Statutory Interpretation

Many legal disputes turn on the interpretation of legislation in the context of the circumstances.  If the matter is adjudicated upon by a Court the Court will apply the legislation to the facts as found.  In many cases the facts will not be disputed but the question will turn on how the law applies to them.

The Courts, in the event of a dispute, use certain principles and techniques in interpreting Statutes.  These techniques assist in anticipating how a Court may interpret a Statute so as to facilitate a resolution or settlement of a matter prior to the necessity for Court determination.

Statutes are usually drafted after careful review and consideration.  They are drafted by the parliamentary draftsman’s office which consists of specialist legally qualified barristers and solicitors.

Legislation is usually drafted in precise and technical language so as to cater for the complexity of circumstances that may arise.  There will often be one or more interpretation sections which define how certain words mean in the context of the Statute.

Statutes are often drafted in the context of existing legal concepts.  The drafters endeavour to be precise and consistent in drafting.  This frequently makes the Statutes appear formal and difficult to comprehend.

There has been a move in England and Wales over the last 20 years to draft Statutes in simpler more everyday language.  English Statute has endeavoured to use more user-friendly language although in practice there are limits to the extent this can be achieved.

It is generally possible to set out the concepts and ideas behind a law in plain and simple language.  However in order to translate this into a Statute which has general application it is difficult to avoid more formal, technical and precise use of language.

The interpretation of Statutes can raise basic questions about the meaning of words in a particular context.  Some words do not have definite meanings or their meanings change over time and in different circumstances.

Statate law on a particular matter may consist of legislation of varying different ages drafted in different languages.  There may be questions as to which legislation applies to the circumstances.  As with cases decided on common law principles, the Court ultimately makes a decision or interpretation and applies it to the facts.  This is then the definitive decision on the matter in relation to this dispute.  It does not matter whether you decision is good, bad or indifferent if the decision is rendered and is not appealed it will stand as the definitive application of law.

It is often said that the interpretation of legislation involves discovery of the lawmakers’ intentions.  This is a fiction in the sense that the actual subjective intention of members of the Oireachtas is irrelevant.  The intention is reflected only in the words.

In practice the members of the Oireachtas may have minimum influence only in the wording which will largely be presented by the relevant minister as prepared by the parliamentary draftsmen.  Although amendments are frequently made while legislation is passing through the Oireachtas they are usually given effect by the parliamentary draftsman’s office.

The intention of the Oireachtas is determined principally by the wording of the Statutes.  It may be clear that a particular policy or purpose behind legislation was to achieve a particular result.  If, however, the clear wording fails to achieve that result and that for example there is an obvious loophole, the Courts cannot interpret in new words that are not present.  The Courts may interpret the words that are present in a manner consistent with the Oireachtas’ intention if there is ambiguity.

The Courts have adapted a number of traditional rules in seeking to interpret legislation in cases of uncertainties.  These rules or principles of interpretation may lead to inconsistent results in particular cases.

 

Literal meaning looks at the ordinary everyday meaning in which the words are normally used. Words are presumed to have the everyday meaning.  Words which require a special meaning would be given that meaning.

Generally if the language in a Statute is clear and unambiguous it will be given as little meaning even though this may lead to an undesired result.  It may be obvious that the Oireachtas did not intend a particular result but the Courts generally take the view that where the literal meaning is clear it should be applied.

There are a number of other principles which are used particularly where there is ambiguity or where the literal rule would lead to an absurdity or inconsistency.

Where alternative interpretations are open the interpretation must be consistent with the smooth working of the legislation and the purpose behind it.  This is the so called golden rule which looks at the purpose and intention of the Statute as a whole.

The so called mischief rule looks at the wrong or so called mischief that the Statute was designed to remedy.  The rule was more relevant in earlier times were Statute law was less a less frequent feature and often passed to remediate specific defects in common law.

However in modern times large swathes of area comprise only Statute law.  Equally the rule will apply where legislation is designed to remedy a pre-existing defect.  In this context the rule starts overlapping with the golden rule or purposive rule.

The mischief rule has elements of the so called golden rule.  The focus in both cases is on the purpose behind the legislation, its scheme and purpose.

The Interpretation Act provides general rules for the interpretation of legislation.  There are certain fundament rules.  For example, the masculine includes the feminine and vice versa in the case of legislation after 1993) unless the contrary appears.

The literal approach requires that Statutes be given their ordinary and natural meaning if there is nothing to modify alter or qualify the language concerned.  The meaning will to some extent be informed by the context in the same sense that any text will be in the context of a particular setting.  Subject to this the interpretation of most provisions and Statutes, legal or other technical expressions are given their ordinary normal meaning.

Where words or expressions in the legislation are specifically defined, as is commonly the case, that definition informs the meaning of the word concerned.  The general interpretation legislation also applies unless the context otherwise indicates.

Certain expressions have a technical legal meaning and these will generally apply.Some legislation is aimed at a particular sector.  In this case meanings that apply within the sector or business concerned will inform the interpretation.

The purposive approach reflected in the golden and mischief rules applies where there are multiple meanings or where the literal meaning would lead to an absurdity.

Frequently a literal meaning may appear passable, undermines and is inconsistent with the apparent obvious or purpose of the legislation.  In some cases to give effect to the literal meaning would be results which were obviously not intended by the legislation.

In this case the Courts may take a purposive or schematic approach.  This is the more reformulation of the so called golden and mischief rules recognised at common law.

Difficult questions of interpretation may arise.  What is or is not an unreasonable, unfair or absurd result on the application of a literal meaning is a matter of interpretation.  The Courts are not allowed to substitute their own views for what the legislation intended.

The purpose of the interpretation must be open on the words of the Statute.  It must be passable to read in the purpose of the law without rewriting the legislation concerned.  It is impermissible under the Constitution for the Courts to make law in this sense.

The Courts may come close to making law by extending and mollifying interpretation of Statutes.  However there are limits and they may not simply substitute their own view of legislation where it is not open on the wording of the provision concerned.

The Interpretation Act provides that the literal rule may be departed from where the provision is obscure or ambiguous and on a literal interpretation would be absurd or would fail to reflect the plain intention of the law makers.  This does not apply to penal or criminal provisions which are interpreted in favour of the accused.

A great deal of legislation derives from European Union law.  The European Union places obligations on the State under directives in order to bring certain provisions into law.  European Union laws and the requirements of the single market require a common, consistent interpretation and application of the law across the European Union.

This is complicated by the fact that the Member States have radically different legal and Courts system.  A purposive interpretation is a feature of many European jurisdictions. For this reason a purposive interpretation of European Union legislation, its background, intention and scheme may be more appropriate than the case of domestic legislation.There are certain presumptions, aids and so called maxims which the Courts use in interpreting Statute.

Laws which are inconsistent with the Constitution are invalid.  There is a presumption that laws passed by the Oireachtas since the Constitution was enacted are intended to conform with the Constitution.  Where legislation may be interpreted in a way consistent or inconsistent with the rights of the citizens under the Constitution, the constitutional interpretation is preferred.  The Courts will therefore interpret the legislation in a manner consistent with the Constitution thereby upholding the validity of the law.

The same principle does not apply to pre-independent Statutes.  They are not presumed to accord with the Constitution.  Accordingly, they may be more readily found to be inconsistent with the Constitution.

Statutes enacted between 1923 and 1937 are presumed to conform with the Free State Constitution.  Many of those provisions were similar to those in the 1937 Constitution.   Pre-independent Statutes are not presumed to conform with the intention with the result that they may be more easily found unconstitutional and invalid.  See separate sections on constitutional law.

Another aspect of the interpretation of Statutes is the presumption of constitutional justice or fair procedure.  An aspect of the presumption of constitutionality is that many Statutes involving dealings between the government and citizens impliedly oblige the administration to follow fair procedure.  Failure to do so would invalidate the actions concerned.

European Union law is superior to and overrides domestic law in the areas with which the European Union deals.  Courts and ultimately the European Court of Justice may find a provision or Irish law which is inconsistent with the Europe Union law on the subject.

Because of this European Union based statutes and Irish implementing measures are interpreted in a manner that is compatible with EU law and freedom.  See our section on EU law.  EU regulations have direct legal effect throughout the community.  Regulations are increasingly used by the European Union.  There is quite literally, a single Statute i.e. the relevant EU regulation which applies directly in each state.

The majority of law is still made by way of directives.  Directives require the State to implement in its domestic laws the subject matter of the directive.  This is nearly always done in Ireland under special statutory power under the European Communities Act.

If the Irish implementing statutory instrument is incompatible with the directive then the directive will over rule it.  Courts will interpret the statutory instrument so as to be compatible with the director which is the underlying EU legislation

Certain presumptions apply in interpreting legislation.  A presumption is a default position which takeseffect in the absence of a clear indication otherwise.

It is presumed that all parts of the Statute are intended to have a meaning.  Therefore where a number of expressions appear to cover the same ground they would not be interpreted as a belt and braces type repetition.

Statutes are interpreted in the context of current circumstances.  Many Statutes will of course be of considerable vintage.  However they are interpreted in light of the current societal and technological circumstances.

Criminal or so called penal Statutes are interpreted restrictively.  This is because they impact on persons’ reputation and possibly freedom.  There is a presumption in favour of the liberty and good name of a citizen.  If something is to be made criminal it should be made criminal in the clearest language.

Courts therefore interpret penal criminal legislation narrowly.  A wide interpretation which tends towards expanding the scope of what is criminalised is not favoured in the absence of clear and ambiguous language.

Revenue or taxing Statutes are also construed strictly.  Taxation in a sense appropriates property.  Therefore the presumption is that the Oireachtas must state the terms of the tax ???? obligations and liabilities in the clearest unambiguous manner.  If however the literal and clear meaning applies then the Court must give effect it.

The Constitution provides that behaviour and action will not be criminalised retrospectively.  The same provision would apply to other legal obligations.  It is long been a feature of international law that behaviour or acts should not be declared unlawfully which were lawful at the time they occurred.

The principle a presumption against retrospectivity does not apply to procedural rules.  If for example rules of evidence, investigation or discovery change this will not be limited to evidence or matters arising after the change.  The provision and presumption against retrospectivity affects substantive legal rights.

In some cases the matter is more or less a question of presumption than a matter of constitutional principle.

Legislation generally affects the jurisdiction only.  Therefore Irish laws can only take effect in relation to matters and events occurring in Ireland or having sufficient connection with Ireland.

There are a number of presumptions of interpretation which are common sense principles of interpretation.  The principles may overlap and lead to contrary results.  However they are sometimes invoked by Courts in aid when interpreting difficult or ambiguous legislation.

These principles are expressed in a number of Latin expressions. There is a principle of when one matter or thing is specifically mentioned and other matters of the same type or class are mentioned.  The specific expression of one excludes the other.  This is appropriate where the context implies that the inclusion of certain items and the exclusion of others was intentional.

A further principle or maxim is to the effect that where general words follow specific words of the same type, the general words are intended to be limited or restricted to the same type.  The general words are thereby limited and interpreted in the light of the specific words.

A further principle or maximum of interpretation is to the effect that words must be interpreted in context.  Words by themselves may appear to have clear meaning but in the context of the particular legislation it may become apparent that another or a narrower meaning is intended.

There is a principle that where a Statue deals with a general subject matter it is not to be taken to restrict one dealing with a more specific matter.  This sometimes applies in the context of new legislation which might implicitly repeal or be inconsistent with older legislation.  If the new legislation is covering a more general subject matter the principal of interpretation presumes that it is not intended to repeal the more specific legislation.

Sometimes legislation provides that a governmental body must do certain things in the context of making a decision or administering a particular matter.  The question sometimes arises as to whether a failure to do that thing prescribed by legislation or follow a particular procedure or detail invalidates the administrative action.

The Courts in much the same way as interpreting the relative importance of contractual terms the Courts will consider whether particular conditions or obligations in the Statute are so called mandatory or directory.  If they are directory their exclusion or omission to perform them is not fatal to the validity of the act.

Sometimes legislation states that certain things shall be done.  However the omission to do the things concerned will not necessarily invalidate or make the entire action unlawful.  What is omitted must be essential and indispensable.  A minor departure from administrative practice would not invalidate an administrative proceeding.

When legislation is amended it is usually provided that the amending Statute is interpreted in conjunction with the earlier Statute.  Therefore the context and definitions in earlier Statutes may apply unless the contrary appears or is implied .

Apart from this provision the Courts interpret Statutes in light of the existing law.  Where expressions have a technical meaning under law that meaning is likely to apply.

The preparation of legislation is generally the result of a long and careful process.  Sometimes legislation follows from detailed Law Reform Commission reports which consider the existing law and make detailed proposals which are rationalised.  More commonly legislation is prepared by the parliamentary draftsman’s office but an explanatory memorandum accompanies the Bill which is introduced in the Oireachtas.

The sponsoring minister usually gives details of the rationale and principles behind the Bill.  Questions may be answered, amendments put.  The Bill will be debated in the Dail and Senate.  All these materials are available in the Dail and Seanad reports.

Formerly the Courts took the view that such pre-enactment history and background should not be considered.  The legislation should be considered in light of what it provided.

This older rule has been departed from and since the late 1970s the Courts are more willing to look at the legislative background.  Green papers and white papers are commonly prepared by government departments in the context of proposing and ultimately drafting legislation.

The Courts are prepared to look at official material published in anticipation of legislation.  In contrast lobbying documentation, private submissions, etc. are set not likely to be considered.

The Courts are now willing to consider parliamentary debates and materials in relation to the legislative history of legislation.  The course of how legislation changed and was amended in the Oireachtas may clarify the meaning of an unambiguous provision.

While the Courts will sometimes look at these materials there is a reluctance and caution to do so.  No question of looking at materials arises if the statutory provision is clear and no ambiguity or absurdity arises.

The Courts have only allowed reference to parliamentary materials exceptionally.  The approach is controversial as Dail debates may represent different view points and do not necessarily assist in the ultimate meaning of the legislation.  Ultimately the meaning is primarily found through what is said.  For this reason the modern approach will rarely be appropriate aids to interpretations.