Monthly Archives: April 2017

The rules of statutory interpretation

Lord Donaldson MR’s statement in Corocraft Ltd v Pan-American Airways [1968] 2 All ER 1059 at 1071, HL provides a concise exposition of statutory interpretation:

“The duty of the courts is to ascertain and give effect to the will of Parliament as expressed in its enactment. In the performance of this duty the judges do not act as computers into which are fed the statutes and the rules for the construction of statutes and from whom issue forth the mathematically correct answer. The interpretation of statutes is a craft as much as a science and the judges, as craftsmen, select and apply the appropriate tools of their trade. They are not legislators, but finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further processing.” 

It defines the clearly distinct roles of Parliament and the courts. Statute may be novel, consolidated or codified in nature, public or private in scope. The English courts role is integral to Parliamentary enactment because legislation in its statutory form is essentially latent requiring courts to implement rules of interpretation to refine, activate and determine a statutes practical application in law.

The rules of construction are principles adopted by the judiciary in addressing three key challenges to cogent interpretation.

These are (1) the inherent uncertainty of language as a communication tool (2) the dichotomy presented by the legislative drafting process and (3) preserving judicial autonomy in observing the declaratory theory of law. The last challenge, the separation of powers and maintaining Parliamentary Sovereignty, is a key theme of Dominic Grieves 2012 speech.

Prior to examining the rules of interpretation, it is important to establish that as Lord Reid highlighted these “are not rules in the ordinary sense of having some binding force” Maunsell v Olins [1974] 3 WLR 835 at 837, HL. They are guidelines or conventions adopted by judges and are typically set out in the following sequence: literal, golden, mischief (Rules of Construction) and the purposive approach.

The former Attorney General clearly propagates the literal or plain meaning rule as the essential starting point for interpretation. He qualifies this with a caveat: only the presence of ‘genuine ambiguity and uncertainty’ may necessitate departing from this rule and implementing ‘extraneous material’.

‘Ambiguity and uncertainty’ are in fact a certainty in addressing with the first two challenges. Language is by nature imprecise and ambiguous and the drafting of legislation is dichotomous; “the need for generality can only really be achieved at the expense of clarity and precision of language” (Slapper and Kelly, The English Legal System (2013), p96).

‘Extraneous material’ is here an unqualified generality, however this could encompass (1) the alternative rules of interpretation, (2) the 3 rules of language used to help qualify legislative terminology, (3) the intrinsic aids to interpretation which enable the entire statutory structure to be considered (4) extrinsic aids which after the ruling in Pepper v Hart [1993] AC 593, [1993] 1 All ER 42 permitted reference to Hansard and other evidential material  and (5) the judicial presumptions protecting against alteration of the common law, the retrospective operation of statutes and preserving court jurisdiction.

The literal rule guides courts to consider specifically the statutory text and not to ascribe their own meaning to that text. The principle here is that “the words selected by Parliament to express its intention in passing the legislation were exactly what it wanted to express.” (Slapper, G, How the Law Works (2007), p.160)

However, as stated, language is by its nature imprecise and equivocal. The instances where application of the literal rule to ambiguously worded legislation, result in an outcome clearly contrary to parliamentary intention and counter to the interests of justice and reason are multiple and well documented. Fisher v Bell [1961] 1 QB 394[1960] 3 All ER 731  demonstrates how the limitations of the literal rule necessitate an alternative.

The golden rule is considered an extension of the literal rule. This rule again qualifies that the words and provisions of the statute should be assigned their ordinary meaning, unless this interpretation leads to what Lord Blackburn in The River Wear Commissioners v. Adamson and Others (1876) 1 Q.B.D. 546 described as “an inconsistency, or an absurdity or inconvenience”. The ‘narrow’ application of the golden rule operates to ensure that preference is given to the definition of ambiguous terminology that avoids an ‘absurd’ outcome, as demonstrated in Adler v George [1964] 2 QB 7,[1964] 1 All ER 628. The ‘wider’ application of the golden rule operates when there is only one clear meaning of a legislative provision, but the literal interpretation of that provision would lead to a legal anomaly contrary to the public interest Sigsworth, Re, Bedford v Bedford [1935] Ch 89, [1934] All ER Rep 113

The mischief rule and the purposive approach can be considered together as they each attempt to ascertain fundamental legislative intent.

The mischief rule directs judicial focus retrospectively to determine the root defect or ‘mischief’ within the common law which the legislation under consideration attempts to remedy, a primary purpose of early legislation being to supplement provisions in the common law. The staged process for identifying and correcting common law defects by statutory interpretation was first established in Heydon’s Case (1584) 3 Co Rep 7a. The rule was applied definitively by the High Court in Corkery v Carpenter [1951] 1 KB 102, [1950] 2 All ER 745 and more recently in a high profile case before the Supreme Court in R (on the application of the Electoral Commission) v City of Westminster Magistrates’ Court and another [2010] UKSC 40, [2011] 1 All ER 1.

More recently, legislation has become the major source of law and its purpose is considerably broader in scope, addressing positively legal, social and technological advances. Courts may be said to be adopting a ‘purposive approach’ when interpreting legislation to fulfil these criteria.

The purposive approach directs judicial focus prospectively. In ascertaining the statutes fundamental purpose, its potential to address challenges not initially envisaged by the legislature can be achieved. The freedom afforded to alter the actual text of restrictions imposed by strict literal interpretation was highlighted by Lord Griffiths in Pepper v Hart [1993] 1 All ER 42 at 50, HL

The foundation of the purposive approach lies in European civil law tradition, and the legal principles deduced from the codified body of rules that constitute European law. Consequentially, this approach adopted by English courts can ensure domestic legislation is interpreted and effected consistently with the principles of EU law, and in compatibility with the European Convention rights incorporated into English law by the Human Rights Act (HRA) 1998. This is clearly demonstrated in Pickstone v Freemans plc [1989] AC 66[1988] 2 All ER 803, HL.

Purposive interpretation might appear as an interpretative panacea, however, Lord Scarman in Shah v Barnet London Borough Council [1983] 2 AC 309, [1983] 1 All ER 226 at 238, HL cautioned that “Judges may not interpret statutes in the light of their own views as to policy“

Therefore a purposive reading of the legislative text must be qualified by the two distinct criteria established by Lord Wilberforce in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800 at [822], [1981] 1 All ER 545, HL.

While Lord Denning advocated that “filling in the gaps” in “making sense of the enactment” was an interpretative prerequisite justifying purposive reading of statute in Magor and St Mellons RDC v Newport Corporation [1950] 2 All ER 1226 at 1236, this viewpoint was received critically by the House of Lords, Lord Simonds articulating on review of this case ([1952] A.C. 189 [1951] 2 All ER 839 at 841) that Lord Dennings proposal represented a “usurpation of the judicial function”.

In promoting the literal rule as being an interpretative necessity, Grieve seems to consciously paraphrase Tindal C.J.s’ exposition of this rule in the Sussex Peerage Case (1844) 11 Cl & Fin 85 at 143, HL. However Grieves’ proposition has an inconsistent duality, while theoretically logical it is potentially professionally regressive.  It appears to marginalise the alternative rules and aids which have proven essential to interpretation, in particular the ascendancy of purposive reading. This viewpoint alongside concerns his speech highlight about the increasing influence of EU law and the ‘macro-political’ implications of the HRA 1998 appear as partisan rather than legal analysis.

The post of Attorney General, a political appointment should not empower Grieve with the authority to pre-determine judicial protocol. In statutory interpretation, there is no correct rule or correct hierarchical application of rules and aids. This fact is cogently stated by Evans L.J. in R v Fellows; R v Arnold [1997] 1 Cr App Rep 244, [1997] 2 All ER 548 at 554:

“Whilst the court’s decision in a particular case may indicate what can be described as a ‘purposive’ as distinct from a ‘literal’ approach, it would be wrong in our view to say that one or other of these two methods should be pre-determined or is correct.”



Adler v George [1964] 2 QB 7, [1964] 2 WLR 542, [1964] 1 All ER 628

Corkery v Carpenter [1951] 1 KB 102, [1950] 2 All ER 745, 48 LGR 648

Corocraft Ltd and Another v Pan American Airways Inc [1969] 1 QB 616, [1969] 1 All ER 82, HL

Duport Steels Ltd and others v Sirs and others [1980] 1 All ER 529 at 541, HL, [1980] 1 WLR 142

Fisher v Bell [1961] 1 QB 394[1960] 3 All ER 731

Heydon’s Case (1584) 3 Co Rep 7a

Magor and St Mellons Rural District Council v Newport Corporation [1952] AC 189, [1951] 2 All ER 839, 115 JP 613, [1951] 2 TLR 935

Maunsell v Olins [1975] AC 373 at 389[1975] 1 All ER 16 at 24, HL

Pepper (Inspector of Taxes) Respondent v Hart Appellant [1993] A.C. 593, [1993] 1 All ER 42 at 50, HL

Pickstone v Freemans plc [1989] AC 66[1988] 2 All ER 803, HL

The River Wear Commissioners v. Adamson and Others (1876) 1 Q.B.D. 546

R (on the application of the Electoral Commission) v City of Westminster Magistrates’ Court and another [2010] UKSC 40, [2011] 1 AC 496, [2011] 1 All ER 1

R v Fellows; R v Arnold [1997] 1 Cr App Rep 244, [1997] Crim LR 524, [1997] 2 All ER 548

R (on the application of Quintavalle) v Secretary of State for Health [2003] UKHL 13,[2003] 2 AC 687,[2003] 2 All ER 113

Shah v Barnet London Borough Council and other appeals [1983] 2 AC 309, [1983] 1 All ER 226, HL

Sigsworth, Re, Bedford v Bedford [1935] Ch 89, 104 LJ Ch 46, [1934] All ER Rep 113

Smith v Secretary of State for Work and Pensions and another [2006] UKHL 35, [2006] 3 All ER 907 at [33], [2006] 1 WLR 2024

Sussex Peerage Case (1844) 11 Cl & Fin 85 at 143, HL



Manchester, C. and Salter, D. (2011) Manchester and Salter on Exploring the Law: The Dynamics of Precedent and Statutory Interpretation, Sweet and Maxwell, London

Open University (2014) W200 Understanding law Manual 1, Units 1 – 7 (3rd Edition), Oxford University Press, Oxford

Slapper, G. and Kelly, D. (2013) The English Legal System, (14th edition), Routledge, Oxon

Elliot, C. and Quinn, F. (1998) English Legal System (Second Edition), Addison Wesley Longman Ltd, Essex, England

Slapper, G. (2007) How the Law Works, HarperCollins Publishers Ltd, London

A Pop-Art Skyscraper

Centre Point is a building in Central London, comprising a 33-storey tower; a 9-storey block to the east including shops, offices, retail units and maisonettes; and a linking block between the two at first-floor level.[1] It occupies 101–103 New Oxford Street and 5–24 St Giles High Street, WC1, with a frontage also to Charing Cross Road,[1] close to St Giles Circus and almost directly above Tottenham Court Road tube station. The site was once occupied by a gallows.[2]

The building is 117 m (385 ft) high, has 34 floors[3] and 27,180 m2 (292,563 sq ft) of floor space. Constructed from 1963 to 1966, it was one of the first skyscrapers in London and as of 2009 is the city’s joint 27th tallest building.[4] It stood empty from its completion until 1975,[5] and was briefly occupied by housing activists in 1974. Since 1995 it has been a Grade II listed building.[6] In 2015 it was converted from office space to luxury flats

The building was designed by George Marsh of the architects R. Seifert and Partners,[5][8][9] with engineers Pell Frischmann and was constructed by Wimpey Construction from 1963 to 1966.[10][1] for £5.5 million.[11]The precast segments were formed of fine concrete utilising crushed Portland Stone and were made by Portcrete Limited at Portland, Isle of Portland, Dorset. They were transported to London by lorry.[12]

Centre Point was built as speculative office space by property tycoon Harry Hyams, who had leased the site at £18,500 a year for 150 years. Hyams intended that the whole building be occupied by a single tenant, and negotiated fiercely for its approval; he was eventually approved to build 32 floors in return for providing a new road junction between St. Giles Circus, Oxford Street and Tottenham Court Road, which the LCC could not afford to build on its own.


On completion, the building remained vacant for many years, leading to its being referred to as “London’s Empty Skyscraper”.[13] With property prices rising and most business tenancies taken for set periods of 10 or 15 years, Hyams could afford to keep it empty and wait for his single tenant at the asking price of £1,250,000; he was challenged to allow tenants to rent single floors but consistently refused. At that point, skyscrapers were rare in London, and Centre Point’s prominence led to its becoming a rallying symbol for opponents.[13] Some campaigners demanded that the government of Edward Heath intervene and take over the building, and at one point in June 1972 Peter Walker (then Secretary of State for the Environment) offered £5 million for the building.[citation needed] Eventually, Hyams agreed to lease the building by floors but the arrangements were stalled.


In 1974 an umbrella group of Direct Action housing campaigners, including Jim Radford, Ron Bailey and Jack Dromey, organised a weekend occupation of Centre Point from 18 January to 20 January to draw attention to its being deliberately left empty during a housing crisis in London. (Two of the occupiers had obtained jobs with the Burns Security Company, who were guarding the building.)[14] The publicity around the occupation increased the political pressure on the government and local authorities to press for the development to be occupied and used.[citation needed] The housing charity Centrepoint had been formed five years earlier, and was named for the fact that its first night shelter was at the centre of the Soho parish, but after the occupation, the coincidence of its name with the building led to it being associated with the building as a symbol of the plight of the homeless.

From July 1980 to March 2014, Centre Point was the headquarters of the Confederation of British Industry (CBI); at 33 years and seven months, they became the longest-standing tenant.[4

In October 2005, Centre Point was bought from the previous owners, Blackmoor LP, by commercial property firm Targetfollow for £85 million.[3] The building was extensively refurbished. It has since been purchased byAlmacantar, who have received planning permission to further refurbish the building to plans by Rick Mather Architects.[11] As of 2009 occupants included US talent agency William Morris; the state-owned national oil company of Saudi Arabia, Aramco; Chinese oil company Petrochina; and electronic gaming company EA Games.[4]

In 2015 work began on conversion of the building to residential flats








#Typewriter Shop

This typewriter shop in Turnpike Lane North London lasted well into the digital age staying open until 2005. Note that the car parked in front of the shop owned by the shopkeeper………………………….is a Morris Minor from the golden age of type.

The Human Rights Act 1998

In the UK, human rights have traditionally been protected by statute and by the courts, however in the contemporary UK, protection of human rights underwent a paradigm shift with the enactment of the Human Rights Act 1998 by the then labour government, who conceived this legislation as a means of incorporating the fundamental rights and freedoms of the European Convention of Human Rights into national law.

Analysis of the structure of the HRA reveals the Parliamentary intent of the Act, and which elements of the Convention have been incorporated into UK law.

The long title of the Act states that its purpose is principally to give national legal effect to rights and freedoms guaranteed under the ECHR by incorporating Article 2 to 12 and 14 of the Convention, Articles 1 to 3 of the First Protocol and Article 1 of the thirteenth Protocol.

The former Lord Chancellor, Lord Irvine of Lairg is recognised as the architect of this legislation, and in a Lecture of 2011 hosted by UCL’s Judicial Institute defended the HRA specifically Section 2 of the Act, against both press and political hostility. Central to this argument is that Section 2 effectively cedes jurisdiction for UK human rights cases to Strasbourg.

Section 2 compels any court in determining a legal issue arising from a Convention right to ‘take into account’ the jurisprudence of the European Court of Human Rights, the Commission and the Committee of Ministers. Each source of legal judgment while non-binding is considered highly persuasive.

In R v Horncastle [2009] UKSC 14 the Supreme Court in considering the effect of Section 2, decided that while typically a UK court would follow legal principles established by the ECtHR, in certain specific circumstances, the UK court could depart from an ECtHR ruling where an aspect of domestic legal procedure was considered out-with the appreciation of the ECtHR.

Section 3 of the HRA requires case law and both primary and subordinate legislation to be interpreted by UK courts as far as possible in a manner compatible with Convention rights, whether the legislation was enacted before or after implementation of the HRA.

A key example of the appropriate use of Section 3 arose when the House of Lords ruled in Ghaidan v Godin-Mendoza [2004] UKHL 30 that the legislation in question must be interpreted in the light of Article 8 of the ECHR to include same-sex relations within the statutes definition of ‘wife or husband’.

Section 4 of the HRA prescribes the protocol when courts are faced with domestic legislation which cannot be interpreted in the light of Convention rights. It enables a court to make a ‘declaration of incompatibility’ where a statutory provision of domestic legislation cannot be interpreted in light of a Convention right, while Section 10 enables the Executive to amend legislation declared incompatible under a fast-track process.

In Doherty v Birmingham City Council [2008] UKHL 57, the House of Lords reiterated that primary legislation, despite the fact that it could not be effected compatibly with the Convention was still legally valid until amended by the legislature.

In the course of protecting individual human rights, the judiciary often have to balance conflicting human rights interests as demonstrated by the House of Lords ruling in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22. More prescient, since the 9/11 attacks on New York, and the subsequent atrocities carried out by UK Nationals on passengers on London’s Public Transport system in July 2005, courts now have to balance individuals’ rights, to liberty and security under Article 5, with the requirement for the security service to obtain information likely to prevent a terrorist attack.

In A v Secretary of State for the Home Department [2004] UKHL 56, the UK Government attempted to derogate from Article 5(1) of the ECHR to enable the detention of suspected terrorist suspects. The foundation of the derogation under Article 15 was the responsibility of the Government to protect the public in time of emergency.

The establishment of a commission to consider a UK Bill of Rights found that, in general, there existed a lack of public support for the legal structures provided by the HRA and the ECHR. The commission felt that establishment of a UK Bill of Rights would create an easily identifiable legal mechanism for the protection of individuals’ rights that more effectively reflected: ‘the distinctive history and heritage of the countries within the United Kingdom’.

Two of the nine commissioners opposed the conclusion, as they feared that the ‘public ownership’ argument could be used to ‘decouple’ the UK from the ECHR.

In a process that has become politically partisan several high profile Conservative politicians have proposed fundamental changes to UK human rights law and the withdrawal of the UK from the ECHR. This viewpoint is fuelled inter alia, by an underlying resentment of the influence of EU legal supremacy in the UK national context, essentially a virulent ‘euro-scepticism’ as opposed to an intellectual opposition to the mechanisms of the ECHR and HRA.

It could be argued that the withdrawal of the UK from the ECHR represents a betrayal of the UK’s pivotal role in the design and creation of the Convention, the UK being amongst the first Member States to ratify the Treaty.

However the establishment of a UK Bill of Rights need not necessitate withdrawal from the ECHR and this distracts somewhat from a balanced comparison of potential advantages and disadvantages of a UK Bill. Foremost amongst these are the undeniable benefits an entrenched bill would secure in more clearly defining and increasing public awareness of individual rights and freedoms for UK nationals, particularly for minorities who have limited political influence.

However, this should not distract from the undeniable fact that protection of human rights is fully accepted in the UK, and the rights entrenched in unwritten constitutional conventions, common law and legislation are flexible and therefore capable of responding to change.

(981 Words)


A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68,  [2005] 3 All ER 169

Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457, [2004] 2 All ER 995

Doherty v Birmingham City Council [2008] UKHL 57, [2009] 1 AC 367, [2009] 1 All ER 653

Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, [2004] 3 All ER 411

R v Horncastle [2009] UKSC 14, [2010] 2 AC 373, [2010] 2 All ER 359

Secretary of State for the Home Department v JJ [2007] UKHL 45[2008] 1 AC 385, [2008] 1 All ER 613

Secretary of State for the Home Department v MB [2007] UKHL 46[2008] 1 AC 440, [2008] 1 All ER 657

Morroco 1988

In 1988, in the summer between second and third year architecture, I went for a walking holiday in morroco with a friend Andy and his girlfriend Jacqui.

Tangier Medina alley with blue painted doors and window shutters

Arriving in the port of Tangier after a ferry trip from Gibralter, we made our way by bus to the Atlas mountains.

..Atlas mountains with typical hill town to right of image

We walked for 12 days, sleeping under the stars and stocking up on rice, tinned sardines and water at the numerous small hill towns dotted along our walking route.

We ended our mountain walking route with a visit to Marakesh where we visited the labyrinthian souk and ate every night from Hawker food stalls in the town’s main square.

The square at night was a magnificent experience, with the stall holders vying for custom as their cooking grilles sent smoke and sparks into the evening air.

Marakesh town square at night with hawker stalls

On leaving Marakesh, we made our way to the coastal town of Essouira, the name meaning ramparts as the town has a fortress wall to the sea. The film director Orson Wells used the towns Medina and sea rampart as backdrops for his 1950’s version of Othello.

Essouira sea rampart and bridge with fishing boats in foreground

This was a fantastic holiday, although Andy was a hard taskmaster on the mountain walking portion of the trip.

In refelection, I wish we had spent longer in Marakesh, this city made a huge impression on me and would have been worth exploring more and perhaps taking many detailed photos of the Medina and the souk.