Statutory Interpretation The Technique of Statutory ... - Francis Bennion

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84 Part II — Statutory Interpretation To construe or interpret? We began with a trivial argument: Is there any material distinction between construction and interpretation? The answer is no. The terms are interchangeable, though it is more natural to speak of interpreting a word or phrase and construing an extended passage. Bentham said: 'People in general when they speak of a Law and a Statute are apt to mean the same thing by the one as by the other. So are they when they speak of construing and interpreting' (Bentham 1775, p 9). Interpretation perhaps connotes, more than construction does, the idea of determining the legal meaning of an enactment. Construction is more concerned with extracting the grammatical meaning, which may not be the same. This important distinction is discussed below (see pp 87-91) The enactment as the unit of enquiry The concept of the enactment is central to statutory interpretation. Nature of an enactment An enactment is a proposition expressed in an Act or other legislative text. The effect of the proposition is that, when facts fall within an indicated area (the factual outline), then specified legal consequences (the legal thrust) ensue. Difficulties about meaning are usually centred on one proposition only, though the full meaning of a legislative provision often cannot be gained without considering numerous aspects of the legal system. An enactment consists of express words, though it is likely to have implied meanings as well. While a single word may come under examination as the root of an ambiguity or other obscurity, a word in itself can have little significance. Every word needs a verbal context to raise any question of its meaning. The enactment provides this. Usually an enactment consists of either of the whole or part of a single sentence. One sentence may thus contain two or more enactments. On the other hand a single legislative proposition may fall to be collected from two or more sentences, whether consecutive or not. The provision in the Interpretation Act 1889, s 35(1) that 'any enactment may be cited by reference to the section or subsection of the Act in which the enactment is contained' (not reproduced in the Interpretation Act 1978) is itself an example of an enactment. The unit of enquiry is an enactment whose legal meaning in relation to a particular factual situation falls to be determined. Where the combined effect of two or more enactments is in question, each in turn is treated as a unit of enquiry, their combined legal effect then falling to be determined. To discover which are the relevant enactments, it is necessary to frame the question of law at issue
The Technique of Statutory Interpretation 85 in the particular case. The significant legislative words then have to be isolated. For this purpose the statute user must develop a technique of skimming through a legislative provision and mentally picking out the portions that matter in the case before him. If his mind can learn to blot out the irrevelant words, the remainder will often read continuously and make sense on their own. Thus in Riley v A- G of Jamaica [1983] 1 AC 719, 730 Lord Scarman cited an enactment in a form he described as 'trimmed of words inessential for present purposes'. Isolating the relevant enactment in this way often calls for use of the technique of selective comminution, described below (P 235). How the enactment is drawn In ascertaining the legal meaning of an enactment it is necessary to determine whether the drafting is precise or imprecise. Modern British Acts are produced by precision drafting, where (although there are occasional lapses) the drafter aims to use language accurately and consistently, and moreover is allowed to draft any amendments made to the Act during its parliamentary progress. Older Acts are frequently the subject of disorganised composition. Here the text may be the product of many hands and the language is often confused and inconsistent. Delegated legislation may be drafted with less precision than Acts. The technique of interpretation applied to any enactment can only be as precise and exacting as the method of drafting permits. It is to be presumed, unless the contrary appears, that the enactment was competently drafted, so that the accepted principles of grammar, syntax and punctuation, and other literary canons, are taken to have been observed and the drafter is presumed to have executed his task with due knowledge of the relevant law (Spillers Ltd v Cardiff Assessment Committee [1931] 2 KB 21, 43; New Plymouth Borough Council v Taranack Electric Power Board [1933] AC 680, 682). This principle is expressed in the maxim omnia praesumuntur rite et solemniter esse acta (all things are presumed to be correctly and solemnly done). The factual outline An enactment lays down a legal rule in terms showing that the rule is triggered by the existence of certain facts. The enactment indicates these facts in outline form (the factual outline). All sets of facts that fall within the outline thus trigger the legal thrust of the enactment, unless by an authoritative decision (known as dynamic processing) the court modifies, or has previously modified, the literal meaning of the factual outline in order to carry out what it considers the true intention of Parliament.
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