ABSTRACT
The first part of this chapter outlines the concept of the contemporary practice of statutory interpretation. Understanding statutory interpretation has not been helped by references – in decades of student orientated texts at least – of a model of ‘rules’ of interpretation, which, if they ever did convey any feel of what went on, were a relatively constrained account of options in practice. Instead we need to see it as a dynamic engagementwith legal texts.Wewill not in this chapter present a guide to interpretation; instead, after setting the scene, we will concentrate upon certain recent developments, namely the impact of Pepper v. Hart, European methods of interpretation and the interpretative provisions of the Human Rights Act 1998. Our stance is to focus on the parameters or limits of judicial interpretation. Although the vast bulk of everyday practices of interpretation seem to pose few constitutional issues, we argue that the general practice operates within constraints of institutional legitimacy; any act of statutory interpretation involves matters of constitutional propriety. Indeed, writing in 1999 about the Human Rights Act, Lord Irvine (1999) spoke of the judiciary as ‘an integral component in a constitutional machinery that seeks to secure accountable government’. Similarly, Lord Steyn has argued: ‘The language used by Parliament does not interpret itself. Somebody must interpret and apply it. A democracy may, and almost invariably does, entrust the task of interpretation to the neutral decision-making of the judiciary’.5
What are the current limits of this interpretive role? We will suggest that contemporary practice can be seen as evolving. informed by a democratic vision where the courts and Parliament operate in dialogue about the relationship of legislation and human rights.
Statutory interpretation has very little to do with so-called ‘rules’ of interpretation. Whether or not these rules accurately reflect the approach of the courts in the past,
they are largely irrelevant to the contemporary practice. At best, the priority of the literal approach stressed a general problematic: interpretation needs to be kept within certain constitutional constraints.6 The main question in this chapter is thus a variation on one of the key points of the previous chapter: what picture can be drawn of the constitutional arrangements in which interpretation takes place? To what extent can interpretation be seen as law making, and, if so, what are the acceptable constraints of judicial legislation? This is, of course, a question of institutional legitimacy. Again we may have settled on a practice wherein interpretation takes place on a daily basis in such a fashion that the majority of cases do not appear to raise this problem of where the boundaries of interpretation lie. If the language of a statute is clear then interpretation is presumably entirely secondary to the application of the statute to the facts. While all interpretation occurs within an interpretative community and there are interesting issues in explaining interpretation in an increasingly pluralist social body, we are more concerned in this text with the constitutional propriety of interpretation in those instances where statutory language is ambiguous or capable of carrying different meanings, or where the law places on judges a particular set of interpretative demands stemming either from European law or the interpretative provisions of the Human Rights Act. The choice of one meaning rather than another may amount to law making. As the courts cannot be seen to overstep the boundaries in their legislative role, and intrude upon the province of Parliament, the real issue in terms of the constitution of the practice is where this boundary lies.
