Firm Judicial Policy

Introduction

It will be determined whether the courts have always shown due respect for the intention of Parliament in applying firm judicial policy. In doing so, appropriate case law, academic opinion and relevant legislative provisions will be analysed by accessing applicable text books, journal articles and online legal databases. Once this has been done a conclusion will then be made showing that although the courts did make great attempts to respect the intentions of Parliament in previous years, since the Human Rights Act (HRA) 1999 has been enacted, this has proven rather difficult since the rights contained in the Convention must always prevail if conflictions arise with legislative provisions.

Main Body

The rule of law is a legal maxim, which signifies that no one is above the law and as made clear in the Entick v Carrington[1] case; “the state has to act within legal authority and is not above the law.” Accordingly, it became evident by the decision in this case that the supremacy of the law ought to prevail in all instances. And that governmental authority must thereby be constrained to the limits that are imposed upon it under the law: “the rule of law that stands as a wall between citizen and state is a concept that ensures governmental authority is constrained by law and respect for law.”[2] Essentially, it is important that the rule of law is always upheld so that “equality, fairness, and justice”[3] is maintained. Because of the importance of this, there is a firm judicial policy against allowing the rule of law to be undermined by weakening the powers of the court. It is questionable whether the courts have always shown due respect for the intention of Parliament when applying this policy, yet as noted by Elliott and Thomas; “The courts role is to take Parliament’s (presumed) intention that decision-makers should respect the rule of law, and to work out what limitations or grounds of review should be developed to give effect to that constitutional principle.”[4] Essentially, the main objective of the court is therefore to find Parliament’s intent through the process of statutory interpretation as in Capper v Baldwin.[5]

Thus, as exemplified in Attorney-General for Canada v Hallett and Carey;[6] “the paramount rule remains that every statute is to be expounded according to its manifest and expressed intention.” Therefore, unless the courts always show due respect for the intention of Parliament, then the courts will be said to have erred in their judgement. This can lead to problems later on as the parties to the case will be likely to appeal against any decision that has been made. In order to avoid situations like this from happening, the courts should always ensure that they apply Parliament’s intent to all statutes. This will not always be feasible, however, since there will be many instances where an absurd or ambiguous result will ensue when applying Parliament’s intent. In cases such as this, the courts will be permitted to depart from such intentions, yet this must not go beyond what was reasonably contemplated. In Westminster Bank v Zang[7] it was stated by Lord Reid that; “no principle of interpretation of statutes, however, is more firmly settled than the rule that the court must deduce the intention of Parliament from the words used in the Act. If those words are in any way ambiguous or if the provision in question is contradicted by or is incompatible with any other provision in the Act, then the court may depart from the natural meaning of the words in question; but beyond that we cannot go.”

In effect, although Parliament’s intention can be departed from in certain instances, this will be strictly limited to cases where an unjust decision would be produced by the statute. Situations may also arise where the intention of Parliament is unclear, as identified in Salomon v Salomon.[8] However, the courts have developed a number of different rules of interpretation over the years, in order to deal with such problems. It is arguable whether these rules of interpretation have proven effective, though they are clearly necessary in helping to determine the intention of Parliament. In R v Hunt[9] it was stated by the courts that “the law fashions some workable guidelines out of unpromising material and encourages courts to seek out and apply the intentions of Parliament in a consistent way.” In this case there had been a failure to construe a provision expressly and so it was found that the intention of Parliament had not been followed, which clearly signifies the importance of construing the words of a statute expressly. This was also made clear in Fisher v Bell[10] when it was held that; “judges must give the words in the statute a literal meaning, that is, their plain ordinary everyday meaning, even if the effect of this is to produce what might be considered as an otherwise unjust or undesirable outcome.” This is known as the literal rule, which means that words in a statute should always be construed literally save for those exceptional circumstances, which warrant a departure from the rule.

The golden and the mischief rule are the other two rules that may be applied in instances where the literal rule would result in injustice, which have been applied in the cases of Pepper v Hart,[11] Re Sigsworth[12] and the Heydon’s case.[13] In all three of these cases it was evidenced that the literal rule can be departed from if an ambiguous result would ensue, although it became apparent that Parliament’s intent was not being duly respected when this occurred. This is because; it would be extremely difficult for the courts to identify Parliament’s intent where express provisions have not been followed and as noted by Sir Rupert Cross; “not only are they laden with sales talk, but their frequent references to what a provision means is an unconscious effort to finesse [is delicately manipulate] the courts in performing their constitutional function of having the last word of what the statute means.”[14] Hence, the courts are frequently faced with the difficulty of deciding what Parliament actually intended when passing legislation, which often leads to inconsistent decisions being made. Regardless of this, Littleboy and Kelly argue that; “a court, in order to determine Parliaments intention may go beyond the mere form of the enactment and look to other, policy considerations such as the mischief at which the Act was aimed.”[15]Although Littleboy and Kelly have attempted to clarify this area, confusions continue to persist, especially since the HRA was enacted.

This is because, all statutes must now be read in conjunction with the rights that have been laid down by the European Convention of Human Rights 1951. Therefore, legislation is now open to interpretation by the courts even more and when conflictions arise between the rights under the Convention and legislative provisions, the Convention rights must prevail. This causes even more problems since the Convention rights will conflict with a large amount of statutory provisions, including the intention of Parliament and when this happens, Parliament’s intent will be circumvented. An example of this can be seen in the case of Ghaidan v Godin–Mendoza[16] where the courts were unable to apply the literal meaning because of the fact that it conflicted with the Convention rights. Consequently, it was found by the court that; “although the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation.” Hence, the courts are now required to review the provisions of the Convention before making any decisions. This inevitably prevents the court from respecting Parliament’s intent and as stated by Kavanagh; “adjudication under the HRA may involve a departure from the traditional role of Parliamentary intention in statutory interpretation.”[17]

Consequently, it seems as though the courts are no longer respecting the intention of Parliament as they used to, which is largely the result of the HRA’s enactment as the courts are now required to “adopt methods of interpretation suitable to constitutional adjudication.”[18] Not all agree with this, however, and instead many argue that Parliamentary supremacy must always be maintained in order to preserve the principle of legality.[19] Essentially, it is thereby believed that the courts are still required to conform to the principle of legality, whilst also protecting human rights and freedoms. This is especially so in cases involving judicial review as the courts are required to decide whether an administrative action is ultra vires by demonstrating that; an official had acted outside the strict powers and duties that had been laid down by statute. In deciding this, however, the courts will need to determine the intention of Parliament and if it can be shown that Parliament had in fact intended to depart from the Convention rights, then the courts will be required to follow that departure. In instances such as this, the courts will therefore be respecting Parliament’s intent and as pointed out by Mah; “a close examination of the specific legislation is essential to the administration law process and often involves interpretation of the meaning of the legislation.”[20]

Nevertheless, this will only occur if it is expressly stated that Parliament intends for a departure of the Convention rights to be made as there is a general presumption that Parliament would not have intended to infringe human rights and freedoms. Conversely, in the earlier case of Davis v Johnson[21] it was noted that “judges should not pay any attention to what is said in Parliament. They should grope about in the dark for the meaning of an Act without switching on the light.” Therefore, this suggests that statutes should always be interpreted strictly regardless as to the outcome. As has already been identified, however, this can lead to much ambiguity and so it is important that the courts are provided with the flexibility to interpret statutes accordingly. However, as argued by Roshier and Teff, when the courts are left to decide on Parliaments intent there is often “imprecision and lack of uniformity of expression which characterizes parliamentary debate.”[22] Thus, the courts should not be left to determine what Parliament actually intended when passing legislation, especially if the meanings of the words are unambiguous. This was identified in Duport v Steel Stirs[23] when it was stated that “it is not then for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they consider the consequences for doing so would be inexpedient, or even unjust or immoral.”[24]

Not all agree with this assertion, however, as it is considered unjust and “rarely capable of application.”[25] Hence, it is believed that the courts are unable to attain perfection and that the literal rule should not always be applied. This is why the other two rules are deemed to be invaluable as they can prevent repugnant results from occurring. Furthermore, since the HRA was enacted, it is even more important that the courts are provided with flexibility in their decision making. However, because of the broadened powers that have been given to the courts, it is often felt that the intention of Parliament is no longer relevant in the judicial process. In effect, it is “the judiciary and not Parliament that determine how far human rights will be protected.”[26] Once the court has identified the particular statutory provision, they will then need to determine whether it is in violation of the Convention as in R v A (No 2).[27] Once this has been done the court will then be able to read into the statute any Convention rights. In accordance with this, it is thereby manifest that the courts have been provided with greater interpretative powers, whilst the legislators powers’ have been weakened since the “statutory provisions must be interpreted so far as possible to give effect to the community obligations”[28] as in Marleasing Case[29] and Webb v EMO Air Cargo (U.) Ltd.[30]

Conclusion

Overall, it is evident that whilst the courts did make great attempts to respect the intentions of Parliament, this is no longer being ascertained as a result of the HRA’s enactment. This is because, prior to the HRA the courts would ensure that Parliament’s intention was always being maintained, save for exceptional circumstances. However, since the HRA came into force the discussions in Parliament are now becoming less relevant as the courts make great attempts to uphold the Convention’s provisions. The supremacy of Parliament therefore appears to be weakened and any decisions that are now being made by the courts are based upon whether or not the convention rights are being adhered to.

Bibliography

Books

F Cownie., A Bradney., M Burton., English Legal System in Context, Oxford University Press, 4th Edition, (2007).

M Elliott and R Thomas., Public Law, Oxford University Press, (2011).

Sir Rupert Cross, Statutory Interpretation, (3rd edn Butterworths, 1995).

Journals

A Kavanagh., ‘The Role of Parliamentary Intention in Adjudication under the Human Rights Act 1998’ (2006) 26 Oxford Journal of Legal Studies 179, Issue 1.

B Roshier and H Teff., Law and Society in England, Routledge, (2003).

C L Mah., ‘Administrative Law: The Basics’ (2007) Special Report on Administrative Law, .

Democracy Web, ‘Rule of Law: Essential Principles’ .

J M Schone, ‘The rule of Law: A Fundamental Democratic Principle’ New Law Journal, 154 NLJ 1545, Issue 7149, (22 October, 2004).

J Steyn., ‘Pepper v Hart; A Re-Examination’ (2001) 59 Oxford Journal of Legal Studies 21, Issue 1.

C Littleboy and R Kelly, R. Pepper v Hart, House of Commons, Parliament and Constitutional Centre, (22 June, 2005), Available [Online] at: http://www.parliament.uk/documents/commons/lib/research/briefings/snpc-00392.pdf

R S French., ‘The Common Law and the Protection of Human Rights’ (2009) Anglo Australian Lawyers Society, 17.

Cases

Attorney-General for Canada v Hallett and Carey

Capper v Baldwin

Davis v Johnson

Duport v Steel Stirs

Entick v Carrington

Fisher v Bell

Ghaidan v Godin–Mendoza

Heydon’s case

Marleasing Case

Pepper v Hart

Re Sigsworth

R v A (No 2)

R v Hunt

Salomon v Salomon

Webb v EMO Air Cargo (U.) Ltd

Westminster Bank v Zang