Approaches to Interpretation III

Table of Contents

Context / Schematic Interpretation

Statutes are interpreted in their legal context. The Constitution stands at the apex of the Irths legal system. New law and statutes sit in the context of existing common law and statute. In interpreting statutes, this legal context will frequently be helpful and relevant.

Particular sections of legislation are interpreted in the context of the entirety of the legislation. The entirety of the Act is relevant to interpretation. It will disclose a purpose and intention in cases of ambiguity.

The interpretation of the legislation in the context of the entire Act is sometimes referred to as a schematic interpretation. Words are interpreted in their context, in light of the overall purpose and intention of the legislation.

The legislative and legal background to legislation may help inform its purpose and context. However the pre-existing legislation and background cannot be used to displace the clear meaning of the legislation.

Related Acts

Acts in related areas may be relevant in statutory interpretation. New Acts are part of an existing legal system and should be interpreted in conformity and harmony with it.

Where legislation deals with the same subject matter, then it is reasonable that its language should be interpreted in a similar manner to the existing legislation so that it is coherent and consistent. It is said that for this principle to apply, the legislation should relate to the same subject matter. A broad similarity of subject matter would not be enough.

Legislation usually provides that Acts and amending Acts in the same area are to be interpreted as one. This is referred to as a collective citation clause. Schemes of legislation provide that Acts together with their amending and supplemental legislation should be interpreted as a whole.

Where new legislation is inconsistent with existing legislation, it may be interpreted to have repealed that existing legislations. In other cases, the later legislation may simply clarify and alter the existing legislation without repealing it.

Precedent

The principle of precedent applies with the interpretation of statutes. Decisions in earlier cases on the same points are binding in subsequent cases as precedents.

However, in the same manner as so called obiter dicta statements in common law precedents, remarks or observations that are not directly in issue are not binding. They may be persuasive. However is it presumed that the point is not been fully argued and considered and is therefore not authoritative unless it is critical for the decision. See the separate sections on precedent in the common law context.

In some cases, words or phrases may have been interpreted in other cases. An argument might be made that the legislature is endorsing and acting in accordance with the court\’s interpretation of the particular phrase. This principle of interpretation has been accepted and applied by the courts in a number of occasion.

Common procedural provisions are often inserted in the statute, for example, in relation provisions for appeal, enforcement, prosecution and investigation of offences. Where similar equivalent powers have been interpreted in relation to earlier and other statutes, their interpretation in another context or statute with no material factual difference is likely to be pursuasive.

Consolidation

The principle arises in a very direct manner in the context of a Consolidation Act. Consolidating Act simply update and put the law together in a simple single statute. They are subject to a special shorter form of parliamentary procedure where there are certified by the Attorney General as such during the bill stage.

In these cases, interpretation of the equivalent replaced section will be of precedent value and significance in the interpretation of the consolidated law. It is presumed that the consolidating Act is not intended to change law. This presumption may be shown to be inapplicable in some circumstances.

Parliamentary History

The legislative background in the sense of the prior law, may be considered as set out above. However, the courts have usually excluded parliamentary history in the sense of debates in parliament, ministerial statements, statements by members of the Oireachtas and others in the course of formulation and passage of legislation through the Oireachtas.

The rule at common law was that the parliamentary history could not be used to interpret the Act. This traditional rule has been modified in the last thirty to forty years. A number of Irish cases in the 1970s and 80s appeared to have opened the door to a wider reference to the parliamentary history. However, the Supreme Court has reaffirmed the traditional rule in the most important case on the matter.

The justification for the exclusion of parliamentary contributions is manifold. One justification is that opinions expressed in parliament are only those of individual lawmakers and do not represent the opinion of the lawmakers as whole. The process of law making is collective and parliament as a whole speaks through the legislation.

Objection to Parliamentary Material

If parliamentary material was to be admitted widely, then it may increase the complexity and costs of proceedings. Considerable additional material not now conventionally brought into legal argument, would be potentially forthcoming.

Even if the material was useful, it could be partisan. A key aspect of the Supreme Court\’s rejection of the parliamentary history as relevant, is the separation of powers. If the parliamentary material was considered n the context of the interpretation of law, then this would give lawmakers the power to provide preemptive interpretation of legislation. This would run contrary to the independence of the court.

Such a principle would also potentially distort the legislative process. Contributions may be made particularly by the sponsoring Minister setting out the purpose and effect intended for the purpose of future court interpretation. This may constrain debate.

A sponsoring Minister may be closely associated with legislation. Giving weight to parliamentary materials might ive undue weight to a personal opinions of a sponsoring minister or member.

The background to legislation as a bill together with the amendments made to it are not allowed in to assist in the interpretative process. Prior to the above Supreme Court case, a number of cases did make reference on such material. However, the Supreme Court case appears to have reversed this body of opinion.

Explanatory Memoranda

Traditionally explanatory memorandum are published in relation to a bill. They usually only publish in relation to the first draft of the bill, so they often do not reflect amendments made.

Equally, statutory instruments generally have a paragraph at the end as an explanatory note. They usually declare that the note does not form part of the legislation.

Explanatory memorandas are potentially relevant in showing g the background of the legislation and its purpose. Their status is not clear and they may fall within the prohibition using parliamentary material.

Legislation commonly follows from reports by Fovernment departments, external consultants or the Law Reform Commission. The courts have resorted o such reports as an aid to interpretation. Such reports can provide information on the background and purpose of the statute.

The courts have been careful with the use of reports of commissions and others, The report need not necessarily be reflected in the final legislation. The primacy of the words of the legislation remains. As with other aids for interpretation, reports et cetera are generally appropriate, if at all, only where there is an ambiguity.

Exceptionally legislation may refer to a particular report as being relevant. This may happens in relation to legislation giving effect to international obligations. They may be specifically declared that regard may be had to named reports in the interpretation of the legislation. This has been done happened in relation to certain European Union legislation such as on the enforcement of judgments?

Apart from the common European Union influence, many Irish statutes have been based on counterpart United Kingdom measures. In this context, judgments of the UK courts may be relevant and of high persuasive value in the interpretation of the same or equivalent legislation.

In some cases, later UK legislation changing older common Irish legislation (pre-1922) might be relevant to showing the pre-existing state of the prior legislation. However, this may conflict with the principle that later legislation is not relevant to the interpretation of earlier legislation, as the lawmakers are not in a position to interpret legislation, this being a judicial function.

It is always been the case that courts in interpreting legislation giving effect to international treaties may have regard to the committee reports and other preparatory materials. As mentioned above, this is sometimes specified in the legislation itself. The principle is justified by the desirability of harmonious consistent treatment internationally.

The obligations on states to give effect to treaties should apply uniformly and divergences and discrepancies in language would be more problematic than in domestic legislation. Although, they should be primarily interpreted by reference to the domestic legislation and the treaty itself, the preparatory materials are accepted as relevant.

Treaties

There is an international treaty on the law of treaties. Ireland is not yet party. This treaty on treaties provides that treaties are to be interpreted in good faith in accordance with their ordinary meaning, in their context and in light of their objection purpose. The context includes

the treaty itself,
its preamble,
annexes,
agreements relating to the treaty to which all parties were party,
instruments in connection with the conclusion of the treaty.

Account has been taken as subsequent amendments, subsequent practice and rules of international law. Supplementary means of interpretation include preparatory work of the treaty and the circumstances of its conclusion, where this is necessary to confirm the meaning resulting from the above general principles or to determine the meaning where the above mentioned principles (plain meaning in the light of object and purpose) are ambiguous or obscure or lead to a result that is manifestly absurd or unreasonable.

The Irish Constitution

The Constitution is fundamental to Irish law. All legislation is interpreted in the legal framework and system created by the Constitution. The legislation must be consistent with the Constitution.

Fundamentals to the Constitution are a separate legislative, judicial and governmental functions. In interpreting legislation, the courts have primacy. The legislature expresses its opinion through its words. Other expressions by individual members of government or lawmakers are not generally relevant to interpretation.

The courts have the exclusive authority to interpret and apply legislation. Equally, the courts should avoid law making through interpretation. This approach gives primacy to the literal meaning of the statute and discourage its reference to other criteria where the law is clear.

Unconstitutionality

All legislation must be consistent with the Constitution. Where there is an interpretation which is consistent with the Constitution and an interpretation inconsistent with it, the interpretation consistent with the Constitution must be applied. It is to be presumed that the legislature intended the Constitutional interpretation.

Where there are a number of interpretations open, all of which are consistent with the Constitution but some of which are more consistent with the scheme of the Constitution and fundamental rights under it, the latter interpretation should be chosen.

The courts will consider issues of constitutionality, only where necessary. This in part reflects the respect of the judiciary for the legislature and the presumption of constitutionality. If decisions can be made and disputes can be resolved by reference by non-constitutional principles, the courts will normally do so. This reflects the principle of reaching constitutional issues last.

Retrospective Invalidation

Where legislation is found to be inconsistent with the Constitution, it is void and of no effect. In principle, the legislation is void from the outset; ”ab initio” . In the case of pre-1937 /pre-1922 legislation, it may be found never to have been carried over by the Irish Free State Consittiion or the Irish Constitution so that this void as in from 6th December 1922 or 1st January 1938

Although legislation might be declared void retrospectively, the courts are reluctant to reverse decisions matters, penalties and opinions already in place or relied on under the legislation. In the Murphy case, where a significant element of the tax code is found unconstitutional, the Supreme Court when later considering the effects of the decision on the application of the State, allowed the benefit of the invalidity to apply only to persons who would had initiated litigation before a certain date.

The statutory rape laws were found to be unconstitutional in not allowing for the possibility of the genuine or reasonable mistakes. A number of prisoners who had been imprisoned applied to have their convictions declared invalid.

The Supreme Court refused to apply the principle of retrospective invalidity to its full logical extent. It indicated that it would not overturn past judicial decisions. Where prosecutions had taken place in good faith in reliance on the legislation in force at the time and the accused did not challenge the constitutionality of the provision, the conviction was deemed lawful notwithstanding that it was subsequently found invalid.

ECHR

Ireland incorporated the European Convention on Human Rights into domestic by the 2003 Act. The courts must interpret the legislation in a manner consistent with the convention.

The Act provides that in interpreting and applying provisions of law, the court shall insofar as possible subject to rules of law relating to such interpretation and application, do so in a manner compatible with the state\’s obligation under the Convention. The provision only applies to legislation made after 2003.