Prior Posts – Interpretation
A literal approach
One way in which we can interpret a rule is by treating it literally. Very simply this means looking at the words which comprise the rule, and at the way in which they are put together, and applying the rule ‘as is’ to a factual situation to which it applies. An example would be: ‘Dog owners are not permitted to let their dogs off the lead in the park’. If this is applied literally, it would mean that a person who did not own a dog, but who took a friend’s dog to the park, would not be bound by the rule. Similarly, a dog owner would not be bound by the rule if they let their dog off the lead before entering the park (if the rule is read literally to mean that dogs must not be let off the lead while in the park).
There are two main consequences to interpreting rules literally. First, it ensures certainty and consistency in the application of the rule. If every rule-applier interprets a particular rule literally, then it means that every case or factual situation to which that rule applies will be decided in the same way. (This assumes, of course, that each rule-applier has the same understanding of the words which comprise the rule as every other rule-applier. We will assume this for the moment.) In any system of rules, whether that be the law, arithmetic, the rules of grammar, or the rules of a game or sport, it is important that there is consistency in the application of those rules. Without some degree of certainty or consistency it would be impossible to enter into a contract, to be sure that 1 + 1 = 2, to communicate with each other, or to play football or chess.
Second, a literal approach to interpretation acknowledges the authority of the rule-creator. It recognises that the person who has formulated a rule has chosen to express it in a particular way for a particular reason. By taking a literal approach, the rule-applier may avoid the possibility of subverting the intentions of the rule-maker. One example is the concept of the Sovereignty of Parliament. Among other things, this means that, under the UK constitution, it is the job of Parliament, not the judiciary (the judges), to make laws. A literal approach to interpretation ensures that the separate and distinct functions of Parliament and the judiciary are maintained. In the context of this unit, you should simply note that a literal approach has the effect of distinguishing clearly the roles of rule-maker and rule-applier, and of according a significant degree of respect and authority to the rule-maker. Judges have traditionally preferred the literal approach to interpretation because it enabled them to affirm their positions as appliers of law, rather than as creators of it.
These consequences of a literal approach may be thought of as advantages. However, the literal approach is not without its problems. These can be illustrated by the following example. Suppose there is a sign inside a shop which reads as follows: Breakages must be aid for by the customer.
Read literally, this rule means that any breakage, whether or not caused by the customer, must be paid for by him. This would clearly be a ridiculous interpretation, and the rule-applier, in order to avoid this, must resort to another interpretive strategy.
One such strategy is to be as true to the literal meaning as is possible but to ensure, so far as the words allow, an interpretation which avoids absurdity. In the case of the rule I have just set out, this would mean an interpretation which ensured that only those customers who had caused breakages were obliged to pay for them.
This approach works well in most cases, but not always. Take, for example, another rule posted up in a shop selling china and glass: Customers must handle glasses with care in case of breakage.
Read literally, this rule suggests:
- (a) that a person must take care when putting on or taking off their spectacles (another meaning of ‘glasses’) in the shop because there is the possibility that the spectacles have smashed in their case, or in the person’s pocket; or
- (b) that a person must handle (drinking) glasses on display with care if they are already broken; or
- (c) that a person must handle the unbroken (drinking) glasses on display with care because otherwise they may end up being broken.
Here, it is not possible simply to avoid an absurd result by excluding interpretation (a) because this would still leave both (b) and (c) as possible interpretations. It is conceivable that the rule-maker intended both (b) and (c) when formulating the rule, but the rule-applier cannot be sure. For example, would the rule-applier be able to say that a person who carelessly picked up and dropped a cracked glass had broken the rule? If interpretation (b) is adopted, then the answer is yes; but if interpretation (c) is adopted, then the answer is no.
In this case, using the literal rule would result in absurdity, but interpreting the rule simply to avoid the absurdity merely leads to other problems.
Looking at the intention of the rule-maker
To resolve these problems, a rule-applier may adopt a yet broader interpretive strategy. This involves attempting to work out what the intention of the rule-maker was when the rule was formulated. In other words, it means going beyond or outside the language of the rule itself. In the context of a statute (i.e. an Act of Parliament), this may involve the rule-applier (the judge) looking at the law that existed before the statute was enacted and working out what the problem with that law was that the new rule was intended to resolve. The judge may also, in very limited circumstances, look for evidence of the purpose of the rule in the language of the government minister when the rule was introduced for debate in Parliament. The judge may then interpret the new rule so that it does resolve the problem as was intended.
The purpose of the next activity is to provide you with an opportunity to think about how we can establish the meaning of a rule that is ambiguous.
Activity 6 Finding the rule-maker’s intention
You should allow 0 hour(s), 5 minute(s).
Taking the example of the rule set out above (‘Customers must handle glasses with care in case of breakage’), how would you try to determine the intention of the rule-maker?
You might have thought of the following:
Ask the rule-maker to explain what the rule meant, using different language.
Ask the rule-maker why this particular language was used.
Give the rule-maker a range of hypothetical situations, such as those set out above, and ask which ones were supposed to be covered by the rule.
Use your own experience and common sense to work out what the rule must mean.
Find out whether there was a previous rule, and see how this one differs from that.
- Ask the rule-maker to explain what the rule meant, using different language.
- Ask the rule-maker why this particular language was used.
- Give the rule-maker a range of hypothetical situations, such as those set out above, and ask which ones were supposed to be covered by the rule.
- Use your own experience and common sense to work out what the rule must mean.
- Find out whether there was a previous rule, and see how this one differs from that.
All these are perfectly reasonable solutions, and you may have thought of others. However, it is rarely possible to do these things, since we often only have the language of the rule itself to go on. It is also potentially problematic, especially if we use our own experience and common sense, since this experience and common sense may differ from other people’s. This, in turn, might lead to each person who had to apply the rule coming to a different interpretation from every one else, and those who were subject to these different interpretations (the potential rule-breakers) believing that they had been treated inconsistently and unfairly.
Applying other people’s rules
The process of interpretation is very closely related to that of application. The reason is simple – before applying a rule, the person applying it must interpret it to see whether the conduct in question is one to which the rule applies. Sometimes this will be straightforward, and sometimes not, as will be seen in Activity 7 . The purpose of this activity is to provide you with an opportunity to explore the different ways in which rules formulated by others might be interpreted by those to whom they apply.
We are returning to Mrs Biggs’s garden. Let’s suppose that Mrs Biggs has given up on making her own rules. Instead, she adopts a set of rules devised and made available by her local gardening association. She assumes that they will be more effective because they have been formulated by people with greater experience of the problems associated with visitors, and reflect a well thought-through policy. In order to take advantage of these rules, Mrs Biggs is required to ensure that they are enforced. This means that she has to apply them. As the Chair of the gardening association explains to her: ‘We want to ensure that visitors to each garden are treated equally. It would never do if some garden owners were too lax and others too strict.’ The association’s rules are shown in Box 6.
Box 6 Standard Rules for Visitors to Gardens Participating in the Open Garden Scheme
- These Rules apply to visitors to gardens participating in the Open Garden Scheme.
- Visitors to gardens participating in the Open Garden Scheme should remember that they are the guests of those who make their gardens available and treat those gardens with appropriate respect.
- No visitor to a garden is permitted to do anything in the garden which may be construed as interference with the enjoyment of the garden either by
- (a) the owner of the garden; or
- (b) other visitors to the garden
and the meaning of ‘interference’ shall be interpreted in accordance with the meaning set out in Clause 5 of these Rules.
- Interference with the enjoyment of the garden by a visitor shall result in that visitor being required to leave the garden.
- In these Rules ‘interference’ includes, but shall not be limited to, any of the following activities:
- picking flowers, fruit, vegetables, herbs or any other plant in the garden;
- taking cuttings from any plant in the garden;
- playing music;
- eating food;
- dropping litter.
The first thing you may notice about these rules is how much more formal they are. In contrast to Mrs Biggs’s own rules, they are written in much more ‘legalistic’ language. Some people use the term ‘legalistic’ to describe language which is specific and certain, while others – perhaps you! – use it disparagingly to describe language that is unnecessarily complicated. This activity is designed to establish how clear the rules actually are.
Activity 7 Standard rules
Based only on your understanding of them, answer the questions below. Remember that Mrs Biggs has a number of different interpretive strategies at her disposal. For the purposes of this activity I would like you to state, in respect of each of your answers, whether adopting a literal strategy to interpretation would result in a different outcome from adopting an approach which avoids absurdity. (You may wish to remind yourself of the meanings of these terms, which are discussed above in Part D.)
- To whom do the rules apply?
- David, the postal worker, arrives to deliver a letter to Mrs Biggs. Do the rules apply to him?
- Ali wants to visit the garden the day after the Open Garden Scheme finishes. Mrs Biggs lets him in as a favour. Do the rules apply to him?
- Mrs Biggs is annoyed by a visiting family having a very loud argument. Can she require them to leave the garden?
- Mr Smith, Mrs Biggs’s neighbour, is annoyed by the same argument. Can he demand that Mrs Biggs require them to leave the garden?
- Sarah, a visitor, plants some bulbs in one of Mrs Biggs’s flowerbeds. Can Mrs Biggs require her to leave?
- James, an accomplished violinist, starts playing some very beautiful music, which Mrs Biggs thinks is a wonderful addition to the visitor experience. Must she require him to leave the garden?
The relationship between making, interpreting and applying rules
Although the processes of making, interpreting and applying rules can be explored separately, as we have done in this unit, it is important to realise that they are all part of one larger process. A new rule is often made because the interpretation and application of an existing rule does not solve the problems which that rule now has to confront. In turn, that new rule may be drafted in such a way that its interpretation leads to consequences that were unintended by the rule-maker, and the process has to start all over again.
To remind ourselves of the relationship between making, interpreting and applying rules, the last activity in this unit brings all these processes together. Think about what you have learned from the unit as a whole as you read the passage which forms the basis for the activity, and try to answer the questions on it without referring back to the material you have read. The purpose of this activity is to provide you with an opportunity to explore the ways in which the meaning of a rule develops, from its initial formulation through to its application and interpretation.
Box 7 The Smoking in a Public Place (Prohibition) Act
The Government’s Department of Health wants to introduce a law which makes it a criminal offence to smoke in a public place. It formulates a simple policy:
STAGE A The Government believes that, in the interests of public health, smoking in public places should be a criminal offence. It believes that the term ‘public places’ should be understood as restrictively as possible, so as to ensure that people are not turned into criminals unless there is good reason.
This policy is then translated into legislative drafting instructions by lawyers in the Department. These instructions read as follows:
STAGE B Instructions to Counsel
- Draft a new offence which makes it a criminal offence to smoke in a public place.
- Draft the offence so that it is clear that ‘smoking’ includes the smoking of cigarettes, cigars and pipes.
- Draft the offence so that the term ‘public place’ will be interpreted restrictively.
Those instructions are then sent to Parliamentary Counsel, whose job it is to translate them into a Bill. They come up with the following:
STAGE C The Smoking in Public Places (Prohibition) Act
- It shall be a criminal offence to smoke in a public place.
- In this Act ‘smoking’ shall include, but not be limited to, the smoking of
- (a) cigarettes;
- (b) cigars;
- (c) pipes.
- In this Act ‘public place’ means a place to which the public have access as of right.
STAGE D When the Bill is introduced in the House of Commons the
Secretary of State for Health sets out the purpose of the Bill in the following terms:
… Mr Speaker, this Government is committed to improving the health of the nation. To that end, we have brought forward a Bill which will go a long way to achieving this most important of objectives. The Bill is a simple one. It makes it a criminal offence to smoke in a public place – any public place. It will not be possible for a person to claim, as some Honourable and Right Honourable Members opposite have asserted, that he or she was not in a public place if people are in that place as of right, as members of the general public …
There follow a number of stages, during which MPs and Peers debate the Bill. Some of them object to, and some support, the new offence. During one of the debates, an MP who opposes the Bill asks the following question, and receives a reply from the Minister for Public Health (Note that the Secretary of State for Health and the Minister for Public Health are different people):
STAGE E The Hon. John Pereira MP: Mr Speaker, when the Secretary of State introduced this rotten Bill he made it clear that only those smoking in a place to which the public have access as of right will commit an offence. Will the Minister confirm that this is his understanding too?
The Minister for Public Health: Yes, Mr Speaker, I can confirm that those smoking in places to which the public ordinarily have access will commit a criminal offence.
STAGE F The Bill completes all its legislative stages , receives Royal Assent and becomes an Act of Parliament. The wording of the Act is identical to that of the Bill. On the day it comes into force, the Act becomes law which can be enforced. It is now up to the police to enforce the law. Let us suppose that a week after the rule comes into force, the police are called to the Roxy cinema. There has been a complaint by the cinema owner about Fred, who has been smoking in the foyer. The police are satisfied that Fred has committed the offence, charge him and pass the file to the Crown Prosecution Service (CPS). They review the case, are satisfied that the offence has been committed, and draw up the indictment against Fred.
STAGE G Fred appears at the Crown Court, where he pleads Not Guilty. Although he admits to smoking, he says that there were no notices saying that smoking was prohibited and, more importantly, he contends that the cinema foyer was not a public place within the meaning of the Act. He did not therefore commit any offence. The prosecuting lawyer puts the opposite case. He says that the phrase ‘public place’ must be given its ordinary meaning, and that a cinema foyer is such a place. After receiving directions on the law from the judge, the jury retire to consider their verdict. They find that the offence has been proved and return a verdict of Guilty.
STAGE H Fred seeks leave to appeal, on the basis that the judge misdirected the jury about the law. Leave to appeal is granted. Eventually, after one unsuccessful appeal in the Court of Appeal, his appeal is heard by the Judicial Committee of the House of Lords. The members of that Committee (the Lords of Appeal in Ordinary, or ‘the Law Lords’) listen to arguments on both sides and agree with those put forward by Fred’s barrister. In the leading judgment, Lord Smith explains the decision as follows:
‘The meaning of the term ‘public place’ is at the heart of this appeal. Although we were impressed by the arguments put forward by counsel for the Crown, we cannot accept that the meaning of ‘public place’ is one which includes a cinema foyer. A cinema is private property, access to which is subject to the permission of the cinema owner. That owner is at liberty to prevent a person from entering the cinema, or to require a person to leave. Even if a person is permitted to enter, it is clear that he remains there subject to any conditions which the owner wishes to impose. All this leads me to conclude that a cinema, and – as a matter of inexorable logic – its foyer, is not a place to which the public have access as of right within the meaning of the Act. A street would be, as would open countryside. But the Roxy cinema is neither of these. The appeal is therefore allowed.’
As the result of Fred’s appeal, his conviction is overturned.
Activity 8 The Smoking in a Public Place (Prohibition) Act
You should allow 0 hour(s), 45 minute(s).
Read the piece in Box 7 about the making, interpretation and application of a fictional rule, similar to the one introduced in Ireland which we looked at earlier in the unit.
- What values would you associate with the government’s policy on smoking? (Stage A)
- Do you think that the instructions to counsel to ensure that the meaning of ‘public place’ is interpreted restrictively (Stage B) have been taken on board in the draft Bill? (Stage C) Give reasons for your answer.
- Do you think that the Secretary of State for Health accurately describes the meaning of ‘public place’ when he introduces the Bill? (Stage D) Give reasons for your answer.
- Does John Pereira MP get a straight answer to his question from the Minister for Public Health? (Stage E)
- On what basis do you think the police are satisfied that Fred has committed an offence? (Stage F)
- On the basis of the wording of the Act, do you think it would be relevant for the court to consider the fact that there is no notice in the cinema prohibiting smoking? (Stage Gv)
- Do you think that Lord Smith has given effect (a) to the meaning of the Act; and (b) to the Government’s intentions in introducing the Act? (Stage H)
- Do you think Lord Smith has adopted a literal interpretation of the Act, or one which tries to avoid absurdity? (Stage H)
- Can you think how changing the wording of section 3 of the Act would have enabled Lord Smith to reach the opposite conclusion, and what that change might be? (Hint: there is a clue elsewhere in the Act) (Stage C)
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