THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

(LRC – CP14 –1999)

CONSULTATION PAPER

ON

STATUTORY DRAFTING AND INTERPRETATION:

PLAIN LANGUAGE AND THE LAW

IRELAND

The Law Reform Commission

I.P.C. House, 35–39 Shelbourne Road, Ballsbridge, Dublin 4

© Copyright The Law Reform Commission 1999

First Published July 1999

ISSN 1393 – 3140

THE LAW REFORM COMMISSION

Background

The Law Reform Commission is an independent statutory body whose main aim is to keep the law under review and to make practical proposals for its reform. It was established on 20th October, 1975, pursuant to section 3 of the Law Reform Commission Act, 1975.

The Commission's Programme for Law Reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas in January, 1977. The Commission also works on matters which are referred to it on occasion by the Office of the Attorney General under the terms of the Act.

To date the Commission has published fifty-eight Reports containing proposals for reform of the law; eleven Working Papers; thirteen Consultation Papers; a number of specialised Papers for limited circulation; and twenty Reports in accordance with Section 6 of the 1975 Act. A full list of publications is contained in an Annex to this Consultation Paper.

Membership

The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are:

President: The Hon. Mr Justice Vivian Lavan, High Court,

Full-time Commissioner: Mr Arthur F Plunkett, Barrister-at-Law,

Part-time Commissioners: Dr Hilary A Delany, B.L.,

Lecturer in Law, Trinity College, Dublin;

Ms Patricia T Rickard-Clarke, Solicitor,

Partner – McCann FitzGerald Solicitors;

The Right Hon. Dr Turlough O'Donnell, Q.C.

The Secretary to the Commission is John Quirke

Research Staff

Director of Research: (Professor). David Gwynn Morgan, LL.M (Lond.), Ph.D.(N.U.L);

Legal Researchers: Ms Lia O'Hegarty, B.C.L., LL.M. (Michigan), LL.M. (Harvard), Barrister-at-Law;

Ms Róisín Pillay, LL.B., LL.M (Cantab.), Barrister-at-Law;

Ms Leesha O'Driscoll, B.C.L., L.L.M. (European) Barrister-at-Law.

Legal Information Manager: Ms Helen Bradley, B.A., M.Phil., M.L.I.S

Library Assistant: Ms Marina Greer, B.A.

Clerical Staff

Ms Deborah McAdams, Private Secretary to the President;

Ms Lillian Jones.

Research Team on this Project

Ms. Róisín Pillay was the Researcher responsible for this project.

Contact Details

Further information can be obtained from:

The Secretary

The Law Reform Commission

I.P.C. House

35–39 Shelbourne Road

Ballsbridge

Dublin 4

Telephone: (01) 6377600

Fax No: (01) 6377601

Email: info@lawreform.ie

The Commission wishes to record its thanks to the following people who have contributed to drafts of this consultation paper:

Mr Simon O'Leary, former Commissioner;

His Honour Judge John Buckley, former Commissioner;

Ms Rachael Hussey, former researcher;

Ms Cliona Kimber, former researcher.

The Commission would also like to thank the Office of the Parliamentary Draftsman, for their advice and assistance. Full responsibility for this paper lies with the Commission.

Background to the Consultation Paper

1.

In 1976, the Law Reform Commission's First Programme for Law Reform, under the heading of Statute Law, proposed a review of the approach to interpretation of statutes, in the light of the more “flexible” approach adopted to statutory interpretation elsewhere. The Commission also made a separate proposal to examine the style in which legislation is drafted. The appropriate paragraphs from the Programme are worth quoting in full:

Two Interconnected Topics

2.

It is difficult to deal with either of these paragraphs in the First Programme independently. The method and style of drafting statutes is, necessarily, influenced by the way statutes are interpreted by the courts. Statutory language cannot be simplified, without addressing the methods of interpretation which are a primary cause of its present complexity. Equally, the courts as interpreters depend on the drafters of legislation to give clear expression to the intentions of the legislature; and, for legislation to be clearly understood by those it affects, there must be predictable and consistent interpretation in the courts. One writer noted that:

3.

Given the close relationship between drafting and interpretation, the Commission has considered the two topics together in this Consultation Paper.

The Importance of Statute Law and Drafting

4.

The provisional recommendations made, both in relation to drafting and to interpretation, have the objective of improving the comprehensibility of legislation and therefore its accessibility to the people it governs. The principle of the Rule of Law presupposes that those who are affected by a law should be able to ascertain its meaning and effect. A system of language and law understood by only a few, where only a few have the ability to make authoritative statements about what is and is not permitted under the law, cedes power to those few. Lord Simon of Glaisdale wrote:

Outline of this Consultation Paper

5.

This paper begins by examining the current approach of the Irish courts to statutory interpretation, and to the use of extrinsic aids to interpretation, such as Dáil debates. Approaches to statutory interpretation in several other jurisdictions are then considered, with particular reference to jurisdictions which have enacted legislation prescribing a particular approach to statutory interpretation.

6.

Chapter 2 of the paper examines the current form and style of Irish statutes, and considers some of the difficulties with Irish legislative drafting. Chapter 3 examines alternative drafting styles, in particular those advocated by the “plain language” movement.

7.

A series of provisional recommendations for reform are put forward in Chapters 4 and 5. In regard to interpretation, the Commission's central recommendation is that there should be a new Interpretation Act, which would clarify the applicable rules of interpretation. The Act would prescribe a purposive interpretation of statutes, and would allow for the use of extrinsic aids to interpretation in some circumstances. In regard to statutory drafting, the Commission does not favour a radical move towards a “general principles” approach to drafting, but recommends a number of reforms in regard to the language, as well as the structure and format, of legislation, in order to enhance the readability of Acts. It is provisionally recommended that purpose clauses should be included at the head of each Act, replacing the current form of the long title. Recommendations are also made in relation to the amendment and consolidation of legislation.

The Consultation Process

8.

This Consultation Paper is intended to form the basis of discussion and the recommendations in it are provisional only. The Commission will make its final recommendations on this topic following further consideration of the issues and consultation with interested parties. Submissions on the provisional recommendations included in this Consultation Paper are welcome. So that the Commission's Final Report may be made available as soon as possible, those who wish to do so are requested to make their submissions in writing to the Commission by 15 October 1999.

CHAPTER 1: INTERPRETATION

1.001

It is fair to say that the present style of drafting has developed because of the literal approach to interpretation adopted by the courts. Indeed, in the Renton Report on the Preparation of Legislation (1975)¹ it is suggested that:

1.002

What are these rules? The history of the common law is one of competing approaches to statutory interpretation, embodied in a series of rules which give expression to the shifting balance of powers between legislature and judiciary and attempt to preserve a delicate equilibrium between the two. The “literal” approach to statutory interpretation and the “purposive” approach, (closely related to the teleological or schematic approach) are the two often competing methods of interpretation which concern the courts today. The antecedents of the purposive approach may be seen to varying extents in the “mischief rule”² and the “golden rule”³ developed by the English common law in previous centuries and still invoked by present-day courts. Today, it is most accurate to state that there is no single rule of literal or purposive interpretation, but that a principally literal approach is modified by a purposive approach, with an examination of the Act's purpose becoming more important if the Act is ambiguous or absurd.

Approaches to Interpretation

The Literal Rule

1.003

Preserving the separation of powers remains crucial to statutory interpretation. The Irish courts have been conscious of the need to clearly define and delimit their role in interpreting legislation, so as to avoid any implication that they are creating law and thereby usurping the role of the Oireachtas. The role of the courts is seen as best delimited by accepting the primacy of the text of the statute as enacted by the Oireachtas – by adopting a literal interpretation. The literal rule, in its purest form, has an inflexibility which places particular strain on the draftsperson, requiring language which expressly covers all eventualities. This extreme inflexibility can be seen in the words of Lord Esher MR in R v The Judge of the City of London Court⁴ where he stated that “[i]f the words of an Act are clear,

you must follow them, even though they lead to manifest absurdity. The Court has nothing to do with the question whether the Legislature has committed an absurdity.”

1.004

The literal approach is impractical and unhelpful to the drafter, in that it fails to acknowledge the limited capacity of language, even where there is no particular ambiguity, to assert a single indisputable meaning. Neither does it acknowledge the impossibility of the drafter's taking account of every possible factual situation which may arise under a statute, and catering expressly for each of these situations in a single statutory provision. If the drafter is to write comprehensively enough to anticipate the effect of literal interpretation, it is more than likely that clarity and brevity will be sacrificed.

1.005

In the Report of the English and Scottish Law Commissions on the Interpretation of Statutes, it was commented that:

1.006

It is now generally recognised that the literal approach must be tempered by at least some flexibility in order to avoid an application of a statutory provision by a court which would be absurd or unreasonable. In the case of McGrath v McDermott⁶ Finlay CJ set out a modified literal approach in relatively flexible terms when he said:

1.007

The literal approach to interpretation is stated, also in flexible form, by Budd J in Rahill v Brady:⁸

1.008

Thus, for example, where there is ambiguity in the terms of a provision, the long title to the Act may be used to assist in the construction of the provision.¹⁰

The Golden Rule

1.009

The golden rule is still referred to by the courts today as a means of modifying stringent application of the literal rule.¹¹ It was set out by Lord Blackburn in River Wear Commissioners v Adamson.¹² The golden rule, he stated, enabled the courts:

1.010

This is mirrored by the more lenient application of the literal approach to interpretation now favoured by the Irish courts, whereby a literal construction is replaced by a more purposive one in cases of doubt or ambiguity.

The Mischief Rule

1.011

The mischief rule, the oldest of the rules of interpretation, reflects a balance of the legislative and judicial powers which some consider renders it inapplicable today.¹⁴ It presumes a legal system in which legislative intervention in the common law is an exceptional occurrence, used only to address a “mischief” or “defect” in the common law. Though it may be expressed in outdated terms, however, the rule bears similarities to the purposive and schematic approaches to interpretation which have been developed by modern day courts. The mischief rule has been given legislative force in a number of common law jurisdictions¹⁵ and is still cited by the courts. The rule was recently referred to in the Irish High Court,

where Budd J identified the need to examine “the mischief sought to be addressed by the passing of An Blascaod Mór National Historic Park Act, 1989.”¹⁶

1.012

The mischief rule was set out in Heydon's case,¹⁷ where it was held that four matters might be considered in the interpretation of statutes:

Competing Literal and Purposive Approaches to Interpretation in the Irish Courts

1.013

The competing literal and purposive approaches to the interpretation of legislation are set out most comprehensively in Inspector of Taxes v Kiernan¹⁸ and in Howard and others; Byrne and others v The Commissioners of Public Works in Ireland.¹⁹

1.014

In Kiernan, a case which turned on the meaning of the word “cattle”, the courts approach to interpretation was set out by Henchy J. He identified the first basic principle of statutory interpretation that words, where they were used in a statutory provision which was “directed to the public at large” should be given their ordinary or colloquial meaning.

1.015

Henchy J quoted Lord Esher M.R in Unwin v Hanson:²⁰

1.016

It is notable that Henchy J made the “ordinary meaning” rule dependent on context, and on the audience to which a statute is addressed. He made it clear that, if a statute was addressed to a particular class, to whom the words would have a distinct meaning, or amongst whom the words would be used as a term of art, the “ordinary meaning” rule would not apply.²¹

1.017

The second rule of statutory interpretation which Henchy J identified related to statutory provisions creating a penal or taxation liability. In such cases,

1.018

Third, Henchy J noted that, in identifying the ordinary or colloquial meaning of a word, the judge should look primarily not to dictionaries or other similar sources, but to his or her own experience of the word's use. Dictionaries should only be used if confusion was caused by, for example, alternative meanings or regional usages, or a change over time in the meaning of the word. In regard to the interpretation of “cattle” on which the case turned, he held:

1.019

Henchy J's approach was followed by McCarthy J in Texaco (Ireland) v Murphy²⁴ where he reiterated the primacy of the “plain meaning” rule, stating that

He went on to say that:

1.020

The literal approach adopted in Kiernan has not gone unchallenged. The decisions in the Byrne and Howard cases in both the High and Supreme Courts indicate that there is a clear division of opinion on interpretation in the Superior

Courts. The cases concerned the building of interpretative centres at Luggala and Mullaghmore. The questions at issue were whether or not a state authority required planning permission under section 26 of the Local Government (Planning and Development) Act, 1963 and whether or not the existence of section 84 of that Act, which made special provision for a state authority consulting a planning authority before constructing or extending a building, was an indication that the legislature did not intend to place any further obligation on state authorities.

1.021

In his High Court judgment in the Byrne case,²⁷ Lynch J. took a largely purposive approach to the interpretation of the 1963 Act, grounded, inter alia, on the following passage from the 4th edition of Halsbury:

1.022

He interpreted section 84 of the 1963 Act accordingly:

1.023

In his High Court judgment on the same point, in the Howard case,³⁰ Costello J. reached a different conclusion, adopting a literal construction of the section. He cited Maxwell on The Interpretation of Statutes,³¹ in favour of a “natural meaning” approach:

1.024

Costello J found that the terms of section 84 were “clear and unambiguous.” He stated:

1.025

Accordingly, a difference of opinion emerged between two of the most experienced judges of the High Court, between the respective editors of Maxwell and Halsbury and between a literal and purposive approach to the interpretation of statutes.

1.026

The Supreme Court divided on similar lines, a majority taking the literal approach adopted by Costello J. The Chief Justice adopted a narrow approach to the matters which could be considered by the Court, appearing to exclude from its consideration all questions of social policy:

1.027

The Supreme Court decided, with particular reference to the decision in Byrne v Ireland³⁵ that there was no presumption as to whether or not the requirements of the Planning Act, 1963 applied to State agencies. Applying the ordinary principles of interpretation to section 84 of the 1963 Act, the majority held that the State was not exempt from the provisions of the Act. Blayney J, with whom the Chief Justice agreed, refused to attribute an intention to the legislature which was not plain from the ordinary meaning of the words of the statute.³⁶ The application of the Act could not be regarded as altered by implication, in the absence of any ambiguity in the meaning of sections 24 and 84. In fact, he found, the meaning of the section was plain. It was not open to the Court to interpret the section by “coming to a conclusion as to the intention of the legislature without that intention being expressed in the section itself.”³⁷ The Court should not, he held, speculate as to the intent of the legislature.³⁸

1.028

Blayney J appeared to accept that his approach could lead to the courts giving effect to “absurd” provisions. He noted the submission that it would be an absurd situation if the Commissioners had to comply with section 84 and also obtain planning permission, but held that:

1.029

He quoted the uncompromising view of Maxwell:

1.030

Blayney J was of the view, however, that it was questionable whether the provisions of section 84 which were at issue in the case did in fact give rise to an absurdity.

1.031

Denham J was also of the view that a literal approach should be adopted. She stated that:

1.032

In contrast, O'Flaherty J expressed his agreement with the conclusions reached by Lynch J in the High Court, looking to the intention of the legislature and stating that it was inconceivable that section 84 would have been inserted into the Act of 1963 if it had been intended that State agencies would have to apply for planning permission.⁴²

Two Distinct Approaches

1.033

The various High and Supreme Court judges who heard these cases can be divided between those who construe a statute in order to ascertain the intention of the legislature and those who construe a statute in strict accordance with its words and drafting. The latter give the ordinary meaning of the words used precedence over the actual intention of the legislature, while paying what can only be described as lip-service to the objective of following the intention of the legislature.

1.034

For example, whereas Lynch J. quotes para. 860 of Halsbury, which sets out the canon that, if possible, the words of a statute must be construed in the sense which makes it operative, Denham J. does not quote para. 860 but paras. 863 and 864 which set out the canons of “Primary Construction Without External Aids.”

1.035

It is interesting to note that these paragraphs in Halsbury are preceded by the setting out of “General Principles of Construction”, in paras. 855 to 858, which point to different approaches where statutes are “ambiguous” and “unambiguous”. The approach of the majority, as evidenced by the passages they quote, is to a statute which is unambiguous. The passage quoted by Judge Lynch related to

ambiguous provisions. Surely, the very presence of section 84 rendered the 1963 Act ambiguous in this area? Costello J was constrained to describe his conclusion as “not such an absurd result ...”, which appears to suggest that a lesser degree of absurdity might be acceptable. Blayney J acknowledged that the literal approach led to a conclusion which “may not appear to be entirely reasonable.” It seems, on these dicta, that a provision must be entirely or acutely absurd or unreasonable, in order for the purpose of the legislation to be considered.

DPP (Ivers) v Murphy

1.036

The recent Supreme Court ruling in DPP (Ivers) v Murphy⁴³ suggests a move towards recognising ambiguity where a provision is absurd on its face – and therefore adopting a purposive approach in such circumstances. The judgment of Denham J (in which Barrington and Lynch JJ concurred) rejected a literal in favour of a purposive approach to the interpretation of section 6 of the Criminal Justice (Miscellaneous Provisions) Act, 1997. Denham J acknowledged the need to ensure that a purposive approach to interpretation did not affect the separation of powers. In adopting a purposive interpretation, she stated a proviso that:

1.037

Denham J's judgment suggests, however, that an over-zealous application of the literal rule may do a disservice to the legislature. She stated:

1.038

In the case before the Court, a literal interpretation of section 6 of the 1997 Act would have resulted in the obviously absurd situation where an arresting garda would be required to attend in court in order to give evidence to establish that his own presence in court was not required under the terms of section 6. A purposive interpretation of the section was therefore adopted.

The Influence of EU Jurisprudence: The Growing Importance of Teleological Interpretation

1.039

The teleological approach to statutory interpretation originated in the civil law jurisdictions of Europe and was adopted by the European Court of Justice in the

construction of EC legislation. In tandem with the growing importance of the law of the European Union in this jurisdiction, the teleological approach has gained recognition in the courts. It looks to the purpose or overall scheme of the Act. Denning LJ in Buchanan and Co v Babco Limited⁴⁶ explained the principle as follows:

1.040

The terminology of teleological interpretation has allowed for greater examination of the purpose behind at least some Irish legislation. The Irish courts have been willing to take account of the teleological approach, particularly where there is ambiguity in the wording of a provision or the use of a literal construction would give rise to an absurdity. The teleological approach to statutory interpretation was notably applied by the Supreme Court in Nestor v Murphy,⁴⁸ in connection with the interpretation of section 3 (1) of the Family Home Protection Act, 1976. Noting that a literal construction of the section, as proposed by the defendants, would result in a “pointless absurdity” which would be “outside the spirit and purpose of the Act”, Henchy J held that:

1.041

The courts have sometimes adopted a narrow interpretation of what constitutes an absurdity. In Rafferty v Crowley,⁵⁰ which concerned the definition of “prior mortgage” in section 80 of the Building Societies Act, 1976, Murphy J distinguished Nestor v Murphy. He found that a literal interpretation of the

provision at issue in the case did not give rise to a “pointless absurdity” as in Nestor v Murphy, and applied the dicta of Lord Reid in Luke v The Inland Revenue Commissioners⁵¹ that a teleological approach would be applicable where:

1.042

Murphy J held that if the legislature had wanted to restrict the operation of section 80, to cases where the prior mortgage exceeded a certain amount, it would have been a simple matter to have done so. It could therefore be inferred that the legislature was aware of this option and chose not to restrict the definition. In the light of this, the court could not read restrictive clauses into section 80, but was constrained to interpret the section literally.

1.043

In Murphy v An Bord Telecom Eireann⁵² the High Court was presented with competing interpretations of Irish equal pay legislation (which implemented requirements of EC law). On the one hand the Court was offered a traditional literal interpretation, and, on the other, a teleological approach in the tradition of EC law. Section 2 of the Anti-Discrimination (Pay) Act, 1974 provided that it should be a term of the contract under which a woman is employed that she be entitled to the same rate of remuneration as a man who is employed in the same place by the same employer, if both were employed to do “like work”.

1.044

“Like work” was defined in section 3(c)) to include the situation where the work performed by one person was equal in value to that performed by the other in terms of the demands made. In the particular case, the women's work was found to be more demanding than the men. The Labour Court decided that the plaintiffs were not entitled to relief as the work, though superior and more demanding, was not equal.

1.045

It was submitted on behalf of the appellants that the construction of the Act adopted by the equality officer and the Labour Court gave rise to consequences which could not have been intended by the Oireachtas and were contrary to the underlying policy of the Act, to Article 119 of the Treaty of Rome, 1957 and to Article 1 of the EEC Council Directive 75/117. It was submitted that the long title of the Act of 1974 and the terms of Article 119 and the directive, which the Act was designed to implement, made it clear that the legislature intended to outlaw discrimination in pay on the ground of sex. It was argued that if the view taken by the equality officer and the Labour Court was correct, it could mean in a case such as the present one that inequality of pay founded on gender discrimination would be treated by the Act as lawful. In these circumstances, it was submitted that s.3(c) should be read as though the words “at least” appeared before the words “equal in value”. The words “equal in value” should not be construed as requiring equality of mathematical precision, since this again would defeat the clear intention of the legislature.

1.046

On behalf of the respondents, it was submitted that the operation of s.3(c) was clearly confined to cases in which the work under consideration was “equal in value”. To interpret it as applying to cases where the work was unequal in value was to do violence to the language used by the legislature. In this connection, the logical consequence of the appellants' argument was that, were the equality officer to find that the male employee's work was of superior value, the wages of the appellants would still have to be increased to the same level, since the “one” referred to in sub-paragraph (c) was not necessarily the person who brought the matter before an equality officer under the later provisions of the Act. It was argued that the instances in which women were being paid less than men for work of superior value because of sexual discrimination (as distinct from grounds which in the context of the legislation were legitimate) were probably so few that the legislature did not consider it necessary to provide specifically for them.

1.047

Keane J held that the submission made on behalf of the appellants would require the words “equal in value” to be read as applicable to cases such as the present where the work was unequal in value. To so read the words “equal in value” would be to do violence to the language used by the legislature to an impermissible extent.

1.048

Keane J referred to the teleological and schematic approaches to statutory interpretation, and to the use of such methods in the Irish courts. However, he saw the applicability of this approach as limited to cases, of which the present case was not one, where there was “patent or latent” ambiguity in the terms of the statutory provision. The teleological approach did not apply, he held, where the legislature could have made statutory provision for a particular eventuality, but for whatever

reason, did not do so. This limited view of the scope of teleological interpretation reflects the rigorous rule applied in Byrne and Howard.⁵⁴ The Court's approach was to be revised, however, in the light of the ruling of the European Court of Justice in the case, following a referral of several points of law to the Court by Keane J.

1.049

The ruling of the ECJ and the final judgment of Keane J in the High Court, demonstrate the increasing influence and impact of European methods of interpretation in Irish law, and the capacity of the rule of teleological interpretation to override or modify the rigidly literal approach of the common law. In Murphy v Bord Telecom,⁵⁵ the Court confined its adjudication to the question whether Article 119 of the EEC Treaty, which required equal pay for equal work, covered the “unequal” situation in the case under appeal. The Court decided that the principle applied a fortiori in situations where the lower paid worker is engaged in more demanding work. It held that to adopt a contrary interpretation would be tantamount to rendering the principle of equal pay ineffective and nugatory.⁵⁶

1.050

In his final judgment,⁵⁷ Keane J noted that the construction of the relevant provisions of the 1974 Act in accordance with the canons of construction normally applied in the Irish courts had led to a conflict with Article 119 of the Treaty of Rome, as interpreted by the European Court of Justice. In these circumstances, he held, national law should yield primacy to Community law.⁵⁸ However, he held that the 1974 Act could still be applied, by giving a purposive or teleological, instead of a literal interpretation to the relevant sections.⁵⁹ He remitted the matter to the labour court for adjudication on the basis of a teleological interpretation of “like work” in the statute.⁶⁰

1.051

Referring to his initial judgment in the case, Keane J held that the passage of his judgment which adopted a literal construction of the relevant provisions had been misleading insofar as it excluded completely a teleological interpretation. He stated that:

1.052

Thus it can be seen that the terminology of teleological interpretation and the doctrine of the primacy of Community law have opened the door to a greater consideration of a statute's purpose, at least where the statute implements the law of

the European Community. The importance of a teleological approach to the interpretation of provisions of European law by the Irish courts was confirmed in Lawlor v Minister for Agriculture,⁶² where Murphy J said:

1.053

Murphy J observed that the teleological approach to interpretation was not an entirely new departure in Irish law, since for some time a purposive approach had been adopted in the interpretation of the Constitution.

1.054

Subsequent caselaw demonstrates a consistent acceptance of teleological interpretation. The case of Bosphorus Hava v Minister for Transport⁶⁴ concerned Council Regulation No 990/93/EEC, and the European Communities (Prohibition of Trade with Federal Republic of Yugoslavia, (Serbia and Montenegro)) Regulations 1993. Murphy J confirmed that schematic and teleological interpretation was a fundamental principle of interpretation to be applied to EC Regulations and Directives.

1.055

The teleological approach to interpretation as developed in the context of European law may also assist in increasing the acceptability of a purposive approach to the interpretation of statutes generally. The decision of Keane J in Mulcahy v Minister for the Marine suggests that the teleological and purposive approaches may be conflated.⁶⁵ The case concerned the construction of the Fisheries (Consolidation) Act 1959, and the granting of a licence for a fish farm under its terms. Keane J acknowledged that both a literal and a “teleological or purposive” interpretation were open to the Court, and that the Court must choose between them. He stated that:

1.056

Keane J distinguished between a distortion of the language of section 15 of the Act, which would not be permissible, and acknowledging and applying the intention of the Oireachtas. He was satisfied that, in order to give effect to the intention of the Oireachtas, it was necessary for the Court to adopt a teleological or purposive construction.

Maxims and Presumptions

1.057

The maxims and presumptions developed by the common law in the interpretation of statutes perform an important function in ascribing to the legislature certain common-sense intentions. They can assist in avoiding absurdity in the plain words of a statute, and obviate the need for lengthy examination of the legislative intent in enacting a particular provision. They are not binding legal rules, however, but “axioms of experience”⁶⁷ which may provide guidance to a court in statutory interpretation.

1.058

The principal maxims and presumptions, and their application in the Irish courts, are set out below.

The Importance of Context: The Noscitur a Sociis and Ejusdem Generis Rules

Noscitur a Sociis

1.059

The rule of noscitur a sociis states that words of a statute are to be construed in the light of their context.⁶⁸ It may be translated as “a thing is known by its associates”. In the English case of Bourne v Norwich Crematorium Ltd,⁶⁹ Stamp J explained the rule as follows:

1.060

In People (Attorney General) v Kennedy,⁷¹ the Supreme Court was required to interpret section 29 of the Courts of Justice Act, 1924, which granted a right of appeal without any express limitation as to who could bring the appeal. The Supreme Court rejected a literal interpretation of the section and held that the right of appeal was impliedly limited to the accused person. Black J viewed the approach of the Court in this case as part of a wider principle that statutory provisions should be interpreted in context, which encompassed both the noscitur a sociis and the ejusdem generis rules.⁷²

1.061

He explained the importance of the rules as follows:

He went on to say:

1.062

In HMIL Limited (Formerly Hibernia Meats International Ltd) v Minister For Agriculture and Food,⁷⁵ the noscitur a sociis and ejusdem generis rules were applied. In construing EC regulations on the export of beef, Barr J held that, on an application of the noscitur a sociis rule, “the Court should recognise the common denominator between 'scraps' and 'large tendons, cartilages, pieces of fat', i.e. that all are unfit for human consumption.⁷⁶

Ejusdem Generis

1.063

The ejusdem generis, or “of the same genus” rule, is similar though narrower than the more general rule of noscitur a sociis. It operates where a broad or open-ended term appears following a series of more restrictive terms in the text of a statute. Where the terms listed are similar enough to constitute a class or genus, the courts will presume, in interpreting the general words that follow, that they are intended to apply only to things of the same genus as the particular items listed. Bennion defines the ejusdem generis rule as,

1.064

The ejusdem generis rule was applied by O'Higgins J in The People (DPP) v Farrell,⁷⁸ in the construction of section 30 of the Offences Against the State Act, 1939. It was argued that the detention of the applicant in a garda car for a period of hours during the course of his questioning was unlawful and that his subsequent detention in a garda station was therefore also unlawful. The legality of the

detention turned on whether a garda car could be regarded as a “convenient place” in accordance with the legislation. O'Higgins J considered that it could not, since the ejusdem generis rule required that the term be construed in the light of the other places of detention listed: “Garda Síochána Station, a prison, or some other convenient place”. The rule required, at a minimum, that “other convenient place” should be a building of some kind.⁷⁹

1.065

In HMIL Limited (Formerly Hibernia Meats International Ltd) v Minister For Agriculture And Food,⁸⁰ the ejusdem generis rule was applied along with the noscitur a sociis rule. Barr J considered that a provision listing “other scraps left over from cutting or boning” at the end of a list of more specific items – bones, cartilages – was “an apposite illustration of the ejusdem generis principle in operation.” He found that, according to the rule, “other scraps” should be interpreted as including all unspecified items which were not fit for human consumption.”⁸¹

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More recently, the presumption was applied in the High Court by Barr J in Royal Dublin Society v Revenue Commissioners.⁸² Barr J held that section 7 of the Excise Act, 1835, which allowed the Revenue Commissioners to grant a liquor licence to “ ... a theatre or other place of public entertainment” was a provision to which the ejusdem generis rule applied. He found that there was nothing in the Act to suggest that “other place of public entertainment” was meant in a wider sense to that applicable to “theatre” and that therefore it should be interpreted only as referring to places of public entertainment which were similar to, or within the same genus as, “theatre”, in other words to “a performance for the benefit of the public with a defined time frame and where seating is provided for patrons.”⁸³

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The ejusdem generis rule will not apply where there is a list of items which do not constitute a genus, or where only one item is listed. In Kielthy v Ascon Ltd⁸⁴ it was emphasised by O Dalaigh CJ that the ejusdem generis rule could only apply where antecedent categories establish a genus. He held that this was not the case where, as in the provision to be interpreted by the court, the general words were preceded by the enumeration of only one category. In Dublin Corporation v Dublin Cinemas Ltd⁸⁵ it was held that a list of words in a statute which included playgrounds, recreation grounds and “any building adapted for use as a shop” was too broad and included items which were too incongruous to constitute a genus, and that therefore the ejusdem generis rule did not apply.

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The courts will also refuse to apply ejusdem generis where a statute contains general words, which are then followed by a list of particular items: in such cases the list of items is not regarded as limiting. In Application of Quinn,⁸⁶ Griffin J pointed out the limitations of ejusdem generis, and emphasised that it was a presumption rather than a rule: “...the ejusdem generis rule is one to be applied with caution as it is a mere presumption which applies in the absence of any other indications of the legislature.”⁸⁷ He found that the ejusdem generis presumption did not apply to the construction of section 2 of the Public Dance Halls Act, 1935, since the general words preceded the particular words, rather than followed them.

Acknowledging Particular Circumstances: Generalia Specialibus Non Derogant

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Generalia specialibus non derogant is the principle that a general statutory provision does not repeal a specific one. The rule may apply either to two separate statutes, or to provisions within the same Act.⁸⁸ It was applied by the Supreme Court in the case of Hutch v the Governor of Wheatfield Prison.⁸⁹ That case posed the question whether a young person between the ages of fifteen and seventeen years who had been convicted of an indictable offence tried summarily, could be sentenced for the period of detention applicable to an adult (under the Criminal Justice Act, 1951), or whether the sentence was limited to three months imprisonment under the terms of the Summary Jurisdiction Over Children (Ireland) Act, 1884. The Court held that since the 1951 Act was a general Act, and the 1884 Act had a special application, the maxim generalia specialibus non derogant applied. Therefore, the 1884 Act was not impliedly amended or repealed by the 1951 Act, and the possible sentence was limited to three months imprisonment.

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The maxim was applied as regards conflicting provisions of the same Act in the High Court in National Authority for Occupational Safety and Health v Fingal County Council⁹⁰ In that case, there was an apparent conflict between the general terms of subsection 3 of section 51 of the Safety Health and Welfare at Work Act, 1989, which stipulated that certain proceedings must be instituted within one year, and subsection 4 of the same section, which stated that proceedings in more limited circumstances should be brought within six months. Murphy J, referring to the Hutch case, found that the more restrictive period in subsection 4 applied.⁹¹

Construing Words as Limiting: Expressio Unis est Exclusio Alterius

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The maxim expressio unis est exclusio alterius (“to express one thing is to exclude another”) allows the courts to imply that where an Act applies a rule to a particular situation, the Oireachtas intended to confine the rule to that situation, and not to apply it in any wider context.

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The maxim was applied in Kiely v Minister for Social Welfare⁹² and again in O'Connell v An t-Ard Chlaraitheoir.⁹³ It was succinctly illustrated by Henchy J in Keily when he said:

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The maxim has limitations, however, and will not apply where a legislative provision merely states a particular aspect or a particular application of a more general rule of law. This was accepted by the Irish courts in The State (Minister for Lands and Fisheries) v Judge Sealy⁹⁵ and in Inspector of Taxes v Arida Ltd⁹⁶.

Presumption of Constitutionality

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Where, in the case of a statute which post-dates the 1937 Constitution,⁹⁷ two interpretations of a provision are open to a court, one which is in accordance with the Constitution and the other which would render the provision unconstitutional, the interpretation which would render the provision constitutional is presumed to have been intended by the Oireachtas. The presumption of constitutionality is a strong one, which is defeated only where the construction of a provision as constitutional would involve the effective substitution or amendment of the provision in question.⁹⁸ It may result in a highly restrictive construction of a statutory provision, in order to save it from unconstitutionality.⁹⁹

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The rule was set out by the Supreme Court by Walsh J in East Donegal Co-op v Attorney General:¹⁰⁰

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Although the presumption imports some consideration of legislative intent into the interpretation of a provision, it was stated, in East Donegal, to be limited by the literal approach to interpretation. Thus where the clear and unambiguous words of a provision have an effect which is unconstitutional, the provision “cannot be given an opposite meaning.”¹⁰² Any strained interpretation which amounted to a substitution of a constitutional provision for an unconstitutional one would, it was held, infringe the separation of powers.

Presumption of Compatibility with European Law

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European directives and regulations, and associated legislation, will be interpreted by the courts in accordance with Community law. In Dowling v Ireland¹⁰³ Murphy J accepted this principle of interpretation, although he did not apply it in that case. Dowling v Ireland concerned the application of Council Regulation 857/84 in regard to the payment of milk quotas. The plaintiff claimed that, on their literal interpretation, the regulations discriminated against farmers such as himself who had temporarily ceased and then resumed milk production. It was therefore argued that the regulations should be interpreted in accordance with the principle of equal treatment enshrined in EC law. Murphy J held, however, that the terms of the regulations were so clear that for the court to alter them so as to ensure equal treatment for the plaintiff would amount to amendment of the regulations, something which the court was not competent to do. He made an analogy with the presumption of constitutionality in the interpretation of Irish legislation as set out in East Donegal Co-operative Livestock Mart v Attorney General,¹⁰⁴ to the effect that a provision could only be given a constitutional as opposed to an unconstitutional interpretation if both were open to the court on the wording, and that any straining of the terms of a statute so as to effectively substitute one provision for another would be to usurp the function of the legislature.

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The case was subsequently appealed to the Supreme Court which referred the question of the application of Article 3 a (1) to the European Court of Justice. The Court arrived at a similar conclusion to Murphy J in the High Court, and identified restrictions on the construction of legislative provisions in accordance with the principles of the Treaty of Rome.¹⁰⁵ The court was not, it held, competent to construe a provision in accordance with the principle of equality, where that involved an interpretation of the provision which was contrary to its clear purpose as expressed in its terms. Where the aim and purpose of the provision was clearly

contrary to the principle of equality, the only option open to the court was to declare the provision invalid. Thus whilst treaty principles could be used to fill in gaps in EU legislation, they could not alter its express purpose. The Court stated:

Presumption of Compatibility with International Obligations

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The issue of the presumption of compatibility with international obligations was raised in O Domhnaill v Merrick.¹⁰⁷ The case concerned the interpretation of sections of the Statute of Limitations, and the Supreme Court considered whether the stipulation of Article 6 (1) of the European Convention on Human Rights and Fundamental Freedoms that cases should be heard “within a reasonable time” affected the meaning of the Statute. The presumption of compatibility with international obligations was stated by Henchy J for the majority as follows:

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McCarthy J in a dissenting judgment in the same case also affirmed the general principle that,

However, McCarthy J applied the principle more cautiously, declining to limit the meaning of the Statute of Limitations in accordance with the requirements of the Convention, since the Convention was not incorporated within Irish law.

Presumption that all Laws bear a Meaning

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The courts presume that no words of a statute are enacted without a reason. The presumption is illustrated in the case of Cork Co Council v Whillock,¹¹⁰ which turned on the interpretation of the Malicious Injuries Act, 1981. O'Flaherty J applied a literal interpretation to the section according to the ordinary and natural meaning of its words. He also stated that “a construction which would leave without effect any part of the language of the statute will normally be rejected.”¹¹¹ Egan J endorsed the same principle, stating:

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The rule was reiterated in the case of Comptroller and Auditor General v Ireland and Attorney General¹¹³, which concerned the interpretation of sections of the Comptroller and Auditor General (Amendment) Act 1993¹¹⁴ Laffoy J noted the decision in Cork County Council v Whillock and rejected the interpretation of the provision at issue put forward by the plaintiff, since it would result in some words of the section, which were clear and unambiguous, becoming meaningless. Laffoy J noted that this could not have been the intention of the legislature.

Presumption that an Updated Construction should be Applied

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This presumption derives from the principle that a statute should be construed as always speaking. The courts will presume that a statute should be read in the light of conditions prevailing today and that social and technological developments will be taken into account. The interpretation of older legislation in the context of new technologies is an increasingly important aspect of the rule.

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In The State (O'Connor) v O' Caomhanaigh¹¹⁵ it was held that:

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A cautious approach to the adaptation of legislation to new developments was advocated by Murphy J in Keane v An Bord Pleanála.¹¹⁷ The case concerned the interpretation of the Merchant Shipping Act, 1894, and the application of its definition of “beacon” to more modern navigational aids. Murphy J stated that:

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Murphy J found that the “Loran-C” a modern navigational system, did not come within the 1894 Act, since the Act referred to precise equipment rather than to navigational aids in general terms. He stated that the terms of the Act did not permit the Commissioners:

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Universal City Studios Incorporated v Mulligan¹²⁰ turned on the question of whether a videotape came within the definition of a cinematograph under the Copyright Act, 1963. Laffoy J, despite referring to the decision in Keane v An Bord Pleanála,¹²¹ found that videotape could be brought within the terms of the 1963 Act, though she acknowledged that there could be some forms of information technology which might not be within its ambit.

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In Mandarim Records v Mechanical Copyright Protection Society (Ireland) Ltd,¹²² Barr J held that a “Power CD” which contained both sound recordings and other material including text and graphics, constituted a record within the meaning of the Copyright Act, 1963. He held that the fact that the framers of legislation would not have envisaged that the type of technology under consideration was not in itself a bar to the inclusion of the technology within an existing statutory framework. It was, he said, patently desirable that, where possible, advances in technology, even those which could not have been envisaged by the framers of an Act, should be accommodated in statutory interpretation by the courts. However, he held that this accommodation can be made only where the words of the provision were not strained beyond their ordinary meaning. Due regard must be paid to the structure and intent of the statute.¹²³

Presumption that Penal and Revenue Statutes be Construed Strictly

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Given the importance of preserving the rights of the accused, statutes which are “penal” (a broad term) in their nature will be construed by the courts as strictly limited. Penal liability will not be implied by the courts in the absence of clear and unambiguous words.

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Maxwell identifies four aspects of the rule that penal statutes must be strictly construed:

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In Re Emergency Powers Bill, 1976¹²⁵ O'Higgins J noted in relation to the Bill that:

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The principle was followed in The People (DPP) v Farrell¹²⁷ which concerned the construction of section 30 of the Offences Against the State Act, 1939. O'Higgins J stated:

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In Aamand v Smithwick¹²⁹ it was held that the provisions of an extradition statute were also subject to the rule of strict construction, since they incorporated into Irish law a penal statutory code and resulted in penal sanctions against the individual.¹³⁰

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In Mullins v Harnett¹³¹ the rules regarding the interpretation of penal statutes were carefully scrutinised by O'Higgins J. Relying on Maxwell and Bennion, he found that the principle of strict interpretation was to be applied only following the application to the statute of the normal principles of statutory interpretation. Only if the application of these principles left the meaning of the statute open to continuing doubt, was the principle of strict construction to be applied in order to give the benefit of the doubt to the individual as against the State.

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The application of the presumption beyond criminal statutes was emphasised by O'Higgins J in Mullins v Hartnett when he said: “Penal statutes are not only criminal statutes, but any statutes that impose a detriment.”¹³² The application of strict construction to taxation statutes was confirmed in Inspector of Taxes v Kiernan¹³³ Henchy J stated:

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In Kinsale Yacht Club v Commissioner of Valuation¹³⁵ the Supreme Court held that the principle of strict construction did apply to section 5 of the Valuation Act, 1988, although the Act was not a criminal or taxation statute. The Court held that the important factor was that the provision led to the “fresh imposition of liability” as referred to in Inspector of Taxes v Kiernan.¹³⁶

Presumption Against Implicit Changes in the Law

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There is also a presumption, which derives from the era when the primacy of the common law was only marginally impinged upon by statute law, that a provision which is ambiguous as to whether or not it effects a change in the law shall be regarded as not effecting any such change. In Minister for Industry and Commerce v Hales,¹³⁷ Henchy J endorsed this presumption, citing Maxwell.¹³⁸ The case related to the Holidays (Employees) Act, 1961, and the validity of ministerial regulations made under the Act. Henchy J held that, since the clear intention of the legislature was to confine the Act to those employed under a contract of service or apprenticeship, it could be assumed that the use of very general words to define “worker” in section 3(3) of the Act –“any person ... who is employed”– should not be read as allowing the Minister to broaden the scope of the Act in regulations, to grant a range of important rights to those working as independent contractors, and to make these rights implied terms of the employment contract, with their breach resulting in criminal liability. Henchy J observed:

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The question of the application of the principle to criminal law statutes was raised before the Supreme Court in DPP v Gray.¹⁴⁰ The Supreme Court reiterated the general principle that general words in a later Act should not be presumed to

repeal or amend earlier legislation, so long as they were capable of reasonable construction without effecting any such amendment. However, McCarthy J, dissenting, noted that there was no authority regarding the application of this principle to criminal law statutes. The principle that criminal statutes should be strictly construed for the benefit of the individual could have an impact on the operation in this area of the presumption against unclear changes. The Court applied the principle and found that the two statutes which were at issue in the case could stand together and operate separately and individually, without one being considered to have implicitly repealed another.

Presumption against Retrospective Effect

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The presumption that the Oireachtas does not intend an Act to apply retrospectively was stated in Hamilton v Hamilton.¹⁴¹ Henchy J said:

Henchy J characterised the rule as a universal one, and emphasised that (contrary to the statement in Maxwell) the rule applied to all pending enactments, unless the language irrefutably stated otherwise.¹⁴³

Presumption against Extra-territorial Effect

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Irish law presumes that legislation has effect only within the territory of the State. The presumption was applied in Chemical Bank v McCormack¹⁴⁴ which concerned the making of orders, which purported to have extra-territorial effect, under the Bankers Books (Evidence) Act, 1879. Carroll J held that, in the absence of clear words supporting an extra-territorial application of the Act, it should not be interpreted as applying outside the jurisdiction.

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The presumption against extra-territorial effect was also at issue in Keane v An Bord Pleanála,¹⁴⁵ which points out some of the limits to the presumption. The case concerned the interpretation of the Planning Acts. It was argued before the High Court that since the Planning Acts did not have any express extra-territorial effect, the effects which a development had beyond the limits of the territorial seas

could not be taken into account in the granting of planning permission. This argument was rejected by Carroll J in the High Court. She held that the concept of the “common good” which was referred to in the long title of the 1963 Act was a broad one, and included the effects which the development would have outside the national territory. She gave the example of sea pollution which might arise from a grant of planning permission. Such pollution would have an effect on the common good and would therefore have to be taken into account in ascertaining whether or not to grant planning permission. In the instant case, the Board could take into account the benefits of the development outside territorial waters, and this should not be equated with extending the operation of a statute beyond the jurisdiction.¹⁴⁶

Internal Aids to Construction

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The Irish courts recognise the importance of the statutory context of each particular provision. The courts have been willing to consider the long title of an act, as well as other sections, in interpreting one of its provisions. They are, however, prohibited from taking into account marginal notes and headings.

Use of the Long Title to an Act

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The courts have used long titles and other elements of the statutory context to ascertain the purpose and legislative intent behind a provision. Early cases allowed consideration of the long title only where there was ambiguity. In Minister for Industry and Commerce v Hales,¹⁴⁷ the High Court accepted that the long title formed part of the Act, but held that it was permissible to call in aid the long title in the interpretation of a provision of an Act only where the provision was unclear or ambiguous. The leading case is East Donegal Co-operative Marts Ltd v Attorney General¹⁴⁸ in which the Court stressed the importance of the long title to the Act in forming a part of the context and background of the Act, in the light of which its provisions should be construed. Walsh J departed from the more restrictive rule in Hales, in allowing for a determination of ambiguity only after the long title had been considered. He stated:

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The general principle set out in East Donegal may be seen as qualified, however, by the decision of the Supreme Court in The People (DPP) v Quilligan.¹⁵⁰. In that case, Griffin J reverted to the rule as set out in Hales, ¹⁵¹ holding that the long title may only be considered in the interpretation of a provision of an Act if the provision is ambiguous or equivocal. In the instant case, the long title could not be considered. Griffin J stated,

McCarthy J, however, emphasised the usefulness and importance of the long title. He stressed that the long title was as much a part of an Act as any other provision and stated:

Headings and Marginal Notes

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Under the present law, as set out in the Interpretation Act, 1937, courts are excluded from examining the marginal notes, headings and other similar elements of an Act in the interpretation of one of its provisions. Section 11 (g) states:

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Although the courts are precluded from relying on marginal notes in interpreting legislation, they have frequently made passing reference to the content of marginal notes, suggesting that marginal notes would be of assistance to the courts in establishing the context of a provision.¹⁵⁴

The Wider Context: The Use of Extrinsic Aids to Construction

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If the courts are to venture beyond the literal meaning of the words in an Act, and attempt to ascertain the intention of the legislature, questions arise as to what tools may be used to discover intention. The purpose of a statutory provision may be ascertained from its context; but how wide should that context be? Should the courts confine themselves to examining the Act as a whole, and to discerning the intention of the Oireachtas from, for example, the long title? Or should the courts move beyond the text, to examine other related statutes, or international conventions, or preliminary drafts of the Act as a Bill, or parliamentary debates or even pre-parliamentary discussion documents? External aids to interpretation could encompass, for example, pre-parliamentary departmental papers, or instructions to the draftsperson.¹⁵⁵

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As one moves further from the text of the Act, the aids to interpretation become more controversial. Arguably, although the idea of a single “legislative intention” can be sustained on an examination of the text of an Act, an examination of the parliamentary debates may show widely varying ideas as to the purpose of the statute.¹⁵⁶ The intention of the legislature may not be uniform; and in relation to the particular circumstances of the case, there may not have been any clearly thought out legislative intention. Lord Wilberforce in Salomon v Salomon¹⁵⁷ remarked:

If great significance is attached to extrinsic aids, there is a danger that this “speculative” version of the legislation may be enforced. This leads to diminished legal certainty.

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Against these arguments, must be noted the hard cases where recourse to an external source – the text of an early draft of a Bill, for example, from which words

were later omitted, or a ministerial speech in the Dáil – would clarify with ease a point of interpretation and save a court from enforcing an absurdity or an unjust anomaly. Recourse to an external document, which is readily available to the court, might satisfactorily resolve an ambiguity which could otherwise only be addressed by inspired guesswork or dogmatic insistence on the primacy of text. Where an external aid would be of great assistance to a court, it seems perverse to deny its use. This dilemma is expressed very clearly in Lord Bridge's comments in Pepper v Hart:¹⁵⁹

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Lord Browne-Wilkinson in the same case asked “if the words are capable of bearing more than one meaning, why should not parliament's true intention be enforced rather than thwarted?”¹⁶¹ The remarks of Lord Denning in Davis v Johnson,¹⁶² admitting that he had recourse to Hansard despite the exclusionary rule, are also interesting:

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It may be more important to place limits on the consideration of external aids, for example by specifying the use to which they may be put or by confining their use to those cases where there is ambiguity or absurdity on the text of the statute, than to exclude their use altogether.¹⁶⁴

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A further, practical argument against the use of extrinsic aids is that they are not readily available, either to lawyers or to the general public. This argument obviously has more force in relation to some extrinsic aids than to others. In Fothergill v Monarch Airlines,¹⁶⁵ Lord Wilberforce laid down the condition that the travaux preparatoires of a treaty could only be considered where the material involved was “public and accessible”. It should be noted that technological developments have contributed greatly to the wider availability of much of the material used as extrinsic aids in the interpretation of legislation. The availability

on the internet, for example, of parliamentary debates from many jurisdictions, as well as the texts and travaux of many treaties, has greatly enhanced the accessibility of this material. The argument that the use of extrinsic aids results in an increased workload for lawyers and the courts, and therefore in increased costs and delays, may have more force. However, where the use of extrinsic aids is confined to a narrow category of cases, the problem is not so serious.¹⁶⁶

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Below, we consider the external aids to construction which may be pressed into service by the courts, and the attitude adopted by the Irish courts in relation to them. Once again, issues of the separation of powers are raised here, and there is an evident reluctance on the part of the courts to impinge too much on the role of the legislature.

Construction of Related Statutes Together

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Where a number of statutes deal with similar subject-matter, it can be of assistance to the courts to construe them together, and to interpret terms as having the same meaning, where they are used in similar contexts in two statutes. A statute may expressly provide that it should be construed in conjunction with another, related statute. Even where this is not done, however, a court may construe statutes together, and may use an earlier Act as a guide in the interpretation of a later Act where it is satisfied that the statutes are in pari materia– that is, that they deal with the same subject matter. Where this is the case, the provisions are regarded as forming part of the same statutory context.¹⁶⁷ In particular, where particular terms of an earlier statute have been judicially construed, it is presumed that the legislature, in using the same terms in a later statute in pari materia with the first, envisaged that the words would be given a similar construction.¹⁶⁸

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In Cronin v Youghal Carpets (Yarns) Ltd,¹⁶⁹ the Supreme Court considered the meaning of the term “total income brought into charge to tax” in section 58 (3) of the Corporation Tax Act, 1976. The words were not defined in the Act, but the same terminology was to be found in other taxation statutes, including the Income Tax Act, 1967. The Supreme Court rejected a literal interpretation of the words. Griffin J, giving judgment for the Court, emphasised that the words had,

At the time of the passing of the 1976 Act, he stressed, there had been a settled interpretation of the words used. Griffin J noted that the 1976 Act provided that the general principles of income tax law should apply to its provisions, and that section

155 of the Act stated a general rule that words and expressions used in the Act had the same meaning as they had in previous Income Tax Acts. However, he also stated a general principle:

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In several cases, however, the courts have declined to rule statutes as in pari materia. In Murphy v Dublin Corporation¹⁷² the Supreme Court held that the Housing Act, 1966 and the Local Government (Planning and Development) Act, 1963 could not be construed together, since they lacked a common subject matter or purpose and so were not in pari materia.

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In Irish Agricultural Machinery Ltd v O'Culacháin,¹⁷³ the Supreme Court found that since the Finance Act, 1975, and the Value Added Tax Act, 1972 were not in pari materia, the definition of manufacturer in the latter could not be applied to the former, and that the word should therefore be given a literal interpretation.

Explanatory Memoranda

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The use in interpretation of explanatory memoranda published with Bills is accepted by the Irish courts. In Maher v Attorney General¹⁷⁴ the Supreme Court considered the explanatory memorandum published with the Road Traffic Act, 1968. The memorandum contained the important information that the legislation was intended to accept the main import of the recommendations of a government commission on driving under the influence of alcohol. Again, in Rowe v Law¹⁷⁵ O'Higgins CJ in the Supreme Court considered the explanatory memorandum published with the Bill which later became the Succession Act, 1965, in interpreting section 90 of that Act.

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In McLoughlin v The Minister for the Public Service¹¹⁶ the Supreme Court looked to the explanatory memorandum published on the introduction into the Dáil of the Garda Siochána (Compensation) Act, 1941. The court declined to interpret the Act in such as way as to defeat the purpose of the Act as declared in the explanatory memorandum.

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An explanatory note to regulations was considered in the High Court in MacGabhann v The Incorporated Law Society.¹⁷⁷ Blayney J referred to the explanatory note to the Solicitors Act, 1954 (Apprenticeship and Education) (Amendment No 1) Regulations, 1974 to ascertain the legislative intent in relation to exemption from law society examinations.

Legislative History of a Provision

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For some time, the Irish courts were reluctant to consider the history of an Act, as can be seen from the case of Minister for Industry and Commerce v Hales.¹⁷⁸ In that case, which concerned the interpretation of the Holidays (Employees) Act, 1961, extensive arguments were made by counsel relating to the legislative history of the Act, and the intentions of the Minister with regard to particular provisions. McLoughlin J held that the legislative history of the Act should not be taken into account, since “the conclusion that such evidence is inadmissible is confirmed by the most compelling authorities.”¹⁷⁹ He held that since the statute was to be construed literally, except in the case of absurdity or incongruity,

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Henchy J also held that he was unable to take into account the fact that the subsection to be construed had been inserted as an amendment when the Bill was passing through the Oireachtas, although he acknowledged that this provided an explanation for the anomalies contained in the Act.¹⁸¹

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However, it would seem that this position has now been modified to allow for consideration of the legislative history of an Act in some circumstances. In Rowe v Law,¹⁸² O'Higgins CJ, in a partially dissenting judgment, considered the legislative history of the Succession Act, 1965. However, he relied primarily on the ordinary meaning of the Act, using the legislative history to confirm its meaning. In interpreting section 90 of the Act, which related to the use of extrinsic evidence to ascertain the intention of a testator, he stated:

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In DPP v McDonagh,¹⁸⁴ the Supreme Court held that it was permissible for a court to consider the legislative history of a statute, as an aid to its construction. Costello P, in a judgment with which the other members of the court concurred, took a very wide view both of the materials which could be used as an aid to construction, and of the circumstances in which they could be called into aid. He stated:

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He considered that in interpreting an Irish statute the Court could also have recourse to the preparatory materials of any United Kingdom statute on which the Irish Act was based. In the case, the Court was asked to consider section 2 of the Criminal Law (Rape) (Amendment) Act, 1981. That provision was an almost exact replication of section 1 of the United Kingdom Sexual Offences (Amendment) Act 1976. Costello P considered the circumstances in which the English Act had been enacted, following a controversial judgment in the House of Lords and the subsequent publication of the report and recommendations for legislative amendment of an advisory committee. He stated that it would be wrong of the Court to ignore the legislative history of the section, given the light which it shed on the section's proper construction.

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Costello P did not confine consideration of the legislative history of a provision to circumstances where the provision was ambiguous. In the case before him, the section to be construed was, on its face, clear. Costello P rejected any “rigid exclusionary rule” which would confine consideration of preparatory materials to cases of ambiguity, relying on Bourke v Attorney General,¹⁸⁵ in which the Supreme Court used the travaux preparatoires of the European Convention on Extradition in the construction of implementing legislation.¹⁸⁶

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In DPP v Brennan,¹⁸⁷ McCracken J followed the judgment in McDonagh and held that, in interpreting section 19 (1) of the Criminal Justice (Public Order) Act, 1994, he was entitled to examine the relevant Bill, as initiated, and to compare its text with that of the final Act. The defendant was accused of assaulting a police officer. He had been charged, not with an offence under section 19, which would have entitled him to elect for a trial on indictment, but with common assault, a summary offence. After the initiation of the Bill, a passage had been added to the section to the effect that an accused could be tried summarily under section 19 only if he or she “elected for summary disposal of the offence”. However, in this case, the accused had not been charged under section 19 in the first place. It was held that the Court was entitled to examine the reasons for the inclusion of these words, and to read the relevant Dáil debates for this purpose. The court found, however, that the Dáil debates did not disclose any consideration of the situation which had arisen in the case, and therefore could not be used to modify the meaning of the Act.¹⁸⁸

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The caselaw arising out of An Blascaod Mór National Historic Park Act, 1989, has raised questions regarding the use of extrinsic materials in statutory interpretation, and suggests a more cautious and restrictive approach than that in McDonagh. In a High Court hearing in the case in November 1992,¹⁸⁹ Murphy J favoured a literal approach to interpretation. On a motion for discovery, for documents in the possession of the defendant relating to the preparation and drafting of the Act, and to the manner in which the Minister had come to decisions in regard to its contents, Murphy J held that such documents would not be relevant to the case, since the decision of the court regarding the constitutionality of the Act must be made with reference only to the terms of the Act. Counsel on behalf of the Minister contended that the constitutionality of an Act could only be challenged on the basis of its contents, and not on the motives of those who promoted, drafted or enacted it. Murphy J, citing with approval the dicta of Lord Wilberforce in Pictin v British Rys. Board,¹⁹⁰ held that both as a matter of principle and as a matter of practicality, documents illustrating the purpose behind an Act could not be used in its interpretation. He stated:

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At a further High Court hearing in July 1997,¹⁹¹ the plaintiffs sought to adduce the text of the Bill as it had been introduced in the Oireachtas, in order to assist in the interpretation of the term “lineal descendant” in the final text of the Act. Budd J expressly departed from the approach of Murphy J, and distinguished the decision in Howard v Commissioners for Public Works.¹⁹² Stressing the importance of “informed interpretation” in cases where there were constitutional considerations, Budd J noted that the term to be interpreted was ambiguous, and held that in the light of this the court was “entitled to investigate and look at what is the policy of this Act.” Despite the stringency of the rule in Howard, he held, there must be room for relaxation of this rule in cases where there was a constitutional challenge. He went on to say that: “the Court is entitled to look at what was the mischief sought to be addressed by the passing of An Blascaod Mór National Historic Park Act, 1989.” Budd J's ruling was confined to narrow facts, however. It was stressed that the document sought to be adduced in this instance was the text of a Bill, and this was distinguished from documents such as parliamentary debates, or other material which would enable the court to go “on an excursion into the motives or the purposes of individual members of the legislature.”

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In the hearing of the merits of the case,¹⁹³ Budd J considered the text of the Bill as initiated and compared it with the text of the Act. However, he stated that he was not “prepared to speculate as to why words were either initially included or subsequently deleted.”¹⁹⁴

Oireachtas Debates

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The primary objection to reference by the courts to Oireachtas debates lies in the reluctance of the courts to look behind the final text of legislation, and the fear that this might impinge on the legislative power. The English doctrine of parliamentary sovereignty has of course given particular weight to these objections. There is therefore a less pressing reason, in this jurisdiction, to exclude scrutiny of parliamentary materials where this would be particularly helpful to the courts. There are also however, practical arguments against the use of Oireachtas debates as an aid to construction, such as the effect which this might have on legal certainty, the difficulty which lawyers and the public may have in obtaining access to the relevant documents, and the increasing pressure of work that a widespread practice of consulting the debates would place on the judiciary and on legal practitioners.

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There is also an argument as to the usefulness of parliamentary debates in most cases. It is argued that a single “will of parliament” is rarely a reality in the

enaction of statutes, and that consulting the debates will not yield a single, parliamentary intention.¹⁹⁵ This is not so in every case, however, as can be seen from the Irish caselaw. A ministerial statement which clarified a doubtful point in the statute to the satisfaction of the Oireachtas (to the extent, for example, that amendments are withdrawn) may be useful in ascertaining the meaning of a provision.

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In favour of the consideration of parliamentary debates, it is arguable that, if the courts are to have regard (in any circumstances) to the purpose of legislation, they must have adequate means at their disposal to establish that purpose. Valuable statements as to the purpose of a Bill, which are authoritative and undisputed by other members of the Oireachtas, may be crucial to a court's understanding of the purpose of an Act.

The English Law

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The English common law rule against the use of parliamentary debates in the interpretation of a statute was considerably eroded by the case of Pepper v Hart.¹⁹⁶ The House of Lords in that case ruled that, where the statute was ambiguous or led to an absurdity, parliamentary material, such as ministerial statements, could be used as an aid to interpretation, where the parliamentary materials relied on were clear. The House of Lords considered that the move from an absolute literal approach to interpretation to a more purposive one, had created a climate in which the old rule of the exclusion of material from Hansard could be modified.

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However, it seems clear that Pepper v Hart did not herald any sweeping aside of all exclusions of parliamentary materials. In a practice direction issued by the House of Lords in 1993, the limits of the rule in Pepper v Hart were emphasised, and it was stated that “supporting documents, including extracts from Hansard, will only be accepted in exceptional circumstances.”¹⁹⁷The Irish Law

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In principle, it appears that Irish law does allow for Oireachtas debates to be considered, at least where a provision is ambiguous or obscure. In Wavin Pipes Ltd v Hepworth Iron Ltd¹⁹⁸ Costello J approved the consideration of parliamentary debates, relying on Bourke v Attorney General.¹⁹⁹ He noted the developments in the English courts whereby the travaux preparatoires of international conventions had

been used in statutory interpretation²⁰⁰ and the parliamentary history of the Employment Act, 1980 had been considered in Hadmoor Productions Ltd v Hamilton.²⁰¹ If it was regarded as proper for the courts to refer to the history of the adoption of an international convention, he held, there could be no principled argument against the examination, in appropriate cases, of the parliamentary history of a statute. He held that the Court could look to the legislative history of the Patents Act, 1964, in ascertaining the intent of the legislature and construing the meaning of one of the Act's provisions.

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In FF v CF²⁰² Barr J, in considering the purpose for which the Oireachtas had enacted the Statute Law Revision (Pre-Union Statutes) Act, 1962, considered the speech of the then Minister for Justice on the second reading of the Bill in the Dáil. The speech of the Minister clarified the point at issue in the case, that the purpose of section 2 of the Act was to preserve existing principles of law which might otherwise be affected by the repeal of statutes in the Act.

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In Wadda v Ireland²⁰³ it was argued in the High Court that regard should be had, in construing the provisions of the Child Abduction and Enforcement of Custody Orders Act, 1991, and the Convention which it implemented, to ministerial statements made in the course of Dáil debates on the Bill. Keane J held, however, that the issue did not arise in the case. Since the provisions of the Act to be construed had been taken from the text of the Convention, it was held that statements made in the Dáil could be of no assistance in clarifying the intention of those who had written the provision: the framers of the Convention. Furthermore, Keane J found that there was nothing ambiguous, obscure or absurd in the provision to be interpreted.²⁰⁴ A similar conclusion was arrived at in the case of CK v CK²⁰⁵ which also concerned the Child Abduction Convention.

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In the case of DPP v McDonagh²⁰⁶ the Supreme Court endorsed the use of a wide range of extrinsic aids to interpretation, including parliamentary debates.²⁰⁷ It was held that a court could have regard to any aspect of a provision's legislative history which might be of assistance to the court. In DPP v Brennan,²⁰⁸ McCracken J followed McDonagh, and was prepared to consider Dáil debates relating to section 19 of the Criminal Justice (Public Order) Act, 1994. However, he found that the Dáil debates did not in fact assist in the resolution of the case before him.²⁰⁹

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This approach contrasts with the comments of Finlay CJ in Howard v Commissioners of Public Works.²¹⁰

International Conventions and Associated Documents

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Where an Act implements, either expressly or impliedly, an International Convention, both the terms of the Convention and its travaux preparatoires may be considered by a court in interpreting any ambiguous provision of the legislation.

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In Bourke v Attorney General,²¹² O' Dálaigh J made use of travaux preparatoires of the European Convention on Extradition in interpreting Irish extradition legislation. He stated:

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He examined an early draft of Article 3 of the European Convention on Extradition, and noted that limitations on the political offence exception which had been included in that draft had later been omitted in the final text of the Convention. O' Dálaigh J concluded from this that the States Parties had rejected a narrow conception of a connected offence. He did not rely exclusively on the travaux, however, stating that the same conclusion could be reached without consideration of the travaux.²¹⁴

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In BB v JB²¹⁵ Keane J referred to the travaux preparatoires of the Hague Convention on International Child Abduction, in interpreting the Convention. The question arose whether, under Article 13 of the Convention, the exceptions to the principle of the return of the child to an applicant under the Convention were directory or mandatory. Keane J noted that, in debate on an earlier draft of the text, several delegates had objected that the exceptions were too general and too wide in their scope. This had led the writer of the explanatory report which accompanied the final text of the Convention to emphasise that the exceptions did not apply

automatically, but merely allowed a judicial discretion in the matter.²¹⁶ Keane J voiced his reluctance to rely on the travaux in the particular case before him, since they had not been cited in argument. Nevertheless, he found that they confirmed his interpretation of the wording of the Convention.

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A cautious attitude towards the use of travaux preparatoires is evident in the judgment of Barr J in the case of the MV Kapitan Labunets.²¹⁷ In that case, which involved the interpretation of the Brussels Convention Relating to the Arrest of Seagoing Ships, 1952, incorporated into Irish law by the Jurisdiction of Courts (Maritime Convention) Act, 1989, Barr J cautioned against over-reliance on travaux preparatoires. He referred with approval to the dicta of Lord Wilberforce in Fothergill v Monarch Airlines²¹⁸ that “the use of travaux preparatoires in the interpretation of treaties should be cautious” and that their use should be

Options for Reform

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Statutory interpretation has been called a “non-subject”.²¹⁹ It is certainly as much a matter of practice and craft as of legal rules. It can be argued that effecting law reform in this area through statutory regulation would be ineffective, since statutory interpretation is inevitably a matter for the courts. However, a number of jurisdictions have enacted legislation in this area, clarifying the principles which apply to statutory interpretation. In some other jurisdictions, law reform bodies have recommended a legislative approach.

Interpretation Acts

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One method of resolving the ambiguities and inconsistencies engendered by competing approaches to Irish statutory interpretation would be to set out clear guidelines as to the interpretative approaches to be adopted, in a new Interpretation Act. A new Interpretation Act clarifying and codifying the principles according to which statutes are to be interpreted would introduce a degree of certainty into this area of the law which could be of considerable assistance to the drafter. As such it could assist in producing a clearer and less “defensive” drafting style.

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The approach of setting out the rules of interpretation in statutory form has already been taken in a number of common law jurisdictions. Several states have enacted legislative provisions which essentially state the mischief rule. For example, the Hong Kong Interpretation and General Clauses Ordinance (Cap 1) states, in section 19:

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The Australian approach, discussed below, sets out a purposive method of interpretation, coupled with the use of extrinsic aids to interpretation.

Australia: Sections 15 AA and AB of The Acts Interpretation Act

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The Australian Acts Interpretation Act, 1901 (as consolidated) specifies a purposive approach to interpretation, and allows for the consideration of certain extrinsic materials in the construction of a statute. It states as follows:

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Section 15 AB of the Acts Interpretation Act 1901 allows for the consideration of extrinsic aids to interpretation in certain circumstances.²²² The section has become a model for legislation both within Australia and further afield.²²³ It states:

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The section makes detailed provision regarding the circumstances in which external aids to interpretation must be admitted and the purposes for which they must be used. Although the section allows for the citation of extrinsic materials in a wide range of cases, for the purpose of confirming the meaning already arrived at on a literal interpretation of the text, it only allows for the admission of external material to alter the meaning of a provision where the provision is ambiguous or absurd. Where the provision has a meaning that is clear on its face, extrinsic material cannot be admitted to contradict that clear meaning. This considerably limits the impact of the rule. The impact of the section is also potentially lessened by subsection (3) which reasserts the importance of the ordinary meaning of a statutory provision, and requires courts to avoid prolonging proceedings unnecessarily through consultation of extrinsic aids to interpretation.

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It is significant also that the section is permissive rather than prescriptive: it does not contain any rule of law that would require a court to make use of extrinsic evidence, but merely allows for judicial discretion as to whether such material will be admitted. Similarly, the enumeration of extrinsic aids to interpretation contained in subsection (2) is not exclusionary: other aids to interpretation may also be used. It is likely, however, that the listing of particular documents in subsection (2) indicates that the drafters of the section considered them to be particularly valuable as extrinsic aids. It has been suggested that the mention of Ministerial speeches on the second reading of a Bill in parliament accords these speeches a higher status than the generality of parliamentary speeches.²²⁵

Application of Section 15AA in the Courts

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The Australian legislation mandating a preference for a purposive interpretation does not seem to have led to any dramatic change in the courts' approach to statutory interpretation. Section 15AA has been described by one commentator as “declaratory”, as a modern, liberal re-writing of the old mischief rule.²²⁶

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Bryson J, writing extra-judicially, with reference to the New South Wales provisions equivalent to section 15AA, has said:

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Bryson J wrote in the context of a legal system in which a partially purposive approach to interpretation, at least where there is ambiguity in a legislative provision had been accepted by the courts prior to the introduction of section 15 AB and its equivalents at state level.

Application of Section 15AB in the Courts

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The reforms instituted in 1984 by section 15AB have in general been viewed by commentators as satisfactory.²²⁸ They do not appear to have resulted in excessive delays or an increase in legal costs. Section 15AB has been applied with care and a measure of caution by the Australian courts.²²⁹ The majority of the caselaw has dealt with the citation of parliamentary debates, rather than of pre-parliamentary reports or other extrinsic materials. The courts have been willing to admit extrinsic material in cases where there is ambiguity, but have been at pains to stress that such materials play a subsidiary role in establishing meaning. They are to be used to provide assistance only, and are not determinative. Where there is no ambiguity in a statute's text, the courts have allowed the introduction of extrinsic materials to confirm meaning, but have ruled against their introduction to challenge the clear meaning of a text.

Where there is no Ambiguity

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In Re Coleman, ex parte Billing²³⁰ the Australian High Court held that section 15 AB does not allow for the use of a ministerial speech for the purpose of departing from the ordinary meaning of the legislative text, where the text is not ambiguous or absurd. It was held that:

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In cases where there is no ambiguity or absurdity, the courts remain slow to have recourse to extrinsic material. Where there is no obvious ambiguity, it seems that the use of extrinsic aids to interpretation continues to be viewed by the courts as an exceptional rather than a routine matter. In Mills v Meeking,²³² for example, the court found that there was “no need” to have recourse to extrinsic material, since a construction could be arrived at on the ordinary grammatical meaning of the Act.²³³

Where the Legislation is Ambiguous

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Even where the text of the legislation is ambiguous, the courts stress the nature of an aid as interpretative rather than determinative. R v Bolton, ex parte Beane²³⁴ concerned the interpretation of section 19 (1) of the Defence (Visiting Forces) Act, 1963. On an application for habeas corpus, the High Court considered whether the Act allowed for the arrest of the prosecutor, a former member of the US armed forces who had deserted in Vietnam. The speech of the Minister on the second reading of the Bill in Parliament disclosed that the Bill was intended to apply to desertions outside of as well as inside Australian territory, but this was not made clear on the wording of section 19. The High Court emphasised that the speech of a Minister in parliament, whilst deserving of serious consideration, was an aid to interpretation and not determinative of meaning in itself. It was stated in the majority judgment (Manson CJ, Wilson and Dawson JJ):

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Deane J, in his judgment in the case, cautioned that the Court should not “attribute to what should be seen as no more than an aid to interpretation the effect of a substantive and retrospective amendment of prior legislation.”²³⁶

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The case demonstrates the secondary nature of extrinsic materials to the determination of the law, and the continuing primacy, even where there is some ambiguity, of the plain meaning of a provision's text.²³⁷ However, the case must be read in the light of the important civil liberties issues which it raised. The lesser status which was attached to the parliamentary debates was coloured by the concern that an interpretation in accordance with the Minister's speech would have constituted a substantial derogation from the principle of personal liberty. Toohey J, in his dissenting judgment in the case, did use the Minister's speech to confirm his interpretation of section 19 as allowing for the arrest of the prosecutor. The speech, he said “put to rest any doubts” which there might be about the meaning of the section.

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Bolton was followed in Brennan v Comcare²³⁸ where the Federal Court again emphasised the primary importance of the will of parliament as expressed in the text of the statute. This was so, it was held, even where external aids showed that the statute's text mistakenly failed to give effect to the true will of the legislature.

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A similar approach was taken in Liggins v Comptroller-General of Customs²³⁹ which concerned the interpretation of the Customs Tarriff Act, 1987. The issue arose whether, in interpreting the Act, the court could use the explanatory notes of the committee established under the Convention on Nomenclature for the Classification of Goods in Customs Tariffs, 1950. It was held that the notes could be a secondary guide only, and could not displace the plain words of the statute, or be used where there was no ambiguity in its terms.

Use of Extrinsic Materials to Confirm the Literal Meaning

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In a number of cases, the courts have used extrinsic materials to confirm the meaning of a provision. In Queensland Electricity Commission v Commonwealth²⁴⁰ the Australian High Court relied on an explanatory memorandum published with the Bill and a parliamentary speech by the responsible Minister. Gibbs CJ noted that:

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In Gardner Smith Pty Ltd v Collector of Customs, Victoria²⁴¹ the Federal Court (Keely, Neaves and Wilcox JJ) held that it was permissible under section 15 AB to use extrinsic materials to confirm the meaning of a statute even where its

meaning was not obscure. The Court considered whether, under section 15AB, regard could be had to “Brussels Notes”²⁴² as material “capable of assisting in the ascertainment” of the Customs Tariff Act 1982. It was held:

Relative Weight of Parliamentary Speeches

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As regards parliamentary debates, the courts have tended to attach the most weight to speeches by sponsoring ministers, and to be wary of placing too much reliance on speeches by other deputies. In Commissioner of Police v Curran,²⁴⁴ Wilcox J observed:

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The same approach is evident in the judgment of Kirby J in Flaherty v Girgis²⁴⁵ where he stated that the observations of individual members of Parliament, other than a Minister or similar responsible deputy, on an Act were “an insubstantial basis” for determining the meaning of legislation.

Practice Directions

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Practice Directions on the use of extrinsic documents as aids to interpretation have been issued by the Australian High Court, the Federal Court and a number of State Supreme Courts. The relevant High Court direction states:

Victoria

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The Victorian legislation on the use of extrinsic materials (contained in section 35 of the Interpretation of Legislation Act 1984)²⁴⁷ differs from the Australian federal legislation in that it does not spell out the kind of materials which may be used by a court, but leaves this matter to the discretion of the courts. Section 35 (a) provides for a purposive interpretation of legislation in terms similar to the Australian section 15AA. Section 35 (b) then goes on to provide for the use of extrinsic aids to construction. It states that:

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In eschewing the form of the federal Australian legislation, which enumerates a longer list of potential extrinsic aids, and defines the purposes for which they may be used, the Victorian legislation allows for a greater measure of judicial discretion in assessing which material may be useful in the construction of a particular provision. Brazil points out, however, that in practice, the judicial discretion available to the Victorian courts has resulted in a similar approach to that

in the federal courts under section 15AB.²⁴⁸ Victorian courts have used similar terminology to that of the federal courts in judging the acceptability or otherwise of extrinsic aids to interpretation, referring to legislation that is “obscure” and to the use of extrinsic material to “confirm” a literal interpretation. In Humphries v Poljak²⁴⁹ the Victorian Supreme Court held that where the language of a provision was clear, the court could not have recourse to the parliamentary debates to ensure that the clear meaning was not in conflict with the parliamentary intention.

New Zealand

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Current New Zealand law allows for the consideration of extrinsic aids to interpretation, but this rule has not yet been embodied in statute. However, the Acts Interpretation Act, 1924, does prescribe a purposive approach to interpretation. Section 5 (j) of the Act states:

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The Draft Interpretation Act set out by the New Zealand Law Commission also proposes a (modified) statutory rule of purposive interpretation.²⁵⁰ The rule would state:

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The New Zealand Commission deliberately excluded from the draft any reference to the intention of the legislature, citing the difficult and undefined nature of that concept.²⁵¹ They were of the view that reference to the legislative intention would not in any case add any meaning to the rule: since the consideration of the context of a provision was designed to enable the intention of the legislature to become apparent. The Commission also deliberately omitted any reference to

statutes as remedial, since it was felt that this misrepresented a large number of statutes.²⁵²

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The New Zealand Commission recommended that there should not be statutory provision for the consideration by the courts of extrinsic aids to interpretation. They were of the opinion that the law on this point should be left to the development of the courts, and that a legislative intervention would not provide any significant assistance to the courts.²⁵³ The Commission gave two further reasons for recommending against legislation for extrinsic aids. They emphasised that the user of the statute book should in general be able to place heavy reliance on it, and that therefore extended reference to material beyond its text should be rare. They also stressed that in the majority of cases, there would be no relevant parliamentary material to which the courts might usefully refer.²⁵⁴

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The Commission did however specify in their draft Act that regard should be had in the interpretation of a statute to all the various elements of the enactment, including its organisation, its preamble, its divisions, section headings, and schedules and appendices.²⁵⁵

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Although they recommended against legislation for the use of extrinsic aids to interpretation, the Commission did recognise the usefulness of information regarding the parliamentary history of an Act. They recommended that, in order to save time for the users of legislation, statutes should include in their text information as to the name of the Bill as introduced, the dates of the other parliamentary stages of the Bill, the number of each version of the Bill, the dates of the second reading speeches on the Bill, and a reference to any report on the Bill.²⁵⁶

United States

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Traditionally, US courts have been strikingly liberal in their willingness to consider the legislative intent behind statutory provisions, and their readiness to admit a wide range of external aids to interpretation.²⁵⁷ Courts attach importance to ascertaining the intent of Congress in enacting a statute, and use legislative history, parliamentary debates and other documents as evidence of this intent, sometimes to the extent that they can override the literal meaning of the statute's words.²⁵⁸ Courts will examine legislative history regardless of whether the words of the statute are clear.²⁵⁹

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In recent years, however, some members of the US Supreme Court have moved towards a “plain meaning” or “textualist”²⁶⁰ approach in cases where there is no obvious ambiguity or absurdity in the statute. Although this trend is seen as a significant shift on the part of the court towards a more conservative legislative jurisprudence,²⁶¹ Supreme Court proponents of a plain meaning approach remain willing to admit extrinsic material in a wide range of cases, at least to confirm the plain meaning of a provision. They will object only where external aids to construction are invoked to defeat the clear literal meaning of a text. In one of the first judgments to reject such use of external aids, in Immigration & Naturalisation Service v Cardoza-Fonseca²⁶² Scalia J said:

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Although this more literal approach has not been adopted by the Supreme Court as a whole, it has had some influence in discouraging ready resort to external material.²⁶⁴ In Public Citizen v United States Department of Justice,²⁶⁵ for example, the Court split on the use of legislative history. The majority favoured a reliance on legislative history where an examination of the text revealed a result which “is difficult to fathom or ... seems inconsistent with Congress' intention.”²⁶⁶ A minority however considered that there should be recourse to extrinsic material only where a provision was absurd or irrational.²⁶⁷

Canada

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Canadian law provides for a purposive interpretation of statutes. In the Canadian Interpretation Act²⁶⁸ under the heading “Rules of Construction” it is stated:

In the same section it is provided that an Act is to be construed as always speaking, and is therefore to be given an updated interpretation:

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The Canadian law on the use of extrinsic aids to interpretation has developed through caselaw from the common law exclusionary rule, to the point where this rule has now been substantially relaxed.²⁶⁹ The exclusionary rule was first modified in regard to constitutional cases, involving either questions of the legislative competence of provincial legislatures, or of the compliance of a statute with the Canadian Charter of Rights and Freedoms.²⁷⁰

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There was a gradual relaxation of the exclusionary rule with regard to the interpretation of statutes, culminating in R v Vasil²⁷¹ where the Supreme Court held, somewhat reluctantly, that parliamentary debates could be used in the interpretation of sections of the Canadian Criminal Code. Although the Court cautioned that reference to Hansard was “usually not advisable” it nevertheless established a new rule which has been followed by the Canadian courts.²⁷²

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The demise of the exclusionary rule was confirmed by the Supreme Court in R v Morgentaler.²⁷³ In that case, the Canadian Supreme Court examined the legislative history of Nova Scotia Medical Services Act, 1989 and related regulations. The Court found, on an examination of the parliamentary debates on the Bill, that the primary purpose of the legislation had been to prevent the accused from establishing an abortion clinic in the province, and not, as had been argued, to improve the general quality of health services. On an examination of the legislative history, the Court found that the purpose of the legislation had been to suppress what was considered by members of the parliament to be a socially undesirable practice. As such the legislation was of a criminal nature and was outside the competence of the provincial legislature.

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Sopinka J, in his judgment for the Court, concluded that the caselaw had developed to the point where parliamentary debates could be admitted as an extrinsic aid to interpretation. He appeared to endorse their use in both cases which involved constitutional issues, and statutory interpretation cases generally. He held:

The Report of the English and Scottish Law Commissions

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The English and Scottish Law Commissions, in their 1969 Report on the Interpretation of Statutes,²⁷⁵ recognised the limitations of statutory reform. They noted that “even in countries with the most highly codified systems the principles of interpretation largely rest on a body of flexible doctrine developed by legal writers and by the practice of the courts.”²⁷⁶ They also noted the danger that a comprehensive codification of the law of interpretation would rigidify the law in this area. However, they did recommend that some legislative measures be taken. The Commissions recommended statutory intervention for four purposes:

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The Commissions also considered the desirability of producing an explanatory statement with a Bill (similar to the explanatory memoranda produced with Irish Bills), which would provide to the courts “authoritative, but not compelling guidance” in the interpretation of an Act.²⁷⁷

Report of the Hong Kong Law Reform Commission

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The Law Reform Commission of Hong Kong²⁷⁸ in its 1997 Report on Extrinsic Materials as an Aid to Statutory Interpretation concluded in favour of a legislative approach, finding that it,

The Commission recommended that extrinsic aids to interpretation should be used to determine the meaning of a provision where the literal meaning was ambiguous or absurd.²⁸⁰ However, they recommended that consideration of extrinsic material should not be permissible in order merely to confirm the meaning of a provision. The legislation proposed by the Hong Kong Commission would allow for the use of a wide range of extrinsic aids, including relevant treaties, parliamentary debates, reports of the Hong Kong Law Commission, and reports of Law Reform Commissions in other jurisdictions, where a provision of Hong Kong legislation had been modelled on legislation from that jurisdiction which in turn had been modelled on such a report. The Commission also recommended reference to any documents which were declared, in the Act itself, to be relevant documents for the purposes of its interpretation.

Sweden

Approach to Interpretation

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In general, statutory provisions are interpreted by the Swedish courts in the context of the whole statute, with preference being given to a contextual, rather than a purely literal interpretation. A court will attempt to reconcile the contextual interpretation of a statute with its purpose; the purpose of a statute is regarded as a part of its context.²⁸¹ The weight given to a statute's purpose will vary according to the area of law concerned. For example, in criminal law statutes, there will be less consideration of the statute's purpose.²⁸²

Use of Extrinsic Materials in the Interpretation of Statutes

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Although there is no legislation or strict rule of law specifying when extrinsic materials may be taken into account, judicial practice is that parliamentary materials are taken into account in most statutory interpretation cases. Practice is consistent

to the extent that failure to take extrinsic materials into account could be considered as a misinterpretation of a statute. One academic commentator has described Swedish laws as “headlines” with the parliamentary materials providing the detail.²⁸³

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The weight attached to extrinsic aids varies across different areas of law. For example, extrinsic aids are used extensively in relation to tax law, but very little in criminal law cases, where there is a premium on literal strict construction.²⁸⁴ The courts are also more inclined to disregard the preparatory materials relating to older legislation.²⁸⁵

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Extrinsic materials will not be taken into account if they provide evidence of entirely new norms which are not mentioned in the statute.²⁸⁶ However, the extrinsic materials may override the language of the statute in certain limited circumstances, for example where it is expressly stated in the materials that they override the statute, or where the terms of the extrinsic materials are clear and those of the statute are vague.

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There is an informal hierarchy of parliamentary materials, with more weight being attached to committee reports, ministerial reports and statements, etc, than to the general run of speeches on a Bill in parliament which may be politically motivated. Consideration may be given to the parliamentary materials relating to connected statutes.²⁸⁷

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The use of extrinsic materials is facilitated by the practice of the Swedish legislature, which publishes, with an Act, the most important of the parliamentary materials relating to it. Whilst a Bill is still being debated in parliament, the relevant government department publishes an explanatory report which explains and justifies each section of the Bill.²⁸⁸

Finland

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There are broad similarities between the Swedish and Finnish legal systems, the result of Finland's affiliation with Sweden until the nineteenth century. The Finnish approach to statutory interpretation is similar to the Swedish, with the exception that the intention of the legislature, and the extrinsic materials which support that, play a less prominent role in Finnish statutory interpretation. This is explained by the fact that, following Sweden's incorporation in Russia, and independence in 1917, a large amount of the old Swedish legislation remained in place. Given the age of this legislation, its preparatory materials were not seen as very useful or relevant by the courts.²⁸⁹ The enactment of more up to date

legislation has not changed the traditional approach. Nevertheless, external aids to interpretation have, by common law standards, a significant place in statutory interpretation.²⁹⁰

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Regard is had by the Finnish courts to literal, contextual, and purposive interpretations. However, where a court finds that parliament has expressed in preparatory materials an unambiguous intention in regard to a statutory provision, it will be followed, and the literal interpretation may be disregarded. There must be reasons given for any departure from the meaning disclosed by the preparatory materials. (The approach is, however, a more literal one in criminal cases.) The more recent the statute, the more attention will be paid to ascertaining the legislative intention. Whilst primary reference in a case of statutory interpretation is to the literal meaning of the statute, it is accepted that, where there is clear evidence of legislative intent in the preparatory documents, the court should refer to these, Where the court does not refer to such material, the decision may be open to challenge.²⁹¹

Italy

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Article 12 of the Italian Civil Code (Preliminary Provisions) identifies three primary methods of statutory interpretation. In the order in which they are to be considered by a court these arguments are: literal, focusing on the meaning of the words concerned; syntactic, referring to the connections and other usages of the words of the provision; and intentional, (or “logical”) referring to the intention of the legislature in enacting the provision.²⁹² Italian law also recognises the importance of historical context in interpretation, both in relation to the derivation of the rule – for example from the Roman law – and in relation to the social and historical circumstances in which the legislation was enacted.²⁹³ The need to interpret in accordance with changes in society since the enactment of the legislation is also recognised. Further bases for interpretation are the “systematic” approach, which looks to the context of the provision in the code or statute, and the “teleological” approach, which looks to the overall function or purpose of the provision.²⁹⁴

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Although parliamentary proceedings and other related materials play a significant role in Italian statutory interpretation, they are subordinate to the statute's text.²⁹⁵ Recourse to parliamentary debates and other legislative history is most common in regard to recently enacted statutes.²⁹⁶ Where an older statute,

enacted in a different economic or social context, is to be interpreted, the courts will treat parliamentary materials with particular caution.²⁹⁷

CHAPTER 2 LEGISLATIVE DRAFTING STYLE

Introduction: The Evolution of Drafting Style

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Legal language and in particular statutes have long been the butt of satirists' wit because of their complexity and lack of clarity. Statutes and legal documents are often criticised for being unnecessarily long, complex and repetitious. They can be badly organised, over-elaborate and include confusing and unnecessary cross-referencing. They are often written in 'legalese', a language which includes many archaic and obsolete words and turns of phrase, terms in foreign and little used languages, and two or more synonyms when one word would do. It is not surprising, therefore, that the ordinary reader often finds legal language incomprehensible and that legalese is even regarded by some linguists “as an identifiably different dialect:”¹

Historical Background

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There are many reasons why legal drafting has become so complex. Latin and French were the languages of learning in Europe for many years. Latin and Law French (a mixture of French and English) were used for writing legal documents so that English did not develop technical terms and phrases. Eventually, English came to be the dominant language and began to be used in writing legal documents. The Latin or Law French word for a particular term was retained. Often, both words were even retained together with a new English word for additional comprehension.³ This led to one of the characteristics of legalese, the doubling and trebling of synonyms.

Fees

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The practice of calculating fees by the length of the document was also a factor which contributed to the verbosity of legal documents, and the use of lengthy

recitals and preambles. The extensive reliance of the common law on precedent meant that these practices were retained long after the purpose of these practices disappeared.⁴ There are still cases where costs are related to the length of documents.

Supremacy of Parliament

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Another factor identified as contributing to legalese was the desire of Parliament in Britain in the 17th Century to achieve supremacy as law makers. In order to establish supremacy, Parliament drafted legislation in as detailed a manner as possible so that no-one could misunderstand its intentions. Judges themselves had previously drafted statutes in terms of general principle and interpreted them liberally. This method of interpretation declined as the judges played a smaller role in law-making.⁵

Use Of Precedents and Models by Lawyers

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At the time that the style of legal languages was being developed, most documents were not drawn up by skilled drafters. Research has shown that:

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Once drafted, these documents were used by successive clerks and scribes as precedents and models. This led to the continuation of bad habits and dated procedures. Particular forms of words which found favour with the courts were retained and the risk of using a new form was not taken. From the fifteenth century onwards, statutes began to be drawn up by conveyancers, who:

2.07

The apprenticeship method of training parliamentary drafters, also heavily dependent on precedents and models, ensured that this practice continued. Turnbull summarised the position as follows:

The Power in The Written Word

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There is an important connection between law and writing or, more accurately, between writing and power. This connection is not unique to modern societies. As Goodrich points out:

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Goodrich goes on to explain that with the advent of writing, political power in early Chinese and Egyptian societies rapidly became a question of knowledge and interpretation of the written law. Struggles for power became a question of struggles over the interpretation of the various writings. This connection was quickly grasped in many preliterate societies:

2.10

The connection between writing and power is also well illustrated by the use of Latin in the Roman Catholic and Early Christian Church. The use of Latin and Greek in scripture and ecclesiastical writing meant that the power to interpret was vested in a priest who had undertaken the study of these languages. Through their knowledge and understanding of these languages the clergy had power to make authoritative statements as to what was and was not permissible under the rules of the Church. The translation of the Christian Bible and Christian religious services

reduced this authority considerably. Members of a church who could read and understand scripture, could then question the interpretations and rules which were handed down and come to alternative conclusions.

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The parallels with legal language are obvious. Lawyers spend many years in training, much of which is spent learning how to understand, write and manipulate legal language. Thus, use of a language, unintelligible to most non-lawyers, is perpetuated. Surveys undertaken by the Plain Language Institute of British Columbia found that:

The Language of Statutes

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In the common law world, lawyers themselves have often complained of difficulty in getting the information they need quickly and easily from documents written in legal language. Take for example the experience of Sir John Donaldson in Merkur Island Shipping Corp. v. Laughton:¹²

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One of the most colourful criticisms of legal language remains however that of Harman L.J. in Davy v. Leeds Corporation.¹⁴

Ireland

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Irish legislation has not escaped without criticism. Article 4 of the Disabled Persons (Maintenance Allowances) Regulations 1984, (S.I. No. 71 of 1984), as amended provides:

In construing these regulations, Keane J. complained that:

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Here is another example of “opacity” in Irish drafting in section 138(4) of the Social Welfare Act, 1992:

This sentence is difficult to read and understand. It contains no fewer than 9 clauses and 158 words. It creates two concepts especially for that subsection alone; 'the relevant amount' and 'the greater amount'. It repeats a litany of benefits at least five times, and uses many words and phrases which add nothing to the meaning. By the time the reader has reached the end of the sentence, he or she would have to be forgiven for having forgotten the beginning. Long meandering sentences like these force the reader to do mental gymnastics. The danger also exists that the reader will miss some vital detail in the mass presented. This certainly does not aid effective communication.

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Or another example:

How much easier it would be to read if it were written:

2.17

Examples of excessive verbiage are also to be found in the most recent Acts, for example in section 10 (4) of the Air Navigation and Transport (Amendment) Act, 1998:

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Even relatively simple statements can sometimes become unnecessarily laboured when couched in legislative form. For example, an over-use of negatives makes the following otherwise straightforward provision of the Firearms (Temporary Provisions) Act, 1998 less easily comprehensible than it could be:

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It must be acknowledged that there are many well-drafted acts on the Irish statute book. There is, however, a general tendency towards the use of anachronistic or legalistic terms, which are unnecessary, and which contribute to the inaccessibility of legislation to the non-lawyer. Words such as “hereby”,¹⁸

“thereto”,¹⁹“therefrom”,²⁰“thereof”,²¹“therefor”, “aforesaid”²² are in common usage in legislation. There is no reason, for example, why section 6 of the Oil Pollution of the Sea (Civil Liability and Compensation) (Amendment) Act, 1998 should refer to “the jurisdiction or power to determine liability for pollution damage and to award compensation therefor...” and not “... to award compensation for it” or “to award compensation for the damage”. Similarly, the statement in the International War Crimes Tribunal Act, 1998, that “the High Court may make such other orders as are appropriate” would lose none of its meaning if stated more simply “the High Court may make other appropriate orders.

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Excessively formal terms are often used in Irish legislation, where terms in more common usage would be equally appropriate. “Shall” is almost always used instead of must or will; or where the use of the present tense of the verb would suffice: since every provision in an Act is enacted, it is sufficient to say “a person is liable” rather than “a person shall be liable”. Similarly, “furnish” is used instead of give or provide²³, “save” is used instead of “except”,²⁴ and “commence” is used instead of “begin”.²⁵ Superfluous phrases such as “as the case may be”, and “that is to say” are common.²⁶ Quaint legalisms are often used: for example “as soon as may be” (used in section 29 of the Food Safety Authority of Ireland Act, 1998) could be replaced with a more modern term such as “as soon as practicable.”

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The terms “such” and “the said” are frequently used in Irish legislation to refer back to a term mentioned earlier in the section. They lend the text an unnecessary air of remoteness and formality, and have no more precise meaning than terms familiar from everyday usage –“that”, “the” or “it”. The following passage from the Housing (Traveller Accommodation) Act, 1998 uses a mixture of “such”, “the said” and “that”:

This passage would lose none of its meaning or precision if reference were made simply to “the person”, “the temporary dwelling” and “the site”.

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The grammar of legislation is sometimes unnecessarily elaborate and strained: “any other person being or having been an employee” could equally well be written as “any other person who is or has been an employee”.²⁷ The passive voice is often used in preference to the active, so that section 5 (2) of the Local Government Act, 1998, for example, reads: “there shall be paid into the Fund by each local authority” rather than “each local authority must pay into the fund.”

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These are minor matters which are generally and rightly regarded as of lessor importance to the effective working of an Act. However, if legislation can be made more accessible to its readers, without sacrificing any of its meaning or precision, then settled practice should not prevent change.

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Where highly complex concepts are translated from general principle to concrete legislative terms, the price of precision in defining the scope and effect of the legislation can be confusion for the reader. Section 22 of the Employment Equality Act, 1998, is an example. The section is a maze of cross-references, conditions and substitutions. It achieves the difficult task of defining the precise nature of sexual discrimination for the purposes of the Act – but the meaning of the section is not at all apparent on a first reading. The text of the section is as follows:

Why are Irish Statutes Difficult to Understand?

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As the section quoted above illustrates, the problem with Irish statutory drafting is not solely or even principally one of language or “legalese”. There are also deeper issues in the way in which Acts are structured, the amount of detail they include and the degree of precision which they are required to achieve. The common law tradition of detailed legislative drafting, with its vigilance against misinterpretation, and its aim to cater for all possible eventualities, can result in highly complex provisions, which do not read easily. When required to put highly complex and detailed concepts into a “watertight” statutory provision, it is inevitable that the drafter will have to sacrifice some measure of clarity. Section 8 of the Central Bank Act, 1998, for example, struggles to apply the terms of the section to different situations, involving certain licence holders (and related persons) and the Irish Central Bank on the one hand, and “reporting agents” and the European Central Bank on the other. The result is a section made up of sentences so long and complex that readability is greatly reduced. The section reads:

Amendment of Legislation

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A great deal of the confusion facing the reader of Irish legislation is caused by the frequent and piecemeal amendment of legislation. An illustration is provided by section 31 (3) of the International War Crimes Tribunals Act, 1998. Its aim is to apply certain provisions of the Proceeds of Crime Act, 1996 to another sub-section of section 31, with modifications. The result is inevitably convoluted. Seven subsections modify the application of the Proceeds of Crime Act to the section. One of them, section 31 (3) (g), states: “section 8 (1) of that [the Proceeds of

Crime] Act shall be construed as if it did not contain the words after subparagraph (ii) and before 'then'.

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A further example of the problems caused by piecemeal amendment can be found in section 28 of the Oireachtas (Allowances to Members) and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act, 1998. The Act applies a modified form of the pensions provisions of the Courts of Justice and Court Officers (Superannuation) Act, 1961 to some judges and court officers. The text is as follows:

In the above example, the amendment effected by subsection (c), which substitutes a new text for the amended provision, is much more readily comprehensible than the previous amendments, which require the reader to insert or substitute words or phrases in the text of the amended provisions.

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One helpful practice, in place in Ireland since the 1970s, is the use of tables in a schedule to an Act, which set out the provisions of previous legislation amended or repealed and the sections which amend them.²⁸ Although such tables are not contained in all legislation, they are used in many of the more lengthy and complex Acts.

The Need for Updated Legislation

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The inaccessibility of much of the law on the current Irish statute book is due to the age of the legislation rather than to current drafting style. Many areas of Irish law are still governed by nineteenth or early twentieth century legislation, which is expressed in language more formal and difficult to the modern reader than the language of modern legislation. The revision and updating of legislation would go a considerable way towards enhancing the accessibility of the Irish statute book. If there is to be a “uniform” accessible style which is used in the drafting of all legislation, then, ideally, existing legislation (or at least the most antiquated statutes) should be re-drafted in this accessible style. The consolidation of much-amended legislation on a topic into a single Act would also be helpful in many areas.

The Need for Uniformity

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The persistence of a style of legislative drafting which is, to varying degrees, antiquated and obscure, can in part be attributed to the lack of any guidelines which would impose some uniformity on the style of Irish drafting, and assist drafters of legislation and regulations in writing in a more modern, standardised style. In the absence of clearly determined guidelines, it is only to be expected that drafters will continue to follow well-settled, traditional drafting practices.

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The absence of a uniform style creates room for confusion in the mind of the reader, and reduces the degree of certainty with which statutes may be interpreted. There is a need for greater uniformity of style in statutory drafting; and for clear guidelines which will prescribe the type of language to be used in the drafting of statutes. One means of addressing this need would be to produce a manual of style which could be used as a model by all drafters.

To Whom Should Legislation be Addressed?

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Some acts will inevitably be more complex than others. The statutes drafted by the parliamentary draftsman's office cover areas as widely divergent as the law itself. Some affect the daily lives of citizens to a much greater extent than others. Some deal with highly technical or specialist topics. Legislation regulating shipping, for example, or financial services, does not have the same impact on the general public as social welfare legislation. The former types of legislation are likely to affect and be read only by a small category of professionals who are specialists in the field. Social welfare legislation, on the other hand, affects a large number of citizens in their daily lives. In the light of this, it is arguable that there is a need for different approaches to drafting different types of statute. The question arises: for whom are laws drafted? Are they always drafted with the general public in mind, and if not, should this be the case? Alternatively, should they be drafted so as to be easily understood by a legal practitioner, or by a specialist in the particular field covered by the statute?

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There is a clear need, in the case of some legislation, that it should be addressed to, and readily comprehensible by, the ordinary citizen. It is arguable that a degree of pragmatism and flexibility should be allowed to inform the demand for “plain language”, in relation to legislation which deals with particularly complex or technical topics. Although every statutory provision can and should be drafted with clarity, not every statute will lend itself to expression in layman's language. Often, the use of what might be considered to be jargon may be seen as preferable to the lengthy (and possibly inaccurate) explanation of technical terms. Many technical terms become part of our everyday language, or at least a part of the everyday language of particular professional group. In some cases, a statute will affect and will be used almost exclusively by a small group of professionals and administrators.

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Against this, however, there is an argument from principle that, since legislation does ultimately affect and regulate the lives of all citizens, it should be capable of being understood by the reasonably well-educated layperson.

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It is arguable that the need for accessibility by the layperson could be addressed by the issuing of explanatory materials to accompany the Act. The issuing of such materials has been standard practice in areas such as consumer affairs and health and safety. The argument can also be made, however, that useful though these materials are, they do not provide a solution in themselves to the difficulties with current statutory language.

CHAPTER 3 PLAIN LANGUAGE AND LEGISLATION

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The plain language movement evolved as a reaction to the remoteness and complexity of legal language. Plain language is a concept which is extremely difficult to define as it means very many different things to different people. It is also a relative concept. Plain language invites the question: plain to whom? It is probably best therefore to give a number of descriptions as a starting point. Eagleson describes plain language as follows:

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Or another description:

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The Plain Language Institute in British Columbia gives the following description:

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The essence of plain language, therefore, lies in its stress on communication. Writers of plain language keep their readers clearly in mind, so that by writing clearly and plainly the reader will be able to understand a document quickly and easily, rather than waste time making sense of complex language or sentence

construction.³ The plain language movement is not confined to a quest for simpler legislative drafting. In fact the movement has generally grown out of the demands of consumer associations for clearer contracts and forms. However, its proposals do have useful applications to legislative drafting.

Plain Language Or Plain English

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Although the terms plain language and plain English are often used interchangeably by commentators in this area, there is a difference between the two. Plain language is perhaps the broader term, and more suitable in jurisdictions which are bilingual. In Ireland we have laws, legal documents and also our Constitution written in both Irish and in English; plain language is a term which describes the simplification of both versions. Plain language is also perhaps a broader term in that it encompasses format, design, layout and so on as well as the 'plainness' of the individual words used. This is because language is any method or means of communicating ideas. It includes mathematical languages, flow charts and characters as well as words. English on the other hand is a particular type of language. For these reasons the term plain language rather than plain English is preferred in this paper.

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The easiest way to understand what people mean by plain language is to look at an example. It is quite simply the difference between writing:

and

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The gap between these two sentences is more than just two lines; it is in fact several hundred years of tradition and a lot of time and effort by very many different people.

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Plain language is not a monosyllabic or patronising style of writing, nor is it a style of writing that limits writers to one clause sentences. It is therefore no more than good writers, lawyers and legal drafters have always tried to do, that is write as clearly and effectively as possible.

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The primary objective of plain language is communication. Most writers, especially legal writers, usually want to communicate effectively with their readers. A person using plain language will communicate more effectively when he or she lets the reader concentrate on the message and does not allow him or her to be distracted by complicated language. Plain language does not mean oversimplified and inexact writing, it simply means that the people who use a document must be

able to “find the information they need easily, and understand it the first time they read it.”⁵

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This can be illustrated by some additional examples.

This example is taken from section 27 of the Matrimonial Causes Act, 1965 (U.K.). The plain language revision supplied by Clarity, a group of lawyers who advocate the use of plain English in legal writing, is as follows:

This re-draft omits, however, the words “subject to the following provisions of this section” from the original – words which may be important.

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An added dimension to plain language is the emphasis on layout and organisation of documents. In order to enable people who use a document to be able to “find the information they need easily, and understand it the first time they read it”⁶, advocates of plain language reject dense blocks of text in favour of well indexed, clearly presented material. Maximum use is made of modern methods of typography and up-to-date word-processing facilities to design user-friendly documents.

Advantages and Disadvantages of the Plain Language Approach

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Jurisdictions which have implemented a policy of plain language, have done so in the belief that legal documents written in plain language have two distinct advantages over documents written in traditional legal language: namely that the use of plain language makes law and justice more accessible, and that plain legal language saves time and money. There has been considerable debate within these jurisdictions, however, as to whether a plain language policy can deliver these benefits. Many commentators have expressed concern that introducing a plain language policy would cause more problems than it would solve. Below, we examine the debate in this area in order to assess whether benefits of plain language outweigh the alleged disadvantages.

(a) Concern that Plain Language will Lower Standards of Good Writing

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There is a concern that the use of oversimplified language is too juvenile, unlegal or condescending, that it is simply not “good writing”, and involves a

debasement of language. This concern stems from the view that plain language consists of monosyllabic words, very short sentences and a complete rejection of complex words or sentence construction. If this were true of plain language then the criticism would be valid. It would certainly not be useful to draft statutes and legal documents in simplistic monosyllabic words. However, as other commentators have pointed out, this is to misunderstand plain language. As the Law Reform Commission of Victoria note:

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Plain language is therefore, by definition, good language. Far from debasing language, those in favour of the adoption of a plain language style, argue that it promotes good style and writing by removing the clumsiness, inelegance and prolixity inherent in many legal documents. It is important not to lose sight of the fact that legal documents and statutes are not meant to be works of art or literature, but are documents whose primary aim is to communicate. As working documents intended to do a job they should be designed for utility rather than beauty. As Redish puts it “the purpose of the documents that we want to put into plain English is to convey critical information.”⁸

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Even a reader familiar with legal language may have little time to waste searching through a disorganised document to ascertain its meaning. Lawyers hunting through disorganised and obscure legislation could waste many hours trying to identify its meaning.

(b) Concern For Intelligibility

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Adopting a plain language approach to drafting does not necessarily mean that laws would be drafted so as always to be intelligible to the general public.

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Bennion believes that the biggest stumbling block in this area is communicating the law to lawyers.

The man or woman in the street should not attempt to interpret legislation ... in the form in which it was enacted. What the lay person needs is explanations and summaries.

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Bennion's advice is:

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In our Report on Dishonesty, we also were of the view that it was a mistake to leave the interpretation of legislation to the “ordinary” man on the street. Advocating the maintenance of settled law, we said:

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The same point has been made with force in New Zealand:

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Opponents of plain language would argue that the way to make legal documents accessible is to educate the average citizen to such a degree that he can read and understand documents which affect him.

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These concerns are valid, and must be taken into account by plain language advocates. However, the plain language movement does not contend that all legal documents and particularly statutes, can be made intelligible to all citizens. Clearly a certain level of education is necessary. Nevertheless by drafting in plain language, the number of those who can understand a document, is hugely increased. This argument is put by the Law Reform Commission of Victoria as follows: