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

Guides to Legislative Intention III: Presumptions 179
of State for Foreign and Commonwealth Affairs, ex pane Indian Association of Alberta [1982] QB 892,
919).
These implied ancillary rules range from the widest principles of legal policy to narrow technical
rules. They include both statutory and non-statutory principles and rules. They may be substantive or
procedural. Equally they may be domestic or international, civil or criminal. All that matters is that
they should have a place in the law of the territory to which the Act extends. This means that
virtually the whole body of law is imported, by one enactment or another, as implied ancillary rules or
maxims.
Unless the contrary intention appears As usual in statutory interpretation, this presumption applies except
where the intention that it should not apply is indicated in the Act in question. It is axiomatic that in its
Act Parliament can always, if it chooses, disapply any existing principle or rule. It is equally axiomatic
that, unless Parliament does so, the principle or rule, being relevant, applies. Thus Lord Pearce said of
a tribunal set up by Act: 'it is assumed, unless special provisions provide otherwise, that the tribunal
will make its enquiry and decision according to the law of the land' (Anisminic Ltd v Foreign
Compensation Commission [1969] 2 AC 147, 195). Equally Byles J said that 'it is a sound rule to
construe a statute in conformity with the common law, except where or in so far as the statute is
plainly intended to alter the course of the common law' (R v Morris (1867) LR 1 CCR 90, 95). See also
Lord Eldon v Hedley Bros [1935] 2 KB 1, 24; R v Thomas [1950] 1 KB 26, 31.
Disapplication or modification?
Sometimes it is difficult to be sure whether or not Parliament does intend to disapply an ancillary rule.
Or the problem may be whether the intention is to disapply a rule altogether or merely modify it. This
can be particularly troublesome where the rule is peripheral to the subject-matter of the Act.
Rules relating to surrounding areas of criminal law (such as inchoate offences or the position of
accessories) present problems with many Acts, usually because the drafter has overlooked them.
Drafters framing a new criminal offence tend to have a blind spot about such matters. There is no
difficulty if the new offence is worded so as not to trespass on the peripheral area: the latter's
rules then come in by implication as they stand. But suppose the drafter forgets the peripheral area
and words the new offence so as inadvertently to trespass on some part, but not the whole, of it?
The Misuse of Drugs Act 1971, s 4(2)(6) makes it an offence 'to be concerned in the production
of [a controlled drug] in contravention of [s 4(1) of the Act] by another'. This looks very like a
description of aiding and abetting, but is it intended to replace