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

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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.
Guides to Legislative Intention I: Rules of Construction 115 Contemporary exposition of an Act (contemporanea expositio) helps to show what people thought the Act meant in the period immediately after it was passed. Official statements on its meaning are particularly important here, since the working of almost every Act is supervised, and most were originally promoted, by a government department which may be assumed to know what the legislative intention was. Official statements by the government department administering an Act, or by any other authority concerned with the Act, may be taken into account as persuasive authority on the meaning of its provisions {Wicks v Firth (Inspector of Taxes) [1983] 2 AC 214). In Hanning v Maitland (No 2) [1970] 1 QB 580 the Court of Appeal admitted statistics showing that, whereas £40,000 a year was being appropriated by Parliament towards the expenses under a legal aid enactment, only about £300 a year was actually being expended. This followed an earlier restrictive court ruling on the operation of the enactment, and suggested that the ruling did not conform to Parliament's intention. One element in the post-enacting history of an Act is delegated legislation made under the Act. This may be taken into account as persuasive authority on the meaning of the Act's provisions (Britt v Buckinghamshire County Council [1964] 1 QB 77; Leung v Garbett [1980] 1 WLR 1189; R v Uxbridge JJ, ex pane Commissioner of Police of the Metropolis [1981] QB 829). In Jackson v Hall [1980] AC 854, 884 Viscount Dilhorne rejected the submission that the contents of a form produced pursuant to rules made by the Agricultural Land Tribunals (Succession to Agricultural Tenancies) Order 1976 could be relied on as an aid to the construction of the Agriculture (Miscellaneous Provisions) Act 1976. Yet in British Amusement Catering Trades Association v Westminster City Council [1988] 2 WLR 485 the House of Lords declined to take this as authority for the general proposition that subordinate legislation can never be used as an aid to statutory interpretation, citing Hanlon v The Law Society [1981] AC 124. They held that the meaning of the term 'cinematograph exhibition' as defined in the Cinematograph (Amendment) Act 1982, s 1(3) should be arrived at by reference to the Cinematograph (Safety) Regulations 1955. Where a later Act is in pari materia with an earlier Act, provisions of the later Act may be used to aid the construction of the earlier Act. In determining whether the later provision alters the legal meaning of the earlier, the test as always is whether or not Parliament intended to effect such an alteration (Casanova v R (1866) LR 1 QB 444, 457). Such an intention is more readily gathered where the Acts are expressly required to be construed as one, since this is a positive indication that Parliament has given its mind to the question. Where a term is used without definition in one Act, but is defined in another Act which is in pari materia with the first Act, the definition
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