There is no denying the fact that in the English Legal System, the constitutional rule of the judiciary is providing to apply law; the purpose of creating law is the prerogative of parliament. This is because one of the aspects of legal reasoning and one which also raises question as to the political persuasion of the judges and the scope they have to exercise that persuasion in their decision in the manner in which they interpret the legislation when they are called upon to do so. However this simplistic view ignores the extent ignores the extent to which the judges have a measure of discretion and the creative power in which they interpret the legislation.
Reputing the notion of parliamentary sovereignty, the first approach will to be adopting the literal approach. Interpretation under this approach demands that made should be given their ordinary simple meaning as far as possible even if the strict literal interpretation may result in injustice and hardship to the literal interpretation. This is because it was felt that the judges will tern into legislation, if for example he added words to a statute in order to achieving result the parliament would have preferred at the time of passing the legislation in question. For over past 100 years the literal approach is the primary tool of the interpreting the legislation. It was believed to be dangerous for the judges to become partners in the process of declaring law because of the unrepresented and unaccountable character of the judiciary. The literal approach has maintained the impartiality of the judges by directing criticism of the bad law to the parliament. It has given the judiciary a stability function ratter than a reforming one.
Although the literal approach is regarded as the humble servant of the parliament, the humble posture is misleading. Same argue that the literal approach is always wrong as it amounts to an abduction of responsibility by the judges. The literates bases his decision on one arbitrarily preferred meaning rather reason and principle (Whitely V Chappell). The literal approach is even though applicable by the judges’ even if the result inflicts hardship on the litigants. ‘Manifest Absurdity’ is the only exception where a canon employed by the literal approach namely golden rule act as an unprotect able safety value which helps the court to bypass the literal rule. The shortcoming of this rule was highlighted in the case of (R V Magginem). However, the courts are not at liberty to use the Golden rule and must find genuine difficulties before it declines the literal rule in famous of the Golden rule. This rule is its narrow application modifies the literal rule to the extent that an alternative meaning is construed which achieves consistency with rest of the statute by the discretion of judge (R V Allan). Assuming that the result of literal approach in the interpretation of the given statute conflicts with the public policy then the broader application of the Golden rule may be applied in order to intervene the adoption of an adenovirus interpretation. There has been judicial reluctance to use the golden rule both in its narrow and broader application in Northman V Barnet London Barough Council. However, Lord Denning, ‘whether a strict interpret ate of a statute give rises to an absurd and inju8st situation, the judges can and should use then good sense to remedy it.’
However, if the result of the interpretation (applying the literal rule) is ambiguous, then departure from the literal rule may be accomplished under the ‘Mischief rule’. This rule originated from the Hey dos case where guidelines were setout for the courts to follow in order to apply it:-
- What was the common law before making of the act?
- What was the mischief for which the common law did not possible?
- What remedy for the mischief the common law has intended to provide?
- What was the reason for the parliament adopting the remedy?
These rules enable the court to search for the intention of the parliament by looking at the history of the act in question.
Denning J said, ‘We sit here to find out the intention of the parliament and me do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis. If a gap is disclosed remedy has in amending it.’ He further said, ‘Judicial activism can not amount to a make usurpation of legislative function under the disguise of interpretation.’
If the intention of the parliament can not be found through the mischief rule, then in order to remove the ambiguity the judge is entitled to refer to the Hansard. In the landmark decision of Pepper V Hart, the House of Lords held that, then is no larger abjection of principle to the use of Hans and as an external aid to statutory construction and there were endorsement of a mere purposive approach under which a judge can label by and the literate approach and can discern the parliaments true intention. Regarding the use of Hansard, Lord Bramen Wilkiman believed, provided the court keeps a tight control to the situation where reference to the parliamentary motive one allowed it would be fruitful. But the Attorney General thought, it would be unwise to attach importance to the menstrual explanation which are made to satisfy political requirements after under the presence of time and business. Although reference to Hansard has been taken in the cases like Knowles V Liverpool City Council and LBC Forest V Thomas the reference of it increases the expenses of the litigation. Thus it will really be unwise to use Hansard as an aid to statutory construction.
The UK promulgated such law because a member of European Union by the enactment of the European Community Act 1972, as a result of the treaty the English Judges has to adopt the decision of the ECJ. The judges of ECJ used a very broad and generous approach in the interpretation of the statutory namely the ‘Teleological approach’ revalued by the Continental Lawyers which operates in loosely drafting codes of law which openly invites the judges in the process of framing the law. SarLand V British Railway Engineering, Lord Diploach defended the new approach on the ground that it has introduced a new rule of statutory interpretation requiring a UK court to can true all the domestic legislation in a manner ready European obligation as it has been stated in Sec.2 (4) of the EC Act 1972 that it takes precedent over the domestic law Sec.2 (1) of the Act states that, Treaties and other directly enforceable Community Legislation will be incorporated will no further domestic action. In Sec.2 (2) powers has been provided to the judges to incorporate other community legislation such as ‘Directure’
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