Thhe comcept of statutory validity
The Concept of Statutory Validity
There is no denying the fact that in the English Legal System, the
constitutional rule of the judiciary is to apply law; the
purpose of creating law is the prerogative of parliament. This is
because one of the aspects of legal reasoning and one which also raises
questions as to the political persuasion of the judges and the scope they
have to exercise that persuasion in their decision, in the manner in
which they interpret the legislation when they are called upon to do so.
However, this simplistic view ignores the extent to which the judges have a measure of discretion and the creative power with which they interpret the legislation. Rebutting the notion of parliamentary sovereignty, the first approach will be to adopt the
literal approach.
Interpretation under this approach demands that made should be given their ordinary simple meaning as far as possible even if the strict literal interpretation may result in injustice and hardship to the literal interpretation. This is because it was felt that the judges would turn into legislation if, for example, they added words to a statute to achieve a result that the parliament would have preferred at the time of passing the legislation in question. For over past 100 years, the literal approach is the primary tool of interpreting legislation. It was believed to be dangerous for the judges to become partners in the process of declaring law because of the unrepresented and unaccountable character of the judiciary.
Interpretation under this approach demands that made should be given their ordinary simple meaning as far as possible even if the strict literal interpretation may result in injustice and hardship to the literal interpretation. This is because it was felt that the judges would turn into legislation if, for example, they added words to a statute to achieve a result that the parliament would have preferred at the time of passing the legislation in question. For over past 100 years, the literal approach is the primary tool of interpreting legislation. It was believed to be dangerous for the judges to become partners in the process of declaring law because of the unrepresented and unaccountable character of the judiciary.
The literal approach has
maintained the impartiality of the judges by directing criticism of the
bad law to the parliament. It has given the judiciary a stability
function rather than a reforming one. Although the literal approach is
regarded as the humble servant of the parliament, the humble posture is
misleading. Some argue that the literal approach is always wrong as it
amounts to an abduction of responsibility by the judges. The literate
bases his decision on one arbitrarily preferred meaning rather than reason
and principle.
The Literal Approach to ‘Manifest Absurdity’
The Literal Approach to ‘Manifest Absurdity’
The literal approach is even though applicable by the judges’ even if
the result inflicts hardship on the litigants. ‘Manifest Absurdity’ is
the only exception where a canon employed by the literal approach, namely the golden rule, acts as an unprotectable safety value which helps the court
to bypass the literal rule. The shortcoming of this rule was
highlighted in the case of (R V Magginem). However, the courts are not
at liberty to use the Golden rule and must find genuine difficulties
before it declines the literal rule in the famous case of the Golden rule. This
rule is its narrow application modifies the literal rule to the extent
that an alternative meaning is construed, which achieves consistency with the rest of the statute by the discretion of the judge (R V Allan).
Assuming
that the result of the literal approach in the interpretation of the given
statute conflicts with the public policy, then the broader application of
the Golden rule may be applied in order to intervene in the adoption of an
adenovirus interpretation. There has been judicial reluctance to use
the golden rule both in its narrow and broader application in Northman V
Barnet London Borough Council. However, Lord Denning, ‘whether a strict
interpretation of a statute gives rise to an absurd and injurious
situation, the judges can and should use their good sense to remedy it.’
However, if the result of the interpretation (applying the literal rule)
is ambiguous, then departure from the literal rule may be accomplished
under the ‘Mischief rule’.
Because of the above, it is evident that the judges of ECJ used a very broad and generous approach in the interpretation of the statute, namely the ‘Teleological approach’ revalued by the Continental Lawyers, which operates in loosely drafting codes of law, which openly invites the judges in the process of framing the law. SarLand V British Railway Engineering, Lord Diploach defended the new approach on the ground that it has introduced a new rule of statutory interpretation requiring a UK court to can true all the domestic legislation in a manner ready European obligation as it has been stated in Sec.2 (4) of the EC Act 1972 that it takes precedent over the domestic law Sec.2 (1) of the Act states that, Treaties and other directly enforceable Community Legislation will be incorporated will no further domestic action.
This rule originated from the Hey dos case, where guidelines were set out for the courts to follow to apply
it:- What was the common law before the making of the act? What was the
mischief for which the common law did not possible? What remedy for the
mischief the common law has intended to provide? What was the reason for
the parliament adopting the remedy? These rules enable the court to
search for the intention of the parliament by looking at the history of
the act in question. Denning J said, ‘We sit here to find out the
intention of the parliament, and I do this better by filling in the gaps
and making sense of the enactment than by opening it up to destructive
analysis. If a gap is disclosed remedy has in amending it.’ He further
said, ‘Judicial activism can not amount to a make usurpation of
legislative function under the disguise of interpretation.’ If the
intention of the parliament can not be found through the mischief rule,
then in order to remove the ambiguity the judge is entitled to refer to
the Hansard. In the landmark decision of Pepper V Hart, the House of
Lords held that, then is no larger abjection of principle to the use of
Hans and as an external aid to statutory construction and there were
endorsement of a mere purposive approach under which a judge can label
by and the literate approach and can discern the parliaments true
intention. Regarding the use of Hansard, Lord Bramen Wilkiman believed,
provided the court keeps a tight control to the situation where
reference to the parliamentary motive one allowed it would be fruitful.
But the Attorney General thought, it would be unwise to attach
importance to the menstrual explanation which are made to satisfy
political requirements after under the presence of time and business.
Although reference to Hansard has been taken in the cases like Knowles V
Liverpool City Council and LBC Forest V Thomas the reference of it
increases the expenses of the litigation. Thus it will really be unwise
to use Hansard as an aid to statutory construction. The UK promulgated
such law because a member of European Union by the enactment of the
European Community Act 1972, as a result of the treaty the English
Judges has to adopt the decision of the ECJ.
n Sec.2 (2) powers have been provided to the judges to incorporate other community legislation, such as ‘Directure’
n Sec.2 (2) powers have been provided to the judges to incorporate other community legislation, such as ‘Directure’
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