This beats me

Stephen Sedley

  • Statutory Interpretation by Francis Bennion
    Butterworth, 1092 pp, £187.00, December 1997, ISBN 0 406 02126 0
  • Law and Interpretation edited by Andrei Marmor
    Oxford, 463 pp, £18.99, October 1997, ISBN 0 19 826487 9
  • Equality before the Law: Deaf People’s Access to Justice by Mary Brennan and Richard Brown
    Deaf Studies Research Unit, University of Durham, 189 pp, £17.50, October 1997, ISBN 0 9531779 0 4

‘So, then,’ says a founding father, quill poised, to the founding fathers around him in Gary Larson’s cartoon, ‘Would that be “Us the people” or “We the people”?’ If deciding what to write is tough, interpreting what gets written is tougher. Turgid texts need unravelling; obscure provisions need deciphering; occasional nonsense needs correcting; perfectly clear texts may be impossible to apply to novel situations. These and other quotidian exercises are the subject of judgments and commentaries which try to bring ordered methods to bear on the translation of a text into an outcome – that is to say, on trying to give a law its proper effect.

Because the interpretation of statutory texts is the job of the courts, and because the courts (for good but not unassailable reasons) generally follow their own precedents, the judgments by which texts have been interpreted themselves become the subject of interpretation. Law has historically been dominated by a reverence for the printed word which has driven students and lawyers to pore over judgments like theologians over scripture. It has been an unspoken article of faith that in these texts lies truth, and that if they appear not to make sense it is because of the imperfection of the reader’s understanding. The common law no longer makes such claims for itself, but would claim only that it is doing the best it can to keep pace with society’s complicated life without diluting legal principle, and judges keep having to repeat that their judgments are not to be construed like statutes. Statutes, on the other hand, do have to be construed like statutes and, until Parliament repeals or changes them, the job of the courts is to interpret and apply them. There is here a unique interpenetration of the legislative and judicial powers, for what an Act of Parliament means is what the courts decide it means. Once it has spoken, Parliament has no continuing interpretative function.

The need for the courts both to be loyal to Parliament’s prescriptions and to try to do justice has sometimes interesting – indeed, sometimes legendary – consequences, most of which are recorded and categorised in Francis Bennion’s book. Bennion is a former Parliamentary drafter (the gender-neutral word is his) whose treatise on the at times agonising job of statutory interpretation substitutes for the conventional categories a series of derived principles and propositions which make it possible often to crack a problem of interpretation by approaching it laterally. To compose such a work is an act of civility on the part of a professional who, with his fellow drafters, cannot always have been happy about what first legislators and then lawyers and courts made of their texts. For their part, MPs and judges are sometimes at a loss to know what the drafter has been trying to achieve. MPs have at least the advantage of being able to ask the mover of a Bill for clarification. Judges, who have to do the best they can with the words on the page, are not generally as brusque as the Victorian Law Lord who said: ‘This beats me.’

A ready source of help, which I hope will routinely be available when the coming freedom of information regime is in place, are the Notes on Clauses in which the Parliamentary drafter explains and expands the condensed prose of a Bill for the benefit of ministers and their officials. At present these are handled like a state secret. I can give a rare example. The Deregulation and Contracting Out Act 1994 provides that ministers are to remain responsible for contracted-out government functions, but not ‘for the purposes of so much of any contract made between the authorised person and the Minister ... as relates to the exercise of the function’. This is comprehensible with effort, though dense to the point of opacity. But the Notes on Clauses (released to a colleague in a moment of openness by the previous Government) make its purpose plain and simple: ‘Essentially, the Minister ... remains accountable for the exercising of the function but may take action, including termination, against the authorised person under the contract if he ... does not discharge his obligations under the contract.’ Why, with such light to hand, should we have to go on groping in the dark? Indeed we now turn in cases of bafflement to Hansard, in the hope that a minister was challenged in Committee about the meaning of the words, and hoping, too, that any explanation was read accurately from the Notes on Clauses and not (as has happened) from the wrong part of a briefing, or from the part headed ‘not to be read out’ (including, on one occasion, the words ‘not to be read out’).

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