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

Guides to Legislative Intention I: Rules of Construction 123
and if you can satisfy the language of the section without extending it beyond that purpose you ought to do it.
But if in spite of that you find in the language of the Schedule words and terms that go clearly outside that
purpose, then you must give effect to them and you must not consider them as limited by the heading of
that part of the Schedule or by the purpose mentioned in the Act for which the Schedule is prima facie to be
used. You cannot refuse to give effect to clear words simply because prima facie they seem to be limited by the
heading of the Schedule and the definition of the purpose of the Schedule contained in the Act.
For a case where ambiguous words in a Schedule were construed by reference to a heading see
Quaker, Hall & Co Ltd v Board of Trade [1962] Ch 273.
The proviso A proviso is a formula beginning 'Provided that . . .' which is placed at the end of a
section or subsection of an Act, or of a paragraph or sub-paragraph of a Schedule, and the intention
of which is to narrow the effect of the preceding words. It enables a general statement to be made as a
clear proposition, any necessary qualifications being kept out of it and relegated to the proviso.
As Mervyn Davies J said in Re Memco Engineering Ltd [1986] Ch 86, 98 'a proviso is usually
construed as operating to qualify that which precedes it'. In Mullins v Treasurer of Surrey (1880)
5 QBD 170, 173 Lush J said: 'When one finds a proviso to a section, the natural presumption is that,
but for the proviso, the enacting part of the section would have included the subject-matter of the
proviso'. While the substance of this dictum is undoubtedly correct, the treatment of the proviso as
qualitatively different from the rest of the section is not. The entire section, including the proviso,
is an operative component of the Act (Gubay v Kington (Inspector of Taxes) [1984] 1 WLR 163).
Judges used to cast doubt on the value of a proviso in throwing light on the meaning of the words
qualified by it. This was because provisos, like savings, were often put down as amendments to Bills
by their opponents, and accepted to allay usually groundless fears. This still happens in the case of
private Bills; but is no longer true of public general Acts.
In the case of precision drafting, the proviso is to be taken as limited in its operation to the section or
other provision it qualifies (Leah v Two Worlds Publishing Co [1951] Ch 393, 398); Lloyds and Scottish
Finance Ltd v Modern Cars & Caravans (Kingston) Ltd [1966]
1 QB 764, 780-781). Where however the Act is the subject of disorganised composition, what
is in form a proviso may in fact be an independent substantive provision (Rhondda UDC v Taff Vale
Railway [1909] AC 253, 258; Eastbourne Corpn v Fortes Ltd [1959]
2 QB 92, 107. The proviso is then said not to be a 'true' proviso (Commissioner of Stamp Duties v
Atwill [1973] AC 558, 561).