Free «Parliamentary Legislation and Statutory Interpretation» Essay Sample


The English parliamentary process is a highly politicized phenomenon grounded in common law.  The House of Commons and House of Lords develop and pass laws, but the courts utilize a wide range of aids aimed at helping judges interpret statutes.  A judge cannot alter a bill but can influence whether or not it is returned to Parliament for further consideration.

Task 1

Parliamentary Bills - Public bills, the most common type of parliamentary bill, are introduced by a government minister and impact all of England and Wales.  A private bill, by comparison, impacts much smaller numbers of people and tends to be sponsored by groups with special interests.  A private members' bill, however, is a type of public bill introduced by an MP.       

A bill must be carefully written in a form that can be presented to Parliament, often after consultation with those who will be affected should it become legislation. Some bills are set forth in a "green paper," a document prepared for those involved in the consultation process to comment on.  After consultation, a white paper may be developed, which will provide a written framework for the version that is presented to Parliament.  The bill's sponsor shepherds the bill through the parliamentary process. 

The House of Commons and the House of Lords may both initiate bills; both must vote in favor if it is to become law.  After a bill is drafted it is given a first and second reading. Its language is then taken up by a committee of as many as 50 MPs, who carefully consider each clause.  Amendments are then discussed and either accepted or rejected, followed by a third reading, at which point further amendments may be added in the House of Lords.  However, a bill that does not pass the House of Lords may be sent back to the Commons where, if it passes a second time, it becomes law since the Commons is an elected body.

Royal assent is the final step in the process.  The monarch signs the "Letters Patent," which serve as official notification that assent has been given.  The bill becomes an Act of Parliament once the monarch gives assent.

Parliamentary sovereignty - The traditional meaning of parliamentary sovereignty, or privilege, was that Parliament, as the central body of governance, could pass any laws it deemed proper without challenge.  However, the Human Rights Act of 1998 altered this definition.  While a court hasn't the power to strike down legislation it can, for instance, issue a declaration of incompatibility, which can influence Parliament to review and possibly alter the act (Slapper & Kelly, 2009).   

In reality, parliament's sovereignty is limited by political considerations, which can be considered a kind of check-and-balance system.  Special interest groups, the public and the political process all have a hand in tempering Parliament's legislative privilege.  As well, Parliament may limit its own sovereignty, as in the Parliament Act of 1911, which relegated members to a term of five years.  A closer legal relationship with the European Union also has eroded somewhat Parliament's historic sovereignty. 

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Task 2

Because legislation addresses such complex subjects and is usually worded to accommodate groups with divergent interests and concerns, a statute's wording is often convoluted, sometimes even contradictory.  "The conflicting aims of legislation...give rise to particular problems of interpretation; these conflicting aims are the need to be clear while at the same time being general" (Sapper & Kelly, 2009, p. 60).  To help them interpret legislation, judges employ several basic "rules" of interpretation: the literal, golden, mischief and purposive rules.       

Under the literal rule, a judge interprets what a law literally says, rather than what it intends.  The rationale behind this rule is that the best way to interpret Parliament's meaning is to do so within the framework of a bill's ordinary language.  Thus, a judge is constrained from interpreting and extracting intent other than that which Parliament expressed in its own words. Also, the literal rule may result in an interpretation that does not take context into account.   The golden rule says that if the literal rule produces an absurd result the judge may seek an alternative meaning.  (However, there is no well-defined standard for determining the extent to which a law is absurd, or even what absurd truly means.)  In Madan Mohan v. K. Chandrashekara, it was determined that a statute must be construed literally to promote the act when it contains strict provisions (Adithya, 2005). 

The mischief rule is rather more well-defined than the first two, and presents a clearer course of action.  It enables the judge to review what the law was before the bill was passed in order to determine what purpose it was intended to serve, allowing the court to "fine tune" the law to make certain it serves its intended role.  The court is allowed to go beyond the language but can only use common law to gauge the "mischief" the law was meant to prevent.  An example of the mischief rule was the ruling in Corkery v. Carpenter (1951), in which an individual was charged with drunkenness while operating a bicycle.  The defendant was charged under the Licensing Act of 1872, which prohibits operating a carriage while drunk (Slapper & Kelly, 2009). 

The purposive rule is somewhat more vague, having developed over time to give the court leeway to determine parliamentary intent by looking beyond the act's language.  A judge examines the law's intent rather than the problems that existed within the law it supersedes.  The problematic aspect of the purposive approach lies in whether the judge can reliably and accurately discern Parliament's intended goal in passing a law.  Utilizing the purposive approach also puts a judge at risk of treading on legislative ground and overstepping his judicial bounds.    

Task 3

The courts employ judicial presumptions to help in the interpretation of legislation.  These presumptions are subject to rebuttal and it should be remembered that wielding them   does not mean a judge has the right to declare a law illegal or unconstitutional.  Two of the most basic presumptions assert that a statute will not make any basic changes to English common law or assign guilt without proof of mens rea.  As well, a judge may presume that a law does not act retrospectively or deprive citizens of their rights or property without some compensation.  Another (implicit) presumption is that a statute does not apply to the monarchy. An example of presuming guilt without intent was the case of Sweet v. Parsley (1970), in which the owner of a property was charged with managing premises on which cannabis had been smoked.  However, this presumption was nullified in the House of Lords when it was determined that she had no prior knowledge that drugs were being used on the property (Slapper & Kelly, 2009).  It was determined that she could not be found guilty under those circumstances.   

The courts also act according to a presumption against violating international law and that statutes do not apply to crimes committed on foreign soil.  If possible,  a statute should be interpreted so as to give weight to international obligations, which may stem from the UK's relationship to the European Union.  There is also the presumption that common law defenses apply to crimes not previously encountered or brought before the bench. Also, court and government officials are presumed not to possess arbitrary discretion in legislative matters.

Task 4

The courts have a wide range of aids that help interpret whether ambiguity exists in a statute's wording.  Internal aids are found within the statute itself:

Enacting words can be used to examine the statute in whole or in part, giving the judge an overall idea of whether all parts of the bill make sense and whether it does, or does not, contain absurdities. A statute's preamble provides a concise description of the action the bill is designed to take, or the problem it aims to resolve, and is an important tool in interpreting an ambiguously worded act.  The long title can also provide a good sense of overall context. The short title may also be used as an aid, though only for purposes of reference.  As such, it has limited use. Marginal notes and punctuation are not, purely speaking, part of the bill and may not be considered though they may help determine context.  A proviso, which is a strictly constructed part of a specific section, may be considered though only within the context of the section to which it belongs.


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