Mischief Rule :Observations of Irish Law Reform Commission

The mischief rule, the oldest of the rules of interpretation, reflects a balance of the legislative and judicial powers which some consider renders it inapplicable today. It presumes a legal system in which legislative intervention in the common law is an exceptional occurrence, used only to address a "mischief" or "defect" in the common law. Though it may be expressed in outdated terms, however, the rule bears similarities to the purposive and schematic approaches to interpretation which have been developed by modern day courts. The mischief rule has been given legislative force in a number of common law jurisdictions and is still cited by the courts. The rule was recently referred to in the Irish High Court, where Budd J identified the need to examine "the mischief sought to be addressed by the passing of An Blascaod Mór National Historic Park Act, 1989 ."

The mischief rule was set out in Heydon's case, where it was held that four matters might be considered in the interpretation of statutes :
1. "What was the common law before the making of an Act;

2. What was the mischief and defect for which the common law did not provide;

3. What was the remedy the parliament hath resolved and appointed to cure the disease of the commonwealth;

4. The true reason of the remedy.

And then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo , and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico .

Statutory Drafting and Interpretation, Consultation Paper on: Plain Language and the Law (LRC CP14-1999) [1999] IELRC 1 (1st July, 1999)

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Golden Rule: Observations of Irish Law reform Commission

The golden rule is still referred to by the courts today as a means of modifying stringent application of the literal rule.

It was set out by Lord Blackburn inRiver Wear Commissioners v Adamson.

The golden rule, he stated, enabled the courts:

"to take the whole statute together, and construe it all together, giving their words their ordinary significance, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary significance, and to justify the court in putting on them some other signification, which, though less proper, is one which the court thinks the words will bear."

This is mirrored by the more lenient application of the literal approach to interpretation now favoured by the Irish courts, whereby a literal construction is replaced by a more purposive one in cases of doubt or ambiguity.

Statutory Drafting and Interpretation, Consultation Paper on: Plain Language and the Law (LRC CP14-1999) [1999] IELRC 1 (1st July, 1999)

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Literal Rule:Observations of Irish Law commission

Preserving the separation of powers remains crucial to statutory interpretation . The Irish courts have been conscious of the need to clearly define and delimit their role in interpreting legislation, so as to avoid any implication that they are creating law and thereby usurping the role of the Oireachtas. The role of the courts is seen as best delimited by accepting the primacy of the text of the statute as enacted by the Oireachtas - by adopting a literal interpretation. The literal rule, in its purest form, has an inflexibility which places particular strain on the draftsperson, requiring language which expressly covers all eventualities. This extreme inflexibility can be seen in the words of Lord Esher MR in R v The Judge of the City of London Court where he stated that:

"[i]f the words of an Act are clear, you must follow them, even though they lead to manifest absurdity. The Court has nothing to do with the question whether the Legislature has committed an absurdity."

The literal approach is impractical and unhelpful to the drafter, in that it fails to acknowledge the limited capacity of language, even where there is no particular ambiguity, to assert a single indisputable meaning. Neither does it acknowledge the impossibility of the drafter's taking account of every possible factual situation which may arise under a statute , and catering expressly for each of these situations in a single statutory provision. If the drafter is to write comprehensively enough to anticipate the effect of literal interpretation, it is more than likely that clarity and brevity will be sacrificed.

In the Report of the English and Scottish Law Commissions on the Interpretation of Statutes , it was commented that:

"[t]o place undue emphasis on the literal meaning of the words of a provision is to assume an unattainable perfection in draftsmanship; it presupposes that the draftsmen can always choose words to describe the situations intended to be covered by the provision which will leave no room for a divergence of opinion as to their meaning."

It is now generally recognised that the literal approach must be tempered by at least some flexibility in order to avoid an application of a statutory provision by a court which would be absurd or unreasonable. In the case of McGrath v McDermott Finlay CJ set out a modified literal approach in relatively flexible terms when he said:

"The function of the courts in interpreting a statute of the Oireachtas is ... strictly confined to ascertaining the true meaning of each statutory provision, resorting in cases of doubt or ambiguity to a consideration of the purpose and intention of the legislature to be inferred from other provisions of the statute involved, or even of other statutes expressed to be construed with it. The courts have not got a function to add to or delete from express statutory provisions so as to achieve objectives which to the courts appear desirable."

The literal approach to interpretation is stated, also in flexible form, by Budd J in Rahill v Brady :

"in the absence of some special technical or acquired meaning the language of a statute should be construed according to its ordinary meaning and in accordance with the rules of grammar. While the literal construction generally has prima facie preference, there is also a further rule that in seeking the true construction of a section of an Act the whole Act must be looked at in order to see what the objects and intention of the legislature were; but the ordinary meaning of words should not be departed from unless adequate grounds can be found in the context in which the words are used to indicate that a literal interpretation would not give the real intention of the legislature."

Thus, for example, where there is ambiguity in the terms of a provision, the long title to the Act may be used to assist in the construction of the provision.

Statutory Drafting and Interpretation, Consultation Paper on: Plain Language and the Law (LRC CP14-1999) [1999] IELRC 1 (1st July, 1999)

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Extrinsic Aids: An Introduction

External aids
Interpretation Act 1978	(This consolidated the 1889 Act and other Acts) He=she; Singular=plural; Person=corporations; Writing=any other way of producing visible form.
Textbooks and eminent writers on law	Can be cited as authoritative statements of the law of their time, and therefore of the present law if it is shown not to have changed. The reputation of the author and the date of the book are important. The Institutes of the Laws of England by Sir Edward Coke and Commentaries on the Laws of England by William Blackstone. Importantly, these legal authorities are not law and, as such, their opinions are merely persuasive.
R v Shivpuri (1987)	A case on criminal attempts, the courts acknowledged academic argument as an aid to interpretation.
Other cases	Cases from any branch of law and from any jurisdiction are used by the courts to assist interpretation. So, in criminal manslaughter the courts used the civil case of Donoghue v Stevenson [1932] to assist in deciding the scope of negligence, and in Re: A Children, they court used a Rabbinic judgment from New York.
Dictionaries	Notably dictionaries of the time will be used to find out the meaning of a word in an Act.
Treaties
Reports of law reform bodies, such as the Law Commission, and advisory committees	Which lead to the passing of the Act can be used to discover the reform, which the statute intended to make. These have become acceptable since the Black Clawson Case (1975).
White Papers	Occasionally reference will be made to discussion documents produced by the government even before a Bill has been drafted. Such reference is found in W v MPC [2006] on whether the word 'remove' meant a police officer or CSO could use force to take an under 16 year-old home from a 'dispersal area', they a said that it did. In paragraph 31 the Court of Appeal (Civil Division) referred to White Paper to assist them decide the scope of the Act.
Historical setting	A judge may consider the historical setting of the provision that is being interpreted. Spath Holme (2000) spent considerable time doing precisely this.
Practice	The practice followed in the past may be a guide to interpretation. For example, the practice of eminent conveyancers where the technical meaning of a word or phrase used in conveyancing is in issue.

Hansard
	The official daily reports and debates in Parliament proceedings (named after the compiler for a long period) can be used as an external aid in statutory interpretation.
Davis v Johnson [1979] HL	Lord Denning; ‘… [not to use Hansard] would be to grope around in the dark for the meaning of an Act without switching the light on’.
Pickstone v Freemans (1988) HL	Hansard used to establish why the Equal Pay Act had been passed.
Pepper v Hart (1993) HL	Pepper v Hart concerned the construction of words in a Finance Act. The House of Lords relaxed the old rule that excluded reference to Hansard for the purposes of statutory interpretation; so as to ensure that taxation was not imposed in a way that the Treasury had "assured" the House of Commons was not intended.
	Hansard may be considered but only where the words of the Act are ambiguous or obscure or lead to an absurdity. Even then, Hansard should only be used if there was a clear statement by the Minister introducing the legislation, which would resolve the ambiguity or absurdity. Until Pepper v Hart using Hansard in that way would have been regarded as a breach of Parliamentary privilege.
R v SOS for the Environment ex parte Spath Holme (2000) HL	[Pepper v Hart merely provides a limited exception to the general rule that resort to Hansard is inadmissible] The Rent Acts (Maximum Fair Rent) Order 1999 was made under section 31 of the Landlord and Tenant Act 1985. One question was whether section 31 gave the ministers power to make the Order and in what circumstances. The Act may have been past to control inflation which was not now such a pressing problem. The Order restricted the ability of landlords to increase their tenants’ rent. Spath Holme was a landlord and challenged the legality of the Order, because the statute was not clear.
Other aids
Travaux Preparatoires	Original International Conventions and preparatory material can be used, following the case of Fothergill v Monarch Airlines (1980)

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Parts of statute: As Intrinsic Aids

Intrinsic are Internal Aids that are within the statute itself
Enacting words	The basic rule of interpretation is to read the statute as a whole. An examination of the whole of a statute, is to be treated as a whole and the entire reading provides an understanding of the object or the purpose of the statute and the basic idea is to derive the intent of the legislature. It may show that a particular interpretation of that provision will lead to absurdity when taken with another section. The words of the statute speaks the intention or the object of the Act. The words are to be read to derive the purpose of the Act and the provisions are to be analysed and constructed accordingly i.e. the words show the intent.
Explanatory notes as an aid to interpretation	The use in interpretation of explanatory memoranda published with Bills is accepted by the courts. In Maher v Attorney General the Supreme Court considered the explanatory memorandum published with the Road Traffic Act, 1968. The memorandum contained the important information that the legislation was intended to accept the main import of the recommendations of a government commission on driving under the influence of alcohol. Again, in Rowe v LawO'Higgins CJ in the Supreme Court considered the explanatory memorandum published with the Bill which later became the Succession Act, 1965 , in interpreting section 90 of that Act. In McLoughlin v The Minister for the Public Service the Supreme Court looked to the explanatory memorandum published on the introduction into the Dáil of the Garda Síochána (Compensation) Act, 1941 . The court declined to interpret the Act in such as way as to defeat the purpose of the Act as declared in the explanatory memorandum. An explanatory note to regulations was considered in the High Court in MacGabhann v The Incorporated Law Society. Blayney J referred to the explanatory note to the Solicitors Act, 1954 (Apprenticeship and Education) (Amendment No 1) Regulations, 1974 to ascertain the legislative intent in relation to exemption from law society examinations. Statutory Drafting and Interpretation, Consultation Paper on: Plain Language and the Law (LRC CP14-1999) [1999] IELRC 1 (1st July, 1999)
Some Acts have their own interpretation sections
	"Personal chattels" mean carriages, horses, stable furniture and effects...
	Provides a definition of theft and subsequent sections interpret the definition. E.g. ‘property’...etc.Thus special enactments may have their definition clauses to explain the meaning of the words employed in the statute. There are two clear rules about the wordings of statutes: 1. The 'same word same meaning rule'. According to this rule if there is usage of the word at more than one place in the Statute ,it should be treated with consistency i.e. the word should mean the same in the entire statute. 2.The second rule that has been well recognized all over is ,if the word employed in the statute has been already considered by the courts and judicial pronouncement has been received by the word then it should be presumed that the legislature intends to assign the same meaning to the word. However, the context of the usage of the word is reliable for such interpretation.
Aids found in all Acts
Long title	It became established in the nineteenth century that the long title could be considered as an aid to interpretation. The long title should be read as part of the context, "as the plainest of all the guides to the general objectives of a statute" (Lord Simon in The Black-Clawson Case [1975]).
Preamble	When there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provisions. Preambles ceased to be used in the nineteenth century, except in private Acts.
Short title	There is some question whether the short title should be used to resolve doubt.
Headings, side-notes	Under the present law, as set out in the Interpretation Act, 1937 , courts are excluded from examining the marginal notes, headings and other similar elements of an Act in the interpretation of one of its provisions. Section 11 (g) states: "No marginal note placed at the side of any section or provision to indicate the subject, contents, or effect of such section or provision and no heading or cross-line placed at the head or beginning of a Part, section or provision or a group of sections or provisions to indicate the subject, contents or effect of such Part, section, provision or group shall be taken to be part of the Act or instrument or be considered or judicially noticed in relation to the construction or interpretation of the Act or instrument or any portion thereof". Although the courts are precluded from relying on marginal notes in interpreting legislation, they have frequently made passing reference to the content of marginal notes, suggesting that marginal notes would be of assistance to the courts in establishing the context of a provision. Statutory Drafting and Interpretation, Consultation Paper on: Plain Language and the Law (LRC CP14-1999) [1999] IELRC 1 (1st July, 1999)
Punctuation	Not used in older statutes. See the story of Sir Roger Casement, hanged because of a comma, here.
DPP v Schildkamp (1971)	Punctuation could be used as aids in cases of ambiguity as could the long title of the Act, headings and side note.
Hanlon v Law Society (1981)	Lord Lowry; "To ignore punctuation disregards the reality that literate people, such as parliamentary draftsmen, do punctuate what they write."

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