3
Sources of Law: Legislation

3.1 Introduction

This and the following two chapters consider where law comes from and where students of law have to look to find it. As was stated in Chapter 1, in civil law systems one only has to look in the appropriate code to find the law relating to that area. However, in a common law system one has not only to look at the legislation, both primary and secondary, made by parliament, but one also has to look in the cases for the judicial statement that actually constitute that common law. Nor should it be forgotten that much of English law is now a restatement of the law of the European Union (or at least it is for the present).

3.2 European Union

Ever since the UK joined the European Economic Community, now the European Union, it has progressively, but effectively, passed the power to create laws that have effect in this country to the wider European institutions. In effect, regarding Union matters, the UK’s legislative, executive and judicial powers are now controlled by, and can only be operated within, the framework of European Union (EU) law. It is essential, therefore, even in a text that is primarily concerned with the English legal system, that the contemporary law student is aware of the operation of the legislative processes of the EU. Chapter 5 of this book will consider the EU and its institutions in some detail; the remainder of this chapter will concentrate on internal sources of law.

3.3 Primary Legislation

If the institutions of the EU are sovereign within its boundaries, then within the more limited boundaries of the UK, the sovereign power to make law lies with parliament. Under UK constitutional law, it is recognised that parliament has the power to enact, revoke or alter such, and any, law as it sees fit. Even the Human Rights Act (HRA) 1998 reaffirms this fact in its recognition of the power of parliament to make primary legislation that is incompatible with the rights provided under the European Convention on Human Rights (ECHR). Whether this will remain the case in the future is, however, a moot point. Coupled with this wide power is the convention that no one parliament can bind its successors in such a way as to limit their absolute legislative powers.

This absolute power is a consequence of the historical struggle between parliament and the Stuart monarchy in the seventeenth century. In its conflict with the Crown, Parliament claimed the power of making law as its sole right. In so doing, Parliament curtailed the royal prerogative and limited the monarchy to a purely formal role in the legislative procedure. In this struggle for ultimate power, the courts sided with Parliament and, in return, Parliament recognised the independence of the courts from its control. Prerogative powers still exist and remain important, but are now mainly exercised by the government in the name of the Crown, rather than by the Crown itself. Some of the general prerogative powers are extremely important, such as the declaration of war and the power to issue, refuse or withdraw passport facilities, but others are less so, such as powers connected with prepaid postage stamps. It will not be lost on readers that perhaps the most important constitutional case in recent times, Miller v Secretary of State for Exiting the European Union, turned on the possibility of prerogative powers being used to initiate the UK’s exit from the European Union.

Although we still refer to our legal system as a common law system, and although the courts still have an important role to play in the interpretation of statutes, it has to be recognised that legislation is the predominant method of law-making in contemporary times. It is necessary, therefore, to have some knowledge of the workings of the legislative process.

3.3.1 The Pre-Parliamentary Process

Any consideration of the legislative process must be placed in the context of the political nature of Parliament. Most statutes are the outcome of the policy decisions taken by government, and the actual policies pursued will of course depend upon the political persuasion and imperatives of the government of the day. Thus, a great deal of law creation and reform can be seen as the implementation of party political policies.

For example, previous Labour governments introduced considerable constitutional reform as proposed in its manifestos. Thus, the Scottish Parliament and the Welsh Assembly have been instituted and many hereditary peers have been removed from the House of Lords. As the election in May 2010 resulted in no one party having an overall majority of Members of Parliament, the government had to be formed by a coalition of the larger Conservative and smaller Liberal Democrat parties. As the basis for this coming together, the parties had to fashion a compromise programme, rather than insist on pursuing their individual manifesto promises. This generated some disquiet among some people who voted for a particular party on the basis of a specific manifesto promise, only to see that promise subsequently denied. This was particularly the case with some Liberal Democrat voters who expressed anger when their party subsequently supported an increase in university fees, in spite of its pre-election promise not to do so.

The establishment of the coalition government in 2010 clearly involved an increase in fissile tendencies, as the government faced not only the difficulty of controlling members of more than one party, but the much harder task of holding together two discrete memberships with sometimes incompatible political views. In response to this perceived potential difficulty one of the first decisions taken by the coalition was to introduce the constitutionally controversial Fixed-term Parliaments Act 2011. The stated purpose of this Act was to provide for five-year fixed-term parliaments. As a result, the date of the next General Election should have been 7 May 2020. The Act does allow the Prime Minister some leeway to alter the date by up to two months before or after that date. It also provides only two ways in which an election can be triggered before the end of the five-year term:

  • if a motion of no confidence was passed and no alternative government was found;
  • if a motion for an early General Election was agreed either by at least two-thirds of the House or without division.

The government took advantage of the second trigger in announcing the June 2017 election. As, by convention, the government is drawn from the party controlling a majority in the House of Commons, it can effectively decide what policies it wishes to implement and trust to its majority to ensure that its proposals become law. Accusations have been made that when governments have substantial majorities, they are able to operate without taking into account the consideration of their own party members, let alone the views of opposition members. It is claimed that their control over the day-to-day procedure of the House of Commons, backed with their majority voting power, effectively reduces the role of Parliament to that of merely rubber-stamping their proposals.

The government generates most of the legislation that finds its way into the statute book, but individual Members of Parliament may also propose legislation in the form of Private Member’s Bills.

There are in fact three ways in which an individual Member of Parliament can propose legislation:

  • through the ballot procedure, by means of which 20 backbench Members get the right to propose legislation on the 10 or so Fridays in each parliamentary Session specifically set aside to consider such proposals;
  • under Standing Order 39, which permits any Member to present a Bill after the 20 balloted Bills have been presented;
  • under Standing Rule 13, the 10-minute rule procedure, which allows a Member to make a speech of up to 10 minutes in length in favour of introducing a particular piece of legislation.

Of these procedures, only the first has any real chance of success and even then success will depend on securing a high place in the ballot and on the actual proposal not being too contentious. Examples of this include the Abortion Act 1967, which was introduced as a Private Member’s Bill to liberalise the provision of abortion, and the various attempts that have subsequently been made by Private Member’s Bills to restrict the original provision. The Mental Health (Discrimination) Act 2013 was another example of a successful use of the private member’s procedure. In relation to particular reforms, external pressure groups or interested parties may very often be the original moving force behind them. When individual Members of Parliament are fortunate enough to find themselves at the top of the ballot for Private Member’s Bills, they may well also find themselves the focus of attention from such pressure groups proffering pre-packaged law reform proposals in their own particular areas of interest.

The decision as to which government Bills are to be placed before Parliament in any Session is under the effective control of two Cabinet committees:

  • the Future Legislation Committee determines which Bills will be presented to Parliament in the following parliamentary Session;
  • the Legislation Committee is responsible for the legislative programme conducted in the immediate parliamentary Session. It is the responsibility of this Committee to draw up the legislative programme announced in the Queen’s Speech, delivered at the opening of the parliamentary Session.

Green Papers are consultation documents issued by the government, which set out and invite comments from interested parties on particular proposals for legislation. After considering any response, the government may publish a second document in the form of a White Paper, in which it sets out its firm proposals for legislation.

The publication of draft Bills is a third way through which pre-legislative consultation and scrutiny can take place. In recent years it has become common for government departments to issue such draft Bills to allow for consultation and for more detailed scrutiny of the proposed text to take place before the Bill is formally introduced into the legislative process. Such draft Bills are made available on the UK Parliament website and are examined either by select committees in the House of Commons or in the House of Lords or by a joint committee of both Houses of Parliament.

3.3.2 The Legislative Process

Parliament consists of three distinct elements: the House of Commons with 650 directly elected members; the House of Lords with 826 unelected members; and the monarch.

Before any legislative proposal, known at that stage as a Bill, can become an Act of Parliament, it must proceed through, and be approved by, both Houses of Parliament and must receive the Royal Assent. The ultimate location of power, however, is the House of Commons, which has the authority of being a democratically elected institution.

A Bill must be given three readings in both the House of Commons and the House of Lords before it can be presented for the Royal Assent. It is possible to commence the procedure in either House, although money Bills must be placed before the Commons in the first instance.

When a Bill is introduced in the Commons, it undergoes five distinct procedures:

When a Bill has completed all these stages, it is passed to the House of Lords for its consideration. After consideration by the Lords, the Bill is passed back to the Commons, which must then consider any amendments to the Bill that might have been introduced by the Lords. Where one House refuses to agree to the amendments made by the other, Bills can be repeatedly passed between them but, as Bills must usually complete their process within the life of a particular parliamentary Session, a failure to reach agreement within that period might lead to the total loss of the Bill. However, in 1998, the House of Commons Modernisation Committee agreed that, in defined circumstances and subject to certain safeguards, government Bills should be able to be carried over from one Session to the next, in the same way that Private and Hybrid Bills may be. The first Bill to be treated in this way was the Financial Services and Markets Bill 1998–99, which the House agreed to carry over into the 1999–2000 Session after a debate on 25 October 1999. The effect was to stay proceedings on the Bill in standing committee at the end of the 1998–99 Session and to carry it over into the next Session, when the committee resumed at the point in the Bill it had previously reached. In October 2004, a contested vote in the Commons made the carry-over process a permanent Standing Order of the House.

English Votes for English Laws (EVEL)

On 22 October 2015, a vote in the House of Commons agreed to alter its standing orders in order to introduce new legislative procedures for enacting Bills, or provisions in Bills, that apply only to England. Under the new procedure, English MPs, sitting as an English Grand Committee, will be able to block legislation deemed to solely affect England, although the Bill would ultimately be subject to a full vote of the House of Commons.

The change was justified as a way of addressing the so-called ‘West Lothian Question’, the position where English MPs cannot vote on matters which have been devolved to other parts of the UK, but Scottish, Welsh and Northern Ireland MPs can vote on those same matters when the UK Parliament is legislating solely for England.

The policy paper supporting the proposed changes explained the procedure thus:

  • When a Bill has been introduced in the Commons, the Speaker will certify whether the Bill, or parts of it, should be subject to the new process.
  • Once the Speaker has certified a Bill, it continues to second reading and committee stage as normal.
  • Any Bills that the Speaker has certified as England-only in their entirety will be considered by only English MPs at committee stage. The membership of this committee will reflect the numbers of MPs that parties have in England. After this the Bill continues to report stage as normal.
  • For Bills containing English or English and Welsh provisions, there is then a process for gaining the consent of English or English and Welsh MPs. A legislative Grand Committee considers a consent motion for any clauses that the Speaker has certified as English or English and Welsh only. This is a new stage which will allow all English or English and Welsh MPs either to consent to or to veto those clauses.
  • If clauses of the Bill are vetoed by the legislative Grand Committee, there is a reconsideration stage when further amendments can be made, to enable compromises to be reached. The whole House can participate in this stage, which is, in effect, a second report stage for disputed parts of the Bill. This is followed by a second legislative Grand Committee at which all English or English and Welsh MPs are asked to consent to the amendments made by the whole House. If no agreement is reached at this point, the disputed parts of the Bill fall.
  • Following report stage and any consent motions, the Bill continues to third reading, in which now all MPs can participate. It then progresses to the House of Lords. If there are any consequential amendments to the rest of the Bill required as a result of disputed parts of the Bill falling, there will be an additional stage before third reading to allow this.
  • The legislative process in the House of Lords is unchanged.

The alteration to the standing orders of the House was criticised for politicising the position of the Speaker, as that person would be in the position of having to adjudicate from which votes Scottish MPs should be excluded. However, the strongest opposition from both Labour and Scottish National opposition parties was on the grounds that the EVEL procedure undermined the equality of all Members of Parliament and that, in any event, it was no more than a device aimed primarily at securing future Conservative control over laws operating in England in the event of a Labour/SNP alliance majority in the UK.

The Parliament Acts

Given the need for legislation to be approved in both Houses of Parliament, it can be seen that the House of Lords has considerable power in the passage of legislation. However, the fact that it was never a democratically accountable institution, together with the fact that until 2005 it had an in-built Conservative Party majority reflecting its previous hereditary composition, meant that its legislative powers had to be curtailed. Until the early years of the twentieth century, the House of Lords retained its full power to prevent the passage of legislation. However, Lloyd-George’s Liberal budget of 1909 brought the old system to breaking point when the House of Lords originally refused to pass it. Although the budget was eventually passed after a General Election in 1910, a second election was held on the issue of reform of the House of Lords. As a result of the Liberal victory the Parliament Act of 1911 was introduced, which removed the House of Lords’ power to veto a Bill. As a matter of interest, the 1911 Act also reduced the maximum lifespan of a Parliament from seven years to its current five years and specifically retained the House of Lords’ power to block any attempt to prolong the lifetime of a parliament. The Parliament Act of 1911 reduced the power of the Lords to delay a Bill by up to two years. In 1949 the Parliament Act of that year further reduced the Lords’ delaying powers to one year, but it is significant that the 1949 Act was itself only introduced through the use of the previous Parliament Act of 1911.

Since 1949 the delaying powers of the House of Lords have been as follows:

  • a ‘Money Bill’, that is, one containing only financial provisions, can be enacted without the approval of the House of Lords after a delay of one month;
  • any other Bill can be delayed by one year.

Only four substantive Acts have been passed into law without the consent of the House of Lords:

  • the War Crimes Act 1991;
  • the European Parliamentary Elections Act 1999;
  • the Sexual Offences (Amendment) Act 2000;
  • the Hunting Act 2004.

The last piece of legislation, the Hunting Act, was introduced to prohibit the hunting of mammals with dogs and was particularly designed to outlaw the tradition of fox-hunting.

However, of essential importance in relation to this Act was that the use of the Parliament Act 1949 to pass it, in the face of the refusal of the House of Lords, gave rise to a consideration of the legality of the Act itself in Jackson v HM Attorney General (2005).

Jackson v HM Attorney General (2005)

The appellants argued that the 1949 Act was itself invalid on the basis that it did not receive the consent of the House of Lords, and the Parliament Act 1911 did not permit an Act such as the 1949 Act to be enacted without the consent of the House of Lords. Thus, although the Hunting Act gave rise to the case, the essential underlying issue related to the validity of the 1949 Act, which in turn depended on the effect of the 1911 Parliament Act. As Lord Bingham put it, ‘The merits and demerits of the Hunting Act, on which opinion is sharply divided, have no bearing on the legal issue which the House, sitting judicially, must resolve.’

In its reading of the Parliament Acts, the Court of Appeal concluded that under the 1911 Act the House of Commons had the power to make a ‘relatively modest and straightforward amendment’. The Court of Appeal went on to conclude that the Parliament Act of 1949 was within that ambit, as an example of a ‘relatively modest’ amendment, as was the Hunting Act. However, the Court of Appeal raised doubts as to the power of the House of Commons, acting without the agreement of the House of Lords, to make changes ‘of a fundamentally different nature to the relationship between the House of Lords and the Commons from those which the 1911 Act had made’. Thus the Court of Appeal raised the fundamental constitutional question relating to the ultimate power of the House of Commons.

Once again an augmented nine-member panel of the House of Lords was required to deal with these fundamental constitutional issues. In doing so, the House of Lords unanimously held that the reasoning of the Court of Appeal could not be sustained. In reaching that conclusion the House of Lords rejected the argument that the Parliament Act of 1911 was an exercise in the delegation of powers from Parliament to the House of Commons, which could not later be used to extend those powers. Rather, as Lord Bingham stated:

The overall object of the 1911 Act was not to delegate power: it was to restrict, subject to compliance with the specified statutory conditions, the power of the Lords to defeat measures supported by a majority of the Commons…

The House of Lords, however, did differ in their assessment of the extent of the power extended to the House of Commons under the Parliament Acts. It is clear that a majority of the House of Lords were of the view that the House of Commons could use the powers given to it under the Parliament Acts to force through such legislation as it wished, but a number of the judges were of the view that the Commons could not extend its own lifetime through such a procedure, as that would be in direct contradiction to the provisions of the Parliament Act 1911. Also, as has been pointed out at 2.3.2, although the decision in Jackson exemplifies the traditional deference of the courts to the supremacy of laws of Parliament, the possibility of future changes in the relationship between the two institutions was at least hinted at in the judgment of Lord Steyn.

The Royal Assent is required before any Bill can become law. There is no constitutional rule requiring the monarch to assent to any Act passed by Parliament. There is, however, a convention to that effect, and refusal to grant the Royal Assent to legislation passed by Parliament would place the constitutional position of the monarchy in jeopardy. The procedural nature of the Royal Assent was highlighted by the Royal Assent Act 1967, which reduced the process of acquiring Royal Assent to a formal reading out of the short title of any Act in both Houses of Parliament.

An Act of Parliament comes into effect on the date of the Royal Assent, unless there is any provision to the contrary in the Act itself. It is quite common either for the Act to contain a commencement date for some time in the future, or for it to give the appropriate Secretary of State the power to give effect to its provisions at some future time by issuing statutory instruments. The Secretary of State is not required to bring the provisions into effect and it is not uncommon for some parts of Acts to be repealed before they are ever in force.

An example of this is the massive, and hugely complex, Criminal Justice Act (CJA) 2003. As yet, not all of its provisions have come into effect, and full implementation will only take place over an extended timescale, if at all. One instance of this, which raises a number of issues that will be considered further in various sections of this book, relates to the provisions of s 43 of the CJA, which provides for the prosecution of certain serious and complex fraud cases to be conducted without a jury. Unusually, by virtue of s 330(5) of the CJA, any statutory instrument seeking to bring s 43 into force required an affirmative resolution of both Houses of Parliament. Following the failure of the Jubilee extension fraud cases the government announced its intention to implement s 43, and to that end a draft commencement order was produced. However, in July 2007 the House of Lords effectively killed off a Fraud (Trials without a Jury) Bill by postponing its consideration for six months and subsequently it never re-appeared. Eventually s 113 of the Protection of Freedoms Act 2012 repealed s 43 of the CJA.

Another example of this failure to implement legislative provisions may be seen in the Equality Act 2010, one of the last pieces of legislation passed by the previous Labour government. Although the coalition Home Secretary and Minister for Women and Equalities brought most of the provisions into effect through commencement orders, she let it be known that she would not do so with all its provisions and certainly not s 1 of the Act, which imposed a duty on public bodies to have due regard when making strategic decisions to reducing the inequalities of outcome that result from socio-economic disadvantage. In response, critics accused her of rendering the Act ‘virtually toothless’.

Parliamentary reform

The 1997 Labour government was elected on the promise of the fundamental reform of the House of Lords, which it saw as undemocratic and unrepresentative. After establishing a Royal Commission, the government embarked on a two-stage process of reform. The first stage of reform was achieved through the House of Lords Act 1999, which removed the right of the majority of hereditary peers to sit in the House of Lords. The second stage of reform was set out, towards the end of 2001, in a White Paper entitled Completing the Reform.

The most controversial aspect of the White Paper was the relatively small proportion of directly elected members it proposed, especially when compared with the large proportion of members who would be nominated rather than elected. The government, faced with much criticism, even from its own MPs, set up a joint committee of both Houses of Parliament to consider the course of future reform. Somewhat surprisingly, that committee made no recommendation and merely listed seven possible options for determining the membership of a reformed House of Lords. The options were:

Even more surprisingly, in February 2003, the House of Commons voted against all of the options and thus failed to approve any of them. The closest vote, for an 80 per cent elected house, fell narrowly by 284 votes against to 281 in favour.

It should be noted that the House of Lords no longer has a majority of members taking the Conservative Party whip. It remains to be seen whether the difficulties suffered by the government in attempting to pass the Tax Credit Regulations 2015 (see below, 3.5.4.1) will result in any specific reform proposals, but it remains the case that the House of Lords, at least as presently constituted, appears to be untenable in the long term: the fact that it only has some 400 places to sit means that it can only function if most of its members do not attend.

On coming to power in 2010 the Conservative/Liberal Democrat coalition passed the Conservative-inspired Parliamentary Voting System and Constituencies Act (PVSCA) 2011, which provided for a future reduction in the number of MPs to 600 while equalising the numerical size of constituencies.

The proposed reduction in the number of MPs was included in the Conservative Party’s pre-election manifesto in 2015, but Prime Minister Cameron was subsequently placed under pressure not to implement the policy by a number of his own MPs who feared for their positions in any such reduction. However, the new, Theresa May led, Conservative government has indicated its intention to pursue the reduction in the numbers of MPs.

3.3.3 THE DRAFTING OF LEGISLATION

In 1975, in response to criticisms of the language and style of legislation, the Renton Committee on the Preparation of Legislation (Cmnd 6053) examined the form in which legislation was presented. Representations were made to the Committee by a variety of people ranging from the judiciary to the lay public. The Committee divided complaints about statutes into four main headings relating to:

  • obscurity of language used;
  • over-elaboration of provisions;
  • illogicality of structure;
  • confusion arising from the amendment of existing provisions.

It was suggested that the drafters of legislation tended to adopt a stylised archaic legalism in their language and employed a grammatical structure that was too complex and convoluted to be clear, certainly to the layperson and even, on occasion, to legal experts. These criticisms, however, have to be considered in the context of the whole process of drafting legislation and weighed against the various other purposes to be achieved by statutes. The actual drafting of legislation is the work of parliamentary counsel to the Treasury, who specialise in this task. The first duty of the drafters must be to give effect to the intention of the department instructing them, and to do so in as clear and precise a manner as is possible. These aims, however, have to be achieved under pressure, and sometimes extreme pressure, of time. An insight into the various difficulties faced in drafting legislation was provided by a former parliamentary draftsman, Francis Bennion, in an article entitled ‘Statute law obscurity and drafting parameters’ ((1978) British JLS 235). He listed nine specific parameters which the drafter of legislation had to take into account. These parameters are as follows:

A consideration of these various desired characteristics shows that they are not necessarily compatible; indeed, some of them, such as the desire for clarity and brevity, may well be contradictory. The point remains that those people charged with the responsibility for drafting legislation should always bear the above factors in mind when producing draft legislation, but if one principle is to be pursued above others, it is surely the need for clarity of expression and meaning.

3.3.4 Types of Legislation

Legislation can be categorised in a number of ways. For example, distinctions can be drawn between the following:

  • Public Acts, which relate to matters affecting the general public. These can be further subdivided into either government Bills or Private Member’s Bills.
  • Private Acts, on the other hand, relate to the powers and interests of particular individuals or institutions, although the provision of statutory powers to particular institutions can have a major effect on the general public. For example, companies may be given the power to appropriate private property through compulsory purchase orders.
  • Enabling legislation gives power to a particular person or body to oversee the production of the specific details required for the implementation of the general purposes stated in the parent Act. These specifics are achieved through the enactment of statutory instruments. (See below, 3.5, for a consideration of delegated legislation.)

Acts of Parliament can also be distinguished on the basis of the function they are designed to carry out. Some are unprecedented and cover new areas of activity previously not governed by legal rules, but other Acts are aimed at rationalising or amending existing legislative provisions.

  • (i) a textual amendment is one where the new provision substitutes new words for existing ones in a legislative text or introduces completely new words into that text. Altering legislation by means of textual amendment has one major drawback, in that the new provisions make very little sense on their own, without the contextual reference of the original provision they are designed to alter;
  • (ii) non-textual amendments do not alter the actual wording of the existing text, but alter the operation or effect of those words. Non-textual amendments may have more immediate meaning than textual alterations, but they too suffer from the problem that, because they do not alter the original provisions, the two provisions have to be read together to establish the legislative intention.

Neither method of amendment is completely satisfactory, but the Renton Committee on the Preparation of Legislation favoured textual amendments over non-textual amendments.

3.4 Statutory Interpretation

So far, attention has focused on the procedure through which the legislature makes law, but once it has come into being the law has to be applied and given effect, and ultimately that is the role of the judges. Parliament might have said what the law is; the task for the judges is to make sense of parliament’s words.

3.4.1 Problems in Interpreting Legislation

The accepted view is that the constitutional role of the judiciary is simply to apply the law. The function of creating law is the prerogative of parliament. As will be seen, such a view is simplistic to the extent that it ignores the potential for judicial creativity in relation to the operation of the common law and the doctrine of judicial precedent. Equally, however, it ignores the extent to which the judiciary have a measure of discretion and creative power in the manner in which they interpret the legislation that comes before them.

Section 3.3.3 has already considered the general difficulties involved in drafting legislation from the point of view of the person carrying out the drafting; equally, however, it has to be recognised that determining the actual meaning of legislation presents judges with a practical difficulty. In order to apply legislation, judges must ascertain the meaning of the legislation, and in order to ascertain the meaning, they are faced with the difficulty of interpreting the legislation.

Before considering the way in which judges interpret legislation, it is pertinent to emphasise that, in spite of the best endeavours of those who draft legislation to be precise in communicating the meaning of what they produce, the process of interpretation is inescapable and arises from the nature of language itself. Legislation can be seen as a form of linguistic communication. It represents and passes on to the judiciary what parliament has determined the law should be in relation to a particular situation. Legislation, therefore, shares the general problem of uncertainty inherent in any mode of communication. One of the essential attributes of language is its fluidity: the fact that words can have more than one meaning and that the meaning of a word can change depending on its context. In such circumstances, it is immediately apparent that understanding is an active process. Faced with ambiguity, the recipient of information has to decide which of various meanings to assign to specific words, depending upon the context in which they are used.

Legislation gives rise to additional problems in terms of communication. One of the essential requirements of legislation is generality of application, the need for it to be written in such a way as to ensure that it can be effectively applied in various circumstances, without the need to detail those situations individually. This requirement, however, gives rise to particular problems of interpretation, for, as has been pointed out in 3.3.3, the need for generality can only really be achieved at the expense of clarity and precision of language. A further possibility that is not as uncommon as it should be is that the legislation under consideration is obscure, ambiguous, or indeed meaningless, or fails to achieve the end at which it is aimed, simply through being badly drafted. The task facing the judge in such circumstances is to provide the legislation with some effective meaning.

Legislation therefore involves an inescapable measure of uncertainty that can only be made certain through judicial interpretation. To the extent, however, that the interpretation of legislative provisions is an active process, it is equally a creative one, and inevitably it involves the judiciary in making law through determining the meaning and effect to be given to any particular piece of legislation. There is a further possibility that has to be considered: that judges might actually abuse their role as necessary interpreters of legislation in such a way as to insinuate their own particular personal views and prejudices into their interpretations, and in so doing misapply the legislation and subvert the wishes of the legislature.

3.4.2 Approaches to Statutory Interpretation

Having considered the problems of interpreting language generally and the difficulties in interpreting legislation in particular, it is appropriate to consider in detail the methods and mechanisms that judges bring to bear on legislation in order to determine its meaning. There are, essentially, two contrasting views as to how judges should go about determining the meaning of a statute – the restrictive, literal approach and the more permissive, purposive approach:

  1. The literal approach
    The literal approach is dominant in the English legal system, although it is not without critics, and devices do exist for circumventing it when it is seen as too     restrictive. This view of judicial interpretation holds that the judge should look primarily to the words of the legislation in order to construe its meaning and, except in the very limited circumstances considered below, should not look outside of, or behind, the legislation in an attempt to find its meaning.
  2. The purposive approach
    The purposive approach rejects the limitation of the judges’ search for meaning to a literal construction of the words of legislation itself. It suggests that the interpretative role of the judge should include, where necessary, the power to look beyond the words of statute in pursuit of the reason for its enactment, and that meaning should be construed in the light of that purpose and so as to give it effect. This purposive approach is typical of civil law systems. In these jurisdictions, legislation tends to set out general principles and leaves the fine details to be filled in later by the judges who are expected to make decisions in the furtherance of those general principles.

European Union (EU) legislation tends to be drafted in the continental, civil law manner. Its detailed effect, therefore, can only be determined on the basis of a purposive approach to its interpretation. This requirement, however, runs counter to the literal approach that is the dominant approach in the English system. The need to interpret such legislation, however, has forced a change in that approach in relation to EU legislation and even with respect to domestic legislation designed to implement Community/Union legislation. Thus, in Pickstone v Freemans plc (1988), the House of Lords held that it was permissible, and indeed necessary, for the court to read words into inadequate domestic legislation in order to give effect to EU law in relation to provisions relating to equal pay for work of equal value. (For a similar approach, see also the House of Lords’ decision in Litster v Forth Dry Dock (1989) and the decision in Three Rivers DC v Bank of England (No 2) (1996), considered below at 3.4.4.2.)

In Usdaw v Ethel Austin Limited (In Administration) and Usdaw v WW Realisation 1 Limited and Others (2013), the Employment Appeal Tribunal (EAT) concluded that s 188(1) of the Trade Union and Labour Relations (Consolidation) Act (TULRA) 1992 did not properly implement the UK’s obligations in Art 1(a) of the European Union Collective Redundancies Directive 98/59 EC of 20 July 1998. By virtue of s 188, employers are required to engage in collective consultation when proposing to make 20 or more employees redundant at one establishment within a period of 90 days or less. The ground of contention was whether ‘one establishment’ meant one specific location, i.e. one shop for example, or whether it referred to more than one of the employer’s locations. At first instance the Employment Tribunals found that each shop was an ‘establishment’ and so only those employees who worked in shops with 20 or more employees were entitled to protective awards in breach of the consultancy provision. Consequently, those employees working in smaller stores (around 4,400 in total) were not entitled to the protection of the consultancy provision. On appeal, the EAT held that s 188 of TULRA did not give full effect to the original directive, which, in the tribunal’s opinion, was to be operated by counting individual establishments together as a single entity. Accordingly, it held that, in order to give effect to the directive, s 188 must be read without the words ‘at one establishment’. On further appeal, the Court of Appeal referred the case to the Court of Justice for the European Union for final determination under Art 267 of the Treaty on the Functioning of the European Union (see p 197).

In April 2015 the CJEU confirmed the earlier opinion of the Advocate General that employers were not required to aggregate dismissals in all establishments, merely those in individual establishments.

The purposive approach and updating construction

It has to be recognised that for some time there has been a move away from the over-reliance on the literal approach to statutory interpretation to a more purposive approach. As Lord Griffiths put it in Pepper v Hart [1993] 1 All ER 42 at 50:

The days have long passed when the court adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears on the background against which the legislation was enacted.

Such a shift has been necessitated, to no little degree, by the need for the courts to consider matters that were not within the original contemplation of Parliament at the time when the legislation was passed, but which have since been brought into play by the effect of technological advances. As Lord Steyn in R (Quintavalle) v Secretary of State for Health [2003] 2 All ER 113 at 123 put it:

The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas…

That process may be traced through a number of controversial cases starting with Royal College of Nursing of the United Kingdom v Department of Health and Social Security (1981) (considered in detail at 3.4.3). In his minority judgment Lord Wilberforce, in that case, had expressed the view that ([1981] AC 800 at 822):

In other words, Lord Wilberforce thought that legislation may not be construed so as to cover new states of affairs, if the new construction required the court to fill gaps, or to ask what Parliament would have done in relation to situations that it could not have had any knowledge of, and hence were outside the ambit of the actual text of the legislation.

However, the court could use a purposive reading to extend the law to new situations where one of two things applied:

  • (i) the genus of subject matter encompassed the new subject matter; or
  • (ii) parliament’s purpose was clear and an extended reading was necessary to give effect to it.

Given that Lord Wilberforce actually decided that the Royal College of Nursing case was not one in which the court should use the purposive approach, it is perhaps not a little ironic that his exposition of the appropriate circumstances under which the courts can adopt a purposive approach has been generally accepted, and, in many cases, used to extend the application of statutes in a way that he himself might very well not have agreed with.

In R (Quintavalle) v Secretary of State for Health (2003) the courts were asked to declare whether embryos created by cell nuclear replacement (CNR), a form of human cloning involving a human egg and a cell from a donor’s body, were regulated under the Human Fertilisation and Embryology Act (HFE) 1990, which had been passed at a time when embryos were only ever created by fertilisation of an egg by a sperm. Section 1(1) (a) of the Act defines embryos as ‘a live human embryo where fertilisation is complete’.

An organisation opposed to cloning and embryo experimentation, the Pro-Life Alliance, contested a statement from the government that therapeutic cloning research was permitted under the HFE Act 1990, subject to licensing by the regulatory authority, the Human Fertilisation and Embryology Authority (HFEA). The Alliance sought a declaration that the authority had no power to license such research on the grounds that an embryo created by cell nuclear replacement did not fall within the statutory definition of ‘embryo’. The argument for the Alliance was that as cloned embryos created by CNR were never fertilised, as commonly understood, they could not be subject to the Act and, more importantly for them, the HFEA could not have any authority to license any such activity.

At first instance the declaration sought by the Alliance was granted ‘with some reluctance’, the judge saying that the government’s argument to have the statute take account of new technology involved ‘an impermissible rewriting and extension of the definition’. However, the Court of Appeal set aside the declaration, which decision the House of Lords subsequently confirmed, holding that the purposive interpretation argued for by the government did not require the court to assume the mantle of legislator. In so doing both Lord Bingham and Lord Steyn referred to the importance of a purposive approach in enabling the courts to give effect to the intention of Parliament in areas where legislative provisions need to be considered in the context of rapid scientific and technological change.

In deciding Quintavalle, the House of Lords based its decision on Lord Wilber-force’s comments in the Royal College of Nursing case, which in the opinion of Lord Bingham ‘may now be treated as authoritative’. In so doing the House of Lords held that embryos created by CNR, notwithstanding the fact that they were unfertilised, were within the same ‘genus of facts’ as embryos created naturally or fertilised in vitro. In putting Lord Wilberforce’s proposition into operation, the House of Lords held that CNR organisms were, in essence, sufficiently like other embryos to be considered as belonging to the same ‘genus of facts’. Parliament could not rationally have been assumed to have intended to exclude such embryos from the regulation; consequently, the fact of fertilisation was not to be treated as integral to the s 1 definition. As a result, they were subject to the control of the HFE Act 1990 and the HFEA could authorise research using such embryos.

In reaching his decision, Lord Bingham considered the purpose and procedure of statutory interpretation and concluded that ([2003] 2 All ER 113 at 118):

With regard to the specific question of whether words in statutes should retain their original meaning, or whether they may be interpreted in the light of contemporary social factors, Lord Bingham concluded that legislation is akin to a living text, the meaning of which speaks differently as the social context in which it speaks changes. In his view (at 118):

There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that a statute is always speaking… The meaning of ‘cruel and unusual punishments’ has not changed over the years since 1689, but many punishments which were not then thought to fall within that category would now be held to do so.

The impact of the preference for the purposive approach over the literal one may be seen in R v Z and others (2005) in which four men were charged with being members of a proscribed organisation contrary to s 11(1) of the Terrorism Act 2000. Schedule 2 of the Act listed the organisations proscribed under the Act. It referred to the IRA but did not specifically mention the ‘Real IRA’, which the men were allegedly members of. At first instance the judge found no case to answer, but following a reference by the Attorney General for Northern Ireland, the Northern Ireland Court of Appeal disagreed, concluding that it was the intention of the legislature to include the ‘Real IRA’ within the term ‘the IRA’ and that the legislation therefore had to be construed in such a way as to include that organisation.

In the House of Lords, counsel for the accused argued that the task of the court was ‘to interpret the provision which parliament has enacted and not to give effect to an inferred intention of parliament not fairly to be derived from the language of the statute’. The House of Lords rejected that argument, holding that the historical context of the legislation was of fundamental importance. It decided that all the Westminster and Stormont statutes were directed towards the elimination of Irish-related terrorism and that the general approach in legislation had been to proscribe the IRA, using that title as a blanket description that ‘embraced all emanations, manifestations and representations of the IRA, whatever their relationship to each other’.

The effect of Pepper v Hart (1993), permitting access to Hansard, will be considered at 3.4.4.2 below, but for the moment, it is still the case that the judges remain subject to the established rules of interpretation of which there are three primary rules of statutory interpretation, together with a variety of other secondary aids to construction.

3.4.3 Rules of Interpretation

In spite of the content of the preceding section, it is still necessary to consider the traditional and essentially literally based approaches to statutory interpretation. What follows in this and the following two sections should be read within the context of the Human Rights Act (HRA) 1998, which requires all legislation to be construed in such a way as, if at all possible, to bring it within the ambit of the European Convention on Human Rights (ECHR). The effect of this requirement is to provide the judiciary with powers of interpretation much wider than those afforded to them by the more traditional rules of interpretation, as can be seen from R v A (2001), considered above at 2.5.1.2. However, to quote Lord Steyn further in this particular context ([2001] 3 All ER 1 at 16):

… the interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings… [s]ection 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights. Under ordinary methods of interpretation a court may depart from the language of the statute to avoid absurd consequences: section 3 goes much further. Undoubtedly, a court must always look for a contextual and purposive interpretation: section 3 is more radical in its effect… In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained.

The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so.

Nonetheless, where the HRA is not involved, the courts still have to interpret legislative provisions. The three traditional rules of statutory interpretation are as follows:

  1. The literal rule
    Under this rule, the judge is required to consider what the legislation actually says rather than considering what it might mean. In order to achieve this end, the judge should give words in legislation their literal meaning – that is, their plain, ordinary, everyday meaning – even if the effect of this is to produce what     might be considered an otherwise unjust or undesirable outcome. The literal rule appears at first sight to be the least problematic method of interpreting legislation. Under this rule, the courts most obviously appear to be recognising their limitations by following the wishes of Parliament as expressed in the words of the legislation under consideration. When, however, the difficulties of assigning a fixed and unchallengeable meaning to any word is recalled, the use of the literal rule becomes less uncontroversial. A consideration of the cases reveals examples where the literal rule has been used as a justification for what otherwise might appear as partial judgments on the part of the court concerned in the case.

    Inland Revenue Commissioners v Hinchy (1960) concerned s 25(3) of the Income Tax Act 1952, which stated that any taxpayer who did not complete their tax return was subject to a fixed penalty of £20 plus treble the tax which he ought to be charged under the Act. The question that had to be decided was whether the additional element of the penalty should be based on the total amount that should have been paid, or merely the unpaid portion of that total. The House of Lords adopted a literal interpretation of the statute and held that any taxpayer in default should have to pay triple their original tax bill.

    In R v Goodwin (2005) the rider/driver of a jet-ski in the sea off Wey-mouth, crashed into another jet-ski, causing serious injuries to the rider/driver of the other machine.

    The defendant was prosecuted under s 58 of the Merchant Shipping Act 1995, which makes it an offence for ‘the master of… a United Kingdom ship’ negligently to do any act which causes or is likely to cause serious injury to any person. Section 313 of the Act defines a ship as including every description of vessel ‘used in navigation’. At first instance it was decided that a jet-ski was a ship for the purposes of the Merchant Shipping Act 1995 and as a result the defendant pleaded guilty.

    On appeal, however, the Court of Appeal quashed his conviction, deciding that a jet-ski is not ‘used in navigation’ for the purpose of travel from one place to another and as s 58 only applies to sea-going ships and the jet-ski was used only within the port of Weymouth, it could not really be described as ‘sea-going’.

    A further problem with regard to the literal rule, relating to the difficulty judges face in determining the literal meaning of even the commonest of terms, can be seen in R v Maginnis (1987). The defendant had been charged under the Misuse of Drugs Act 1971, with having drugs in his possession and with intent to supply them. He claimed that, as he had intended to return the drugs to a friend who had left them in his car, he could not be guilty of supplying as charged. In this case, the judges, from first instance, through the Court of Appeal to the House of Lords, disagreed as to the literal meaning of the common word ‘supply’. Even in the House of Lords, Lord Goff, in his dissenting judgment, was able to cite a dictionary definition to support his interpretation of the word. It is tempting to suggest that the majority of judges in the House of Lords operated in a totally disingenuous way by justifying their decision on the literal interpretation of the law while, at the same time, fixing on a non-literal meaning for the word under consideration. In actual fact, in R v Maginnis, each of the meanings for ‘supply’ proposed by the various judges could be supported by dictionary entries. That fact, however, only highlights the essential weakness of the literal rule, which is that it wrongly assumes that there is such a thing as a single, uncontentious, literal understanding of words. While R v Maginnis concerned the meaning of ‘supply’, Attorney General’s Reference (No 1 of 1988) (1989) concerned the meaning of ‘obtained’ in s 1(3) of the Company Securities (Insider Dealing) Act 1985, since replaced by the Criminal Justice Act 1993, and led to similar disagreement as to the precise meaning of an everyday word. In another case relating to insider dealing, Hannam v the Financial Conduct Authority (2014) the Upper Tribunal held, on appeal, that ‘precise’ information must be such that it is possible to predict the direction of the movement in the share price which would or might occur if the information were made public.

    However, subsequently, in March 2015 in Jean-Bernard Lafonta v Autorité des Marchés Financiers (Case C-628/13) the CJEU decided to the contrary that ‘precise’ does not require that a party be able ‘to infer from that information, with a sufficient degree of probability, that, once it is made public, its potential effect on the prices of the financial instruments concerned will be in a particular direction’. All that is required is that the holder need know only that the information would affect the price of the shares, rather than knowing whether the share price would go up or down.

    Bromley LBC v GLC (1983) may be cited as an instance where the courts arguably took a covert political decision under the guise of applying the literal meaning of a particular word in a piece of legislation.

    In Owens v Dudley Metropolitan Borough Council (2011) the Court of Appeal confirmed that, where statute does not define a term, it should be given its ordinary meaning. In this case the claimant was employed as a special needs teacher and counsellor. Although her contract of employment described her as a teacher, her employer claimed that she was not in fact a teacher and consequently could not be a member of the Teachers’ Pension Scheme. At first instance the High Court held that she was not a teacher as she merely provided services ancillary to teaching. The Court of Appeal held that, as there was no specific definition of ‘teacher’ in the Teachers’ Pension Scheme, the dictionary definitions of the term should be referred to. As the dictionary definition was wide and went beyond people who stand in front of pupils in a classroom, the claimant was held to come within the definition.

  2. The golden rule
    This rule is generally considered to be an extension of the literal rule. In its general expression, it is used in circumstances where the application of the literal rule is likely to result in what appears to the court to be an obviously absurd result. The golden rule was first stated by Lord Wensleydale in Grey v Pearson     , but its operation is better defined by the words of Lord Blackburn in River Wear Commissioners v Adamson (1877) as follows:

    [W]e are to take the whole statute and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification, and to justify the Court in putting them in some other signification, which, though less proper, is one which the Court thinks the words will bear.

    It should be emphasised, however, that the court is not at liberty to use the golden rule to ignore, or replace, legislative provisions simply on the basis that it does not agree with them; it must find genuine difficulties before it declines to use the literal rule in favour of the golden one. How one determines or defines genuine difficulty is of course a matter of discretion and, therefore, dispute. As Lord Blackburn’s definition makes clear, the use of the rule actually involves the judges in finding what they consider the statute should have said or provided, rather than what it actually did state or provide. As will be seen below, the justification for this judicial activity is based on that extremely wide, amorphous, not to say spurious, legal concept: public policy. However, such a justification immediately raises the questions of the judges’ understanding of, and right to determine, public policy, which will be considered in the next section of this chapter.

    It is sometimes stated that there are two versions of the golden rule:

  3. The mischief rule
    At one level, the mischief rule is clearly the most flexible rule of interpretation, but in its traditional expression it is limited by being restricted to using previous common law rules in order to decide the operation of contemporary legislation. It is also, at least somewhat, paradoxical that this most venerable rule, originally set out in Heydon’s Case (1584), is also the one which most obviously reveals the socio-political nature of judicial decisions.

    In Heydon’s Case, it was stated that in making use of the mischief rule, the court should consider the following four things:

    It has to be remembered that, when Heydon’s Case was decided, it was the practice to cite in the preamble of legislation the purpose for its enactment, including the mischief at which it was aimed. (An example where the preamble made more sense than the actual body of the legislation is the infamous Bubble Act of 1720.) Judges in this earlier time did not, therefore, have to go beyond the legislative provision itself to implement the mischief rule. With the disappearance of such explanatory preambles, the question arises as to the extent to which judges can make use of the rule in Heydon’s Case to justify their examination of the policy issues that underlie particular legislative provisions. Contemporary practice is to go beyond the actual body of the legislation. This, however, raises the question as to what courts can legitimately consider in their endeavour to determine the purpose and meaning of legislation, which will be considered separately below.

    The example usually cited of the use of the mischief rule is Corkery v Carpenter (1950), in which a man was found guilty of being drunk in charge of a ‘carriage’, although he was in fact only in charge of a bicycle. A much more controversial application of the rule is to be found in Royal College of Nursing v DHSS (1981), where the courts had to decide whether the medical induction of premature labour to effect abortion, under the supervision of nursing staff, was lawful. In this particularly sensitive area, whether one agrees with the ultimate majority decision of the House of Lords in favour of the legality of the procedure or not probably depends on one’s view of abortion. This fact simply serves to highlight the socio-political nature of the question that was finally determined by the House of Lords under the guise of merely determining the legal meaning of a piece of legislation.

The relationship of the rules of interpretation

It is sometimes suggested that the rules of interpretation form a hierarchical order. On that basis, the first rule that should be applied is the literal rule, and that rule only cedes to the golden rule in particular circumstances where ambiguity arises from the application of the literal rule. The third rule, the mischief rule, it is suggested, is only brought into use where there is a perceived failure of the other two rules to deliver an appropriate result. On consideration, however, it becomes obvious that no such hierarchy exists. The literal rule is supposed to be used unless it leads to a manifest absurdity, in which case it will give way to the golden rule. The immediate question this supposition gives rise to is – what is to be considered as an absurdity in any particular case, other than the view of the judge deciding the case? The three rules are contradictory, at least to a degree, and there is no way in which the outsider can determine in advance which of them the courts will make use of to decide the meaning of a particular statute. Many may welcome the fact that the courts have moved towards a more explicitly purposive approach as outlined previously and as was recommended by the Law Commission report in 1969. It has to be recognised, however, that such a shift in approach provides the judiciary with additional power in relation to determining the meaning and effect of legislation. Cynics might say that such change merely makes overt the power that the judiciary always had, but previously exercised in a covert way.

3.4.4 Aids to Construction

In addition to the three main rules of interpretation, there are a number of secondary aids to construction. These can be categorised as either intrinsic or extrinsic in nature:

Intrinsic assistance

Intrinsic assistance is derived from the statute, which is the object of interpretation; the judge uses the full statute to understand the meaning of a particular part of it. The title, either long or short, of the Act under consideration may be referred to for guidance (Royal College of Nursing v DHSS (1981)). It should be noted, however, that a general intention derived from the title cannot overrule a clear statement to the contrary in the text of the Act.

It was a feature of older statutes that they contained a preamble, which was a statement, preceding the actual provisions of the Act, setting out its purposes in some detail and to which reference could be made for purposes of interpretation. Again, however, any general intention derived from the preamble could not stand in the face of express provision to the contrary within the Act.

Whereas preambles preceded the main body of an Act, schedules appear as additions at the end of the main body of the legislation. They are, however, an essential part of the Act and may be referred to in order to make sense of the main text.

Some statutes contain section headings and yet others contain marginal notes relating to particular sections. The extent to which either of these may be used is uncertain, although DPP v Schildkamp (1969) does provide authority for the use of the former as an aid to interpretation.

Finally, in regard to intrinsic aids to interpretation, it is now recognised that punctuation has an effect on the meaning of words and can be taken into account in determining the meaning of a provision.

Extrinsic assistance

Extrinsic assistance, that is, reference to sources outside of the Act itself, may on occasion be resorted to in determining the meaning of legislation – but which sources? Some external sources are unproblematic. For example, judges have always been entitled to refer to dictionaries in order to find the meaning of non-legal words. They also have been able to look into textbooks for guidance in relation to particular points of law, and in using the mischief rule, they have been able to refer to earlier statutes to determine the precise mischief at which the statute they are trying to construe is aimed. The Interpretation Act 1978 is also available for consultation with regard to particular difficulties. Unfortunately, its title is somewhat misleading, in that it does not give general instructions for interpreting legislation, but simply defines particular terms that are found in various statutes.

Other extrinsic sources, however, are more controversial. In 3.3, the various processes involved in the production of legislation were considered. As was seen, there are many distinct stages in the preparation of legislation. Statutes may arise as a result of reports submitted by a variety of commissions. In addition, the preparation of the precise structure of legislation is subject to consideration in working papers, known as travaux préparatoires. Nor should it be forgotten that in its progress through Parliament, a Bill is the object of discussion and debate, both on the floor of the Houses of Parliament and in committee. Verbatim accounts of debates are recorded and published in Hansard.

Each of these procedures provides a potential source from which a judge might discover the specific purpose of a piece of legislation or the real meaning of any provision within it. The question is, to which of these sources are the courts entitled to have access?

Historically, English courts have adopted a restrictive approach to what they are entitled to take into consideration. This restrictive approach has been gradually relaxed, however, to the extent that judges are allowed to use extrinsic sources to determine the mischief at which particular legislation is aimed. Thus, they have been entitled to look at Law Commission reports, Royal Commission reports and the reports of other official commissions. Until fairly recently, however, Hansard literally remained a closed book to the courts, but in the landmark decision in Pepper v Hart (1993), the House of Lords decided to overturn the previous rule. The issue in the case was the tax liability owed by teachers at Malvern College, a fee-paying school. Employees were entitled to have their sons educated at the school while paying only 20 per cent of the usual fees. The question was as to the precise level at which this benefit in kind was to be taxed. In a majority decision, it was held that where the precise meaning of legislation was uncertain or ambiguous or where the literal meaning of an Act would lead to a manifest absurdity, the courts could refer to Hansard’s reports of parliamentary debates and proceedings as an aid to construing the meaning of the legislation.

The operation of the principle in Pepper v Hart was extended in Three Rivers DC v Bank of England (No 2) (1996) to cover situations where the legislation under question was not in itself ambiguous but might be ineffective in its intention to give effect to some particular EC directive. Applying the wider purposive powers of interpretation open to it in such circumstances (see above, 3.4.2), the court held that it was permissible to refer to Hansard in order to determine the actual purpose of the statute. The Pepper v Hart principle only applies to statements made by ministers at the time of the passage of legislation, and the courts have declined to extend it to cover situations where ministers subsequently make some statement as to what they consider the effect of a particular Act to be (Melluish (Inspector of Taxes) v BMI (No 3) Ltd (1995)).

It is essential to bear in mind that Pepper v Hart was not intended to introduce a general purposive approach to the interpretation of non-European Community legislation. Recourse to Hansard is to be made only in the context of the mischief rule, as a further method of finding out the mischief at which the particular legislation is aimed.

The way in which Pepper v Hart should be used in relation to the HRA was considered by the House of Lords in Wilson v Secretary of State for Trade and Industry in 2003. This case was remarkable in that neither of the parties to the original issue took part in the House of Lords case. However, as it followed a previous declaration of incompatibility delivered by the Court of Appeal, it was pursued by the Attorney General on behalf of the Secretary of State. In addition, and for the first time ever, both the Speaker of the House of Commons and the Clerk of the Parliaments intervened in relation to the manner in which the Court of Appeal had scrutinised Hansard in order to determine the purpose of the legislation in question. The House of Lords proved much more sensitive than the Court of Appeal had been as to the tension between the courts and parliament in regard to the exercise of the powers of the courts in relation to compatibility issues under the HRA and equally restrictive in the use that could be made of Hansard in relation to the exercise of those powers. As Lord Nicholls put it:

I expect the occasions when resort to Hansard is necessary as part of the statutory ‘compatibility’ exercise will seldom arise. The present case is not such an occasion. Should such an occasion arise the courts must be careful not to treat ministerial or other statements as indicative of the objective intention of Parliament. Nor should the courts give a ministerial statement, whether made inside or outside Parliament, determinative weight. It should not be supposed that members necessarily agreed with the minister’s reasoning or his conclusions.

Consequently, it can be seen that the initial and primary role of the judge is to interpret the legislation as it stands and only, in limited circumstances, to have recourse to Hansard to look for enlightenment as to the meaning of the Act, and even then it must be done with circumspection.

3.4.5 Presumptions

In addition to the rules of interpretation, the courts may also make use of certain presumptions. As with all presumptions, they are rebuttable. The presumptions operate:

For further examples and resources illustrating the way statutory interpretation is carried out, exercises and technical guidance, please go to: www.routledge.com/cw/slapper where you will find a guide to Using Legislation.

3.5 Delegated or Subordinate Legislation

Delegated legislation is of particular importance. Generally speaking, delegated legislation is law made by some person or body to whom Parliament has delegated its general law-making power. A validly enacted piece of delegated legislation has the same legal force and effect as the Act of Parliament under which it is enacted but, equally, it only has effect to the extent that its enabling Act authorises it.

It should also be recalled that s 10 of the HRA 1998 gives ministers power to amend primary legislation by way of statutory instrument where a court has issued a declaration that the legislation in point is incompatible with the rights provided under the ECHR.

The output of delegated legislation in any year greatly exceeds the output of Acts of Parliament. For example, in the parliamentary year 2013 only 33 UK public general Acts were passed, as against 3,318 statutory instruments.

In statistical terms, therefore, it is at least arguable that delegated legislation is actually more significant than primary Acts of Parliament.

There are various types of delegated legislation:

3.5.1 Advantages in the Use of Delegated Legislation

The advantages of delegated legislation include the following:

  • Time saving
    Delegated legislation can be introduced quickly, where necessary in particular cases, and can permit rules to be changed in response to emergencies or unforeseen problems.

    The use of delegated legislation, however, also saves parliamentary time generally. Given the pressure on debating time in Parliament and the highly detailed nature of typical delegated legislation, not to mention its sheer volume, Parliament would not have time to consider each individual piece of law that is enacted in the form of delegated legislation. It is considered of more benefit for Parliament to spend its time in a thorough consideration of the principles of the enabling Act, leaving the appropriate minister or body to establish the working detail under its authority.

  • Access to particular expertise
    Related to the first advantage is the fact that the majority of Members of Parliament simply do not have sufficient expertise to consider such provisions effectively. Given the highly specialised and extremely technical nature of many of the regulations that are introduced through delegated legislation, it is necessary that those authorised to introduce the legislation should have access to the necessary external expertise required to formulate such regulations. With regard to bylaws, it practically goes without saying that local and specialist knowledge should give rise to more appropriate rules than reliance on the general enactments of parliament.
  • Flexibility
    The use of delegated legislation permits ministers to respond on an ad hoc basis to particular problems, as and when they arise, and provides greater flexibility in the regulation of activity subject to the minister’s overview.

3.5.2 Disadvantages in the Prevalence of delegated Legislation

The disadvantages in the use of delegated legislation include the following:

  • Accountability
    A key issue involved in the use of delegated legislation concerns the question of accountability and erosion of the constitutional role of Parliament. Parliament is presumed to be the source of legislation, but with respect to delegated legislation, the individual members are not the source of the law. Certain people, notably government ministers and the civil servants who work under them to produce the detailed provisions of delegated legislation, are the real source of such regulations. Even allowing for the fact that they are, in effect, operating on powers delegated to them from parliament, it is not beyond questioning whether this procedure does not give them more power than might be thought appropriate, or indeed constitutionally correct, while at the same time disem-powering and discrediting parliament as a body.
  • Scrutiny
    The question of general accountability raises the need for effective scrutiny, but the very form of delegated legislation makes it extremely difficult for ordinary Members of Parliament to fully understand what is being enacted and to monitor it effectively. This difficulty arises in part from the tendency for such regulations to be highly specific, detailed and technical. This problem of comprehension and control is compounded by the fact that regulations appear outside the context of their enabling legislation, but only have any real meaning within that context.
  • Bulk
    The problem faced by ordinary Members of Parliament in effectively keeping abreast of delegated legislation is further increased by the sheer mass of such legislation. If parliamentarians cannot keep up with the flow of delegated legislation, how can the general public be expected to do so?

3.5.3 The Legislative and Regulatory Reform Act 2006

In previous editions of this book the authors have, to a greater or lesser degree, focused on the increase in the power of Ministers of State to alter Acts of Parliament by means of statutory instruments in the pursuit of economic, business and regulatory efficiency.

The first of these (dis)empowering Acts of Parliament that brought this situation about was the Deregulation and Contracting Out Act (DCOA) 1994, introduced by the last Conservative government. It was a classic example of the wide-ranging power that enabling legislation can extend to ministers in the attack on such primary legislation as was seen to impose unnecessary burdens on any trade, business or profession. Although the DCOA 1994 imposed the requirement that ministers should consult with interested parties to any proposed alteration, it nonetheless gave them extremely wide powers to alter primary legislation without the necessity of having to follow the same procedure as was required to enact that legislation in the first place. For that reason, deregulation orders were subject to a far more rigorous procedure (sometimes referred to as ‘super-affirmative’) than ordinary statutory instruments. The powers were extended in its first term in office by the Labour government under the Regulatory Reform Act (RRA) 2001.

It was, however, only with the proposed Legislative and Regulatory Reform Bill 2006 that alarm bells started to ring generally. This critical reaction was based on the proposed power contained in the Act for ministers to create new criminal offences, punishable with less than two years’ imprisonment, without the need for a debate in parliament.

The proposals under the Legislative and Regulatory Reform Bill 2006 were constitutionally dangerous to the extent that they gave to the executive powers that should be a function of the legislature.

As a result of opposition, the government amended the legislation to ensure that its powers could only be used in relation to business and regulatory efficiency.

Under s 1 of the Legislative and Regulatory Reform Act (LRRA) 2006, a minister of the Crown can make a legislative reform order for the purpose of removing or reducing any burden to which any person is subject as a result of any legislation. A burden is defined as:

  • a financial cost;
  • an administrative inconvenience;
  • an obstacle to efficiency, productivity or profitability; or
  • a sanction, criminal or otherwise, which affects the carrying on of any lawful activity.

However, it is at least somewhat reassuring that such powers cannot be used:

  • to confer or transfer any function of legislation on anyone other than a minister;
  • to impose, abolish or vary taxation;
  • to amend or repeal any provision of the Human Rights Act 1998.

Nor can the Act be used to amend or repeal any provision of Part 1 of the LRRA, which includes the above prohibitions.

Similar fears were raised in relation to the Public Bodies Act 2011. Although not as wide-ranging as was originally proposed, the Act still gives government ministers wide powers to abolish non-government bodies and agencies, referred to as quangos.

3.5.4 Control of Delegated Legislation

The foregoing difficulties and potential shortcomings in the use of delegated legislation are, at least to a degree, mitigated by the fact that specific controls have been established to oversee it:

Parliamentary control over delegated legislation

Power to make delegated legislation is ultimately dependent upon the authority of Parliament and Parliament retains general control over the procedure for enacting such law. New regulations in the form of delegated legislation are required to be laid before Parliament. This procedure takes two forms depending on the provision of the enabling legislation. Some regulations require a positive resolution of one or both of the Houses of Parliament before they become law. Most Acts, however, simply require that regulations made under their auspices be placed before Parliament. They automatically become law after a period of 40 days unless a resolution to annul them is passed.

The problem with the negative resolution procedure is that it relies on Members of Parliament being sufficiently aware of the content, meaning and effect of the detailed provisions laid before them. Given the nature of such statutory legislation, such reliance is unlikely to prove secure.

Since 1973, there has been a Joint Select Committee on Statutory Instruments whose function it is to scrutinise all statutory instruments. The Joint Committee is empowered to draw the special attention of both Houses to an instrument on any one of a number of grounds specified in the Standing Orders (No 151 of the House of Commons and No 74 of the House of Lords) under which it operates, or on any other ground which does not relate to the actual merits of the instrument or the policy it is pursuing.

The House of Commons has its own Select Committee on Statutory Instruments, which is appointed to consider all statutory instruments laid only before the House of Commons. This committee is empowered to draw the special attention of the House to an instrument on any one of a number of grounds specified in Standing Order No 151; or on any other ground. However, as with the joint committee, it is not empowered to consider the merits of any statutory instrument or the policy behind it. As an example of its operation, after considering two statutory instruments, namely Personal Equity Plan (Amendment No 2) Regulations 2005 (SI 2005/3348) and Individual Savings Account (Amendment No 3) Regulations 2005 (SI 2005/3350), the Committee considered that they should be drawn to the attention of the House of Commons on the ground that there appeared to be a doubt whether they were intra vires.

EU legislation is overseen by a specific committee – as are local authority bylaws. In 2003 the House of Lords established a Committee on the Merits of Statutory Instruments, the task of which is to consider the policy implications of statutory instruments. It has wide-ranging remit and is specifically charged with the task of deciding whether the attention of the House should be drawn to a particular statutory instrument on any one of the following grounds:

A case study on the passage of statutory instruments: The Tax Credit Regulations 2015

As part of its continued austerity programme the Conservative government proposed that alterations be made to the regime of tax credits which were paid to people in work but previously thought not to be earning sufficient money to maintain themselves adequately. The treasury proposed significantly to limit people’s eligibility for such tax credit payment, using a statutory instrument, the Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015 under powers delegated to it under the Tax Credits Act 2002. The delegated powers required the approval of both Houses of Parliament and had been appropriately approved by the House of Commons. However, in its consideration in the House of Lords the members of that House voted in one motion for the cuts to be postponed pending an independent review of the proposals. On a second motion they also voted to provide transitional financial support for at least three years for those likely to be affected by the proposals.

The votes were not unexpected but nonetheless they did raise some anger and doubt about the constitutionality of the Lords’ action.

As has been seen, the Parliament Acts certainly placed limitations on the Lords’ powers in relation to ordinary Bills, but as delegated legislation was not a prominent feature of pre-1950 legislation, those Acts remained silent on the Lords’ powers in relation to such secondary legislation. As a consequence, it would appear that the House of Lords had a formal veto over delegated legislation, but it was suggested, a suggestion supported by the government in the current issue, that a constitutional convention had emerged that the Lords should not vote on such matters. However, although it was certainly unusual for the Lords to vote on, and certainly vote against, secondary legislation, it has to be admitted that it was not unprecedented. Indeed, at the time when the majority of hereditary peers were removed from the Lords, the sometime Conservative Leader in the House Lord Strathclyde made a bold speech stating that ‘I declare this convention dead’, before using his voting power to vote down secondary legislation relating to the election of the mayor of London.

The government also questioned the right of the House of Lords to vote against the statutory instrument, as they maintained it was a financial matter and therefore subject to the normal rules under the Parliament Acts.

Where the Lords are concerned about the passage of a particular statutory instrument, they have the choice of two types of motion to vote on: the one most used is the ‘non-fatal’ motion, which merely expresses ‘regret at the government’s action’, rather than looking to block it. One such motion was before the house in relation to the tax credits issue but was rejected. Also rejected was ‘fatal’ motion against the passage of the legislation, which would have completely curtailed the legislation in question. Instead the Lords chose the non-fatal options which resulted in the instrument being passed back to the Commons for it to be considered further.

Following the votes in the House of Lords, the government made known its extreme displeasure. Chancellor of the Exchequer, George Osborne, said he would heed the outcome of the vote, but said it raised constitutional issues of ‘unelected Labour and Lib Dem lords defying the will of the elected House of Commons’. Somewhat ironically the government announced that Lord Strathclyde would be looking into the implications of the whole issue as it impacted on the future role of the House of Lords. Subsequently, in November 2016, the May government announced that it would not proceed with plans to take on the House of Lords. It is most likely that the decision was as a result of the realisation that they would struggle to pass the legislation, especially given the pressures of working within their self-imposed Brexit timetable. In its official response to the Strathclyde Review, subsequently published in December 2016, the government stated that while it agreed with the conclusion of the review as to the need to introduce legislation in the face of continued intransigence on the part House of Lords, nevertheless it would not introduce legislation in the current parliamentary session, with the warning that it would keep the situation under review.

Judicial control of delegated legislation

It is possible for delegated legislation to be challenged through the procedure of judicial review, on the basis that the person or body to whom Parliament has delegated its authority has acted in a way that exceeds the limited powers delegated to them. Any provision outside this authority is ultra vires and is void. Additionally, there is a presumption that any power delegated by Parliament is to be used in a reasonable manner, and the courts may on occasion hold particular delegated legislation to be void on the basis that it is unreasonable. The process of judicial review will be considered in more detail in Chapter 13. However, an interesting example of this procedure may illustrate the point. In January 1997, the Lord Chancellor raised court fees and, at the same time, restricted the circumstances in which a litigant could be exempted from paying such fees. In March, a Mr John Witham, who previously would have been exempted from paying court fees, successfully challenged the Lord Chancellor’s action. In a judicial review, it was held that Lord Mackay had exceeded the statutory powers given to him by Parliament. One of the judges, Rose LJ, stated that there was nothing to suggest that Parliament ever intended ‘a power for the Lord Chancellor to prescribe fees so as to preclude the poor from access to the courts’.

R (Public Law Project) v Secretary of State for Justice (2014) is a recent example of the courts finding the use of delegated legislation to alter primary legislation to be ultra vires. As its title indicates, the statutory instrument in questions, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014, sought to amend Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 by introducing a residence test limiting the provision of legal aid to those who could show ‘a meaningful connection’ with the UK. The court held that the introduction of the residence test by way of secondary legislation exceeded the power to make delegated legislation conferred on the Secretary of State by the parent statute.

Lord Justice Moses (with whom Mr Justice Collins and Mr Justice Jay agreed) identified the objective of the primary legislation as being the provision of legal aid to those with the greatest need. As the proposed amendment actually had ‘nothing to do with need or an order of priority of need… [but was], entirely, focused on reducing the cost of legal aid’, it violated the principle that subsidiary legislation must serve and promote the object of the primary legislation under which it is made. Consequently it was held to be ultra vires and ineffective.

The power of the courts in relation to delegated legislation has been considerably increased by the enactment of the HRA 1998. As has been seen, the courts cannot directly declare primary legislation invalid, but can only issue a declaration of incompatibility. However, no such limitation applies in regard to subordinate legislation, which consequently may be declared invalid as being in conflict with the rights provided under the ECHR. This provision significantly extends the power of the courts in relation to the control of subordinate legislation, in that they are no longer merely restricted to questioning such legislation on the grounds of procedure, but can now assess it on the basis of content, as measured against the rights provided in the ECHR. It should be noted that some Orders in Council, as expressions of the exercise of the royal prerogative, are not open to challenge and control in the same way as other subordinate legislation.

A case study on ultra vires: HM Treasury v Mohammed Jabar Ahmed (2010)

In this, the first substantive case heard by the Supreme Court, it quashed fully the Terrorism (United Nations Measures) Order 2006 and quashed parts of the al-Qaida and Taliban (United Nations Measures) Order 2006 as being ultra vires the powers extended to the Treasury under the United Nations Act 1946.

Both Orders had been made by the Treasury under power conferred by s 1 of the United Nations Act (UNA) 1946, which was enacted to facilitate the taking of measures to implement decisions of the UN Security Council. In each case the Orders were made to give effect to resolutions of the United Nations Security Council, which were designed to suppress and prevent the financing and preparation of acts of terrorism.

The Orders specifically provided for the freezing of the funds, economic resources and financial services available to individuals who had been included on a United Nations list of associates of Osama Bin-Laden, or were involved in international terrorism, or were reasonably suspected of involvement with international terrorism.

In delivering the leading judgment, Lord Hope (with the agreement of Lord Walker and Lady Hale) emphasised the far-reaching and serious effect of the asset-freezing measures on not just the individuals concerned, but also their families. Using the scope afforded by the rule in Pepper v Hart, he concluded that the legislative history of the 1946 Act demonstrated that Parliament ‘did not intend that the 1946 Act should be used to introduce coercive measures which interfere with UK citizens’ fundamental rights’. The crucial question for the court to consider was whether s 1 of UNA conferred power on the executive, without any parliamentary scrutiny, to give effect in this country to decisions of the Security Council, which are targeted against individuals. And the answer to that question was a clear no.

In answering the question in that way, the Supreme Court was at pains to emphasise that it was in no way usurping the role of the legislature. Indeed as Lord Phillips put it:

Nobody should form the impression that in quashing the TO and the operative provision of the AQO the Court displaces the will of Parliament. On the contrary, the Court’s judgment vindicates the primacy of Parliament, as opposed to the Executive, in determining in what circumstances fundamental rights may legitimately be restricted.

3.6 Law Reform: The Role of the Law Commission

At one level, law reform is either a product of parliamentary or judicial activity. Parliament tends, however, to be concerned with particularities of law reform, and the judiciary are constitutionally and practically disbarred from reforming the law in anything other than an opportunistic and piecemeal way. Therefore, there remains a need for the question of law reform to be considered generally and a requirement that such consideration be conducted in an informed but disinterested manner. Thereafter it is a matter for Parliament to introduce the necessary legislation to bring any proposed reform into effect.

Reference has already been made to the use of consultative Green Papers by the government as a mechanism for gauging the opinions of interested parties to particular reforms. More formal advice may be provided through various advisory standing committees. Among these is the Law Reform Committee. The function of this Committee is to consider the desirability of changes to the civil law which the Lord Chancellor may refer to it. The Criminal Law Revision Committee performs similar functions in relation to criminal law.

Royal Commissions may be constituted to consider the need for law reform in specific areas. The Commission on Criminal Procedure (1980) led to the enactment of the Police and Criminal Evidence Act 1984, and the recommendation of the 1993 Royal Commission on Criminal Justice (Runciman Commission) informed subsequent reform of the criminal law system.

Committees may be set up in order to review the operation of particular areas of law, the most significant of these being the Woolf review of the operation of the civil justice system. Similarly, Sir Robin Auld conducted a review of the whole criminal justice system and Sir Andrew Leggatt reviewed the tribunal system. Detailed analysis of the consequences flowing from the implementation of the recommendations of these reviews will be considered subsequently.

If a criticism is to be levelled at these Committees and Commissions, it is that they are all ad hoc bodies. Their remit is limited and they do not have the power either to widen the ambit of their investigation or to initiate reform proposals.

The Law Commission fulfils the need for some institution to concern itself more generally with the question of law reform. It was established under the Law Commissions Act 1965 and its general function is to keep the law as a whole under review and to make recommendations for its systematic reform to ensure that the law is as fair, modern, simple and cost-effective as possible. As part of its goal to make the law as simple as possible, the Commission has adopted three interrelated approaches: codification, consolidation and revision.

Codification

The Commission looks towards the codification of the law. Codification has already been mentioned in respect of Civil Law in Chapter 1 and the Commission has expressed its view that the law would be more accessible to the citizen, and easier for the courts to understand, if the English system also adopted a series of statutory codes. The Commission has had a long-established aim of working towards a codification of criminal law; however, the tenth programme of law reform signalled a change in approach, reflecting a more realistic recognition of the difficulties involved in such a project and the need to reform the law before it can be successfully codified.

As the Commission stated in its 10th programme:

The complexity of the common law in 2007 is no less than it was in 1965. Further, the increased pace of legislation, layers of legislation on a topic being placed one on another with bewildering speed, and the influence of European legislation, continue to make codification ever more difficult. The Commission continues to believe that codification is desirable, but considers that it needs to redefine its approach to make codification more achievable. Accordingly the Commission has decided that:

  • (1) It will continue to use the definition of codification used by Gerald Gardiner in Law Reform Now, that is, ‘reducing to one statute, or a small collection of statutes, the whole of the law on any particular subject’.
  • (2) Consistently with Gardiner’s concerns in 1964, the Commission’s main priority is first to reform an area of the law sufficiently to enable it to return and codify the law at a subsequent stage. If it can codify at the same time as reforming, it will do so.

The first direct effect of these decisions is that the Commission has removed from this programme, mention of a codification project in relation to criminal law. The duty in reforming the criminal law, as elsewhere, is to identify reform projects that will make the law accessible, remove uncertainties and bring it up to date with the aim that in the future we will return and codify the area if we cannot do so as part of the project. Rather than specifically referring to codification as the intended outcome, we have introduced a new item which seeks to undertake projects to simplify the criminal law. We see this work as the necessary precursor to any attempts to codify the criminal law.

One major codification project the Law Commission is currently working on involves the introduction of a single sentencing statute available and applicable to all sentencing tribunals. It is not intended that any such statute will interfere with mandatory minimum sentences or with sentencing tariffs in general, but will merely streamline the existing overly complicated procedure for determining sentences. The suggestion from the Commission is that the law currently lacks coherence and clarity, being spread across many statutes, and being frequently updated with a variety of transitional arrangements. As a result, the Commission rather worryingly concludes that ‘[t]his makes it difficult, if not impossible at times, for practitioners and the courts to understand what the present law of sentencing procedure actually is. This can lead to delays, costly appeals and unlawful sentences.’ For an outline of the work done to date go to www.lawcom.gov.uk/project/sentencing-code/

Consolidation

This process brings together all existing statutory provisions, previously located in several different pieces of legislation, under one Act. As explained in Chapter 3 above, under this procedure the law itself remains unchanged, but those who use it are able to find it all in one place. An example, cited by the Commission, is the Powers of Criminal Courts (Sentencing) Act 2000, which brought together in a single piece of legislation sentencing powers which were previously to be found in more than a dozen Acts.

Statute law revision

The Commission continuously keeps under review the need to remove antiquated and/or anachronistic laws from the statute book, the continued existence of which make it subject to derision, even if they do not bring it into disrepute. As the Commission states, the purpose of its statute law repeals work is to modernise and simplify the statute book, reduce its size and save the time of lawyers and others who use it. Implementation of the repeal proposals is by means of special Statute Law (Repeals) Acts and 18 such Acts have been introduced since 1965, repealing more than 2,000 Acts either completely or partially.

It was as a result of this process, and following a 1995 Law Commission Report (No 230), that the Law Reform (Year and a Day Rule) Act was introduced in 1996. This Act removed the ancient rule which prevented killers being convicted of murder or manslaughter if their victim survived for a year and a day after the original offence. The Statute Law (Repeals) Act 2004 removed a Victorian Act which empowered the Metropolitan Police to license shoeblacks and commissionaires and, in so doing, removed the offence of fraudulently impersonating a shoeblack or commissionaire. The nineteenth, most recent, and biggest ever Statute Law (Repeals) Act (2013) repealed 817 whole Acts and part repealed 50 other Acts. The earliest repeal was from around 1322 (Statutes of the Exchequer) and the latest was part of the Taxation (International and Other Provisions) Act 2010. Repeals in the Act included:

  • An 1856 Act passed to help imprisoned debtors secure their early release from prison.
  • A 1710 Act to raise coal duty to pay for 50 new churches in London.
  • A 1696 Act to fund the rebuilding of St Paul’s Cathedral after the Great Fire 1666.
  • An 1800 Act to hold a lottery to win the £30,000 Pigot Diamond.

The Commission is a purely advisory body and its scope is limited to those areas set out in its current programme of law reform, which has to be approved by the Lord Chancellor. It recommends reform after it has undertaken an extensive process of consultation with informed and/or interested parties. At the conclusion of a project a report is submitted to the Lord Chancellor and Parliament for their consideration and action.

Although the scope of the Commission is limited to those areas set out in its programme of law reform, its ambit is not unduly restricted, as may be seen from the range of matters covered in its twelfth programme set out in July 2014.

In addition to continuing work on 13 ongoing projects from the eleventh programme it lists nine new topic areas as follows:

  • Sentencing procedure: a law reform project to recommend a single sentencing statute.
  • Mental capacity and detention: a project to consider how deprivation of liberty should be authorised and supervised in settings other than hospitals and care homes. This follows sharp criticism of the present state of the law by Justices of the Supreme Court.
  • Land registration: a project that will comprise a wide-ranging review of the Land Registration Act 2002 (itself a Law Commission Act).
  • Wills: a law reform project to review the law of wills, focusing on mental capacity and will making, formalities that dictate how a will should be written and signed, and how mistakes in wills can be corrected.
  • Bills of sale: a law reform review of the law relating to bills of sale loans, including logbook loans, which has become a recent area of concern in relation to non-controlled lending.

There are also two scoping exercises designed to see whether detailed proposals for law reform should be developed:

  • Firearms: a scoping exercise to consider the enactment of a single statute containing modified and simplified versions of all firearms offence.
  • Protecting consumer prepayments on retailer insolvency: a scoping review to assess the scale of the problem and consider whether to increase protection for consumers.

Finally, there are two wide-ranging topics specific to purposes of the Welsh Government:

  • The form and accessibility of the law applicable in Wales: an Advice to Government, considering ways in which the existing legislation can be simplified and made more accessible, and how future legislation could reduce problems.
  • Planning and development control in Wales: a law reform project to recommend a simplified and modernised planning system for Wales.

The Twelfth Programme of Law Reform is available on the Commission’s website at: http://lawcommission.justice.gov.uk/areas/12th-programme.htm. Consultation on what should be included in the 13th programme closed at the end of October 2016.

In addition to these programme projects, ministers may refer matters of particular importance to the Commission for its consideration. As was noted in Chapter 1, it was just such a referral by the Home Secretary, after the Macpherson Inquiry into the Stephen Lawrence case, that gave rise to the Law Commission’s recommendation that the rule against double jeopardy be removed in particular circumstances. An extended version of that recommendation was included in the Criminal Justice Act 2003.

Annual reports list all Commission publications. The Law Commission claims that, in the period since its establishment in 1965, over 100 of its law reports have been implemented. Examples of legislation following from Law Commission reports are: the Contracts (Rights of Third Parties) Act 1999, based on the recommendations of the Commission’s Report No 180, Privity of Contract; and the Trustee Act 2000, based on the Commission’s Report No 260. In February 2002 the Land Registration Act was passed, which has had a major impact on the land registration procedure. The Act implemented the draft Bill which was the outcome of the Commission’s largest single project.

Current judicial review procedures are very much the consequence of a 1976 Law Commission report, and a review of their operation and proposals for reform were issued in October 1994.

In the area of criminal law, the preparatory work done by the Commission on several aspects of the criminal justice system (bail, double jeopardy and the revelation of an accused person’s bad character) was incorporated into the Criminal Justice Act 2003.

In addition, ss 5 and 6 of the Domestic Violence, Crime and Victims Act 2004 reflect the recommendations of an earlier Commission report. The issue investigated related to situations where a child is non-accidentally killed or seriously injured, and it is apparent that one or more of a limited number of defendants must have committed the crime, but there is no evidence that allows the court to identify which of the defendants actually committed the offence. The Domestic Violence, Crime and Victims Act 2004 also contains provisions reflecting the Commission report relating to the prosecution of people charged with multiple offences.

In August 2004 the Commission published its Report on Partial Defences to Murder, recommending the reform of the defence of provocation, with particular reference to murders committed in the context of domestic violence. That report also included a recommendation that the Home Office undertake a wholesale review of the law of murder, including sentencing regimes, and subsequently in December 2005 the Commission published its proposals for reforming the law of murder, Bringing the Law of Murder into the 21st Century. Its initial conclusion was that the current law on murder ‘is a mess’ and in an attempt to remedy that situation it provisionally recommended that there should be three tiers of homicide:

  • In the top tier would be cases where there is an intention to kill. This is the worst category and would retain the mandatory life sentence.
  • In the second tier would be cases of killing through reckless indifference to causing death and intention to do serious harm but not to kill. This tier would also include revised versions of provocation, diminished responsibility and duress. The sentence would depend on the details of the case.
  • In the third tier (manslaughter) would be cases of killing by gross negligence or intention to cause harm but not serious harm.

In November 2006 the Law Commission published its final report setting out recommendations for reform of the law of homicide proposing the adoption of the three-tier structure, comprising first-degree murder, second-degree murder and manslaughter. Although the recommendations on partial defences were implemented to a substantial extent in the Coroners and Justice Act 2009, in January 2011 the new government let it be known that it would not implement the remainder of the recommendations on the grounds that the time was not right to take forward such a substantial reform of the criminal law.

The Commission’s recommendations in relation to the offence of corporate killing were incorporated in the Corporate Manslaughter and Corporate Homicide Act 2007, and its recommendations on inchoate liability for assisting and encouraging crime were enacted in the Serious Crime Act 2007. Finally, the Commission’s report and draft Bill on bribery led to the passing of the Bribery Act 2010, which came into force in July 2011, and its 2013 report on juror misconduct and internet publication informed the provisions in Part 3 of the Criminal Justice and Courts Act 2015 (see 14.8).

Having emphasised the role of the Law Commission as a source of new law, it is a fact that many of its reports recommending reform remain to be implemented, even though a number of them have been accepted by the government (a table showing the current status of all Law Commission law reform reports can be accessed under the ‘our work’ tab on the Commission website).

In response to such failure of implementation, a former Law Lord, Lord Lloyd of Berwick, introduced the Law Commission Bill 2008–09 in the House of Lords. In support of the Bill, Lord Kingsland pointed out that: ‘Over the years… [the Law Commission] has been tasked with many seemingly intractable problems, has grappled with them and produced a solution, only to find that solution spurned by the political classes.’

The resultant Act contains provisions to amend the Law Commissions Act 1965 so as to:

  • require the Lord Chancellor to prepare an annual report, to be laid before Parliament, on the implementation of Law Commission proposals;
  • require the Lord Chancellor to set out plans for dealing with any Law Commission proposals which have not been implemented and provide the reasoning behind decisions not to implement proposals;
  • allow the Lord Chancellor and Law Commission to agree a protocol about the Law Commission’s work. The protocol would be designed to provide a framework for the relationship between the UK government and the Law Commission, and the Lord Chancellor would have to lay the protocol before Parliament.

The fifth report on the implementation of Law Commission proposals was published in March 2015. It lists the reports that have been implemented or which are in the process of implementation. It also sets out the one report which the government has decided should not be legislated. As usual there is a long list of reports waiting for a government decision.

It should also be mentioned that in order to expedite the passage of such legislation, in 2008 the House of Lords Constitution Committee adopted a procedure to quicken the passage of non-controversial Law Commission Bills through the House of Lords and the procedure was adopted fully in 2010.

Mention should also be made of the relatively new Civil Justice Council (CJC), established under the Civil Procedure Act 1997. The remit of this Council, which is made up of a variety of judges, lawyers, academics and those representing the interests of consumers and others, under the chair of the Master of the Rolls, currently Lord Dyson, is to:

  • keep the civil justice system under review;
  • consider how to make the civil justice system more accessible, fair and efficient;
  • advise the Lord Chancellor and the judiciary on the development of the civil justice system;
  • refer proposals for change to the civil justice system to the Lord Chancellor and the Civil Procedure Rule Committee;
  • make proposals for research.

Given the massive upheaval that resulted from the implementation of Lord Woolf’s review of the civil justice system, it is to be hoped that the CJC will function effectively to bring about smaller alterations in the system as soon as they become necessary.

Access to Justice for Litigants in Person (or self-represented litigants)

In November 2011 the Civil Justice Council released a critical report entitled: Access to Justice for Litigants in Person (or self-represented litigants). The report followed an examination of how litigants in person are likely to be affected by reductions to public funding for legal advice and representation, and ways in which public and voluntary bodies could best respond to the challenges arising as a result of this cutback in funding. The working party found that the numbers of litigants representing themselves will increase, giving rise to the fear that:

Many of them will not know how to bring or defend legal proceedings in the absence of legal advice and representation and will either suffer a reduction in the quality of justice or they will entirely abandon their efforts to enforce or defend their rights or will try to take their cases to court but not do so properly.

The CJC report makes 10 recommendations for immediate action:

  1. improving the accessibility, currency and content of existing online resources;
  2. producing a ‘nutshell’ guide for self-represented litigants (SRLs);
  3. improving judicial and court services for SRLs;
  4. advice for judges on the availability of legal pro bono services;
  5. guidance for court staff when dealing with SRLs;
  6. guidance for legal professionals, and what SRLs can expect from lawyers;
  7. notice of McKenzie Friends (these are people who volunteer to assist unrepresented parties);
  8. introducing a code of conduct for McKenzie Friends;
  9. freeing up in-house lawyers to provide pro bono services; and
  10. a call for leadership from major advice and pro bono agencies across England and Wales to drive collaboration.

The report went on to make recommendations to be addressed in the medium term:

  • (a) a systematic review should be undertaken of court leaflets, forms and information, involving consultation with experts in the field;
  • (b) making a primary website available that pulls together and maintains the best independent guidance;
  • (c) increasing the number of courts that offer Personal Support Units and information officers to assist SRLs;
  • (d) producing a user-friendly guide to the Small Claims Court;
  • (e) improving access to legal advice;
  • (f) developing LawWorks’ early electronic advice for SRLs and agencies;
  • (g) finding new means of funding the administration of pro bono and other voluntary legal services;
  • (h) offering surgeries and after-hours court information sessions for SRLs;
  • (i) keeping records of numbers and circumstances of SRLs, and ensuring court user committees address their needs; and
  • (j) reviewing the question of access to appeals after refusals by a judge on the ‘paper’ application.

The Council maintained its consideration for the self-represented litigant in its response to the proposed changes to judicial review. As it stated:

Subsequent changes in the state funding of litigation have made the position of litigants in person, and the courts, even more problematic (see, further, 15.2.2).

Chapter Summary: Sources of Law: Legislation

Legislation

Legislation is law produced through the parliamentary system. The government is responsible for most Acts, but individual Members of Parliament do have a chance to sponsor Private Member’s Bills. The passage of a Bill through each House of Parliament involves five distinct stages: first reading; second reading; committee stage; report stage; and third reading. It is then given Royal Assent. The Supreme Court only has limited scope to delay legislation.

Among the problems of drafting Acts is the need to reconcile such contradictory demands as brevity and precision. Legislation can be split into different categories: public Acts affect the general public; private Acts relate to particular individuals; consolidation Acts bring various provisions together; codification Acts give statutory form to common law principles; amending Acts alter existing laws, and amendments may be textual, which alters the actual wording of a statute, or non-textual, in which case the operation rather than the wording of the existing law is changed.

Statutory Interpretation

This refers to, and follows from, the previous consideration that law does not speak for itself and does not have meaning ascribed to it. That function belongs to the judiciary. However, in giving practical effect to legislation, judges may exercise creative power that rightly belongs to the legislature.

In deciding what meaning to ascribe to legislation, judges tend to adopt either a literal or a purposive approach. These two general approaches are traditionally divided into three supposedly distinct rules:

  • the literal rule;
  • the golden rule; and
  • the mischief rule.

It should be recognised that such rules are not necessarily compatible.

In addition, judges make use of a number of presumptions in relation to the application of legislation.

Delegated Legislation

Delegated legislation appears in the form of: Orders in Council; statutory instruments; bylaws; and professional regulations.

The main advantages of delegated legislation relate to: speed of implementation; the saving of parliamentary time; access to expertise; and flexibility.

The main disadvantages relate to: the lack of accountability of those making such law; the lack of scrutiny of proposals for such legislation; and the sheer amount of delegated legislation.

Controls over delegated legislation are: in parliament, the Joint Select Committee on Statutory Instruments; and, in the courts, ultra vires provisions may be challenged through judicial review.

Law Reform

Law reform in particular areas is considered by various standing committees particularly established for that purpose and Royal Commissions may also be established for such purposes. The Law Commission, however, exists to consider the need for the general and systematic reform of the law.

Food for Thought

  1. In relation to the concept of the separation of powers mentioned in Chapter 2, consider the extent to which Parliament as a whole decides on law. The ideal is of the legislature, the actual Members of Parliament, debating issues in order to produce the best possible legislation. However, is that really the case? Consider where most legislation comes from, who proposes it and who ensures that it is enacted. It has been suggested that the executive controls Parliament through its control of party politics. On that basis, the issue to consider is the extent to which the parliamentary process is just a rubber-stamping exercise for party political programmes.
  2. Consider the current structure of the Houses of Parliament, an issue of some contemporary and long-standing debate. In particular, consider the function and membership of the House of Lords. What additional function does it perform over that of the House of Commons and how should its membership be decided?
  3. Generally, law applies to everyone and ignorance of the law is no excuse for breaking it. Yet, to most new law students, let alone ordinary members of the public, certain pieces of legislation are almost totally incomprehensible. This raises certain issues for consideration as follows:

  4. There is a huge amount of law generated every year and lots of it comes in the form of delegated legislation. To what extent is this just a fact of contemporary political life, or is it a matter of concern?

Further Reading

Bates, T, ‘The contemporary use of legislative history in the United Kingdom’ (1995) 54(1) CLJ 127

Bell, J and Engle, G, Cross: Statutory Interpretation, 3rd edn, 1995, London: Butterworths

Bennion, F, ‘Statute law: obscurity and drafting parameters’ (1978) 5 British JLS 235

Bennion F, Understanding Common Law Legislation: Drafting and Interpretation, 2009, Oxford: OUP

Boulton, C (ed), Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 1989, London: Butterworths

Committee on the Preparation of Legislation, Renton Committee Report, Cmnd 6053, 1975, London: HMSO

Cross, R, Cross and Harris, Precedent in English Law, 4th edn, 1991, Oxford: Clarendon

Editorial, ‘Disability discrimination: tribunal interprets DDA to cover discrimination by association’ (2008) 869 IDS Emp L Brief 3–5

Elliot, M and Perreau-Saussine, A, ‘Pyrrhic public law: Bancoult and the sources, status and content of common law limitations on prerogative power’ [2009] PL 697–722

Eskridge, W, Dynamic Statutory Interpretation, 1994, Cambridge, MA: Harvard UP

Friedman, L, ‘On interpretation of laws’ (1988) 11(3) Ratio Juris 252

Goodhart, A, ‘The ratio decidendi of a case’ (1959) 22 MLR 117

Holdsworth, W, ‘Case law’ (1934) 50 LQR 180

Jenkins, C, ‘Helping the reader of Bills and Acts’ (1999) 149 NLJ 798

Jones, O, Bennion on Statutory Interpretation, 6th edn, 2013, London: LexisNexis

MacCormick, N, Legal Rules and Legal Reasoning, 1978, Oxford: Clarendon

Manchester, C and Salter, D, Exploring the Law: The Dynamics of Precedent and Statutory Interpretation, 4th edn, 2011, London: Sweet & Maxwell Masterman, R, ‘Interpretations, declarations and dialogue: rights protection under the Human Rights Act and Victorian Charter of Human Rights and Responsibilities’ [2009] PL 112–31

Mora, PD, ‘The compatibility with art. 10 ECHR of the continued publication of a libel on the Internet: Times Newspapers Ltd (Nos 1 and 2) v The United Kingdom’ (2009) 20(6) Ent LR 226–8

Simpson, A, ‘The ratio decidendi of a case’ (1957) 20 MLR 413; (1958) 21 MLR 155

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Useful Websites

www.uk-legislation.hmso.gov.uk/acts.htm
An extensive collection of Acts of Parliament.

www.lawcom.gov.uk
The official website of the Law Commission is a valuable resource because it carries scores of reports that provide very useful critical digests of whole areas of law.

www.legislation.gov.uk
The UK Statute Law database.

www.parliament.uk
The official website of Parliament.

www.hmcourts-service.gov.uk
The official website of Her Majesty’s Courts Service.

www.supremecourt.uk
The official website of the Supreme Court.

Companion Website ifig0001

Now visit the companion website to:

www.routledge.com/cw/slapper