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

114 Part II — Statutory Interpretation
Radio Ltd [1968] 2 QB 740, 761; Fothergill v Monarch Airlines Ltd [1981] AC 251), the decisions on
it of foreign courts, known as la jurisprudence, and the views on it of foreign jurists, known as la
doctrine.
A treaty may have three different kinds of status, considered as a source of law.
1 An Act may embody, whether or not in the same words, provisions having the effect of the
treaty. This may be referred to as direct enactment of the treaty.
2 An Act may say that the treaty is itself to have effect as law, leaving the treaty's provisions to
apply with or without modification. This may be referred to as indirect enactment of the treaty.
3 The treaty may be left simply as an international obligation, being referred to in the
interpretation of a relevant enactment only so far as called for by the presumption that Parliament
intends to comply with public international law.
The interpretation of a treaty imported into municipal law by indirect enactment was described by
Lord Wilberforce as being 'unconstrained by technical rules of English law, or by English legal
precedent, but [conducted] on broad principles of general acceptation' {Buchanan (James) & Co Ltd v
Babco Forwarding and Shipping (UK) Ltd [1978] AC 141, 152). This echoes the dictum of Lord
Widgery CJ that the words 'are to be given their general meaning, general to lawyer and layman
alike ... the meaning of the diplomat rather than the lawyer' (R v Governor of Pentonville Prison, ex
pane Ecke [1974] Crim LR 102). Dicta suggesting that the court is entitled to consult a relevant
treaty only where the enactment is ambiguous (see, Ellerman Lines Ltd v Murray [1931] AC 126; IRC
v Collco Dealings Ltd [1962] AC 1; Warwick Film Productions Ltd v Eisinger [1969] 1 Ch 508) can no
longer be relied on. The true rule is that in this area, as in others, the court is to arrive at an
informed interpretation. The Vienna Convention on the Law of Treaties (Treaty Series No 58
(1980); Cmnd 7964) contains provisions governing the interpretation of treaties (the details are set
out in Bennion 1984(1), pp 539-540).
Post-enacting history
It may be thought that nothing that happens after an Act is passed can affect the legislative intention
at the time it was passed. This overlooks two factors: (1) in the period immediately following its
enactment, the history of how an enactment is understood forms part of the contemporanea
expositio, and may be held to throw light on the legislative intention; (2) the later history may, under
the doctrine that an Act is always speaking, indicate how the enactment is regarded in the light of
developments from time to time.