Using Legislation

Role of Legislation

Legislation is designed to both regulate behaviour within society and reflect the way society itself develops. For example, the Black Act, which authorised execution for a wide range of crimes, (passed in 1723 and repealed in 1827) would not work today. Conversely, the Equal Pay Act 1970, which requires equal treatment for men and women in the same employment, and the Civil Partnership Act 2004, which granted legal recognition to partnerships between two persons of the same sex, would have been unheard of before the late twentieth century.

Try it yourself! Think of another recent statute which reflects the changes in society over time.

Top tip: For more detail on the legislation-making process, see chapter three of Slapper & Kelly’s The English Legal System

Finding Legislation

Since legislation is the primary source of law within the UK, you will spend much of your time as a student tracking down statutes. Scroll down to read about the main sources of statutes or click on a link to jump straight to that section.

• Public general acts
• Law Reports Statutes
• Current Law Statutes Annotated
• Halsbury’s Statutes
• Commercial online databases
• Government websites

Public general acts

Public general acts may be found in many public libraries. They are published by the Queen’s Printers’ Office and contain the full text of statutes as they were when originally passed. There is no consolidation or updating and no notes are provided.

Law Reports Statutes

The Law Reports Statutes are published by the Incorporated Council for Law Reporting for England and Wales. They are like the Public general acts in that they have no consolidation and no notes. The series begins in 1866.

Current Law Statutes Annotated

The Current Law Statutes annotated begin in 1947 and contain the full text of statutes as they were when originally passed. Although there is no consolidation, they contain useful notes which give the background to how an Act came into force. They provide Hansard references to the parliamentary debates of the act and give information about any relevant Law Commission proposals or Green or White papers.

Halsbury’s Statutes

Halsbury’s Statutes is a multi-volume series which reproduces the full text of acts in force at the time of publication of the individual volumes. The text is given as consolidated at the date of publication of the volume. For example, the Human Rights Act 1998 may appear in a volume which was published in 2000, incorporating any changes/amendments made between 1998 and 2000. Useful notes are also provided.

Top tip: You can check for further updates by using the:

• Cumulative Supplement (an annual, one-volume publication)
• The Noter Up, which brings the information right up to date.

Top tips:

• New acts will appear in the service files until the relevant volume is reprinted.
• Acts may be split between several volumes due to the subject approach of the series. For example, the Police and Criminal Evidence Act 1984 is split across several the subject volumes.

Commercial online databases

The subscription-only databases of Westlaw UK and LexisNexis Butterworths provide the full text of statutes in a consolidated form. All partial repeals, amendments and so on are present. Your departmental library will probably subscribe to one or both of these.

• Visit Westlaw UK’s website.
• Visit LexisNexis Butterworths website. Lexis+

Lawtel UK provides links to the full text of statutes on the Government’s OPSI website. A useful Statutory Status Table also allows you to check which sections are in force, indicating any changes.

Visit Lawtel UK’s website.

Government websites

Government websites, such as the Office of Public Sector Information (OPSI) and the UK Statute Law Database (SLD), are freely accessible online resources.

OPSI provides the full text of all statutes from 1988. These are not, however, consolidated. Some of the more recent acts may be accompanied by explanatory notes.

Visit the OPSI Legislation website.

SLD gives access to updated versions of many acts which are currently in force. It includes a useful site guide.

Visit the SLD website.

Structure of a Statute

This video highlights the key features of a statute, using the Hunting Act 2004 as an example (reproduced under the terms of Crown Copyright Policy Guidance issued by HMSO). To access the act yourself, visit the OPSI Legislation website and search for ‘Hunting Act 2004’.

Scroll down to find out more about each section of the statute, or click on a specific term to go directly there:

• Enacting formula
• Preamble
• Main body
• Schedules
• Explanatory notes

Enacting formula

The enacting formula introduces the main provisions of the Act. The Hunting Act 2004 is one of the rare statutes passed under the Parliament Acts of 1911 and 1949, whereby the House of Commons forced the legislation through despite opposition from the House of Lords. Most statutes are passed by both Houses of Parliament, and therefore have the following enacting formula:

BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:…

Preamble

In older pieces of legislation, preambles provided a description of the purpose of the Act, usually in a more comprehensive from than the long title. When evaluating a piece of legislation with a Preamble, it may be useful to ascertain if the Courts have in fact given effect to Parliament’s intentions by comparing the judgements delivered with the wording in the preamble.

Main body

The main body of the statute is divided into sections, subsections, paragraphs and subparagraphs. Each section has a heading, for example section 2: Exempt hunting. The section headings are meant to give a summary of what that section is about, although this is not always clear. For example, section 1 of the Hunting Act 2004 does not define ‘wild mammal’.

Schedules

Some acts include schedules, which come at the end. These schedules may comprise:

• definitions
• explanations
• detailed provisions
• details of amendments
• details of repeals

The Hunting Act 2004 contains two schedules.

Explanatory notes

With effect from the first Public General Act of 1999, all new Public Acts which result from Bills introduced into either House of Parliament by a Government Minister (with the exception of Appropriation, Consolidated Fund, Finance and Consolidation Acts), are accompanied by explanatory notes. Explanatory notes are produced by the government department responsible for the subject matter of the act. They explain the act without the need for legal or other specialised knowledge.

Top tip: Neither the preamble nor the explanatory notes are legally binding.

Try it yourself! Look up the full text of the Hunting Act 2004 on the OPSI website and answer these questions.

1. On what date did this Act come into force?
2. What is the long title of the Act?
3. Can a person convicted of an offence under the Hunting Act 2004 be imprisoned?
4. Can a police constable enter a suspect’s house to look for evidence?
5. Can a private or public limited company commit an offence under this Act?

Check your answers

Try it yourself! Carefully examine the seventeen sections and two schedules of the Hunting Act 2004, and read the Harry and the wild boars scenario. How will you advise Harry?

Interpreting Legislation

Although Parliament states what the law is, judges must make sense of parliament’s words, and they have a measure of discretion and creative power in the way they interpret legislation.

Like any other form of communication, legislation can incorporate words that have more than one meaning, or words whose meaning changes depending on context.

Because legislation needs to be written so that it can be effectively applied in various circumstances, there can often be a lack of clarity or precision. Language can even create legislation that is obscure, ambiguous or meaningless, failing to achieve the end at which it is aimed simply through being badly drafted. Judges in such circumstances need to provide legislation with effective meaning.

There are two contrasting views as to how judges should go about determining the meaning of a statute: the restrictive, literal approach and the more permissive, purposive approach. In addition, judges may use rules of interpretation, aids to construction and presumptions to help clarify the meaning and intended purpose of legislation.

The literal approach

The literal approach holds that the judge should look primarily to the words of the legislation in order to construe its meaning. Except in very limited circumstances, judges should not look outside of, or behind, the legislation to find its meaning.

The literal approach is dominant in the English legal system.

The purposive approach

The purposive approach suggests that judges should have, where necessary, the power to look beyond the words of a statute in pursuit of the reason for its enactment.

The purposive approach is typical of civil law systems, where legislation sets out general principles and judges fill in the finer detail. Since European Community legislation is drafted in this manner, its detailed effect can only be determined through a purposive approach to interpretation.

Top tip: Read more about how this approach to interpreting EC law is influencing the literal approach of English law in chapter seven of Slapper & Kelly’s English Legal System textbook.

Rules of interpretation

There are three traditional rules of statutory interpretation:

• the literal rule
• the golden rule
• the mischief rule

It may seem that these rules form a hierarchical order (the golden rule only being applied if the literal rule causes ambiguity, and the mischief rule only being applied where the other two rules fail). However, the wider move towards a more purposive approach to interpretation means there may be greater application of the rules (mischief and golden) which determine the meaning and effect of legislation.

Literal rule

Under the literal rule, judges consider what the legislation says rather than what it might mean. Words in legislation should be interpreted by their literal (or everyday) meaning, even if this results in an unjust or undesirable outcome.

For example, the Inland Revenue Commissioners v Hinchy (1960) case concerned s25(3) of the Income Tax Act 1952, which stated that any taxpayer not completing their tax return was subject to a fixed penalty plus “treble the tax which he ought to be charged under the Act”. The court had to consider whether the penalty should be based on the total amount that was due, or merely the portion which had been unpaid. The House of Lords interpreted the statute literally and held that any taxpayer in default should pay triple their original tax bill (even if they had already paid a portion of it).

The essential weakness of the literal rule is the assumption that there is a single, uncontentious, literal understanding of words.

Golden rule

The golden rule is an extension of the literal rule, applied when use of the literal rule would result in an obviously absurd result. There are two versions:

• the narrow meaning
• the wider meaning

Narrow meaning

The narrow meaning of the golden rule is used when there are two apparently contradictory meanings of a word. The golden rule gives preference to the meaning that does not deliver an absurd result.

For example, in Adler v George (1964) the defendant was charged, under the Official Secrets Act 1920, with obstruction “in the vicinity” of a prohibited area. In fact, the defendant had carried out the obstruction inside the area. The court preferred not to restrict itself to the literal wording of the act and found the defendant guilty as charged.

Wider meaning

The wider meaning of the golden rule is used when, although there may be only one possible meaning, the court considers that a literal interpretation will result in inconsistency, absurdity, or inconvenience.

For example, in Re Sigsworth (1935) the court introduced common law rules into legislative provisions to prevent the estate of a murderer from benefiting from the property of the party he had murdered.

Mischief rule

The mischief rule considers these questions:

• What was the common law before the passing of the statute?
• What was the mischief in the law which the common law did not adequately deal with?
• What remedy for that mischief had Parliament intended to provide?
• What was the reason for Parliament adopting that remedy?

For example, in Corkery v Carpenter (1950) the mischief rule resulted in a man being found guilty of being drunk in charge of a “carriage”, although he was in fact only in charge of a bicycle.

Aids to construction

In addition to the rules of interpretation, there are a number of secondary ways to interpret legislation. These can be classified as intrinsic aids or extrinsic aids.

Intrinsic aids

Intrinsic assistance is derived from the statute itself. Judges may use the full statute (including the long and short titles, preamble and schedules) to gain an understanding of the meaning of a particular part of it.

Top tips:

• A general intention derived from the title or preamble cannot overrule a clear statement to the contrary in the main body or schedules of an act.
• The extent to which section headings and marginal notes may be used is unclear.
• Punctuation can be considered in determining the meaning of words and phrases.

Extrinsic aids

Extrinsic assistance is derived from sources outside of the statute. Judges may use dictionaries to identify the meaning of non-legal words, textbooks to seek guidance on points of law and earlier statutes to determine the mischief a later Act was designed to remedy.

Historically, English courts have restricted the use of many other sources. However, judges are now entitled to look at Law Commission reports, Royal Commission reports and the reports of other official commissions which may clarify the specific purpose of a piece of legislation or the real meaning of any provision within it.

In the context of the mischief rule, judges may also consider parliamentary debates recorded in Hansard. They should not, however, take individual or ministerial statements as indicative of the intention of Parliament as a whole.

Top tip: The Interpretation Act 1978 defines particular terms found in various statutes.

Presumptions

In addition to the rules of interpretation, the courts may also make use of certain presumptions. As with all presumptions, they are rebuttable. The presumptions operate:

• Against the alteration of the common law
• Against retrospective effect of new law
• Against breaking international law
• Against deprivation of liberty
• Against application to the Crown
• That a mental element is required for criminal offences
• In favour of words taking their meaning from the context in which they are used.

Top tip: For more detail about each of these presumptions, see chapter seven of Slapper & Kelly’s The English Legal System textbook.

Try it yourself! Look up sections 4 and 5 of the Unfair Contract Terms Act 1977 on the OPSI website and consider these issues:

• Access: How easy is it to find the act? Could it be easier to obtain?
• Audience: Who is the intended audience? Will they be able to understand the material? How could the text be made more appropriate for a lay person?
• Vocabulary: What kind of words are used? Do you understand them all? Could they be understood by a lay person?
• Writing style: How are the sentences structured? Are they clear and concise? Is the content easy to follow?
• Layout: Does the layout aid understanding? How could it be improved?

Citing Legislation

Statutes can be referred to by their:

• short title
• long title
• official citation: year and chapter number

Thus, the:

Hunting Act 2004
2004 c. 37

can be cited as follows:

• Hunting Act 2004 (using the short title) or
• An Act to make provision about hunting wild mammals with dogs; to prohibit hare coursing; and for connected purposes. (using the long title) or
• 2004 Chapter 37 (using the official citation). This can also be written as 2004 c.37, 2004 cap.37, or 2004 chap. 37.

Top tip: Before short titles were formally assigned to statutes, Regnal years (referring to the number of years since the start of the serving Monarch’s reign) were used. For example, the:

Cleansing of Persons Act 1897
1897 c.31 60_and_61_Vict

was the thirty-first statute passed in the parliamentary session which began in the sixtieth year of Queen Victoria’s reign and ended in the sixty-first year.

The practice of using Regnal years officially ended in 1963.

Top Tips

1. UK legislation since 1988 is freely available on the OPSI website.
2. Bills before Parliament can be accessed on the Parliament website.
3. European legislation is available on the Eur-Lex website.
4. Always make sure you are using the most up-to-date version of legislation by checking for updates, and check that the law is currently in force.
5. If an act includes a preamble or explanatory notes these are not legally binding.
6. Before 1962, statutes use Regnal years, referring to the number of years since the start of the serving Monarch’s reign.
7. Although Parliament passes legislation, it is judges who must interpret its meaning in the courts.
8. Judges can use different approaches and rules when interpreting legislation.
9. Although the literal approach is the traditional way of interpreting English law, EC legislation should be interpreted with a purposive approach.
10. The Human Rights Act 1998 states that statutes should be interpreted in a way which is compatible with the European Convention on Human Rights.

Weblinks

Bills and legislation site from the UK Parliament
http://www.parliament.uk/business/bills_and_legislation.cfm

Citing legislation guide from Cardiff University
https://ilrb.cf.ac.uk/citingreferences/oscola/tutorial/page05.html

European legislation from Eur-Lex
http://eur-lex.europa.eu/en/legis/index.htm

Office of Public Sector Information (OPSI) legislation pages
http://www.opsi.gov.uk/legislation/about_legislation

Reading an Act of Parliament course material and activities from OpenLearn
http://openlearn.open.ac.uk/mod/resource/view.php?id=286527

The Rules of Statutory Interpretation course material and activities from OpenLearn
http://openlearn.open.ac.uk/mod/resource/view.php?id=336226

The UK Statute Law Database (SLD)
http://www.statutelaw.gov.uk/

Using Halsbury’s Statutes visual guide from Manchester Metropolitan University
http://www.ics.heacademy.ac.uk/resources/rlos/wakefield/halsburysstatutes/html/page_03.htm

Other Routledge-Cavendish legal skills modules

Try It Yourself Answers

Hunting Act 2004

1. The provisions of the act come into force on the date of the Royal Assent unless otherwise stated. In this act, section 15 states that the act shall come into force at the end of the period of three months beginning with the date on which it is passed. The act therefore came into force not on 18th November 2004, but 18th February 2005.
2. An Act to make provision about hunting wild mammals with dogs; to prohibit hare coursing; and for connected purposes.
3. No. Section 6 states: “A person guilty of an offence under this act shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.”
4. Not if it is a dwelling. See s8(5)(b).
5. Yes. See s10.