Legislation as a source of law

1. Legislation as a source of law.

2. INTRODUCTION
The term “legislation” refers to the act of making laws. “Legis”
means law, and “Latum” means making, which implies
lawmaking. Legislation is the way of making laws in which the
competent authority is responsible for drafting and enacting
laws in a specific state. It is also stated to be a rigorous concept
of lawmaking because there is only one body charged with the
task of lawmaking, and there is little space for any changes
because the laws are codified and airtight, leaving a very small
range of adjustment.
https://lawcorner.in/legislation-as-a-source-of-law/#Introduction

3. INTRODUCTION
The term “legislation” is synonymous with an ‘Act’ of Parliament.
‘It hath power to bind every subject in the land......even the king
himself if particularly named therein, it cannot be altered,
amended, dispensed with, ended or repealed but (except) in the
same form and by the same authority of parliament’ -
Blackstone.

4. WHAT IS LEGISLATION?
• Legislation is the second key source of law and usually takes
priority over sources of law other than the Constitution.
• Legislation is a set of laws that have been passed by
Parliament. It is also used to describe the act of creating a new
Law, altering or repealing law.
• Collins Dictionary defined legislation as the act or process of
making laws.

5. The legislation process refers to the preparation and enactment of laws by a
legislative body (Parliament) through its lawmaking process. The legislative process
includes evaluating, amending, and debating proposed laws. It is concerned with the
words used in the bill to communicate the values, judgments, and purposes of the
proposal. A bill is a draft, or tentative version, of what might become part of the
written law. A bill that is enacted is called an act or statute.

6. After a lengthy and complex procedure of deliberation and debates, legislators vote on the
final passage of the bill. In bicameral legislatures (legislatures that are divided
into two bodies, the bill must be passed through both houses in exactly the same
form to become the law. When the two houses cannot agree on a final form for
the bill, a complex procedure of compromise is attempted. Once the bill is
approved by both houses and is put into final form, it must be signed by the
executive. An executive can refuse to sign a bill and can return it to the legislature
with a veto message explaining why. If the executive signs the bill, it is filed and
becomes law.
The general procedure of enactment of legislation is governed by the constitution. When
a bill is first introduced, it is given a first and second reading before considered by a
committee. If the bill must go through more than one committee, the first committee
must refer it to the second committee. To accommodate interested and affected groups
and to eliminate technical defects a bill can be amended. If the committee recommends
that the bill be passed, the bill is placed on the agenda for action (Report Stage & Third
Reading) by the full legislative body, or floor action.

7. WHAT IS THE PURPOSE OF LEGISLATION?
The purpose of legislation is to provide a governing framework. Legislation includes
the process of statutory formulation with the end result being the statute itself.
Legislation guides the policy of government and ensures a code of conduct between
citizens and government.
Citizens play a role in voting for elected representatives who may serve as legislators
who can advance societal/personal issues in proposing reforms/changes in the
legislation. New legislation concentrates on ever-changing issues, such as tax policy.
Judges and other government officials use legislation to determine proper courses of
actions, guilt or innocence in a trial, and punishments/sanctions under the law.

8. Legislation may be classified as either

9. PARLIAMENTARY LEGISLATION EXPLAINED
Parliamentary legislation is a set of laws that have been passed by the legislature. In most countries
with a parliamentary system of government, acts of parliament begin as a bill (a proposed legislation
under consideration by a legislature), which the legislature votes on. For instance, in Barbados, once
that bill is passed in the Lower House, it goes to the Senate and then to the President, formerly known
as the Governor General, where it then becomes law prior to being published in the Official Gazette.
Parliamentary legislation in Barbados is subject only to the limitation that it cannot infringe the
constitution.

10. DELEGATED LEGISLATION EXPLAINED
Many of our laws are made by parliament. However, Parliament does not always have the knowledge, expertise or
time to make every law that is necessary to keep society running smoothly. Legislative authority is therefore
delegated and called DELEGATED LEGISLATION!
Delegated legislation also known as executive legislation may be defined as laws passed by a body of authority to
whom parliament has delegated law making powers to various government departments or Ministers.
Delegated legislation is becoming more and more imperative in modern times.
Delegated legislation can only exist in relation to and conform with an enabling/parent Act.
If delegated legislation conflicts with the parent Act or any other statute, the statute prevails.

11. DELEGATED LEGISLATION EXPLAINED
It provides an easy and rapid means by which Legislation may be issued to meet rapidly changing social and
economic conditions.
Since Parliament’s lawmaking power is supreme, an Act which is properly passed cannot be challenged on the
grounds that it is beyond the powers of parliament.
With delegated legislation, the laws or regulations made by the authority to which parliament had delegated law
making powers must comply with the terms of the act by which parliament conferred that power (sometimes
called the parent act). If the lawmaking authority has not complied with the terms of the act or has acted beyond
its powers the delegated legislation is said to be ultra vires (beyond the powers of).

12. DELEGATED LEGISLATION EXPLAINED
Delegated legislation can also be abolished by Act of Parliament. Sometimes Parliament may delegate to certain
bodies the power to legislate. The term delegated legislation is used to refer to the rules or regulations which are
made by the authority to whom parliament has delegated law making power.

13. Saves limited time in dealing with the number of issues
tabled for Parliament’s consideration
Allows for rapid change
Experts with appropriate knowledge can be used
Emergency legislation can be passed quickly
Enables minor changes to statues
Judicial review may be sought by parties with locus standi
(a right to be heard)
Local knowledge is used when making bylaws
Withdrawal or amendment is easy
DELEGATED
LESGISLATION
IS NEEDED
BECAUSE IT

14. By Laws
This term refers to regulations or laws made by local authorities (bodies) conferred by Acts of
Parliament establishing those authorities and which give power to make legislation for achieving the
purpose for which those authorities were established e.g. Public Health Act 1875 gave local authorities
authorities (councils) power to make by-laws for administering the public health.
Statutory Instruments
These are laws written by Government Ministers in their area of responsibility. e.g the Minister of
Transport and works can deal with the necessary road traffic regulations.The rules made by rules
committees are a form of delegated legislation e.g. Supreme Court Rules made by the rule committee
of the Supreme Court under the Supreme Court of Judicature (Consolidation) Acts, 1925.
Orders in Council
These are orders made by the sovereign under statutory orders in council.

15. Technicality of Subject Matter
Emergency Powers
Flexibility
Time
The legislators, often times being citizens from different
backgrounds and careers, do not always possess the
expert knowledge required for some specific laws.
Therefore, the responsibility of making laws for
technical matters is delegated.
The work of the legislature is to be for a limited
time, while the execution of the law made by
them is for a long time unless such law is
repealed, modified or abrogated. This indeed
suggests that time constraint may incapacitate
the legislature to take care of every law.
Legislative amendment is a slow process and by the
process of delegated legislation, the executives can
make laws expeditiously with speed and efficiency.
Due to time expediency, the legislature can delegate
lawmaking power to an authority in urgent situations to
handle the situation of emergency. e.g war, natural
disasters

16. ADVANTAGES OF
DELEGATED
LEGISLATION
• It saves time. Parliament is only able to pass
about 50 Acts of Parliament per year. It is
therefore vital for it to delegate power to make
the thousands of other necessary laws.
• It is flexible. Delegated laws can be passed
more quickly if they are not required to go
through the official legislation process.
• It is made by experts.

17. DISADVANTAGES OF
DELEGATED LEGISLATION
• It is undemocratic because it is made by unelected people rather
than by Parliament.
• The sheer quantity of delegated laws made each year makes it
difficult for the public to be informed of all the changes to the law.
• Although there are controls and checks for delegated legislation,
the large quantity makes it difficult for proper scrutiny to occur.

18. • Delegated legislation lacks democracy as too much delegated legislation is made by
unelected people.
• Delegated legislation is subject to less Parliamentary scrutiny than primary legislation
therefore Parliament has a lack of control over delegated legislation which can lead to
inconsistencies in laws.
• Delegated legislation has the potential to be used in ways which Parliament had not
anticipated when it conferred the power through the Act of Parliament.
• Delegated legislation is the lack of publicity surrounding it. When law is made by
statutory instrument the public are not normally notified of it.
https://www.lawteacher.net/free-law-essays/judicial-law/doctrine-of-delegated-
legislation.php

19. Legislation – Statutory
Interpretation as a source of
law.

20. INTRODUCTION
An Act of Parliament once passed must be given effect
to by the courts of law. In interpreting a statute, judges
try to ascertain and give effect to the intention of
parliament. Interpretation is the ascertainment of the
meaning of words formally used in statutes or other
documents where more than one meaning is possible.
There are three main principles of statutory
interpretation: (1) the Literal Rule; (2) the Golden Rule;
and (3) the Mischief Rule or the Rule in Heydon’s Case.

21. THE LITERAL RULE

22. THE LITERAL RULE
According to this rule the words of a statute must be interpreted according to their
literal meaning and sentences given their grammatical meaning. When words are clear
and unambiguous the meaning, is the meaning of the statute and the meaning of the
words are conclusive of the Parliament.
C.J. Tindal said in Sussex Peerage Case, “If the words of the statute are in
themselves precise and unambiguous then more can be necessary than to expound
these words in their natural and ordinary sense. The words themselves in such a case
best declare the intention of the law. If the meaning is clear and unambiguous effect
must be given to the intention of parliament although this may result in ‘hardship’.

23. THE LITERAL RULE
In ascertaining the literal meaning of the words
used, the words should be read in their context i.e.
they should be used in the light of the statute as a
whole or in the context of that part of the statute,
where the words are found.

24. CASES ON THE LITERAL RULE
R v Harris (1836) 7 C & P 446
The defendant bit off his victim's nose. The statute made it an offence 'to stab cut or wound'
the court held that under the literal rule the act of biting did not come within the meaning of
stab cut or wound as these words implied an instrument had to be used. Therefore, the
defendant's conviction was quashed.
Fisher v Bell [1961] 1 QB 394
The defendant had a flick knife displayed in his shop window with a price tag on it. Statute
made it a criminal offence to 'offer' such flick knives for sale. His conviction was quashed as
goods on display in shops are not 'offers' in the technical sense but an invitation to treat. The
court applied the literal rule of statutory interpretation.

25. CASES ON THE LITERAL RULE
Whitely v Chappel (1868) LR 4 QB 147 [Discussed in the previous video]
A statute made it an offence 'to impersonate any person entitled to vote.' The defendant used
the vote of a dead man. The statute relating to voting rights required a person to be living in
order to be entitled to vote.
Held: The literal rule was applied, and the defendant was thus acquitted.
London and North Eastern Railway v Berriman [1946] AC 278 [Discussed in the previous
video]
A railway worker was killed whilst oiling the track. No look out man had been provided. A
statute provided compensation payable on death for those 'relaying or repairing' the track.
Under the literal rule oiling did not come into either of these categories. This result although
very harsh could not to be said to be absurd so the golden rule could not be applied. There was
no ambiguity in the words therefore the mischief rule could not be applied. Unfortunately, the
widow was entitled to nothing.

26. DISADVANTAGES OF THE LITERAL RULE
 There can be disagreement as to what amounts to the ordinary or natural
meaning. R v Maginnis [1987] AC 303
 Creates loopholes in the law. R v Harris (1836), Fisher v Bell [1961]
 Leads to injustice. London and North Eastern Railway v Berriman [1946]
 Creates awkward precedents which require Parliamentary time to correct.
 Fails to recognise the complexities and limitations of English language.
 Undermines public confidence in the law.

27. ADVANTAGES OF THE LITERAL RULE
Restricts the role of the judge.
Provides no scope for judges to use their own opinions or prejudices.
Upholds the separation of powers.
Recognises Parliament as the supreme law maker.

28. THE GOLDEN RULE
If grammatical or ordinary meaning of the words would lead to absurdity or would be inconsistent to the rest of the act then
grammatical or ordinary meaning of words may be varied or modified to avoid the absurdity, repugnancy or inconsistency.
R v Allen (1872) LR 1 CCR 367
The defendant was charged with the offence of bigamy under s.57 of the Offences Against the Person Act 1861. The statute
states 'whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an
offence'. Under a literal interpretation of this section the offence would be impossible to commit since civil law will not
recognise a second marriage. Any attempt to marry in such circumstances would not be recognised as a valid marriage.
Held: The court applied the golden rule and held that the word 'marry' should be interpreted as 'to go through a marriage
ceremony'. The defendant's conviction was upheld.
Re Sigsworth [1935] 1 Ch 98
A son murdered his mother. She had not made a will. Under the statute setting the law on intestacy he was her sole issue and
stood to inherit her entire estate. The court applied the Golden rule holding that an application of the literal rule would lead to a
repugnant result. He was thus entitled to nothing.

29. ADVANTAGES OF THE GOLDEN RULE
 Errors in drafting can be corrected immediately. R v Allen (1872).
 Decisions are generally more in line with Parliament's intention.
 Closes loopholes.
 Often gives a more just result.
 Brings common sense to the law.

30. DISADVANTAGES OF THE GOLDEN RULE
 Judges are able to add or change the meaning of statutes and
thereby become law makers infringing the separation of
powers.
 Judges have no power to intervene for pure injustice where
there is no absurdity. London and North Eastern Railway v
Berriman [1946]

31. THE MISCHIEF RULE
Where interpretation of a statute leads to ambiguity e.g. if words have several meanings
or are inconsistent with each other the courts may look to (1) see what the law was
before the act was passed; (2) what was the mischief or defect for which the law had not
provided, (3) what remedy parliament gave and (4) reasons for the remedy.
The court has regard to the principles contained in the mischief rule and then it gives
such interpretation as is necessary to prevent the mischief and to give effect to the
remedy.

32. CASES ON THE MISCHIEF RULE
Smith v Hughes [1960] 1 WLR 830
The defendants were prostitutes who had been charged under the Street Offences Act 1959 which made it an offence to
solicit in a public place. The prostitutes were soliciting from private premises in windows or on balconies so could be seen
by the public.
Held: The court applied the mischief rule holding that the activities of the defendants were within the mischief the Act was
aimed at even though under a literal interpretation they would be in a private place.
DPP v Bull [1995] QB 88
A man was charged with an offence under s.1(1) of the Street Offences Act 1959 which makes it an offence for a 'common
prostitute to loiter or solicit in a public street or public place for the purposes of prostitution'. The magistrates found him
not guilty on the grounds that 'common prostitute' only related to females and not males. The prosecution appealed by way
of case stated.
The court held that the Act did only apply to females. The word prostitute was ambiguous and they applied the mischief
rule. The Street Offences Act was introduced as a result of the work of the Wolfenden Report into homosexuality and
prostitution. The Report only referred to female prostitution and did not mention male prostitutes. The QBD therefore held
the mischief the Act was aimed at was controlling the behaviour of only female prostitutes.

33. ADVANTAGES OF THE MISCHIEF RULE
Closes loopholes.
Allows the law to develop and adapt to changing needs
e.g., Royal College of Nursing v DHSS

34. DISADVANTAGES OF THE MISCHIEF RULE
Creates a crime after the event eg Smith v Hughes, Elliot v Grey thus
infringing the rule of law.
Gives judges a lawmaking role infringing the separation of powers.
 Judges can bring their own views, sense of morality and prejudices to a
case e.g. Smith v Hughes, DPP v Bull.

35. THE PURPOSIVE RULE
Lord Simon explained the purposive approach in Maunsell v Olins [1975]
AC 373
‘The first task of a court of construction is to put itself in the shoes of
the draftsman – to consider what knowledge he had and,
importantly, what statutory objective he had …being thus placed…the
court proceeds to ascertain the meaning of the statutory language.’
The purposive approach to statutory interpretation seeks to look for the
purpose of the legislation before interpreting the words. It has often been
said that the purposive approach is a mixture of the domestic rules,
however, whereas the domestic rules require the courts to apply the literal
rule first to look at the wording of the Act, the purposive approach starts
with the mischief rule in seeking the purpose or intention of Parliament.

36. THE PURPOSIVE RULE
It is therefore a much more flexible approach giving judges greater scope to develop the law in
line with what they perceive to be Parliament's intention. The purposive approach more readily
embraces the use of extrinsic aids to assist in finding Parliament's intention. For example, in
relaxing the rule on reference to Hansard in Pepper v Hart the House of Lords adopted a
purposive approach.
The courts are required to apply the purposive approach when interpreting EU law. The courts
have used it when interpreting domestic legislation to give an interpretation in line with EU law.
Pickstone v Freemans Plc [1989] AC 66
The purposive approach has been highly influential, and judges have applied it when interpreting
domestic legislation which has no connection with EU law. Pepper v Hart [1992] 3 WLR 1032;
R v Secretary of State for Health ex parte Quintavalle [2003] 2 WLR 692

37. CASES ON THE PURPOSIVE RULE
Maunsell v Olins [1975] AC 373 House of Lords
The House of Lords had to determine whether a farm cottage attached to
farmhouse constituted ‘premises’ for the purposes of the Rent Act. Lord
Simon set out the two tier test to be taken under the purposive approach.
Lord Simon: ‘The first task of a court of construction is to put itself in the
shoes of the draftsman – to consider what knowledge he had and, importantly,
what statutory objective he had …being thus placed…the court proceeds to
ascertain the meaning of the statutory language.’
READ: Pepper v Hart [1992] 3 WLR 1032 House of Lords

38. ADVANTAGES & DISADVANTAGES OF PURPOSIVE
APPROACH
ADVANTAGES OF THE PURPOSIVE APPROACH
1. It is a flexible approach which allows judges to develop the law in line with Parliament's intention (eg Maunsell v
Olins).
2. It allows judges to cope with situations unforeseen by Parliament (eg Quintavalle).
3. It allows the law to develop to cover advances in medical science (eg Quintavalle).
4. It allows the courts to give effect to EU Directives (Pickstone v Freemans).
5. Allowing reference to Hansard makes it easier for the courts to discover Parliament's intention (Pepper v Hart).
DISADVANTAGES OF THE PURPOSIVE APPROACH
1. Judges are given too much power to develop the law and usurping the power of Parliament.
2. Judges become law makers infringing the Separation of Powers (Montesquieu).
3. There is scope for judicial bias in deciding what Parliament intended.
4. It assumes Parliament has one intention and ignores the fact that Parliament is divided on party lines.
5. Allowing reference to Hansard may lead to prolonged examination of irrelevant material by lawyers which adds to the
cost and length of litigation (See Lord Mackay in Pepper v Hart).

39. Hansard is a record of speeches, questions and answers
and procedural events in the Legislative Council and
Legislative Assembly and is known as Parliamentary
Debates (Hansard).

40. AIDS TO STATUTORY INTERPRETATION
To assist judges in interpreting statutes there exists various aids
that they may refer to. Aids to statutory interpretation are divided
into internal aids and external aids. These are sometimes referred
to as intrinsic aids and extrinsic aids to interpretation.
Internal aids (contained in the statute itself and consists of):
 The long title of the Act
 Explanatory notes
 Other sections of the Act
 Definition sections in the Act

41. AIDS TO STATUTORY INTERPRETATION
External aids
 Dictionaries
 Text books
 Academic writings
 Law Commission Reports
 Case law from other jurisdictions
 Hansard
Previously, reference to Hansard was not allowed by the courts. Davis v
Johnson [1978] 2 WLR 553. However this position was changed in
Pepper (Inspector of Taxes) v Hart [1993] AC 593

42. RULES OF LANGUAGE IN STATUTORY
INTERPRETATION

43. QUESTION
EXAMINE THE AIMS OF INTERPRETATION.