2 majority that such an abortion was covered by those words and was therefore lawful.
And that was so even though in 1967 Parliament could not have envisaged the development of that mode of abortion. Lord Wilberforce was one of the dissentients but a passage from his judgement has subsequently been approved. And what he said was this, when a new state of affairs or a fresh set of facts bearing on policy comes into existence, the courts have to consider whether they fall within the parliamentary intention, using the old language.
They may be held to do so if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation. which can only be fulfilled if the extension is made.
Now, both of those cases involved technological or medical developments, not foreseen at the time the Act was passed, but that words can be given a modern meaning in the light of their context and the purpose of the Act is also shown in cases which reflect changes in scientific thinking or societal attitudes. So the third illustration, Crown and Island, in 1998, the House of Lords decided that causing or inflicting actual bodily harm in Sections 18, 20 and 47 of the Offences Against the Persons Act, 1861, includes causing or inflicting psychiatric illness. Lord Steyn said the proposition that the Victorian legislator, when enacting Sections 18, 20 and 47 of the 1861 Act... would not have had in mind psychiatric illness is no doubt correct. Psychiatry was in its infancy in 1861, but the 1861 Act is always speaking.
The statute must be interpreted in light of the best current scientific appreciation of the link between the body and psychiatric injury. A somewhat similar decision, albeit subjected to significant academic criticism, was Yemshaw. and Hounslow London Borough Council, my fourth case.
Hear the question. was whether a local authority statutory obligation under the Housing Act 1996 to provide accommodation for the victims of violence included in the context of domestic violence the victims of conduct that was not physical violence. The Supreme Court held that it did because in the light of the purpose of the Act violence in the context of domestic violence should be given its modern meaning. which went beyond physical violence to include all forms of intimidating behaviour and abuse, giving rise to the risk of harm. Psychological as well as physical harm was included.
In the words of Lady Hale, giving the leading judgement of the Supreme Court, it's not for government and official bodies to interpret the meaning of the words which Parliament has used. That role lies with the courts. And the courts recognise. that where Parliament uses a word such as violence, the factual circumstances to which it applies can develop and change over the years. The essential question is whether an updated meaning is consistent with the statutory purpose.
In this case, the purpose is to ensure that a person is not obliged to remain living in a home where she, or it could be he, her children or other members of her household are at risk of harm. Now, although that's come under fire, This is, it is in my view, an accurate statement of the judicial function in interpreting legislation. Very importantly, Lady Hale was not saying, she was not saying that the judges can update legislation. That would be to cross the line from interpreting to legislating. Rather, what the ladyship said is that insofar as this fulfils the purpose of the statute, the judges may apply the contemporary meaning.
of the statutory words. To use the expression of Lord Wilberthul's in the Royal College of Nursing case, the genus in question in Yemshaugh was violence, which now includes not only physical violence, but also non-physical domestic violence. And there is, I think, an important footnote here. Although sometimes not appreciated, it's clear that the rules of precedent apply.
in essentially the same way to judicial decisions on statutory interpretation as they do to the common law. The always speaking doctrine therefore applies subject to the normal rules of precedent so that in Yemshaw the Supreme Court had to take into account that it was overruling an earlier decision of the Court of Appeal on the meaning of violence in the Housing Act 1986. And then the fifth. And final illustration is Owens and Owens, a divorce case.
The Court of Appeal decided that although the marriage had broken down irretrievably, a divorce shouldn't be granted to the wife because she'd failed to prove that her husband's behaviour was such that she could not reasonably be expected to live with him. Therefore, none of the grounds for divorce in Section 1 of the Matrimonial Causes Act 1973, re-enacting the divorce... Reform Act 1969, had been established. And Sir James Mumby, in the Court of Appeal, explained that whereas here the Act was always speaking, one needed to construe it, quote, taking into account changes in our understanding of the natural world, technological changes, changes in social standards, and of particular importance here, changes in social attitudes.
It followed that the objective test in this case cannot reasonably be expected to live with him. should be judged by the standards of 2017 and not those of 1969. The relevant standards, said Sir James Mumby, were not those of the man or woman on the Routemaster clutching their paper bus ticket in 1969, but the man or woman on the Boris bus with their Oyster card in 2017. Yet even applying the standards of 2017, when a wife might be reasonably expected to be less tolerant... then in 1969 she had failed to make out her case.
So we can see from this always-speaking doctrine that a fundamental problem with reference to the legislature's intention, or indeed the understanding of the reader at the time, is not merely that you cannot ascertain that intention, but rather it's directed to the wrong question. And it's the wrong question, because the right question... is what is the best interpretation now of the act?
And that is because the judges are interpreting a legal rule laid down in the public interest, which is not, I repeat, not the same as interpreting interpersonal communications in everyday life. The judges must look for the best interpretation now of the legal rule laid down by those words. In doing that, they must apply the statutory words in the light of their context and purpose.
They can take account. of the legislative history including albeit with heavy restrictions Hansard and fit with other legal rules including common law rules may also be important. That task of deciding on the best interpretation of a statute with the benefit of hindsight falls to the judges and it is in this sense somewhat analogous to their role in interpreting a common law precedent.
Although, as I shall shortly explain, the words of the statute impose important constraints on statutory interpretation that do not apply to common law precedents. A serious objection to any reference to legislative intent is that it's advocating an approach which favours the law's ossification by inappropriately freezing the law in the past. We do not accept that for the common law, there's no good reason.
why we should regard it as acceptable when interpreting legislation. Now, if the objection is that up-to-date interpretation gives too much power to the unelected judiciary, one might ask why this isn't an even more obvious objection to the common law, the lifeblood of which is judicial updating. Yet the common law is widely upheld as a system to be treasured and revered. And the judges, even though unelected, have proved themselves ideally qualified, through legal expertise and experience, to apply and develop the common law.
Whether their role is interpreting statutes or developing the common law, the judges are clearly not free, as a legislator would be, simply to impose anew their own preferred policies. On the contrary... The statutory interpretative exercise is precisely constrained by the words, context and purpose of the statute.
In any event, in our system of parliamentary sovereignty, there is an ultimate check on judicial power because Parliament is always free to pass new or amending legislation overriding what the courts have decided. Now before I move to my final part... I just wanted to interject here to say I've read masses of American writing on statutory interpretation because unlike here, it's, should we say, taken quite seriously in the United States, so much you can hardly pick up a journal without seeing an article on statutory interpretation. But I have to say that I've found the seminal work of Henry Hart and Albert Sachs on purposivism, which I first studied at Harvard in 1980. And the more recent theory of so-called dynamic statutory interpretation put forward by Professor William Eskridge of Yale Law School to be of invaluable help.
It seems to me that Hart and Sachs'purposivism combined with Eskridge's dynamic statutory interpretation, the latter of which brings out the close but distinct relationship between statutory and common law interpretation, is an approach which best... best captures what English courts are and should be doing when they interpret a statute. I should say one other piece that I found particularly helpful was an article written by an American professor called Professor Frederick Schauer on the theme of no vehicles in the park and it reminded me, and I apologise for people who've heard this story before, but what Frederick Schauer was saying was that the no vehicles in the park has to be the most famous legal hypothetical in the common law world. So the issues about do roller skates, does a toy aeroplane, does an ambulance, do they get banned from the vehicles in the park?
And as he points out, that was the hypothetical that was conjured up by Professor Herbert Hart of this university in the concept of law. And this gives me the opportunity to, for those who've heard it, I am sorry, but to tell people who haven't, my first ever encounter. With Professor Herbert Hart, I arrived at Brasenose.
I didn't know that Professor Herbert Hart was the principal of Brasenose College, and I certainly didn't know that he'd written the concept of law in 1961, which probably meant that as I was coming into Brasenose College, it was probably the most sophisticated examination of what law is that we could possibly, at that point, have had. First year. Drinks party, my very first night in Oxford, the principal comes over to my group and says to each of the intern, this is Professor Herbert Hart, what are you studying? I was the last of the group of seven and I said, I'm studying law.
There was then a pause and then I uttered these fateful words, I said, why? Do you know anything about law? I now come to the final part of the lecture, which is comparing and contrasting statutory and contractual with some of the types of legal interpretation. So first of all, wearing my private lawyer's hat.
I'm going to look at contractual interpretation, then I want to move secondly to interpretation of common law precedent. So contractual interpretation, certainly at first sight, the parallels between modern statutory interpretation and modern contractual interpretation are really striking. So in contract, one can view leading cases like Investors'Compensation Scheme and West Bromwich and Rainy Sky and Cutman as representing a move away from an old literal to a modern contextual and purposive approach, just as with statutory interpretation. Indeed, at first sight, one might reasonably conclude that the only significant... difference between the two types of interpretation is that while after Pepper and Hart, the legislative history can be taken into account in contract as laid down in Chartbrook and Persimmon Homes, the contractual history in the form of previous negotiations cannot.
And certainly there are statements by commentators and judges suggesting that the points of similarity between statutory and contractual interpretation outweigh any differences. So in the Belize Telecom case, Lord Hoffman giving the judgment to the Privy Council. referred to the search for the objective meaning in context as applying to all instruments whether a contract statute or articles of association and in the High Court of Australia in Burns and Kendall hey justices Hayden and Crennan spoke of the two types of interpretation as matching each other. Now, in my view, that assimilation thesis goes too far.
While there are certainly important similarities, close examination reveals that there are also significant differences. And I want to refer to four of them. First, the role of intention, I would suggest, has a more significant underpinning role in relation to contractual interpretation than statutory interpretation, because intention is far more significant in contract than in relation to statute. I've expressed the view that reference to parliamentary intention is a misleading fiction.
In contrast, the whole basis of contract, how it is that parties can create Legally binding obligations as between themselves may be said to rest on their agreement and hence on their common intentions. Now while practicality dictates that it is the objective intentions that principally count, few would suggest that intention is not of central importance in contract. So it follows that there are doctrines concerned with impaired intention in contract.
such as misrepresentation, duress, undue influence, which plainly have no role to play in respect of statutes. A statute isn't rendered void or voidable because of a vitiating factor that undermines the intention or consent of a relevant person. Similarly, there's no doctrine of incapacity that undermines an Act of Parliament. A second difference, closely related to the first, is that while there is some scope... For correcting drafting mistakes in statutes by rectifying construction or rectification, this is much narrower under the leading INCO case that I referred to before than under contractual rectifying construction or rectification of a contract for mistake.
Why is that so? Because as stressed by the House of Lords in the Inco case, great care must be taken to ensure that in rectifying a statute, the judges do not cross the constitutionally central line between judicial interpretation and judicial legislation. A third difference is that in contrast to statutory interpretation, and subject to the contract clearly providing for this, contractual interpretation... has no direct equivalent to the always speaking idea. Indeed, in relation to contract, where circumstances have significantly changed, and this isn't provided for in the contract, the contract may be automatically terminated under the doctrine of frustration.
In contrast, there is plainly no doctrine of frustration of statute. And then the final, and I would suggest most important difference, is the importance of the boundary line for the courts. So in both exercises they talk about not crossing a boundary and in that sense there's a similarity.
But on close inspection we see that the line is fundamentally different and it reflects the very different exercise that the courts are involved in. If they stray over the line between contractual interpretation and making a contract for the parties, They stray into protecting one of the parties from a bad bargain, even though the party's consent was full and free, and that undermines freedom of contract, and that might be thought problematic and unfortunate. But crossing the line between statutory interpretation and legislating is of far greater significance. It's a high constitutional principle that that line should not be crossed, and to do so undermines the separation of powers. between the judiciary and the legislature.
And that leads finally to the interpretation of common law precedents, which I can deal with more briefly. As against power conferring rules allowing the creation or alteration of rights by the choice of parties, such as by contract, but also, for example, by wills and trusts, statutes and common law precedents both comprise laws laid down in the public interest. Perhaps not surprisingly, therefore, their interpretation shares some common features that differ from the interpretation of contracts. So, particularly significantly, common law precedents are always speaking, as is the general position, as we've seen, with statutes. Indeed, it's particularly obvious and uncontroversial that common law precedents are always speaking.
because updating is how the common law is developed, that is the principle is refined and applied for new situations and changes in attitudes. Again, as with statutes, ascertaining the intentions of the lawmaker, here the judge, is not the ultimate aim of the interpretation. And again, just as with statutory interpretation, so with the interpretation of common law precedents, the role of the judges, as against the legislature, is of fundamental constitutional importance. But if those similarities suggest that one might put the interpretation of statutes and common law precedents on one side of a line from the interpretation of contracts and the like on the other, I am not seeking to deny that there are important differences between the interpretation of statutes and the interpretation of common law precedents. Of course, there are.
Statutory interpretation, even though purposive and contextual, and in general always speaking, is controlled ultimately by the words used, just as is contractual interpretation, in a way that the interpretation of common law precedents is not. Indeed, judges often say that one must not treat the words of a judgment as if they're a statute. Closely linked to that is that classic common law interpretation involves reasoning by analogy. One takes the principle of the decision and applies it by analogy to new facts. That is different from interpreting statutes, although the long discredited idea of the equity of this statute did appear at one stage to allow that.
As Professor Ronald Dworkin expressed it in Law's Empire, judges and lawyers do not think that the force of precedence is exhausted, as a statute would be, by the linguistic limits. of some particular phrase. Put another way, in interpreting a statute, unlike a common law precedent, the judges are constrained by the plausible meaning of the statutory words.
So a statute applying to dogs cannot be applied to cats, a statute applying to pneumoconiosis cannot be applied to asbestosis, a statute applying to motor vehicles cannot be applied to pedal bikes. That's so even if the purpose behind the statute might be regarded as equally applicable to those other categories. And although there are exceptions, Whether statutes drafted at a high level of principle or otherwise invites analogous reasoning, the words of a statute, even though always speaking, typically do not allow analogous reasoning, whereas reasoning by analogy, principled reasoning, to ensure that like cases are treated alike, is the lifeblood of the common law.
Statutes, like contracts, carry a limiting linguistic force that does not apply in the same way. to common law precedents. So to draw the threads together, if there are three take-home messages I want to give you tonight from this lecture, they would be these. First, legal academics and law students in this jurisdiction should be devoting far more time to thinking coherently and at a practical level about the law on statutory interpretation. Secondly, the justified modern approach in this jurisdiction to statutory interpretation is that it's concerned to determine the best meaning today of the statutory words in the light of their context and purpose, but that contrary to the judicial tradition, all reference to parliamentary intention is best avoided.
While it's constitutionally imperative that the courts respect the line between interpreting and legislating, Rational transparency renders it unacceptable for the court's true reasoning to be hidden by that parliamentary intention fiction. And then thirdly, although at first sight attractive, the idea that one can assimilate the interpretation of statutes with contracts goes too far. And again, although both are concerned with the interpretation of laws laid down in the public interest, the interpretation of statutes also differs significantly.
from the interpretation of common law precedence. To use an awful mangled idiom to finish off with, I promise I won't put this in the written version, those three types of interpretation may not be apples, pears and oranges, but they are at least different types of apple. Thank you very much.
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