”It is the duty of a court so to interpret an Act of Parliament as to give effect to its intention. The court sometimes asks itself what the draftsman must have intended. This is reasonable enough: the draftsman knows what is the intention of the legislative initiator (nowadays almost always an organ of the executive); he knows what canons of construction the courts will apply; and he will express himself in such a way as accordingly to give effect to the legislative intention. Parliament, of course, in enacting legislation assumes responsibility for the language of the draftsman.
Accordingly, such canons of construction as that words in a non-technical statute, will primarily be interpreted according to their ordinary meaning or that a statute establishing a criminal offence will be expected to use plain and unequivocal language to delimit the ambit of the offence (i.e., that such a statute will be construed restrictively) are not only useful as part of that common code of juristic communication by which the draftsman signals legislative intention but are also constitutionally salutary in helping to ensure that legislators are not left in doubt what they are taking responsibility for”.
It is a fact that a parliamentary draftsman (like any draftsman) does cquaint himself thoroughly with the existing law (statutory and judge-made) before starting to draft.
“That obvious truism was not fully appreciated by the Oireachtas of Saorstát Éireann when enacting section 14 of the Criminal Law (Amendment) Act, 1935. It reads as follows:
“14. It shall not be a defence to a charge of indecent assault upon a person under the age of fifteen years to prove that such a person consented to the act alleged constitute such indecent assault.” Although the draftsmanship could have been more accurate it is quite clear what the section means. Notwithstanding the existence of consent, the acts which would otherwise be an assault are to in fact constitute an assault if the complainant is under the age of fifteen years.
‘Suffice it to repeat that, provided draftsmen and courts operate correctly, the court's elucidation of the meaning of what is said should accord with what the promulgator meant to say. But, secondly, such an accord can only be achieved if courts frame their approach to statutory interpretation in the light of the actual parliamentary processes which evolve the statutory enactment in question’.
As observed in Crawford v. Spooner (1846 (6) Moore PC 1 ), Courts, cannot aid the Legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr. (JT 1998 (2) SC 253).
Cite as:  IESC 47