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The most comprehensive coverage on the construction of Statutes. It includes parts of statutes,Extrinsic-Aids,Intrinsic aids, Reading down, Amendments,Repeals,codifications,Quasi-Judicial agencies,Non-obstante clause,Mandatory/Declatory provisions,Tax ,Beneficial, Criminal,Fiscal Statute's Interpretation and sub-ordinate legislations.Besides it contains the Rules of Interpretation and the Role of Judiciary.Citations are in abundance.

Wednesday, May 26, 2010

The maxim expressio unis est exclusio alterius

The maxim expressio unis est exclusio alterius ("to express one thing is to exclude another") allows the courts to imply that where an Act applies a rule to a particular situation, the Oireachtas intended to confine the rule to that situation, and not to apply it in any wider context.

The maxim was applied in Kiely v Minister for Social Welfare and again in O'Connell v An t-Ard Chlaraitheoir . It was succinctly illustrated by Henchy J in Keily when he said:

"The fact that article 11 (5) allows a written statement to be received in evidence in the specified limited circumstances means that it cannot be received in other circumstances:
expressio unius est exclusio alterius ".

The maxim has limitations, however, and will not apply where a legislative provision merely states a particular aspect or a particular application of a more general rule of law. This was accepted by the Irish courts in The State (Minister for Lands and Fisheries) v Judge Sealy and in Inspector of Taxes v Arida Ltd .

Generalia specialibus non derogant

Generalia specialibus non derogant is the principle that a general statutory provision does not repeal a specific one. The rule may apply either to two separate statutes , or to provisions within the same Act. It was applied by the Supreme Court in the case of Hutch v the Governor of Wheatfield Prison . That case posed the question whether a young person between the ages of fifteen and seventeen years who had been convicted of an indictable offence tried summarily, could be sentenced for the period of detention applicable to an adult (under the Criminal Justice Act, 1951 ), or whether the sentence was limited to three months imprisonment under the terms of the Summary Jurisdiction Over Children (Ireland) Act, 1884 . The Court held that since the 1951 Act was a general Act, and the 1884 Act had a special application, the maxim generalia specialibus non derogant applied. Therefore, the 1884 Act was not impliedly amended or repealed by the 1951 Act, and the possible sentence was limited to three months imprisonment.

The maxim was applied as regards conflicting provisions of the same Act in the High Court in National Authority for Occupational Safety and Health v Fingal County Council In that case , there was an apparent conflict between the general terms of subsection 3 of section 51 of the Safety Health and Welfare at Work Act, 1989 , which stipulated that certain proceedings must be instituted within one year, and subsection 4 of the same section, which stated that proceedings in more limited circumstances should be brought within six months. Murphy J, referring to the Hutch case, found that the more restrictive period in subsection 4 applied.

Ejusdem Generis

The ejusdem generis , or "of the same genus" rule, is similar though narrower than the more general rule of noscitur a sociis. It operates where a broad or open-ended term appears following a series of more restrictive terms in the text of a statute . Where the terms listed are similar enough to constitute a class or genus, the courts will presume, in interpreting the general words that follow, that they are intended to apply only to things of the same genus as the particular items listed. Bennion defines the ejusdem generis rule as,

"a principle of construction whereby wide words associated in the text with more limited words are taken to be restricted by implication to matters of the same limited character."
The ejusdem generis rule was applied by O'Higgins J in The People (DPP) v Farrell , in the construction of section 30 of the Offences Against the State Act, 1939 . It was argued that the detention of the applicant in a garda car for a period of hours during the course of his questioning was unlawful and that his subsequent detention in a garda station was therefore also unlawful. The legality of the detention turned on whether a garda car could be regarded as a "convenient place" in accordance with the legislation. O'Higgins J considered that it could not, since the ejusdem generis rule required that the term be construed in the light of the other places of detention listed: "Garda Síochána Station, a prison, or some other convenient place". The rule required, at a minimum, that "other convenient place" should be a building of some kind.

In HMIL Limited (Formerly Hibernia Meats International Ltd) v Minister For Agriculture And Food, the ejusdem generis rule was applied along with the noscitur a sociis rule. Barr J considered that a provision listing "other scraps left over from cutting or boning" at the end of a list of more specific items - bones, cartilages - was "an apposite illustration of the ejusdem generis principle in operation." He found that, according to the rule, "other scraps" should be interpreted as including all unspecified items which were not fit for human consumption."

More recently, the presumption was applied in the High Court by Barr J in Royal Dublin Society v Revenue Commissioners. Barr J held that section 7 of the Excise Act, 1835 , which allowed the Revenue Commissioners to grant a liquor licence to " ... a theatre or other place of public entertainment" was a provision to which the ejusdem generis rule applied. He found that there was nothing in the Act to suggest that "other place of public entertainment" was meant in a wider sense to that applicable to "theatre" and that therefore it should be interpreted only as referring to places of public entertainment which were similar to, or within the same genus as, "theatre", in other words to "a performance for the benefit of the public with a defined time frame and where seating is provided for patrons."
The ejusdem generis rule will not apply where there is a list of items which do not constitute a genus, or where only one item is listed. In Kielthy v Ascon Ltd it was emphasised by O Dalaigh CJ that the ejusdem generis rule could only apply where antecedent categories establish a genus. He held that this was not the case where, as in the provision to be interpreted by the court, the general words were preceded by the enumeration of only one category. In Dublin Corporation v Dublin Cinemas Ltd it was held that a list of words in a statute which included playgrounds, recreation grounds and "any building adapted for use as a shop" was too broad and included items which were too incongruous to constitute a genus, and that therefore the ejusdem generis rule did not apply.

The courts will also refuse to apply ejusdem generis where a statute contains general words, which are then followed by a list of particular items: in such cases the list of items is not regarded as limiting. In Application of Quinn , Griffin J pointed out the limitations of ejusdem generis , and emphasised that it was a presumption rather than a rule: "...the ejusdem generis rule is one to be applied with caution as it is a mere presumption which applies in the absence of any other indications of the legislature." He found that the ejusdem generis presumption did not apply to the construction of section 2 of the Public Dance Halls Act, 1935, since the general words preceded the particular words, rather than followed them.

List of Maxims--To be edited..Entire section..5.06.2010

Noscitur a Sociis

The maxims and presumptions developed by the common law in the interpretation of statutes perform an important function in ascribing to the legislature certain common-sense intentions. They can assist in avoiding absurdity in the plain words of a statute , and obviate the need for lengthy examination of the legislative intent in enacting a particular provision. They are not binding legal rules, however, but "axioms of experience" which may provide guidance to a court in statutory interpretation .

The Importance of Context: The Noscitur a Sociis and Ejusdem Generis Rules

Noscitur a Sociis
The rule of noscitur a sociis states that words of a statute are to be construed in the light of their context. It may be translated as "a thing is known by its associates". In the English case of Bourne v Norwich Crematorium Ltd , Stamp J explained the rule as follows:

"English words derive colour from those which surround them. Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which you have assigned to them as separate words, so as to give the sentence or phrase and meaning which as a sentence or phrase it cannot bear without distortion of the English language."

In People (Attorney General) v Kennedy, the Supreme Court was required to interpret section 29 of the Courts of Justice Act, 1924 , which granted a right of appeal without any express limitation as to who could bring the appeal. The Supreme Court rejected a literal interpretation of the section and held that the right of appeal was impliedly limited to the accused person. Black J viewed the approach of the Court in this case as part of a wider principle that statutory provisions should be interpreted in context, which encompassed both the noscitur a sociis and the ejusdem generis rules.

He explained the importance of the rules as follows:

"A small section of a picture, if looked at close-up, may indicate something quite clearly; but when one stands back and examines the whole canvas, the close-up view of the small section is often found to have given a wholly wrong view of what it really represented."

He went on to say:

"If one could pick out a single word or phrase and, finding it perfectly clear in itself, refuse to check its apparent meaning in the light thrown upon it by the context or by other provisions, the result would be to render the principle of
ejusdem generis and noscitur a sociis utterly meaningless; for this principle requires frequently that a word or phrase or even a whole provision which, standing alone, has a clear meaning must be given quite a different meaning when viewed in the light of its context."

In HMIL Limited (Formerly Hibernia Meats International Ltd) v Minister For Agriculture and Food, the noscitur a sociis and ejusdem generisrules were applied. In construing EC regulations on the export of beef, Barr J held that, on an application of the noscitur a sociis rule, "the Court should recognise the common denominator between `scraps' and `large tendons, cartilages, pieces of fat', i.e. that all are unfit for human consumption.

Extrinsic Aids Provide wider Context

If the courts are to venture beyond the literal meaning of the words in an Act, and attempt to ascertain the intention of the legislature, questions arise as to what tools may be used to discover intention. The purpose of a statutory provision may be ascertained from its context; but how wide should that context be? Should the courts confine themselves to examining the Act as a whole, and to discerning the intention of the Oireachtas from, for example, the long title? Or should the courts move beyond the text, to examine other related statutes , or international conventions, or preliminary drafts of the Act as a Bill, or parliamentary debates or even pre-parliamentary discussion documents? External aids to interpretation could encompass, for example, pre-parliamentary departmental papers, or instructions to the draftsperson.

As one moves further from the text of the Act, the aids to interpretation become more controversial. Arguably, although the idea of a single "legislative intention" can be sustained on an examination of the text of an Act, an examination of the parliamentary debates may show widely varying ideas as to the purpose of the statute. The intention of the legislature may not be uniform; and in relation to the particular circumstances of the case, there may not have been any clearly thought out legislative intention. Lord Wilberforce in Salomon v Salomon remarked:

" `Intention of the Legislature' is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it."

If great significance is attached to extrinsic aids, there is a danger that this "speculative" version of the legislation may be enforced. This leads to diminished legal certainty.

Against these arguments, must be noted the hard cases where recourse to an external source - the text of an early draft of a Bill, for example, from which words were later omitted, or a ministerial speech in the Dáil - would clarify with ease a point of interpretation and save a court from enforcing an absurdity or an unjust anomaly. Recourse to an external document, which is readily available to the court, might satisfactorily resolve an ambiguity which could otherwise only be addressed by inspired guesswork or dogmatic insistence on the primacy of text. Where an external aid would be of great assistance to a court, it seems perverse to deny its use. This dilemma is expressed very clearly in Lord Bridge's comments in Pepper v Hart:

"I should find it very difficult, in conscience, to reach a conclusion adverse to the appellants, on the basis of a technical rule of construction, requiring me to ignore the very material which in this case indicates unequivocally which of the two possible interpretations of section 63 (2) of
the Act of 1976 was intended by Parliament."

Lord Browne-Wilkinson in the same case asked "if the words are capable of bearing more than one meaning, why should not parliament's true intention be enforced rather than thwarted?" The remarks of Lord Denning in Davis v Johnson , admitting that he had recourse to Hansard despite the exclusionary rule, are also interesting:

"In some cases Parliament is assured in the most explicit terms what the effect of a
statute will be. It is on that footing that members assent to the clause being agreed to. It is on that understanding that an amendment is not pressed. In such cases I think the court should be able to look at the proceedings ... And it is obvious that there is nothing to prevent a judge from looking at these debates himself privately and getting some guidance from them. Although it may shock the purists, I may as well confess that I have sometimes done it. I have done it in this very case. It has thrown a flood of light on the position."

It may be more important to place limits on the consideration of external aids, for example by specifying the use to which they may be put or by confining their use to those cases where there is ambiguity or absurdity on the text of the statute , than to exclude their use altogether.

A further, practical argument against the use of extrinsic aids is that they are not readily available, either to lawyers or to the general public. This argument obviously has more force in relation to some extrinsic aids than to others. In Fothergill v Monarch Airlines , Lord Wilberforce laid down the condition that thetravaux preparatoires of a treaty could only be considered where the material involved was "public and accessible". It should be noted that technological developments have contributed greatly to the wider availability of much of the material used as extrinsic aids in the interpretation of legislation. The availability on the internet, for example, of parliamentary debates from many jurisdictions, as well as the texts and travaux of many treaties, has greatly enhanced the accessibility of this material. The argument that the use of extrinsic aids results in an increased workload for lawyers and the courts, and therefore in increased costs and delays, may have more force. However, where the use of extrinsic aids is confined to a narrow category of cases, the problem is not so serious.

Contd..Long Title

The courts have used long titles and other elements of the statutory context to ascertain the purpose and legislative intent behind a provision. Early cases allowed consideration of the long title only where there was ambiguity. In Minister for Industry and Commerce v Hales , the High Court accepted that the long title formed part of the Act, but held that it was permissible to call in aid the long title in the interpretation of a provision of an Act only where the provision was unclear or ambiguous. The leading case is East Donegal Co-operative Marts Ltd v Attorney General in which the Court stressed the importance of the long title to the Act in forming a part of the context and background of the Act, in the light of which its provisions should be construed. Walsh J departed from the more restrictive rule in Hales , in allowing for a determination of ambiguity only after the long title had been considered. He stated:

"The long title and the general scope of the Act of 1967 constitute the background and the general scope of the context in which it must be examined. The whole or any part of the Act may be referred to and relied upon in seeking to construe any particular part of it, and the construction of any particular phrase requires that it is to be viewed in connection with the whole Act and not that it should be viewed detached from it. The words of the Act, and in particular the general words, cannot be read in isolation and their content is to be derived from their context. Therefore, words and phrases which at first sight might appear to be wide and general may be cut down in their construction when examined against the objects of the Act which are to be derived from a study of the Act as a whole including the long title. Until each part of the Act is examined in relation to the whole it would not be possible to say that any particular part of the Act was either clear or unambiguous."

The general principle set out in East Donegal may be seen as qualified, however, by the decision of the Supreme Court in The People (DPP) v Quilligan.. In that case, Griffin J reverted to the rule as set out in Hales , holding that the long title may only be considered in the interpretation of a provision of an Act if the provision is ambiguous or equivocal. In the instant case, the long title could not be considered. Griffin J stated,

"in my opinion, the plain language used in ss.30 and 36 is so clear and unequivocal that the long title may not be looked at, or used for the purpose of limiting or modifying that language."

McCarthy J, however, emphasised the usefulness and importance of the long title. He stressed that the long title was as much a part of an Act as any other provision and stated:

"it is not, in my opinion, a question of ambiguity in the construction of particular provisions; it is a question of giving a schematic interpretation where such is the plain intent of the
statute ."