Approaches to Interpretation I

General

The courts must take judicial notice of all statutes.  Statute law does not need to be proved as such.

Statute law may be ambiguous.  It may be ambiguous on its face or may be ambiguous as to how it applies to particular circumstances.  If a statutory provision is ambiguous, it must first be interpreted before being applied.

Courts interpret statutes with reference to particular circumstances as particular cases arrive.  Many important provisions will not be interpreted unless and until a case happens to arise on the particular circumstance before a higher court and the judge gives a reasoned written  decision. Many important points have not been settled.

There is no mechanism for bringing important points of law to court in test form other than with  reference to particular facts and circumstances.  The only method of testing principles of law and an abstract basis is the  provision for reference by the President of bills to the Supreme Court for a judgement on its  constitutionality.

Interpretation of Legislation

Legislation may require interpretation.  Commonly ,it cannot provide for all possible circumstances so that its application to the particular circumstance requires a degree of judgement. Legislation may be poorly drafted and ambiguous in itself.

There are certain rules and principles applied in interpreting legislation.  Certain documents and materials which may assist in the interpretation of legislation in some cases.

The application of some of  the basic rules of interpretation of legislation may lead to contradictory results.  For example, a decision on the interpretation of the statutes might depend on whether the judges take a literal approach or a purposive approach.

Literal Approach

The literal approach requires that statutes must be given a plain, ordinary or literal meaning.  The court in interpreting the statute seeks to discover the intention of the Oireachtas as expressed in the legislation.

The literal rule is the default rule.  If the words and their application to the circumstances are clear, then they must generally be applied even though the result is unfair or even absurd.

The literal words of the legislation are to be given effect unless it would be absurd.  The fact that the application of literal word mght be inconsistent with the supposed intention of the Oireachtas  is not a sufficient reason to dis-apply it.

The court may even disagree with the effect of the words and believe that it is inconsistent with the intention of the statute.  However, where its application is clear, it must be applied.The above principle is subject to a good deal of qualification and may yield in many circumstances to other considerations.

When language is non-technical it should be given its ordinary everyday meaning.  However technical words must generally be given their technical meaning. Where the subject matter deals with nontechnical matters, its everyday meaning should be applied.

Approaches I

Many statutes  have special definition sections which specially define  expressions used in the legislation.Unless the Act defines the word otherwise the particular background or context requires a technical meaning, words should be given their natural and ordinary meaning.In an appropriate case, a judge may refer to a dictionary for the ordinary meaning of a word.

Some words are defined by the Interpretation Act. There may be previous cases which define the use on the word in the particular context, However, in most instances, previous cases will be of limited use as the particular context will usually determine and shape the meaning.

Where the words are ambiguous, the courts should interpret a statutory provision so as to avoid an absurd result. This  so-called golden rule may also be used where there is no ambiguity.  Where the only interpretation leads to an absurd result, then as a matter of public policy the court may interpret the statute to avoid that absurd or highly unjust result.

Legislation should be interpreted in the light of principles of public policy. If a literal interpretation would allow a party to take advantage of his own fraud, forgery or another criminal behaviour, the  court may intervene on the basis of public policy to deny a benefit derived from very serious wrongdoing.

Approaches II

A purposive  approach may be appropriate where there is ambiguity or absurdity.  External aids are only to be relied on with circumspection.

The golden rule may apply where there is ambiguity.  It should be used exceptionally where one interpretation only is permissible.

The so-called mischief rule looks at the objective of the legislation.  It looks at the state of the law preceding the enactment of the legislation concerned.  It then asks what mischief or perceived shortcoming in the law, the legislation was designed to remedy.

The mischief or purpose of the law might be found in the preamble or in the general parts of the legislation.  The interpretation which is consistent with preventing the mischief or the perceived shortcoming which the legislation was aimed, is favoured.

A statute must be interpreted as a whole.  Words should not be interpreted out of context.  Words are given effect by their meaning in the context in which they are situated.

The particular wording in the statute may modify and explain other wordings.A subset of this rule is the principle that the expression of one, impliedly excludes others which are not mentioned.  Another expression of the rule is that where general words are followed by particular words, the general words may be limited to the meanings equivalent to the particular words.

Presumptions

A number of presumption may apply in interpreting legislation.  In the Irish context, some of these presumptions are based on constitutional rights and a presumption that the legislation must be consistent with the Constitution or could not be intended to change  existing law in a manner which would infringe on personal Constitutional rights.

The various presumptions are mobilised at times in  the interpretation of statutes, commonly when the particular result that might otherwise apply would be unjust.

There is a presumption that statute law should not alter existing and established common law unless this is clearly provided. If it is possible to interpret a less radical change in the existing law,  then  this interpretation may apply.

It is presumed that legislation should not be interpreted in a way that deprives a person of fundamental liberties and constitutional rights.  The right to physical liberty has always been jealously guarded.  A statute will not be readily interpreted to allow the deprivation of liberty unless this is clearly stated.

If legislation is to involve a serious infringement or pre-existing liberties this should be clearly and expressly provided. In the constitutional context,  it may be simply impermissible to deprive a person of constitutional rights unless there is sufficient justification.

Presumptions II

Where legislation encroaches on and restricts existing property rights, it is presumed that this is not intended to apply unless the person affected is to receive compensation.

A similar principle applies in the context of tax legislation.  If a new tax is to apply, it must be expressed in clear and unambiguous terms.  If there is an ambiguity, there is a presumption that it should be resolved in favour of the taxpayer.

There is a presumption that criminal offences should have a fault element or a requirement for knowledge, recklessness or intention.  However, it is very common in regulatory offences that liability is strict.  Once the relevant circumstances or behaviour occurs, the absence of intention recklessness or negligence is immaterial to the offence.  —

The presumption can be rebutted. Under some schemes of legislation, it would be clear that liability or guilt apply irrespective of the person\’s state of knowledge or otherwise. It may be  apparent that a mental element is not required.  They are usually regulatory offences which involve no element of moral wrongdoing The degree of blame may be relevant to sentencing.

Formerly there was a presumption that the State, and before it, the Crown was not  bound by legislation unless expressly mentioned.  This principle has been found inconsistent with the Constitution.  Under the Constitution, the state is subject to the law in much the same way as in the case of individuals.

It is presumed that statutes should not operate retrospectively.  The Constitution specifically prohibits retrospection the designation of acts or behaviour as criminal offences. Retrospective legislation is permissible in the United Kingdom but the wording must be clear.

Aids in Legislation

The Interpretation Act provides that a repeal that does not legalise conduct which was unlawful before the repeal.

There are certain aids to interpretation which are commonly employed.

On occasions, the long title or preamble to legislation may assist in interpreting its purpose.  The long title commonly sets out the objectives of the legislation.

Older legislation may contain a  preamble setting out the intended effect of legislation.  This had largely been abandoned in modern times.  However in the case of certain of the emergency legislation passed after the financial crisis, preambles have been inserted to attempt to ensure that some of the extraordinary measures are interpreted by the courts, the context of the financial crisis and urgent public necessity.

Marginal or side notes are included in legislation to give a broad indication of what section  is about.  They are not part of the act and are not generally resorted to in interpretation.

The Interpretation Act Rules

The two modern broad approaches are literal approach and  the so-called teleological schematic or purposive approach.

The Interpretation Act provides certain general rules of interpretation.  References to the masculine include feminine and references to the singular and the plural unless the contrary intention appears.  In the case of statutes passed since  1993, a reference to the feminine includes the masculine unless the contrary appears.

The Interpretation Act specific permits the court to depart from a literal interpretation where the provision concerned is obscure or ambiguous where a literal  interpretation would be absurd or fail to reflect the plain intention of the Oireachtas or parliament.  The provision is to be given a construction that reflects the  plain intention of the Oireachtas or the parliament as the case may be where this can be ascertained from the act as a whole.  This provision does not apply to a penal or other sanction.

The literal rule remains the primary rule of interpretation.  It seeks to find the ordinary and natural meaning of the words.  It does have regard to the particular context in so doing.

Where

• a statute is directed at the public in general,
• the meaning is such as to be understood by the public in general or
• where it is addressed to a particular trade business or profession

where everyone is conversant with particular terms,  the statute is to be interpreted in accordance with those terms.

In the case of penal or criminal statutes, the literal wording will not be extended to create offences where they are not clearly created.

The judge may interpret words in legislative provisions in accordance with his experience of its use.  Dictionary and other sources should be looked up only when alternative meanings or different uses to the general meaning where there are grounds to suggest where the meaning has changed since the statute was passed. Where the words are precise and unambiguous then effects should  be given to them.

Teleological / Purposive

The modern formulation of the so-called golden or mischief rules is the so-called teleological or purposive approach.  In taking this approach, the court considers the wider context and the overall purpose of legislation including the previous defect or shortcoming which it is designed to remediate.

This approach is the modern formulation of the principle in the Interpretation Act and in the pre-existing common law that where, a statute leads to an absurdity a purposive  approach should be taken.

The court may consider the long title under a general scheme of statutes in order to ascertain its purpose.  The schematic o teleological approach is broader than the golden rule or mischief rule.   If the view was taken that an absurdity is anything inconsistent with the patent  purpose of the act, then the purposive interpretation rule is a restatement of the golden and mischief rule.

A purposive approach is taken where the literal meaning would lead to an absurd, grossly unreasonable or meaningless result. The  mere fact that the literal meaning leads to  n  unfair and unreasonable result and outside the likely intention of lawmakers, it must nonetheless be applied.

In some cases of ambiguity, the purpose and intention of the legislature may be inferred. In such cases, the court will simply take that interpretation.

General

A number of other principles have been employed from time to time in the interpretation of statutes.

In some contexts, the courts attempt to apply a modern meaning to older statutes.  Legislation from the 19th century would not have, foreseen the  technological advances in some fields.  In some cases, courts have interpreted the reference to technology to refer to the extensions and the development of that technology such as the telephone.

However, there are limits to the principle and some courts have cautioned against effectively amending legislation through interpretations which are not tenable.

There is an assumption that legislation is not to apply retrospectively.  This is separate from the Constitutional prohibition against the retroactive criminal legislation. Retrospective legislation is presumptively unjust and inequitable at common law.  Although it is accepted in the power of the Westminster Parliament.

A distinction is drawn between legislation dealing with practice and procedural matters and those dealing with substantive rights.  Procedural rules will not generally be seen as retroactive even if they are applied in relation  to events prior to the legislative change.  Where, however, legislation deals with substantive   or vested rights or creates new obligations after the event, the principle and presumption apply.

It is presumed that the legislation is not to have effect overseas.  Traditionally criminal conduct was limited to the state.  However, in recent years, the criminal law has been extended expressly to cover behaviour outside the state in certain cases.

Where general words follows particular and specific words of the same nature, it is presumed to be limited to a matter of the same type.

Constitution

The Constitution plays an overarching role in the legal system.  The courts seek to render  an interpretation consistent with constitutional rights and principles.  If they were not to do so, then the legislation itself might be unconstitutional.

The presumption of constitutionality is stronger in relation to a statute passed after  1937. The courts will attempt to interpret them in a manner consistent with the Constitution insofar as possible.  Where there are two reasons of interpretations open one of which causes the statute to be unconstitutional and one which is constitutional, the constitutional interpretation is preferred.

Where no reasonable interpretation consistent with the Constitution is possible, the courts will not amend the statutes and it will be found unconstitutional.

In the Irish constitutional context, retrospective legislation may in some cases be unconstitutional. Where legislation retrospectively affects constitutional rights to the prejudice of the citizen it is distinctly possible that it will be inconsistent with the Constitution.  In this context, the courts will lean strongly in favour of an interpretation which does not involve retrospective abridgement of substantive rights.

EU Legislation and International Law Instruments

The purposive approach has particular weight in the context of the EU legislation .  The European Court of Justice (not the Court of Justice of the European Union) which is the ultimate arbitrator of Union Law is disposed towards a schematic approach to interpreting EU legislation.  Judges are more inclined to look at the overall guidelines and principles underlining the legislation in order to understand and apply particular sections and provisions.

Similarly, legislation should be interpreted so as to be consistent with the state\’s obligations to implement EU directives and other legislation. Domestic  courts must interpret domestic laws to conform with EU law, in so far as it can do.  EU law, where it applies, has precedence over domestic law in that area so that the domestic law should be interpreted in a manner consistent with the EU legislation, where possible.

It is been said that similar principles apply in relation to international law obligations which are binding on the state.  There may in some cases be an obligation to interpret the legislation in a manner which is consistent with the states\’ international obligation.  This will be relevant only in a limited number of circumstances.

Formerly, the question arose as to whether the European Convention on Human Rights should impact on the interpretation of Irish law.  This issue no longer is in question  since the enactment of legislation was specifically requires Irish courts to have regard to the European Convention on Human Rights.

Recourse to Parliamentary Material I

The general principle was formerly that preparatory materials in relation to legislation were not used to assist an interpretation.  Judges did not look at the parliamentary history, explanatory memorandum and another such material.

This practice has been relaxed to some extent in recent years.  Sometimes the courts  have looked at such  materials to identify the mischiefs or objective at which the legislation is aimed.  The Irish courts have had occasional recourse as an aid to interpretation.

It is generally thought that d parliamentary debates and equivalent material may be an unreliable guide to the meaning of legislation. Debate and pressures of executive responsibility may mean that what is presented is a not clear explanation of the legislation.  The general principle is that counsel is not permitted to refer to debates in argument.

On one level the interpretation of legislation involves the ascertainment of the intention of the lawmakers.  However, this is a fiction as the actual intention of individual TDs and Senators it can only be ascertained through the words as expressed in the statute.

Recourse to Parliametary Materials II

There have been a number of Irish cases in which the history of the legislation within the Oireachtas and earlier stages have been considered.  This is contradictory to the earlier approach of the courts.

The courts are more willing to look at Green and White papers, policy publications etc., explanatory memorandum than was once the case.  They may be useful in interpreting the legislative intent in cases of ambiguity.  The courts look at official documentation only.

Traditionally Dail and Seanad debates and reports of parliamentary committees were not examined in interpreting legislation.  The traditional view was that the judge was to give effect to the intention of the parliament\’s words.  What the membrs of parliament or executive might have thought was intended  was not relevant in this regard.

Although the possibility of referring to parliamentary proceedings, has been open, the courts have been relatively cautious and for the most part, courts have not tended to examine the parliamentary material.

Recourse to Parliamentary Materials III

The Supreme Court has in recent times been less willing to have recourse to parliamentary debates.  It is reaffirmed that the traditional view, that the words and intention of the statute should be interpreted from the statute itself. Where necessary,  the purpose of the statute is to be deduced from the statute itself.

The courts have suggested that the complexity and difficulty with looking at ministerial statements to interpret legislation justify their exclusion.  The Supreme Court has mentioned the possibility of extensive recourse been had to with all debates relevant to a statutory provision in any litigation with a proliferation of expense and burden in terms of ascertaining what might or might not have been the intention of the member.

The Supreme Court has been of the opinion that Dail debates should be used sparingly if at all in relation to statutory interpretation.  Although they have not gone as far as disclaiming the practice, it has been heavily criticised as an inefficient.  Emphasis has been laid at the fact that the Oireachtas acts collectively and that the voice of individual members  is not necessarily relevant.

What is said in the cut and thrust of the debate may l be of limited relevance.  It was also the consideration that the role of the courts under the Constitution is to interpret legislation while  the lawmakers role is to make it.