Understanding_statutes

UNDERSTANDING STATUTES
by
V.C.R.A.C. CRABBE

First published in Great Britain 1994 by Cavendish Publishing Limited,
The Glass House, Wharton Street, London WC1X 9PX.
Telephone: 071-278 8000 Facsimile: 071-278 8080
© Crabbe, V 1994
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted in any form or by any means, electronic, mechanical,
photocopying, recording or otherwise, without the prior permission of the publisher
and copyright owner.
The right of the author of this work has been asserted in accordance with the
Copyright, Designs and Patents Act 1988.
Any person who infringes the above in relation to this publication may be liable to
criminal prosecution and civil claims for damages.
British Library Cataloguing in Publication Data
Crabbe, Vincent
Understanding Statutes
I Title
344.20822
ISBN 1 85941 138 X
Printed and bound in Great Britain

DEDICATION
To all those who try to understand an Act of Parliament...

Preface
Lord Denning complained that, of the many books that have been written on
the subject of the interpretation of statutes, ‘all [are] for the old hand. Not one
[is] for the beginner.’1 It is the intention of this little book to make good that
challenge, to attempt to explain to the beginner how to understand statutes.
The interpretation of an Act of Parliament demands an understanding of the
Act, which should be based upon a number of factors.
Perhaps the starting point would be a command of the language in which
the Act is drafted. Yet a mere command of the language would not be enough.
Acts of Parliament are not enacted for the fun of it – they are intended to solve
the problems of governments and of societies. That background knowledge –
of the problems and the solutions for the problems – is an essential pre-requisite
to an understanding of an Act of Parliament. The ‘four things … to
be discerned and considered’ as stated by the Barons of the Exchequer in
Heydon’s Case2 are still germane to an understanding of an Act of Parliament.
The processes through which a Bill passes on its way to the Statute Book
are also important. A Bill is drafted with the debates in Parliament in mind.
Parliamentary procedure thus influences the language of the Bill and
ultimately the language of the Act, which may require interpretation.
It should also be borne in mind that the language used in an Act of
Parliament is intended to express in law a policy or a set of ideas or values
thought necessary for the achievement of certain goals. Yet the idea that the
‘reasonable man of the law’ will easily understand an Act of Parliament is an
illusion – not because the Act is badly drafted, nor that the language used is
frightfully complicated, but because a knowledge of the subject-matter of the
Act may be woefully lacking.
In all walks of life to understand anything demands more than a mere
knowledge of what a thing is or is supposed to be. Cricket is a game. Football
is a game. The rules applicable to cricket are not the same as those which
apply in football. To understand the game of cricket or of football an
understanding of the nature of the two games, as well as how the game is
played, is essential. So it is with an Act of Parliament.
In addition, it is as well to note that an Act of Parliament is a form of
communication, a communication which tells its audience what to do or what
not to do. Herein lies the importance of the language in which the command
or the prohibition is stated.
The basic rules of the language must be understood. So must the nuances
of that language. And since the basic unit of any language is a word, words
and their meanings constitute an important factor in the use of language. That
.__________________________________________________________________________________________________________________________________________
1 The Discipline of Law, p.9.
2 (1854) 3 Co. Rep. 7a; 76 ER 637.

ii Preface
is why an Act of Parliament is construed so as to give a meaning to the words
used in the Act. For, as stated by the Judicial Committee of the Privy Council
in Ditcher v Denison,3
It is a good general rule in jurisprudence that one who reads a legal
document whether public or private, should not be prompt to ascribe –
should not, without necessity or some sound reason, impute – to its
language tautology or superfluity, and should be rather at the outset
inclined to suppose every word intended to have some effect or be of some
use.
Case law has played – and will continue to play – a very important part in
the interpretation or construction of an Act of Parliament. Though
Interpretation Acts have helped in the process, case law is still the dominant
sphere wherein lie all the rules the courts have evolved for the interpretation or
construction of an Act of Parliament. An Interpretation Act is indeed in most
cases, a codification of the rules of interpretation or of construction, but it
only applies where there is no contrary intention. That contrary intention will
be discerned, when necessary, by the courts. When that is done, an
Interpretation Act ceases in its function to aid in the process – the decisions of
the courts will hold sway.
For this reason the words of the Judges have been relied upon, in some
cases extensively, to tell their own story. No better knowledge can be gained
than by reading what Judges have said -and continue to say – sometimes out
of court. This is primarily a student’s book and reading the judgments is in
itself part of the educative process that equips the student with the requisite
knowledge and is the one sure way to learn the law. Students should not find –
nor should they consider – reading judgments tiresome. To understand an Act
of Parliament one needs to understand what the Judges say about the language
of legislation. Those who draft legislation bear in mind what the courts have
said or are likely to say. The courts and the Judges are the audience of last
resort.
In a way this book is an attempt to answer at least some of the questions
which students in legislative drafting ask. It is thus linked to legislative
drafting, and certain areas which may be considered more appropriate to a
book on legislative drafting are, nonetheless, reproduced here in an attempt to
give the student a complete picture. This should obviate the necessity of
having to go to another source for a required information. One avoids, if one
can help it, anything in the nature of referential legislation.
My thanks go to my former students, who still communicate with me and
make valuable suggestions. Each set of students brings its own set of new
knowledge, new problems, new answers. Without reservation or equivocation
I acknowledge the debt I owe all of them. I must thank Miss Novellette Kidd
.__________________________________________________________________________________________________________________________________________
3 (1857) 11 Moore PC 325 at p.337.

who read some of the proofs and made valuable suggestions. Mr Sampson
Owusu of the Faculty of Law, as usual, has been very helpful with the
computer. So also must I acknowledge with gratitude the criticism of my
colleagues. It is a help not a hindrance.
I am very grateful to the Oxford University Press for allowing me access to
articles published in the Statute Law Review; to the Incorporated Council of
Law Reporting for England and Wales for permission to quote from the
judgments published in the Law Reports, King’s Bench, Queen’s Bench,
Appeal Cases, Chancery and Family Divisions, the Weekly Law Reports and
the Industrial Cases Reports; to Butterworths & Co. Publishers, for
permission to quote from the judgments published in the All England Law
Reports and to Juta and Company for permission to quote from the South
African Law Reports. Their readiness to grant permission has been a source of
inspiration.
I remember with sincere gratitude all my mentors – past and present.
I thank sincerely the many authors from whose works I have gained
knowledge, some of whom are mentioned in the Bibliography.
I am also grateful to Ms Jo Reddy and Mr Sonny Leong of Cavendish
Publishing Ltd. for their assistance in many ways. My special thanks go to Kim
Harris who compiled the Index.
Yet again my secretary, Mrs Iris Hinds, has been an angel. She has brought
to the work her usual patience, skill and dedication which made my task
easier.
To members of my family and to all friends, seen and unseen, I give
special thanks.
And to those whom I have overlooked, or could not get in touch with, my
very sincere apologies and my very warm thanks.
V.C.R.A.C. Crabbe
Faculty of Law
Cave Hill
June 1994
Preface iii

CONTENTS
Page
Preface..................................................................................................................i
Table of Cases....................................................................................................vii
Table of Statutes .................................................................................................xv
CHAPTER 1............................................................................................................1
INTRODUCTION.........................................................................................1
What is a statute?.........................................................................................1
The Genesis – the formulation of policy ....................................................2
The Process – the drafting of legislation ....................................................5
The language – legal language....................................................................6
The progress – the stages in Parliament ...................................................14
Words – meaning, ambiguity, vagueness, etc...........................................25
The purpose – communication..................................................................44
CHAPTER 2..........................................................................................................19
THE FUNCTION OF THE COURTS .....................................................19
Interpretation and construction less legislation ........................................49
The validity of an Act of Parliament.........................................................52
Obsolete Acts of Parliament .....................................................................58
The whole Act ...........................................................................................59
The problems of the binding authority of precedent ................................62
CHAPTER 3..........................................................................................................67
INTERPRETATION BY PARLIAMENT ...............................................67
The interpretation section..........................................................................67
The Interpretation Act...............................................................................68
The dictionary ...........................................................................................73
Subsequent Acts of Parliament .................................................................74
Parliament as a court .................................................................................78
CHAPTER 4..........................................................................................................81
THE GENERAL RULES OF INTERPRETATION....................81
General ......................................................................................................81

vi Contents
The mischief rule.......................................................................................82
The literal rule ...........................................................................................85
The golden rule .........................................................................................86
The intention of Parliament ......................................................................89
The modern approach ...............................................................................96
Extrinsic aids to interpretation ..................................................................97
CHAPTER 5........................................................................................................119
PRESUMPTIONS...........................................................................119
Consistency .............................................................................................119
Consolidation Acts..................................................................................120
Reasonableness of an Act – avoidance of injustice ...............................121
Alteration of the existing law. .................................................................129
Retroactive and retrospective operation of statutes ................................166
Conformity with the rules of international law ......................................172
Action or conduct lawful ........................................................................174
Application to Crown or Republic..........................................................175
Words to have the same meaning............................................................176
Territorial operation ................................................................................176
Surplusage ...............................................................................................177
APPENDICES ......................................................................................................189
APPENDIX A..................................................................................189
Classification of Statutes.........................................................................189
APPENDIX B ..................................................................................195
A Bill for an Interpretation Act...............................................................195
APPENDIX C..................................................................................223
Bibliography............................................................................................223
INDEX ...............................................................................................................227

Table of Cases
Alder v. Deegan 167 N E 705 ...................................................................................40
Allen v. Whitehead [1930] 1 KB 211 .....................................................................127
Allgood v. Blake (1873) LR 8 Ex 160 ......................................................................87
Anisminic Ltd. v. Foreign Compensation
Commission [1969] 2 AC 147................................................37, 145, 151-154, 165
Armstrong v. Clark [1957] 2 QB 391 .........................................................................8
Ash v. Abdy (1678) 3 Swan 644.............................................................................100
Assam Railways & Trading Co. Ltd. v. Inland Revenue
Commissioners [1935] AC 445 .....................................................................51, 105
Assessor for Aberdeen v. Collie 1932 SC 304..........................................................78
Attorney-General for Canada v. Hallett & Carey Ltd. [1952] AC 427...................122
Attorney-General for Northern Ireland v. Gallagher [1963] AC 349 .......................86
Attorney-General v. Bradlaugh (1885) 14 QBD 667..............................................124
Attorney-General v. Carlton Bank [1989] 1 KB 64................................................123
Attorney-General v. Duke of Richmond and Gordon [1909] AC 466......................12
Attorney-General v. Ernest Augustus (Prince) of
Hanover [1957] AC 436 .......................................................................73, 182, 187
Attorney-General v. Maksimovich (1985) 4 NWLR 300 .......................................105
Attorney-General v. Ryan [1980] AC 178......................................................152, 165
Attorney-General v. Antigua Times [1976] AC 16 ..................................................35
Attorney-General v. GE Ry (1879) 11 Ch D 522 .....................................................20
Attorney-General v. Lamplough (1878) 3 Ex D 214 ................................................24
Auchterarder Presbytery v. Lord Kinnoull (1839) 6 Cl & F 646............................177
Baker v. Jones [1954] 1 WLR 1005........................................................................147
Barber v. Pigden [1937] 1 KB 664..........................................................................138
Barraclough v. Brown [1897] AC 615.............................................................160-161
Bayliss v. Roberts (1989) Simmon’s Tax Cases 693................................................35
Beswick v. Beswick [1968] AC 88 ...................................................................89, 120
Black-Clawson International Ltd. v. Papierwerke
Waldhof-Aschaffenberg AG [1975] 1 All ER 810.........................84, 98, 105, 108
Blackburn v. Flavelle (1886) 6 App. Cas. 628........................................................183
Blake v. Attersoll (1824) 2 B & C 875 ..................................................................185
Bloxham v. Favre (1883) 8 P D 101 ...............................................................172, 177
Bourne v. Keane [1919] AC 815...............................................................................62
Bourne v. Norwich Crematorium Ltd [1976] 2 All ER 576 .............................40, 182
Brown v. Board of Education (1954) 347 US
483, 74 S Ct 689, 98 L Ed. 873 ...............................................................................9
Burchell v. Thompson [1920] 2 KB 80.....................................................................25
Bywater v. Brandling (1828) 7 B & C 643 ..............................................................60
C & J Clark v. Inland Revenue Commissioners [1973] 2 All ER 513....................134
Caledonian Railway v. North British Railway (1881) 6 App. Cas. 114 ...................86
Callady v. Pilkinton (1707) 12 Mod. 573. ................................................................91
Campbell’s Trustees v. Police Commissioners of Leith
(1870) LR 2 HL (Sc) 11........................................................................................43
Canada Southern Railway v. International Bridge
Co. (1883) 8 App. Cas. 723 ................................................................................185
Carter v. Bradbeer [1975] 1 WLR 1204....................................................................27
Case of Proclamations (1611) 13. 12 Co. Rep. 74 ....................................................92

viii Table of Cases
Casement v. Fulton (1845) 5 Moore PC 130 ............................................................76
Chandler v. DPP [1964] AC 763...............................................................................21
Chapman v. Chapman [1954] AC 429......................................................................80
Chemicals Reference [1943] SCR 1 .......................................................................159
Chisholm v. Doulton [1899] 1 QB 20.....................................................................127
Chitambazam v. King Emperor [1947] AC 200 .....................................................158
Christie, Manson & Woods v. Cooper [1900] 2 QB 522........................................127
City of London v. Wood (1701) 12 Mod. 669 ..................................................53, 130
Coleshill and District Investment Co. Ltd. v. Minister
of Housing and Local Government [1968] 1 All ER 62 ....................................186
Colonial Bank of Australia & Other v. William (1874) LR 5 PC 417....................150
Commber v. Berks JJ (1882) 9 QBD 17 ...................................................................19
Commissioner for the Special Purposes of Income
Tax v. Pemsel [1891] AC 531 ...............................................................................72
Cooke v. New River Co. (1888) 38 Ch D 56 ...........................................................65
Cooney v. Covell (1901) 21 NZLR 106..................................................................186
Corkery v. Carpenter [1951] 1 KB 102...............................................................8, 183
Corporation of Glasgow v. Glasgow Tramway and
Omnibus Co. Ltd. [1898] AC 631 . .....................................................................186
Czarnikov v. Roth, Schmidt & Co [1922] 2 KB 478 ..............................................147
Davis v. Johnson [1979] AC 264...............................................................97, 102-103
Day v. Savadge (1614) Hob. 85 at 87 .......................................................................53
Dean v. Green (1882) 8 PD 79..................................................................................25
Dickson v. R (1864-65) 11 HL Cas 175 .................................................................181
Director of Public Prosecutions v. Schildkamp [1971] AC 1 ..................91, 120, 187
Dixon v. Caledonian Ry Co. (1882) 5 App. Cas. 820 ............................................181
Donoghue v. Stevenson [1932] AC 562 ...................................................................45
DPP v. Nasralla [1967] 2 AC 238...........................................................................138
Duke v. GER Reliance Ltd. [1988] 1 All ER 626.....................................................94
Duport Steel Ltd. & Ors v. Sir & Others [1980] 1 All ER 529...........................53, 88
Dyson Holdings Ltd. v. Fox [1976] 3 All ER 1030 ..................................................39
Ealing LBC v. Race Relations Board [1972] AC 342 ..............................................96
Earl of Mexborough v. Whitwood U D Co. [1897] 2 QB 111................................125
Eastman Photographic Materials Co. Ltd. v. Comptroller
of General Patents [1898] AC 571.......................................................................105
Edinburgh & Dalkeith Railway Co. v. Wauchope
(1842) 8 Cl & F 710......................................................................................53, 130
Edinburgh and Glasgow Ry v. Linlithgow Magistrates
(1859) 3 Macq, H.L., (SC) 691 ............................................................................19
Edwards v. Porter [1925] AC..................................................................................186
Ellerman Lines v. Murray [1931] AC 126 ................................................................86
Equitable Life Assurance Society of USA v. Reed [1914] AC 587 ......................122
Escoigne Properties Ltd. v. IRC [1958] AC 549 (HL) .............................................94
Esso Petroleum Co. Ltd. v. Ministry of Defence [1990] All ER 1 ...........................21
Evelyn Viscountess De Vesci v. O’Connell [1908] AC 298 ...................................13
Everard v. Poppleton (1884) 5 QB 181 ..................................................................183
Ex p. Copeland (1852) 22 LJ Bank 17.................................................................74-75
Ex p. Cox (1887) 20 QBD 1 .....................................................................................65

Table of Cases ix
Ex p. Davis (1857) 5 WR 522 ..................................................................................29
Ex p. St. Sepulchre’s (1864) 33 L J Ch.372 .............................................................60
Eyston v. Studd (1574) 2 Plowden 459 ....................................................................83
Fairmount Investments Ltd. v. Secretary of State for
the Environment [1976] 1 WLR 1255 ................................................................165
Farrell v. Attorney-General of Antigua (1979) 27 WIR 377 ..................................163
Fielden v. Morley Corporation [1899] 1 Ch 1 ..........................................................19
Floor v. Davis [1979] 2 All ER 677..........................................................................25
Fordyce v. Bridges 1 HL Cas. 1..............................................................................187
Fothergill v. Monarch Airlines [1891] AC 251 ..........................................84, 98, 106
Fraser v. City of Fraserville [1917] 34 DLR 211....................................................148
Fry v. Inland Revenue commissioners [1959] 1 Ch 86 ............................................88
Funning v. Board of Governors of the United Liverpool
Hospitals [1933] All ER 454 .............................................................................105
Gartside v. Inland Revenue Commissioners [1968] AC 553 ..............................87-88
Giffels & Vallet v. The King [1952] 1 DLR 620............................................119, 176
Gilchrist v. Interborough Rapid Transit Co.
279 US 159, 49 S Ct 282, 73 L Ed. .......................................................................40
Girdlestone v. Brighton Aquarium Co. (1878) 3 Ex D 137 ....................................125
Great Western Railway Co. v. Swindon and
Cheltenham Extension Railway Co (1884) 9 App. Cas. 787 ..............................186
Green v. R (1876) 1 App. Cas. 573.........................................................................180
Greenwood v. Whelan [1967] 1 All ER 296.............................................................39
Grey v. Pearson (1857) 6 H.LC 61; 10 ER .........................................................82, 86
Griffith v. Barbados Cricket Association (1989) 41 WIR 48 .................................149
Hadmor Productions v. Hamilton [1982] 2 WLR 322............................................102
Hammersmith Ry v. Brand (1869) 4 HL 171 .........................................................139
Handley v. Handley [1891] P 124...........................................................................138
Hanlon v. The Law Society [1980] 2 All ER 199.....................................................25
Harcourt v. Fox (1693) 1 Show 506........................................................................177
Harrikissoon v. Attorney-General of Trinidad
and Tobago [1981] AC 265 .................................................................................161
Hartnell v. Minister of Housing and Local
Government [1965] AC 1134 7 .............................................................................88
Healey v. Minister of Health [1954] 2 QB 221.......................................................160
Helby v. Rafferty [1978] 3 All ER 1016...................................................................39
Helvering v. Gregory 69 F 2d 809 ............................................................................29
Heydon’s Case (1584) 3 Co. Rep. 7a; 76 ER 637 ...................5, 49, 51, 81-83, 93, 97
Hill v. Grange (1557), 1 Plowden 164 .....................................................................83
Hill v. William Hill (Park Lane) Ltd [1949] AC 530 .............................................177
Hobbs v. Winchester Corporation [1910] 2 KB 471...............................................127
Holmes v. Bradfield Rural District Council [1949] 2 KB 1 ...................................121
Houston v. Burns [1918] AC 337 .............................................................................25
Howard v. Bodington (1877) 2 PD 203 ..................................................................184
Ibralebe v. R [1964] AC 900.............................................................................57, 129
Income Tax Commissioners for City of London v.
Gibbs [1942] AC 402...........................................................................................120
Inland Revenue Commissioners & or v. Rossminster Ltd.
& Others [1980] AC 952 ......................................................................................53

x Table of Cases
Inland Revenue Commissioners v. Hinchy [1960] AC 748......................25, 182, 185
Inland Revenue Commissioners v. Saunders [1958] AC 285.................................124
Institute of Patent Agents v. Lockwood [1804] AC 347 .................................156-157
James v. Commonwealth of Australia [1936]
AC 578.............................................................................................73, 85, 137, 182
Johnson v. Chief Constable of the Royal
Ulster Constabulary [1987] QB 129 ....................................................................155
Joiner v. State Supreme Court of Georgia,
1969 223 Ga. 367, 155 SE 208 ..............................................................................57
Jones v. Department of Employment [1988] WLR 493; [1989] 1 QB 1 ................148
Jones v. Robson [1901] 1 QB 673 ..........................................................................158
Jones v. Soloman (1981) 32 WIR (PC) 375............................................................163
Jones v. Wrotham Park Settled Estates [1979] 2 WLR 132 .....................................80
Kantor v. MacIntyre [1958] (1) SA 45......................................................................77
Kensington Income Tax Commissioners v. Aramayo [1916] 1 AC 215 ................120
Kesavananda v. State of Kerala ALR (1973) SC 1461...........................................162
Labrador v. R [1893] AC 104 ...................................................................................19
Le Neve v. Le Neve (1747) Amb 436.................................................................45, 79
Leach v. R [1912] AC 305 ......................................................................................138
Letang v. Cooper [1964] 1 QB 53.............................................................................94
Lincoln College Case (1595) 3 Co. Rep. 586 ...........................................................60
Liverpool Borough Bank v. Turner (1861) 30 LJ Ch 379 ......................................184
Liversidge v. Anderson [1942] AC 206 ..............................................63-64, 157-158
Liyanage v. R [1967] 1 AC 259 P C .................................................................57, 129
London and India Docks Co. v. Thames Steam Tug and
Lighterage Co. Ltd. [1909] AC .............................................................................61
London County Council v. Ayelsbury Dairy Co [1898] 1 QB 106 ........................125
London School Board v. Jackson (1881) 7 QBD 502 ..............................................23
Lord Howard de Walden v. Inland Revenue
Commissioners [1948] 2 All ER 825...................................................................185
Lowden v. Northwestern National Bank & Trust
Co. [1936] 298 US 160 at 165 ...............................................................................43
Lower v. Sorrell [1963] 1 QB Omerod LJ ...............................................................94
Lyons v. Tucker (1881) 6 QBD 660 .........................................................................12
MacCharles v. Jones.(1939) 1 WLR 133 ................................................................156
Maclean v. Trembath [1956] 1 WLR 437...................................................................8
Macmillan v. Dent [1907] 1 Ch 107 .......................................................................140
Magor and St. Mellon’s Rural District Council v. Newport
Corporation [1952] AC 189......................................................................50, 61, 94
Magor and St. Mellons Rural District Council v. Newport
Corporation [1950] 2 All ER 1226 ..................................................................50, 94
Marbury v. Madison 1 Cranch 137, 2 Ed. 60 ....................................56, 129-130, 142
Mearing v. Hellings (1845) 14 M. & W. 711 ...........................................................65
Merttens v. Hill [1901] 1 Ch 842 ..............................................................................18
Middlesex Justices v. R (1884) 9 App. Cas. 757 ......................................................20
Millar v. Taylor (1769) 4 Burr. 2303, 2332 ..............................................................89
Miller v. Salomans (1852) 7 Exch. 475 ..................................................................180
Minerva Mills Ltd. v. Union of India AIR (1980) SC 1789 ...................................162

Table of Cases xi
Minet v. Leman (1855) 20 Beav 269 ......................................................................139
Minister of Health v. ex p. Yaffe [1931] AC 494 ...................................................156
Minister of Home Affairs & another v. Collins MacDonald
Fisher & Another [1980] AC 319...............................................................134, 136
Minister of Home Affairs & others v. Dabengwa 1982 (4) SA 301 .......................136
Minister of Home Affairs v. Bickle & others 1984 (2) SA 439 (ZSC)...................137
Mitchell v. Simpson (1890) 25 QBD 183 .........................................................75, 120
Nairn v. University of St. Andrews [1909] AC 147 ...............................................176
Nakkuda Ali v. Jayaratne [1951] AC 66...................................................................64
Nasralla Case [1967] 2 AC 238 ..............................................................................138
National Association of Local Government Officers v. Bolton
Corporation [1943] AC 166................................................................................186
National Society v. Scottish National Society [1915] AC 207 .................................27
New Windsor Corporation v. Taylor [1899] AC 41 .......................................139, 181
Nokes v. Doncaster Amalgamated Collieries [1940] AC 1014 ......................119, 139
Northern Securities Co. v. United States, 193 US 197 (1904).................................63
Oriental Bank v. Wright (1880) 5 App. Cas. 842 ...................................................123
Partridge v. Strange (1552/3) 1 Plowd. 83................................................................26
Pearlman v. Keepers and Governors of Harrow School [1979] QB 56 ..................148
Pemsel Case [1891] AC 531 .....................................................................................72
Pepper v. Hart [1993] 1 All ER 42 ....................................................14, 89-90, 96-97,
116, 121
Phillips v. Eyre (1870) LR 6 QB.............................................................166, 168, 180
Pickstone v. Freemans plc [1988] 2 All ER 803.......................................................94
Plessy v. Ferguson 163 US 537, 16 S Ct 1138, 42 L Ed 873......................................9
Point of Ayr Collieries v. Lloyd George [1943] 2 All ER 546 ...............................159
Prager v. Blatspiel, Stamp & Heacock Ltd. [1924] 1 KB 566 ....................................2
Pyx Granite Co. Ltd. v. Minister of Housing [1970] AC 260.................................160
Quazi v. Quazi [1980] AC 744 ...............................................................................106
R. v. Lewes JJ., Home Secretary [1973] AC 388 (HL) ............................................92
R v. Barrington 1969 (4) SA 179 (RAD)................................................................183
R v. Bertrand (1867) LR 1 PC ................................................................................122
R v. Brown [1890] 24 QBD 357 .............................................................................127
R v. Buttle (1870) LR 1 CCR 248 ....................................................................76, 185
R v. Coldham ex p. Australian Union (1983) 49 ALR 259 ....................................149
R v. Comptroller General of Patents ex p. Bayer
Products Ltd [1941] 2 KB 306.............................................................................158
R v. Cornwall County Council, ex p. Huntington
[1922] 3 All ER 566 ....................................................................................154-155
R v. Eldershaw 3 C & P 396 ...................................................................................127
R v. Electricity Commissioners ex p. London Electricity
Joint Committee Co. (1920) Ltd. [1924] 1 KB 171............................................144
R v. Greater London Council ex p. Blackburn [1967] 1 WLR 550 ........................145
R v. Halliday [1917] AC 260 ............................................................................64, 122
R v. Hare [1934]1 K. B. 354 .....................................................................................21
R v. Inland Revenue Commissioners ex p. Rossminter [1980] AC 952.................158
R v. Kopsch (1925) 19 Cr App R 50.......................................................................127
R v. Local Commission for Administration [1979] QB 287...................................103

xii Table of Cases
R v. Loxdale (1758) 1 Burr. 445 .......................................................................75, 184
R v. Males (1962) 2 QB 500 .....................................................................................94
R v. Marsland 7 Cr App 77 .....................................................................................127
R v. Meade [1909] 1 KB 895 ..................................................................................127
R v. Medical Appeal Tribunal ex p. Gilmore [1957] 1 QB 574 .....................148, 150
R v. Miall [1992] 3 All ER 153...............................................................................152
R v. Morely (1760) 2 Burr. 1040 .....................................................................146-147
R v. Morris [1867] LR 1 CCR 90 ...........................................................................138
R v. Owen 4 C & P 236...........................................................................................127
R v. Pearce (1880) 5 QBD 306 ................................................................................23
R v. Plowright (1686) 3 Mod. 94.....................................................................145-146
R v. Price (1871) L.R. 6 QB 411 ...... ...............................................................76, 185
R v. Prince (1875) LR CCR 154 .............................................................................126
R v. Registrar of Companies, ex p. Central Bank
of India [1986] 1 QB 1114...................................................................................155
R v. Secretary of State for the Environment, ex p.
Ostler [1977] QB 122 ...................................................................................154-155
R v. Smith (1670) 1 Mod. 44 ..................................................................................145
R v. Tatam (1921) 15 Cr App R 122.......................................................................127
R v. Tolson (1889) 23 QBD 164.....................................................................126, 128
R v. Vasey & Lally [1905] 2 KB 748 ...............................................................72, 121
R v. Vine (1875) LR 10 QB 195..............................................................167, 169-171
R v. Waite [1892] 2 QB 600 ...................................................................................127
R v. Warwickshire County Council, ex p. Johnson [1993] 2 WLR........................116
R v. Williams [1893] 1 QB 320 ..............................................................................127
R v. Wimbledon Justices ex p. Derwent [1953] 1 QB 380 .......................................61
R v. Wood (1855) 5 E & B 49; 119 ER 400 ...........................................................149
R v. Haughton (Inhabitants) (1853) 6 Cox c.c. 101; 1 E & B, 501...........................18
R v. Liverpool Justices, ex p Crown Prosecution
Service (1990) 90 Cr. App. R. 261 ........................................................................31
R v. Southwark Crown Court, ex p. Commissioners of
Customs and Excise (1989) 3 WLR 1054 .............................................................32
R v. Tower Hamlets London Borough Council ex p.
Chetnik Developments (1988) 2 WLR 654 ...........................................................34
Rahimtoola v. Nizam of Hyderabad [1958] AC 359 ................................................79
Re A Solicitor’s Clerk [1957] 1 WLR 1219 ....................................................168-169
Re Baines (1840) 12 A & E 227 ...............................................................................24
Re Bidie [1948] 2 All ER 995.............................................................................73, 85
Re Castioni [1891] 1 QB 149....................................................................................12
Re Clarke 17 WIR 49 (1971) Barbados ..................................................................132
Re Ludmore (1884) 13 QBD 415............................................................................139
Re Pulborough Parish School Board Election [1894] 1 QB 725 ....................170, 172
Re Sarran (1891) 32 WIR (PC) 375........................................................................163
Re Williams (1887) 36 Ch D 573 ...........................................................................139
Re Woking Urban District Council (Bassingstoke Canal)
Act, 1911 [1914] 1 Ch 300 ....................................................................................20
Rein v. Lane (1867) LR 2 QB 144 ...........................................................................60
Richards v. McBride (1881) 8 QBD 119 ..................................................................88
River Wear Commissioners v. Anderson (1877) 2 AC 743......................................87

Table of Cases xiii
Robinson v. Barton Eccles Local Board (1833) 8 App. Cas. 798.............................22
Ross-Clunis v. Papadopoullos & Others [1958] 2 All ER 23 .................................159
Rowe v. Law [1978] IR 55......................................................................................100
Rylands v. Fletcher (1868) LR 3 HL 330 .................................................................45
S v. Marwane 1981 (3) SA 588...............................................................................133
Sachs v. Minister of Justice 1934 SA (AD) 11 .......................................................165
Sagnata Investments Ltd. v. Norwich Corporation [1971] 2 All ER 1441 .............100
Salmon v. Duncombe (1886) 11 AC 627..........................................................72, 121
Salomon v. Customs and Excise Commissioners [1967] 2 QB 116 .......................173
Saunders v. White [1902] 1 KB 472 .........................................................................25
Scruttons v. Midland Silicones Ltd [1962] AC 466..................................................55
SE Railway v. Railway Commissioners (1880) 2 QBD 217 ....................................89
Seaford Court Estates Ltd. v. Asher [1949] 2 KB 481 ........................................49-51
Secretary of State for Employment v. Associated Society of Locomotive
Engineers and Firemen and Others (No. 2) [1970] 2 QB 55 ..............................159
Secretary of State for Trade and Industry v.
Langridge (1991) 2 WLR 1343 .............................................................................31
Seluka v. Suskin & Salkow 1912 TPD 258 ..............................................................49
Sharpe v. Goodhew [1990] 96 ALR 251 ................................................................155
Sillery v. R (1981) 35 ALR 227..............................................................................100
Smith’s Case (In re London Marine Insurance
Association) (1869) LR 4 Ch. App. 611 ...............................................................60
Smith v. East Elloe Rural District Council [1956] AC 736.............................153-155
Smith v. Hughes [1960] 1 WLR 830 ........................................................................94
Smt. Indira Gandhi v. Raj Narain AIR (1975) SC 2299..................................162-163
Soil Fertility Ltd. v. Breed [1968] 3 All ER 193 ......................................................41
South East Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral
Products Manufacturing Employees Union & Others [1981] AC 363...............148
Spillers Ltd. v. Cardiff Assessment Committee [1931] 2 KB 21............................176
State e rel Gouge v. Burrow, City Recorder Supreme Court of
Tennessee, 1907 119 Ten. 376, 104 SW 526 ........................................................57
Stevens v. Chown [1921] 1 Ch 894 ........................................................................180
Stowell v. Lord Zouch (1569) 1 Plowden 353; 75 ER 536.......................................84
Stradling v. Morgan (1560), 1 Plowden 201 ............................................................83
Sussex Peerage Case (1844) 11 Cl & F. 85; 8 ER 1034..........................81, 85-86, 89
Taylor v. National Assistance Board [1957] AC 101 .............................................146
Thomas v. Kelly (1880) 13 App. Cas. 506 ...............................................................25
Thornloe & Clarkson Ltd. v. Board of Trade [1950] 2 All ER 245........................158
Tillmans & Co. v. S.S. Knutsford [1908] 2 KB 385; [1908] AC 207.....................186
Tolson Case (1889) 23 QBD 164............................................................................126
Tomalin v. J Pearson & Son Ltd [1909] 2 KB 61...................................................176
Tomas v. A-G (1989) 41 WIR 299 .........................................................................163
Towne v. Eisner [1918] 245 US 418 at 425..............................................................39
Trendtex Trading Corporation v. Central Bank of
Nigeria [1972] QB 529 (CA)...............................................................................173
Tuck & Sons v. Priester (1877) 19 QBD 629 .........................................................124
Tuck v. National Freight Corporation [1979] 1 WLR 37 .......................................102
United States v. Bass 404 US 336 (1971) 339 ..........................................................99

xiv Table of Cases
United States v. Klinger 199 F. 2d 645.....................................................................50
United States v. Raynor 302 US 540, 58 C 353, 82L Ed. 413................................101
Vacher and Sons Ltd. v. London Society of Compositors [1913] AC 107...............20
Venour v. Sellon (1876) 2 Ch D 522 20
Wacal Developments Pty Ltd. v. Realty Development Pty
Ltd. (1978) 14 CLR 503 .....................................................................................104
Warburton v. Loveland (1832) 2 Dow & C1 480 ...............................................60, 89
Warley Caravans v. Wakelin [1968] 66 LGR, 534...................................................38
West Ham Union v. Edmonton Union [1908] AC 1.................................................63
West v. Gwynne [1911] 2 Ch 1 .......................................................................167-168
Westminster Bank Ltd. v. Zang [1965] AC 182 .......................................................88
Whiteman v. Sadler [1910] AC 514........................................................................183
Wing v. Epsom Urban District Council [1904] 1 KB 798........................................25
Woodward v. Sarsons (1875) LR 10 CP 733 .........................................................184
Wray v. Ellis (1859) 1 E & E 276.............................................................................75
Yorkshire Dale Steamship Company v. Minister of
Transport [1942] 1 KB 35......................................................................................12
Zimbabwe Township Developers (Pvt) Ltd. v. Lou’s
Shoes (Pvt) Ltd. 1984 (2) SA 778 (ZSC) ............................................................136

TABLE OF STATUTES
Act of Settlement 1700....................................................................................141
Administration of Estates Act 1925..................................................................46
Administration of Justice (Miscellaneous Provisions) Act 1938...................144
Australia Act 1916 ..........................................................................................155
Aviation Security Act 1982...............................................................................44
Bankruptcy Act 1883 ..............................................................................170, 172
Carriage by Air Act 1961................................................................................106
Charitable Uses Act 1601 ...........................................................................71, 72
Charities Act 1960.......................................................................................71, 72
Company Directors Disqualification Act 1986 ................................................31
Constitution Act 1961 .......................................................................................77
Constitution Act of Bophuthatswana 1977.....................................................133
Constitution Acts of Canada 1867-1982...........................................................18
Constitution Act of Nigeria 1979......................................................................17
Constitution (Thirty-Ninth Amendment) Act 1975 .......................................162
Consumer Protection Act 1987.......................................................................117
Copyright Act 1842.........................................................................................140
Copyright Act 1868.........................................................................................124
Corporation Taxes Act 1970 .............................................................................35
Corrupt Practices and Elections Act 1852 ........................................................76
Corrupt Practices and Elections Act 1863 ........................................................76
Criminal Justice Act 1988...............................................................................152
Criminal Law (Special Provisions) Act 1962...................................................57
Crown Proceedings Act 1947 .........................................................................175
Defence (General) Regulations 1939................................................................63
Drug Trafficking Offences Act 1986 ................................................................33
Ecclesiastical Lease Act 1571.........................................................................145
European Communities Act 1972...................................................................157
Factories Act 1961 ..........................................................................................157
Family Law Act of Barbados 1987.....................................................................3
Finance Act 1894 ..............................................................................................12

xvi Table of Statutes
Finance Act 1926 ..............................................................................................35
Finance Act 1976 ....................................................................108, 109, 110, 111
Foreign Compensation Act 1950 ............................................................145, 151
General Rules Act 1967 ....................................................................................34
Housing Act 1974..............................................................................................80
Independence Act of Barbados 1966...............................................................???
Industrial Court Act 1976 .......................................................................163, 164
Industrial Relations Act 1976 .........................................................................149
Interception of Communications Act 1985 ....................................................164
Internal Security Act 1982 ................................................................................71
Internal Security and Intimidation Amendment Act 1991 .................................1
Interpretation Act 1850 ...................................................................24, 67, 68, 69
Interpretation Act 1889 .......................................................................24, 69, 129
Interpretation Act 1978 .............................................................................69, 129
Interpretation Act of Canada 1967-1968 ..................................................19, 185
Interpretation Act of Ghana 1960.....................................................94, 101, 102
Land Charges Act 1925.....................................................................................46
Land Registration Act 1925 ..............................................................................46
Land Transfer Act 1897 ....................................................................................15
Law of Property Act 1892...............................................................................167
Law of Property Act 1925...........................................................................46, 79
Law of Property (Miscellaneous Provisions) Act 1989 .....................................9
Leasehold Reform Act 1967............................................................................80-
Licensing Act 1964 ...........................................................................................27
Local Government Revenue Act 1988..............................................................95
Magistrates’ Courts Act 1980 ...........................................................................31
Mortmain and Charitable Uses Act 1891 .........................................................71
National Insurance Act 1911 ..........................................................................157
National Insurance (Industrial Injuries) Act 1946..........................................148
Newspaper Surety Ordinance (Amendment) Act 1971....................................35

Table of Statutes xvii
Official Secrets Act 1911 ..................................................................................21
Public Health Act 1848 ...................................................................................150
Public Order Act 1970 ....................................................................................132
Regulation of Customs Act 1825......................................................................67
Republic of South Africa (Second Amendment) Act 1981 .............................77
Settled Land Act 1925.......................................................................................46
Sex Discrimination Act 1975..........................................................................157
Sheriffs Act 1887.............................................................................................120
Social Security and Housing Benefits Act 1982 ..............................................31
South Africa Act 1909 ................................................................................58, 59
State Immunity Act 1978 ..................................................................................80
Street Offences Act 1959 ..................................................................................94
Terrorism Act of South Africa 1967.............................................69, 70, 71, 133
Tribunal and Inquiries Act 1958 .....................................................................164
Tribunal and Inquiries Act 1971 .....................................................................164
Trustees Act 1925..............................................................................................46
Vexatious Actions Act 1896............................................................................146
Video Recordings Act 1984 ..............................................................................44
West India Docks Act 1831 ..............................................................................61
Yorkshire Registries Act 1884 ..........................................................................79

Chapter 1
Introduction
What is a statute?
A statute is a formal act of the Legislature in written form. It declares the will
of the Legislature. It may be declaratory of the law, or a command which must
be obeyed, or a prohibition forbidding a course of conduct or a particular act.
We normally refer to the whole body of law as enacted by Parliament as the
Statute Book. For a single enactment, the term Act of Parliament is usually
used. In a federal state, the enactment of the legislature of each of the States or
Provinces is also a statute.
The term Act of Parliament is thus reserved for the law as enacted by the
supreme legislature. An Act of the Congress of the United States of America
is an Act of Parliament – the difference is that in the United States of America
Parliament is referred to as the Congress. From about 1689, when the Bill of
Rights was passed, Statute Law has become the most important source of law.
At Appendix A is a classification of Statutes.
The term Statute Law is used to distinguish the law passed by Parliament
from Common Law or Equity. Common Law is almost, but not quite, ‘judge-made’
law. It derives its authority from the usages and customs of time
immemorial, affirmed and enforced in the judgments and decrees of the courts
of law. William the Conqueror sent out his justices in eyre to collect and
collate the customs of England. Some of the customs were made universal as
being common to the whole of the country. The Conqueror also accepted the
Doons of the Saxon Kings. This process of adaptation and modification has
continued to this day.
Common Law thus developed through case law. It comprises the body of
those rules and principles which inform government, security of the person and
property, and is therefore part of the positive law. It is as effective as an Act of
Parliament – until it is ousted by statute. Like yeast, Common Law rises from
below, rather than being imposed from above like an Act of Parliament.
The rules of law known as the doctrines of Equity grew out of the
harshness of the Common Law. Equity started with petitions to the Sovereign
to redress the grievances perpetrated and perpetuated by the rigid application
of the Common Law. It thus began life as the attempt to administer justice
with fairness – from the quasi-religious status of the Lord Chancellor as the
keeper of the King’s conscience. The term Equity is often equated with the
spirit and enforcement of fairness and right dealing which should animate the
behaviour of individuals.

2 Understanding Statutes
The object of the Common Law, said McCardie J in Prager v. Blatspiel,
Stamp & Heacock Ltd.,1
is to solve difficulties and adjust relations in social and commercial life. It
must meet, so far as it can, sets of facts abnormal as well as usual. It must
grow with the development of the nation. It must face and deal with changing
or novel circumstances. Unless it can do that, it fails in its function and
declines in its dignity and value. An expanding society demands an expanding
Common Law.
This statement applies equally well to Equity. It was the harshness of the
Common Law, its failure to achieve fairness instead of rigidity that led to the
rise of Equity. In the end, if both Common Law and Equity fail to deal with
the ‘changing and novel circumstances’, legislation – that is, statute law – will
hold the day.
The Genesis – The Formulation of Policy
A statute is the crystallisation of an objective. That objective may be political,
social, economic or even personal, but there will be a motive that lurks behind
it. A group of persons may be interested in a particular measure which may
call for the exercise of the legislative power of the state. Legislation then
becomes the means to attain an end. These groups could be:
• political parties
• pressure groups
• departmental officials
• Commissions of Inquiry
• Parliamentary committees
• public and private organisations
Although some groups have a greater or more direct influence on the
legislature than others, they are all united in the same conviction that a
situation exists which calls for legislation.
This leads to the investigation of the social devices which would suggest
the remedies for the problems that call for legislation. In this investigation,
recourse may be had to legislative committees, lobbyists, a person or persons
directly or indirectly interested. At each stage of the investigation there will be
studies commissioned, conferences and consultations constituted and conflicts
of competing concepts contained. There may be public debate generated by a
Government White Paper.2
__________________________________________________________________________________________________________________________________________
1 [1924] 1 KB 566 at p.570.
2 A White Paper is a report issued by the Government to give information. There are also Green Papers,
which are tentative reports of Government Proposals without commitment.

Introduction 3
When ideas have crystallised, a decision will be taken that there is need for
legislation. A summary of the various proposals will be submitted to, say, the
Minister under whose portfolio the subject-matter of the proposals falls. When
what is involved is a major piece of legislation, in some cases the public may
not be aware of all these happenings until a hint is given in the ‘Speech from
the Throne’.
The proposals will be submitted to the Cabinet in the form of a Cabinet
Memorandum. After Cabinet approval has been obtained, instructions are sent
to Parliamentary Counsel to draft the required Bill. After the draft is
completed, it is sent to the sponsoring Ministry for comments. Others, in
special circumstances, may also be asked for their comments and there may be
a few revised drafts. Finally, the Bill as settled between Parliamentary Counsel
and the sponsoring Ministry is sent to the Cabinet Committee on Legislation,
and then to the Cabinet as a whole to be approved for introduction in
Parliament.3
Background knowledge
Law does not operate in a vacuum, and this is especially true of statute law. A
statute is intended to guide, and regulate, the conduct and affairs of those to
whom it is addressed. Its content thus takes cognisance of the cultural,
economic, political and social conditions of the society within which it is
intended to operate. A sound knowledge of these conditions is very necessary
to a complete understanding of the statute.
Any of those conditions, or a combination of any of them, could constitute
the facts upon which a Bill is drafted. In the drafting of a piece of legislation
on marriage, for example, the question would obviously be asked whether age
is all that matters. Are there other incidents that go to make a valid marriage,
such as the form of the celebration of the marriage, and the issue of dowry?
If the dowry is seen as an essential part of the marriage, then the mere fact
that one has attained the age of majority does not mean that one can contract a
valid marriage. Since marriage is an issue of social fact rather than of law,
legislation would thus seek to regulate behaviour in the ‘real world’.4 In doing
so, it must of necessity look at society and at the institutions which society has
established for its guidance. Legislation would not seek to uproot society. If it
did, the law would be a dead duck.
Spouses take lovers in monogamous societies. Legislation against that
system ‘would obliterate public life’.5 It is very difficult to prosecute for
__________________________________________________________________________________________________________________________________________
3 The process does not exclude what is normally referred to as the Private Member’s Bill.
4 The Family Law Act 1987 of Barbados, for example.
5 The Guardian Weekly, Vol 146 No. 4 week ending 26 January 1992.

bigamy in a predominantly polygynous society. Each piece of legislation has a
background and a policy. A sufficient knowledge of that background and of
that policy is essential to the understanding of an Act of Parliament.
Drafting instructions
An Act of Parliament subsumes government policy effectively into legislative
language. The policy considerations for the drafting of a Bill are put down in
the form of Drafting Instructions. These Instructions normally state precisely
what the problem is, at least to the administrator. What has given rise to the
problem? What attempts have been made to solve the problem without the
assistance of legislation? How and why have the attempts failed? What are the
solutions devised administratively to solve the problem that calls for
legislation?
Unless ideas have crystallised it is a sheer waste of time to embark upon
the drafting of a piece of legislation. However, those who instruct
Parliamentary Counsel should not attempt to be lawyers. Least of all should
they attempt to be Parliamentary Counsel and send draft Bills to Counsel.
They help in the process by remaining as laymen, leaving it to the drafting
experts to appreciate the decisions based on the policy and their implications.
Legislative drafting does not consist in copying precedents nor in polishing
what others have drafted.
Furthermore, from Westminster6 comes the stern warning that,
Nothing is more hampering to Parliamentary Counsel, when the drafting stage
is reached, than to be obliged to build what is usually a complex structure
round “sacred phrases” or forms of words which have become sacrosanct by
reason of their having been agreed upon in Cabinet or in one of its
committees. A still more serious objection to agreed form of words of this
kind is that they often turn out to represent agreement upon words only,
concealing the fact that no real compromise or decision has been reached
between conflicting views upon some important question.
Parliamentary Counsel fill in the details of the broad policy statements.
They raise questions – legal questions which may lead to a reconsideration of
the policy. However, they do not presume to rearrange or alter the will of the
legislature, just as an architect does not dictate to a client what the architect
thinks the client needs. The architect would advise the client that with the
financial resources available and having regard to the area of the land for the
building, the contours of the land, the orbit of the sun and the wind direction
during the day and during the night, a north-facing building would suit the
purposes of the client. And bearing these matters in mind the architect would
advise the client how the bedrooms would be situated in relation to the study,
__________________________________________________________________________________________________________________________________________
6 The Preparation of Bills (1948) p.8.

Introduction 5
the lounge, the dining room, the kitchen and all the other facilities that go with
them. Those who draft Bills for Parliament bear a similar responsibility.
The Process – The Drafting of Legislation
Research
An Act of Parliament is usually an attempt to find a solution to the problems
faced by governments, and by society as a whole. An understanding of the
problems is essential in the search for the solutions, and that depends upon
adequate knowledge of the conditions that have given rise to the problems.
Those who read an Act of Parliament must thus have some basic knowledge
of the subject-matter upon which the Act is based and must be prepared to
supplement their basic knowledge with research. A sound knowledge of the
existing law is vital since an Act of Parliament is drafted to become part of the
body of the law as a whole.
Added to that will be a sound knowledge, and understanding, of the issues
that have created the problem. That is what is referred to in Heydon’s Case7 as
the ‘purpose approach’ or the ‘mischief rule’. Parliamentary Counsel who
draft a Bill must know what they are looking for. Their industry and discipline
helps them to ask the right questions and thus save themselves valuable time,
as well as the time of all others who may have to read an Act of Parliament.
The Legislative Scheme
After Parliamentary Counsel has mastered the subject matter of the proposed
legislation and read the Drafting Instructions, the next important step in the
drafting process is the preparation of the Legislative Scheme. Upon that
scheme hangs the quality of the Bill and ultimately of the Act of Parliament.
The Legislative Scheme represents Counsel’s mental picture of how well the
Act of Parliament would look in structure and quality, in substance and in
form. Here Parliamentary Counsel deals with the logical sequence of the
various matters that bear upon the Bill and organises the symmetrical
arrangement of the sections. Here the symmetrical arrangement of sections is
organised. Form and substance take their proper places. The law and its
administration are equally balanced.
Without the Legislative Scheme the resultant Act will look like a patchy,
sketchy work, ill-conceived and ill-prepared. This is the area where the policy
of the law is put in an outline for the achievement of the objectives of the
proposed legislation. It is in the Legislative Scheme that Parliamentary
Counsel perceives whether the Act will be a workable piece of legislation,
__________________________________________________________________________________________________________________________________________
7 (1584) 3 Co. Rep. 7a; 76 ER 637.

whether the task of the courts will be made easier in the construction of the
Act as a whole. The Legislative Scheme is in effect the architectural plan of
the building that is called an Act of Parliament.
Criticism
Those who criticise Parliamentary Counsel regarding the language of an Act
of Parliament often do not realise the constant criticism to which Counsel
themselves subject their drafts of a Bill. ‘Animals are such agreeable friends –
they ask no questions, they pass no criticism.’ said George Eliot.8
Parliamentary Counsel heed that warning. They do not shun or avoid criticism.
It is to their advantage that there are people who would question how well a
Bill has been drafted. Legislation is enacted for a variety of people, for a
variety of reasons. It is a serious business. The happiness of a people depend
on it, the progress of a people may be hindered by it. Those who are
responsible for drafting legislation bear this in mind.
Criticism, whether in good faith or in bad faith, is an asset to
Parliamentary Counsel and is accepted as having been made in good faith,
whatever the source. It is considered as an attempt to improve the quality of
the Bill.
Lord Thring warned Parliamentary Counsel that for them
virtue will, for the most part, be its own reward, and that after all the pains that
have been bestowed on the preparation of a Bill, every Lycurgus and Solon
sitting on the back benches will denounce it as a crude and undigested
measure, a monument of ignorance and stupidity. Moreover, when the Bill has
become law, it will have to run the gauntlet of the judicial bench, whose
ermined dignitaries delight in pointing out the shortcomings of the legislature
in approving such an imperfect performance.9
There are two aspects to be dealt with here: the quality of the drafting and
the soundness of the proposed law. To this may be added a third aspect: how
well will the resultant Act work in practice. Criticism helps Parliamentary
Counsel to recognise where there is an ambiguity, where the wording has
deviated from the substance, where clarity has been sacrificed to simplicity,
where verbosity has detracted from the beauty of expression.
The Language – Legal Language
The importance of language in any given situation cannot be over-emphasised.
It is the chief medium of communication and thought. Because lawyers
__________________________________________________________________________________________________________________________________________
8 George Eliot, Scenes of Clerical Life, Ch.7.
9 Practical Legislation, p.8.

Introduction 7
operate in the field of social control, language is of even greater significance
to them. Words are, in a very special way, the tools of the lawyers’ trade.
Words are to lawyers ‘what the scalpel and insulin are to the doctor, or a
theodolite and slide rule to the civil engineer’.10
Words occupy the lawyer’s attention in the construction, drafting and the
interpretation of contracts, statutes, wills, and other legal documents. They are
the effective force in the legal world. In statutes they result in heavy fines,
long imprisonments and even death. In contracts, deeds or wills, they transfer
large amounts of property. Hence the persistent feeling in our profession that
the right words must be used.11
Parliamentary Counsel communicate policy decisions having legal
consequences to members of society in the form of legislation. Legislation in
these circumstances has, as its sole medium of communication, the written
word. In ordinary speech we see and hear the person we are talking to.
Gestures, intonation, the inflection of the voice, all aid in an understanding of
what is said. In the face of Othello’s horrible fancy, Desdemona queried:
Upon my knees, what doth your speech import?
I understand a fury in your words
But not the words.12
In cold print language is a different matter. The words stand on their own.
There is an air of permanence, of finality about them. Compared with speech,
that permanence, that finality give language another dimension. An error or
ambiguity in ordinary speech can be corrected and immediately resolved by
the Socratic method. In a statute, an amending legislation or a decision of the
courts is the cure. Said Driedger:
Statutes are laws. They are supposed to settle the rights and liabilities of the
people, and they are enforced by the courts. They must be, so far as we can
make them, precise. They are serious documents. They are not, like the
morning newspaper, to be read today and forgotten tomorrow. Like all other
serious works of literature, they must be read and studied with care and
concentration. Every word in a statute is intended to have a definite purpose
and no unnecessary words are intentionally used. All the provisions in it are
intended to constitute a unified whole.13
__________________________________________________________________________________________________________________________________________
10 Z. Chafee, ‘The Disorderly Conduct of Words’, 41 Col LR 381 at p.382.
11 Z. Chafee, ‘The Disorderly Conduct of Words’, 41 Col LR 384.
12 Othello, Act 4 Scene 2.
13 The Composition of Legislation, p.xxiii.

It is, however, the very nature of language that presents the greatest
problem to successful communication. Language is considered as ‘perhaps the
greatest human invention’,14 yet it is a most imperfect instrument for the
expression of human thought. It has tremendous potential for vagueness,
ambiguity, nonsense, imprecision, inaccuracy and indeed all the other horrors
recognised by Parliamentary Counsel.15 As John Austin stated,
it is far easier to conceive justly what would be useful law, than so to
construct that same law that it may accomplish the design of the law giver.16
In the famous words of Mr Justice Oliver Wendell Holmes, ‘Ideas are not
often hard, but words are the devil’.17 The imperfections of language
notwithstanding, it still must be used in any society, if only because it is the
chief medium of expression.
It should now be obvious that a good command of language is vital, not
only for those who draft legislation, but also for those who try to understand it.
Firstly, the reader of an Act must understand the nature of language and its
various functions. Secondly, the reader must grasp the theory of words as
symbols for the communication of meaning and their myriad imperfections.
Lastly, the reader must understand that time, circumstances, and social
forces influence the meaning and the usage of words. Thus legislation must be
understood and interpreted to keep pace with social needs arising from the
progress of time. That is why in Corkery v. Carpenter,18 the conviction of a
defendant was upheld on the ground that a bicycle fell within the words
‘drunk while in charge on any highway … of any carriage’. In Maclean v.
Trembath,19 a Judge thought that the word horse should include an aeroplane:
‘it is much the same thing’. And in Armstrong v. Clark,20 Lord Goddard LCJ
would not even consider
whether a non-alcoholic beverage is drink within the meaning of the [Road
Traffic Act, 1930]. If that were so, I should be inclined to apply the dictum of
Martin B., where the bailiff was sworn to keep the jury without meat or drink,
or any light but candlelight, and a juryman asked if he might have a glass of
water. Martin B. said: “Well, it is certainly not meat and I should not call it
drink. He can have it.” I think “drink” means alcoholic drink.
__________________________________________________________________________________________________________________________________________
14 Glanvill Williams, ‘Language and the Law’, 61 LQR p.71.
15 G.C. Thornton, Legislative Drafting, p.2.
16 Jurisprudence, quoted by Ilbert, The Mechanics of Law Making, p.98.
17 Quoted by R.E. Megarry, A Second Miscellany-at-Law, p.152.
18 [1951] 1 KB 102 at p.103.
19 [1956] 1 WLR 437.
20 [1957] 2 QB 391 at p.394.

Introduction 9
Plessy v. Ferguson21 and Brown v. Board of Education22 have also
demonstrated how time, circumstances and the need to keep pace with
advancement in social conditions influenced the construction and
interpretation of the same words in the Constitution of the United States.
Modern linguists consider language as ‘a system of vocal symbols with
arbitrary conventionalised references accepted by a group of humans and
understood within it, and having the social function of carrying information
from speaker to hearer’.23 This definition places emphasis on the structural
and functional aspects of language. It constitutes a system of symbols, the
function of which is to carry information from person to person within a given
speech community. It indicates that the described function of the system is
performed by virtue of individual symbols having definite referential values,
such as to individual items, units and elements in the culture of a given
society.
Language as such goes beyond that. It is, essentially, a social institution. It
was John Locke who said that,
God having designed man for a reasonable creature, made him not only with
an inclination and under a necessity to have fellowship with those of his own
kind but furnished him also with language, which has to be the great
instrument and tie of society.24
If the verbal images stored away in the minds of the individual members of
society are not substantially the same, there would be no effective
communication. And as St. Paul25 said,
if the trumpet give an uncertain sound, who shall prepare himself to the battle?
So likewise ye, except ye utter by the tongue words easy to be understood, how
shall it be known what is spoken? For ye shall speak into the air.
The symbols, then, are arbitrary: there would be no recognisable direct
link between the sound structure of a given symbol and its referential value.
Yet they are conventional in the sense that they are accepted by members of
the speech community.26
The written word may be contrasted with speech, which is the actual use
of vocal symbols by an individual to convey information. Speech, though, is
__________________________________________________________________________________________________________________________________________
21 163 US 537, 16 S.Ct 1138, 42 L.Ed 256 (1896).
22 347 US 483, 74 S.Ct 689, 98 L.Ed 873 (1954).
23 Stephen Ullman, Semantics: An Introduction to the Science of Meaning, p.11.
24 The Second Treatise of Government, Chapter VII.
25 1 Corinthians, 14: 8-9.
26 S.A.Wurm, ‘Aboriginal Language and the Law’, 6 Annual Law Review, University of Western
Australia, p.2.

the act of the moment, the instantaneous response to stimuli acting upon the
individual. The written word is a system that changes, but changes slowly.27
The relationship between language and thought is of particular interest in
semantics. There are those who argue that all thinking above a very primitive
level is in words, and those who hold the view that language is merely a
medium for the expression of thought and no more.28 Examples of thought
without words that are normally given are of the chess player pondering the
next move, or of the architect. Exactly how far there can be thought without
words is controversial. Nonetheless, it can be confidently asserted that
language and thought are inextricably bound together. Most, though not all,
thought involves the use of verbal images or symbols.29
Again this relationship between thought and language is of significance to
an understanding of legislation. Words are much more than the tools of the
lawyers’ trade. Words are the raw materials with which we all work. They are
bound up with our thought processes and quite lacking in the passivity,
stability and fixity of purpose recognised in a chisel or a hammer. Francis
Bacon has said that,
Men imagine that their minds have command over language but it often
happens that language bears rule over their minds.30
A consequence of this close relationship between language and thought is
that the language of a given community to a large extent reflects and depends
upon its cultural environment. It is said31 that the individual’s cultural
environment exercises a moulding influence on, and fixes the limits of, that
individual’s thoughts and language habits.
This means that language as a system of symbols can only exist if there is
a culture complex with which it is connected through conventionally-established
and generally-accepted referential ties of the people who share that
language. In other words, a language-like system of vocal symbols in which
the individual symbols lack references to elements, items and concepts of a
culture is meaningless. The sentence, ‘I will see you after lunch’, is only
meaningful in a culture in which lunch is an established institution.
This language-culture nexus is of great practical importance to an
understanding of the language of legislation. An Act of Parliament is part of
the language of the society for which the law is enacted. It does not operate in
a vacuum. It has a policy all its own, which may be cultural, economic or
__________________________________________________________________________________________________________________________________________
27 G.C. Thornton, Legislative Drafting, p.3.
28 Glanville Williams, ‘Language and the Law’, 61 LQR p.71.
29 Glanville Williams, ibid, p.72.
30 Quoted by Simeon Potter at p.19, Language In The Modern World.
31 S.A.Wurm, ‘Aboriginal Language and the Law’, 6 Annual Law Review, University of Western
Australia, p.2.

Introduction 11
social, and an appreciation of the cultural, economic and social values is
essential to a successful understanding of the statute.
The law may contain, and indeed may rely, on concepts or mental images
which are not known to the society concerned as a whole. However, where
these concepts or mental images are not adequately translated into concepts
and images readily understood by the society for which the law is enacted, the
law becomes an imperfect instrument as a means of communication.
Language has yet another function – an emotive function. It is argued that
language is not used solely for the communication of thought, but frequently
employed to evoke emotional responses. A good illustration is a Counsel’s
address to a jury, which does much more than merely sum up the evidence.
Counsel seeks to evoke emotion, action and reaction, i.e. a favourable verdict.
In an Act of Parliament, even in the absence of the emotive use of language, it
is the effect the Act has on society as a whole or a part of that society that
raises an emotive response.32 It is the essence of language that it reflects,
expresses and affects the patterns of established ideas and the values that help
shape the culture within which the language grows.
The language used in our courts provided the vital material upon which the
doctrine of judicial precedent was based, and thus the body of our judge-made
law. The Normans conquered Britain in 1066. In time Norman French became
the language of the educated classes and thus of the law. Before that, Latin had
held the day because of the Roman conquest. But Norman French became a
mixture of English and French.33
The earliest statutes were written in Latin. By 1275 some of the statutes
were in Norman French, others in Latin. By 1309 Norman French had taken
over as the more usual language of statutes. Reaction set in. In 1362 a statute34
required pleadings to be in English rather than ‘in the French tongue, which is
much unknown in the realm.’
The recording of statutes in Latin or Norman French ceased after the death
of Richard III. By 148835 the Statute Roll had ceased to be made up in the
ancient form and statutes have since continued to be published in English. Yet,
to this day, the Lords Commissioners proclaim the Royal Assent in Norman
French: la Reyne le veult.
__________________________________________________________________________________________________________________________________________
32 Consider the reaction of the people of the United Kingdom to Margaret Thatcher’s Poll Tax.
33 Megarry’s Miscellany-at-Law contains many examples of the mixture. A well known one is where a
report mentions an incident in Court in which the defendant ‘jette un brickbat at le judge, que
narrowly missed’.
34 36 Edward 111 c.15, which provided that ‘... all pleas ... shall be pleaded, shewed, defended, answered,
debated, and judged in the English tongue, and that they be entered and inrolled in Latin ....’.
35 4 Hen. 7.

By the nineteenth century, it was said that ‘the language of statutes is
peculiar … and not always that which a rigid grammarian would use’.36 The
courts had started to be frightened by the language of Acts of Parliament.
Another reaction had set in. Of the Finance Act, 1894,37 Lord Macnaghten
remarked that,
the only question remaining is a question of construction, a question perhaps
of some difficulty, arising as it does on one of the least intelligible sections in
an Act of Parliament not remarkable for perspicuity.38
In Yorkshire Dale Steamship Company v. Minister of Transport39
MacKinnon LJ stated:
This case raises the problem of the proper construction and effect of ten
infamously obscure words – “warranted free… from the consequences of
hostilities or warlike operations.” It is to me, personally, a melancholy
reflection that during my last ten years at the Bar I was compelled, as
advocate or arbitrator, to spend more time on the consideration of the effect of
these ten words than on any other problem. They come back now to me a
crambe repetitia, and the cabbage is of the stalest.
The criticism of the language of legislation has continued to this day. It is
no longer confined to the courts. There are now calls that the language of
statutes should be in Plain English. The Law Reform Commission of Victoria,
Australia,40 makes the point that Plain English concentrates on those
grammatical structures and words which are readily understood. That is
admirable. Yet the problem lies at the root of the English language itself – it is
not an instrument of mathematical precision – and the intellect and
intelligence of advocates will always dispute the meaning of a particular
provision of an Act of Parliament.
That is why Stephen J warned, in Re Castioni,41 that a
degree of precision … is essential to [the drafting of] Acts of Parliament,
which, although they may be easy to understand, people continually try to
misunderstand, and in which, therefore, it is not enough to attain to a degree
of precision which a person reading in good faith can understand, but it is
necessary to attain if possible to a degree of precision which a person reading
in bad faith cannot misunderstand.
__________________________________________________________________________________________________________________________________________
36 Lyons v. Tucker (1881) 6 QBD 660 at p.664.
37 57 & 58 Vict. Ch.. 30.
38 Attorney-General v. Duke of Richmond and Gordon, [1909] AC 466.
39 [1942] 1 KB 35 at p.43.
40 ‘Legislation and Legal Rights and Plain English’, discussed in (1986) 12 CLB 1018 et seq.
41 [1891] 1 QB 149 at p.167.

Introduction 13
It is perhaps instructive at this stage to quote at length the observations of
Lord Oliver of Aylmerton, a Lord of Appeal in Ordinary:
The English language, as has been observed on more than one occasion, is
frequently susceptible of ambiguity. Whenever anyone finds a provision
difficult to understand with certainty, his first and instantaneous reaction is to
blame the draftsman. It is, of course, very easy to make fun of the
parliamentary draftsmen. I confess to having myself once described a
particularly abstruse provision as “something of a minor masterpiece of
opacity”, but I regret it because I think that such shafts are frequently not
aimed at the right target. The draftsman doesn’t draft in a vacuum and straight
out of his head. It is his job as well as his misfortune to seek to reduce to
writing concepts and ideas fashioned and implanted by somebody else. The
parliamentary draftsmen do an immensely important task and do it under
almost intolerable pressure; but in the end they merely put into words what
their political masters state as their desired object. If the object is itself bizarre
or ambiguous, one can hardly be surprised that the result is bizarre or
ambiguous. I like to remind myself, from time to time, of Lord Macnaghten’s
remark that he did not think that the framers of the Irish Land Act were to
blame for not assuming that a judge would go out of his way to derogate from
the rights of a third person who had nothing whatever to do with the matter in
hand. “The process vulgarly described as robbing Peter to pay Paul”, he said,
“is not a principle of equity, nor is it, I think, lightly to be attributed to the
Legislature even in an Irish Land Act.”42
If one finds, as one sometimes does, that an Act contains a provision that does
not make sense, it is only too easy to assume that it is the draftsman who has
made an error. What sometimes fails to strike the judicial mind is that the
draftsman was in fact doing exactly what he was instructed to do and that his
drafting does indeed truly reflect that elusive “parliamentary intention”. It is
precisely this that makes me very suspicious of searching for some supposed
rational parliamentary intention outside the language in which a draftsman
who is known to be rational has chosen to express it. It is the statute that
marks out the field and dictates to the citizen the rules by which he is to play
and the goal at which he is to aim. Too often, I think, the referee is tempted to
shift the goal-posts in reliance upon his own speculation about what it would
have been sensible for Parliament to do if Parliament had thought of doing it.
This, and also the danger which, as it seems to me, lurks in the encouragement
of judicial excursions into the parliamentary preserve of legislative policy,
may be illustrated by reference to two cases. One of the cases also incidentally
raises the question of whether, and to what extent, it may be desirable to have
regard to what was said in Parliament at the time when the legislation was
under discussion.43
__________________________________________________________________________________________________________________________________________
42 Evelyn Viscountess De Vesci v. O’Connell [1908] AC 298 at p.310.
43 [1993] Stat LR, Vol. 14 No. 1, pp.4-5.

The Progress – The Stages in Parliament
When a Bill is introduced in Parliament,44 it receives its first reading. This
means that the Clerk announces the title of the Bill, and the Minister
responsible for it rises in his place at the front Bench and bows. That is all. It
is a reminder of the days when Bills were actually read out in Parliament as
most members then could not read nor write. There is no debate on the Bill at
this stage.
The next stage is Second Reading. At this stage the principles of the Bill
are fully debated, but no amendments are permitted. In the course of a
member’s speech, however, an indication may be given of the intention to
move an amendment at the appropriate stage. In recent years, the Second
Reading of a Bill may be referred to a special Second Reading committee. The
committee reports to the whole House, which then formally resolves that the
Bill be read a second time.
The Committee Stage follows the Second Reading and is the most
important part of the procedure, as Pepper v. Hart45 has shown. At this stage
the Bill is debated clause by clause. Explanations are sought from the Minister
responsible for the Bill as to the meaning of some, at least, of the provisions.
Clarification may be called for as to the effect of the law. The principles of the
Bill cannot be debated. A motion is moved in respect of each clause to ‘stand
part of the Bill’. There is usually an informal atmosphere. A member may
speak more than once to the same question.
Long set speeches are out of place and remarks are normally brief. Details
of a Bill are being dealt with. They do not justify a lot of laboured arguments.
Amendments put down usually come from the Minister promoting the Bill,
departmental officials, even Parliamentary Counsel. Where amendments are
accepted, Parliamentary Counsel drafts the required amendments.
At the next stage – the Report Stage – the Bill as amended in Committee is
reported to the House. Where the House is not satisfied the Bill may be sent
back to the Committee. Occasionally, but not usually, amendments may be
made at the Report Stage.
Finally, the Bill is read a third time. At Third Reading debate is brief –
general comments on the Bill as a whole may be dealt with. The Bill is then
passed by Parliament and is submitted for the Assent. When the Assent is
given, the Bill becomes an Act of Parliament.
__________________________________________________________________________________________________________________________________________
44 Where there are two Chambers the procedure is repeated. When the Upper and the Lower Chambers
do not agree on amendments, usually a committee of both Chambers is constituted to resolve the
differences.
45 [1993] All ER 42.

Introduction 15
Due to its importance, a little more needs to be said about the Committee
stage. Normally, Bills are dealt with at this stage by a Committee of the Whole
House. Increasingly, Standing Committees are chosen by the Committee of
Selection. A Standing Committee reflects the strength of the political party
structure in the House itself – it is a miniature Parliament. Amendments are
put down for the Committee’s consideration, drafted by the Parliamentary
Counsel who drafted the Bill before the Committee. The language used is that
of Parliamentary Counsel. Each amendment is fully debated. At the end of
each debate there is a motion that the clause as originally presented or as
amended stand as part of the Bill.
Amendments moved by the Opposition or the Government’s own
backbenchers are sometimes accepted, but usually the amendments are
withdrawn when the Minister in charge of a Bill gives an undertaking to
reconsider the substance of the provision to meet a point raised on the
particular clause. The Government will frequently refuse any amendments,
however controversial the Bill may be.46
Mistakes are likely to occur at the Committee Stage of a Bill. A well
known example concerns s.22(6)(h) of the Land Transfer Act, 1897. The Bill
used the words ‘For inserting in the register …’. An amendment was moved in
Committee for substituting for the word ‘For’ the words ‘For allowing the
insertion’. The resulting provision thus read ‘For allowing the insertion,
inserting in the register …’.
Gerald Kaufman47 gives us a very graphic idea of how the committee
system works in the House of Commons. He states that once a Member goes
into the committee room, the member is encapsulated in a private world; life is
governed by the hours the Committee sits and the party to which the member
belongs. If the member is a government backbencher, the sole expectation is
that the member sits silently, except when votes take place and the member is
required to call out Aye or No, as instructed by the harassed but unrelenting
whip. Apart from this, the supporters of the administration sit at their desks,
studying their constituency correspondence, looking up from time to time in
case something interesting might be happening.
Ministers in charge of a Bill are well briefed by the departmental officials.
The Ministers are issued with one set of folders marked Notes on Clauses,
which explain to them what each clause of their Bill is supposed to mean. As
Opposition members rise to move amendments, the Minister due to reply
consults another folder, entitled Notes on Amendments.
Some of these notes are headed Resist. This means that at the end of the
debate the backbenchers will have to be on hand to call out ‘No’. Another
__________________________________________________________________________________________________________________________________________
46 An example is the European Community’s Bill. See de Smith Constitutional and Administrative Law,
5th ed. p.291.
47 The Listener 29 March 1984.

Understanding_statutes

Recommended

Recommended

More Related Content

Similar to Understanding_statutes

Similar to Understanding_statutes (20)

More from UNIVERSITY LAW COLLEGE QUETTA

More from UNIVERSITY LAW COLLEGE QUETTA (20)

Recently uploaded

Recently uploaded (20)

Understanding_statutes