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

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156 Part II — Statutory Interpretation Principle that municipal law should conform to public international law It is a principle of legal policy that the municipal law should conform to public international law. The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle. Public international law is what used to be called the law of nations, or jus gentium. A rule of public international law which is incorporated by a decision of a competent court then becomes part of the municipal law {Thai-Europe Tapioca Service Ltd v Govt of Pakistan [1975] 1 WLR 1485, 1495. Or, under the principle known as adoption, a rule of international law may be incorporated into municipal law by custom or statute. It is an important principle of public policy to respect the comity of nations, and obey treaties which are binding under public international law. Thus Diplock LJ said: . . . there is a prima facie presumption that Parliament does not intend to act in breach of [public] international law, including therein specific treaty obligations; and if one of the meanings that can reasonably be attributed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is so consonant is to be preferred. {Salomon v Commrs of Customs and Excise [1967] 2 QB 116. 143). European Convention The European Convention on Human Rights (Cmnd 8969) entered into force on 3 September 1953. To date it has been ratified by 22 nations, including the United Kingdom. For these it imposes the usual obligations and rights under a treaty in public international law. The machinery for enforcement of these consists of the European Commission of" Human Rights and the European Court of Human Rights, both of which operate at Strasbourg. The United Kingdom has accepted the right of individual petition to the Commission, but has not made the Convention part of its municipal law. It follows that the Convention does not directly govern the exercise of powers conferred by or under an Act {R v Secretary of State for the Home Department, ex pane Fernandes (1980) The Times 21 November; R v Secretary of State for the Home Department, ex pane Kirkwood [1984] 1 WLR 913). However it is presumed that Parliament, when it passes an Act, intends it to be construed in conformity with the Convention, unless the contrary intention appears. Judicial notice Judicial notice is taken of rules and principles of public international law, even when not embodied in municipal law {Re Queensland Mercantile and Agency Ltd [1892] 1 Ch 219, 226). This also applies to treaties made by the British Crown. As Scarman
Guides to Legislative Intention II: Principles 157 LJ said in Pan-American World Ariways Inc v Department of Trade [1976] 1 Lloyd's Rep 257, 261 (emphasis added): If statutory words have to be construed or a legal principle formulated in an area of the law where Her Majesty has accepted international obligations, our courts—who, of course, take notice of the acts of Her Majesty done in the exercise of her sovereign power—will have regard to the convention as part of the full content or background of the law. Such a convention, especially a multilateral one, should then be considered by the Courts even though no statute expressly or impliedly incorporates it into our law. Citation of treaties The existence of the principle under discussion means that the court is obliged to consider any relevant rule of public international law, and permit the citation of any relevant treaty. For this reason it seems that Lord Parker CJ was mistaken when in Urey v Lummis [1962] 1 WLR 826, 832 he said it was not for the court to consider whether the United Kingdom had implemented the international Agreement regarding the status of forces of parties to the North Atlantic Treaty. Uniform statutes An act passed to give effect to an international agreement will be construed in the light of meanings attached to the agreement in other contracting states, so as to promote uniformity (Stag Line Ltd v Foscolo Mango & Co Ltd [1932] AC 328, 350; Riverstone Meat Co v Lancashire Shipping Co [1961] AC 807, 8690. See further F A Man 'The Interpretation of Uniform Statues' (1946) 62 LQR 278; 'Uniform Statutes in English Law' (1983) 99 LQR 376.
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