IOSR Journal Of Humanities And Social Science (IOSR-JHSS)

Volume 22, Issue 9, Ver. 14 (September. 2017) PP 96-100

e-ISSN: 2279-0837, p-ISSN: 2279-0845.
www.iosrjournals.org

Courts and Intention of Legislature Enacting The Statute

*G.V.Akshaya
(BBA.LLB(Hons)., III Year/Saveetha School Of Law/Saveetha University/India)
Corresponding Author: *G.V.Akshaya

ABSTRACT: Interpretation means the art of finding out the exact meaning and true sense of an enactment
passed by the legislature by looking into the words of the enactment and find out their natural and ordinary
meaning. It is the process of determining the true meaning of words used in the statute. The courts follow
certain procedure and principles for construction and these are principles are called ‘Rules of Interpretation’.
The main object of this paper is to discuss about how the statutes are interpreted by courts by relying on the
intention of the legislature.

Keywords: Construction, Enactment, Interpretation, Legislature, Statutes.

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Date of Submission: 16-09-2017 Date of acceptance: 27-09-2017
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I. INTRODUCTION
We all live in a world where we have duties and obligations towards the state and society. The order is
maintained in society because of the presence of law. The Law and order is maintained for just and stable
existence of mankind as is evident that the human tendency needs some kind of sanctions to regulate the
behaviour and it is mainly done by the actual presence of law. Law is some kind of element which actually binds
all the members in the community together for recognizing the values and standards.

The ancient law derived its actual presence in society from sources like Customs, Precedents and
Legislations. But, the authentic and most reliable source is „statutes‟ or which is known as Enacted laws. The
modern Acts are made by legislature (parliament) for the needs of society. These are used as the basic and
primary source by a judicial authority for carrying out their day to day operation. Every judicial and
administrative body are working according to the enacted laws and statutes.

With the source of law and with the change of time, the problem is that the society changes and this
finally changes the mindset leading for a court to interpret. The enacted laws, specially the modern rules and
acts are mainly drafted by the legal experts and scholars and the language used will leave a very little room for
interpretation. Some people find difficulty in interpreting the words as their meanings are ambiguous and certain
expressions are inconsistent. One of the reasons is that there is no coordination between the person who involve
in drafting the law and the person who applies it in working. In order to look after this certain rules of
Interpretation or construction have been formulated and one of the rules is called the Intention of Legislature.
The court will involve in interpretation or construction when it cannot proceed through the ordinary
rules of interpretation and it will look into the intention of legislature and try to derive the words from statute.

In certain cases, the courts have gone beyond the words of the statute and they have interpreted various
statutory provisions in a manner as to be morally sound. The extent to which the legislature and its intent can
shape the understanding and implementation of a statute is indeterminate. The value of time varies with time as
well as across jurisprudences. In India, it becomes necessary for the court to evaluate the role of legislature and
its intent in statutory interpretation.

II. Interpretation Of Statute

The means of communication are the words spoken or written. When there is a possibility of giving
one and only meaning there will not be any problem arising. But, when there are possible chances of two
meanings, a problem will arise where the court will look into the real intention of legislature. There will be a
problem arising when a provision in any statute is found to convey more than one meaning. So the Judges will
interpret the meaning of a word. The legislature, after enacting these statutes becomes functus officio.
Legislature enacts and the judges interpret the words and meaning.

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 Courts and Intention of Legislature Enacting The Statute

The judges cannot rely on something which they don‟t understand in the provision of an enactment.
They are under an obligation to interpret and find out the exact meaning. They cannot refuse or refer back the
matter to the legislature for interpretation. This exact situation led to the birth of principles of Interpretation to
find out the exact and real intention of the legislature.

Those with least ambiguities, inconsistencies or lacunae are considered to be good enactment. The
actual purpose of the interpretation of statutes is to find out the precise meaning of a word, which is achieved by
using certain aids or methods. The aids of interpretation are divided into two categories called Internal and
External Aids.

1.1 The internal aids are found within the statute:-

1. Long title
2. Preamble
3. Chapter Headings
4. Marginal Notes to every section of statute
5. Punctuations
6. Illustrations given below the sections
7. Definitions
8. Provisos
9. Explanation
10. Saving Clauses and non-Obstante clauses.

1.2 The External aids for Interpretation are those which are not present in the statute but it can be found
somewhere else:-
1. Historical background
2. Statement of Objects and reasons
3. The original bill as drafted and introduced
4. Debates in the legislature
5. State of things at the time a particular legislation was enacted
6. Judicial construction
7. Legal dictionaries
8. Common sense

The court applies this process of interpretation to find out the true meaning of the ambiguous word or
any phrase contained in the legislation. In the process the judge will try to ascertain the exact meaning the
parliament had in its mind. In some cases there will be different interpretations by different judges. The
meaning taken by one judge in interpreting the statute of the same word will be different from the second judge.
More precaution will have to be taken while interpreting the vague and undefined word of the statute. The
judge during interpretation of statute should not pursue his own thoughts and ideologies to interpret a statute and
he should interpret only according to the statue and its objectives.

The meaning of the word Interpretation means how a judge will look into a particular word with matter
or exact principle. SALMOND has defined the term interpretation in Jurisprudence as, “the process by which
the court seeks to ascertain the meaning of the Legislature through the medium of authoritative forms in which it
is expressed”.

Thus it has been said that, Interpretation is an art of finding the true sense which their author has
intended to convey, and to enable others to derive the same idea which he has intended to convey. Clearing any
ambiguity is construction and it is synonymous to the word Interpretation.

III. COURTS AND INTENTION OF LEGISLATURE

The legislative intent is more than the purpose of legislature and the implication of words while
framing it. The purpose behind framing any statute is mainly for the public benefit. 1 The legislature is presumed
to have certain meaning of the words of any particular statute. Any statute framed should be in accordance with
such meaning. During any interpretation of any statute an advocate or a judge should always go by the rules of
interpretation and all these rules are used to gather the facts and they are processed to clear the ambiguity and
vagueness of the statute and will give a clear meaning to the word. The process of interpretation is done going

1
United Bank of India, Culcutta v. Abhijit Tea Co. Pvt. Ltd., AIR 2000 SC 2957
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 Courts and Intention of Legislature Enacting The Statute

by the words of these statutes which is open to more than one interpretation. In this case, the court will have to
choose the intention of the legislature which is used in enacting a statute representing the true intention of the
legislature.2 So in this case, the court will look into the legal meaning or true meaning of all the statutory
provisions.

3.1 The role a Judiciary plays:-

1. When words are imperfect and they are ambiguous and they keep changing meaning over time which does
not appear to be directly addressing a particular issue and which appears to have a drafting error. 3
2. Some situations are inevitable and new technologies make existing laws difficult.
3. Some uncertainties can be added to the statute in course of enactment.
4. When any statute is clear and unambiguous, the courts stated that, the inquiry into legislative intents ends at
that particular point. The intention of the legislature is to be construed when there is a possibility of two
interpretations differently arising and this has to be essentially constructed of two aspects, one is the
concept of meaning i.e what the words mean and another is the words that state the concept of purpose and
object or the reason and spirit coming through the statute.
5. The process of construction combines both literal and logical. The legislative intention is the true or legal
meaning of an enactment which is derived by considering the meaning of words which is used in the
enactment for a purpose or object to which the enactment is directed.
6. The courts will have to keep in mind while reading any statute, by certain legislative intent. They are the
text of any statute which has proposed to the legislature. These proposed amendments to the stature can be
accepted or rejected with reasons. They include the record of court hearings on a particular topic.
Parliamentary debates and speeches are made prior to the bill on vote. They maintain the legislative records
or journals. The General Clauses Act, 1897 can be used to understand the relevant definitions in the statute. 4
7. Prior to the formation of statute, the case laws demonstrates the problems or issues which the legislative
was dealing with tackling the problem. Legislative intent is the reason for passing the law.
8. Other relevant statutes which indicate the limits of the statute in question; such as previous statutes on the
same matter.

The intention of legislature is a shorthand reference to the words meaning which is used by the
Legislature and determined with guidance accepted principles of Interpretation. This interpretation is done by
judges when the legislation was drafted because a statute is an edict of the Legislature. It is considered to be a
reason that interpretation of a stature is done according to the intention of those persons who make it. It is the
duty of the judicature to act upon the true intention of legislature –the mens or sentential legis. The main object
of interpreting the statute is to ascertain the intention in which a legislature is made. 5 The primary function of
all the appellate courts is the interpretation of statures and it is also conventional for courts to make it use of the
rules in the actual course of interpretation. Some of the rules in interpretation of law are considered to be very
ancient and others are actually recent. Some statutes are applicable only to one field such as criminal law or
constitutional law. 6

2.2 Certain principles of interpretation are formulated by the Superior Courts to find out the intention of the
legislature.
1. Literal construction:
The first and foremost construction is that of a literal construction. The courts are bound by the legislature and
once any legislature has expressed its intention in clear words they are binding. If any provision is unambiguous,
the legislative intent is clear and the other rules of construction are not clear they need not be called for any aid.
They will be aided only when the legislative intention is not clear. If the words are clear in a legislature they
should be applied even though their intention may be different or the result is harsh or undesirable.
2. No external aid where words plain and unambiguous:
The words of a statute are unambiguous and precise, the intention of every legislature or statute is gathered from
the language itself and no need of construction of any words. Where a statue is not exhaustive or it is ambiguous
or uncertain the external aid may be looked into for the purpose of ascertaining the object for framing any
statute in the legislature.

2
Venkataswami Naidu, R v. Narasarn Naraindas, AIR 1966 SC 361
3
Legislative Intent in Interpretation of Statutes, at https://en.wikipedia.org/wiki/Legislative_intent
4
Guru Prasanna Singh, Principles of Statutory Interpretation, Ed., 12(2010)
5
Statutory Interpretation: General Principles and Recent Trends (2008)
6
Vishnu Pratap Sugar Works (Pvt) Ltd. V. Chief Inspector of Stamp, AIR 1968 SC 102
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 Courts and Intention of Legislature Enacting The Statute

3. Mischief rule (Heydon's case):

Whenever there arises any question as to determine any interpretation in an enactment, the court will
have to ascertain the intention of making them and they must be gathered from the words used in the statute.
The decision should not rest on a literal interpretation. Literal construction should have a prima facie preference.
The rule gives more discretion than a literal or a golden rule of interpretation as it allows to effectively decide
on parliament‟s intent.

4. Words coupled together to take colour from each other:

This rule states that, when two or more words which have analogous meaning are coupled together, they are to
be understood in proper sense and not in a wrong way. This rule will not apply in a case where the legislature
has used more or wider words to widen the scope of any provision.

5. The golden rule:

A hypothetical consideration should not have much weight in interpreting a statue. If the language permits, it is
open to the court to give the statute any meaning which promotes the intent of legislation. The court will always
have the power to depart from the construction if there is a strict adherence to the construction which will defeat
the object of the legislature.
6. Absurdity or hardship:
The court will have no power to give the language of a statue a meaning which is wider than the literal
one, until there is any reason compelling to give another meaning. If an interpretation of a statute has or leads to
any absurdity or hardship then the construction may be put which modifies the meaning of the words and the
sentence also. If the language which is to be constructed is plain, the legislature should step in and remove the
absurdity. The considerations of the hardship should be ignored.
7. Liberal construction:
It is necessary and legitimate to adopt the rule of liberal construction as to give a reason and meaning to
all parts present in a statue and to make it effective and operative. The narrower and wider sense of a term is
adopted and it depends on the provisions of the statute in which the term occurs depending on the various facts
and circumstances of the case. If any words used in the provision are capable of only one construction, the
doctrine of liberal construction cannot be of any help. The enactments related to procedures should be construed
liberally in a manner as to render the enforcement of rights effective. This rule will apply to the interpretation of
constitutional and statutory provision.
8. Harmonious construction:
The statue should be construed and the construction has to be harmonious. The provisions which are in
conflict with each other cannot stand together. They should be interpreted in a harmonious way and the effect
should be given to both hand that a construction renders either of them inoperative. It is also the duty of the
courts to avoid conflicts between the provisions and whenever it is possible the rule of harmonious construction
applies and to different cognate acts such as the court fees or the civil procedure code. It can be unreasonable
and illegitimate for a court to limit its scope arbitrarily or solely for the purpose of establishing harmony
between them.
IV. CONCLUSION
The usage of the intention of a legislature by every court should be justified by a proper reason and it
should not be left open to statutes which are present. Errors are committed and should be rectified as soon as
possible. Every court is assigned a task of statutory interpretation and that should always be done with a proper
care and caution which is taking care of all the rules and regulations regarding the construction. The court can
always interpret legislation in its own way as to what considers for them to be right and they are taken care for
finding out the intention of legislature in enacting the statute.
There are different statutes where every intention can be looked upon on the case of „Taxation‟and
„Penal code‟ statutes which is never looked by the court. The interpretation of all the statutes is different from
ordinary ones as they have clear provisions as to what impose tax or liability on certain subjects. People will
suffer if the interpretation goes in a wrong way. Both statutes should be clear for interpretation and if it is
ambiguous or unclear, there will be no interpretation. In these statutes, the court will not give effect to all the
word. They will only interpret if the word is clear and in the case of any ambiguity the court will look into
enacting provisions of the statute. Here the court will apply only the Literal Interpretation by taking a popular or
an ordinary meaning and the court will not apply any canon of construction for Interpretation of statute.
Regarding law, every word has a meaning and the interpretation will become the scope and beyond the reach of
objectives and reasons for which the statute was enacted in the legislature. Hence the court should understand
this construction on for determining any statute or constitutional provision.

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 Courts and Intention of Legislature Enacting The Statute

BIBLIOGRAPHY
Books:
[1]. Justice G.P. Singh, Principles of Statutory Interpretation (14th edn, Lexis Nexis
Publications 2016).
[2]. Dr. M.P. Tandon, Interpretation of Statutes & Legislation (12th edn, Allahabad Law Agency 2016).
[3]. Quintin Johnstone. Án evaluation of the Rules of Staturory Interpretation”, 2 YLJ 1-2 (1954)
Website references:
[4]. Legislative Intent in Interpretation of Statutes, available at: https (Visited on September 12, 2017).
[5]. Judicial Interpretation, available at: https://en.wikipedia.org/wiki/Judicial_interpretation (Visited on
August 27, 2017).
[6]. Statutory Interpretation, available at: http://www.ijtr.nic.in/articles/art21.pdf (Visited on September 5,
2017).
Case laws:
[7]. Venkatachalam V. Dy. Transport Commissioner, AIR 1977 SCC 842, page 853, 854
[8]. R. v. Secretary of State for the Environment exparte Spath Holme, [2001] 1 ALL ER 195

G.V.Akshaya. “Courts and Intention of Legislature Enacting The Statute.” IOSR Journal Of
Humanities And Social Science (IOSR-JHSS) , vol. 22, no. 9, 2017, pp. 96–100.

IOSR Journal Of Humanities And Social Science (IOSR-JHSS) is UGC approved Journal with
Sl. No. 5070, Journal no. 49323.

DOI: 10.9790/0837-22091496100 www.iosrjournals.org 100 | Page

 Prabhat Bandhulya
Jan 18, 2021 4 min read

Interpretation of statute – The

Intention of Legislation
Updated: May 23, 2022

Interpretation of statute – The Intention of Legislation

Introduction
Introduction
The main intention behind the interpretation of the statute is to unlock the locks put by the
Legislature .The formal act of the Legislature in written form is known as statute. It declares the will of the
Legislature.
The art of finding out the original intention of enactment by giving the words of the enactment their natural
and ordinary meaning is known as Interpretation. Interpretation haphazardly is not anticipated by the court,
therefore there have been certain principles which have evolved out of the continuous exercise by the
Courts. These principles are sometimes called ‘rules of interpretation’. [1]

Definition
Definition and
and meaning
meaning ofof interpretation
interpretation
According to Salmond , Interpretation or construction is, “the process by which the court seeks to
ascertain the meaning of legislature through the medium of authoritative forms in which it is expressed.”
Cross defines, “Interpretation is a process by which the court determines the meaning of a statutory
provision. It is for the purpose of applying it to the situations before them.
The term interpretations means “to give meaning to”.
Case
Case law
law
– In “Nathibai V/s Maheshwari Samaj Kamola Trust”, the court held that the term interpretation means that it
is not open to co courts to curtail or enlarge the provision beyond obvious meaning. Interpretation has to
carry the object and meaning without distraction.

Importance
Importance of of Interpretation
Interpretation of
of Statutes
Statutes
Reasons why statutory interpretation is necessary
are as follows:

1. Inconsistency, unclear and ambiguous language can arise from the ambiguity of the laws
regarding the essence of the subject, various draughtsmen and the combination of legal and
technical language.

2. The will of the legislature is expressed generally in the form of statute and it is for the court to find out the
real intention of the legislature from the language used in the statute.
The necessity of interpretation would arise only where the language of a statutory provision is ambiguous,
not clear or where two views are possible or where the provision gives a different meaning defeating the
object of the statute.

3. Object of interpretation of statute

The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or
impliedly in the language used.
Case
Case law
law
: In “Santi Swarup Sarkar V/s Pradeep Kumar Sarkar”, the Supreme Court held that two
interpretations are possible of the same statute, the one which validates the statute must be preferred.

Intention
Intention of
of Legislation
Legislation

A statute is an edict of the legislature and the conventional way of interpreting or construing a statute is to
seek the "intention" of its maker. A statute is to be construed according "to the intent of those that
make it" and "the duty of judicature is to act upon the true intention of the Legislature—
the mens or sententia legis ".

The expression "intention of the Legislature" is a shorthand reference to the meaning of the words used by
the Legislature objectively determined with the guidance furnished by the accepted principles of
interpretation.

The conventional way of interpreting a statute is to seek the ‘intention’ of its maker. The duty of the
judicature is to act upon the true intention of the legislature. If a statutory provision to open to more than one
interpretation, the court has to choose that interpretation which represents the two intention of the
legislature.

The intention of the legislature has two concepts – the first is the ‘concept of meaning’ it conveys and
second is the concept of ‘purpose and object’ or ‘reason & spirit’ pervading the statute, purpose of
construction, therefore combines both literal and purposive (logical) approaches.

The most fair and rational method for interpreting a statute is by exploring the intention of the
legislature through the most natural and probable signs which are ‘either the words, the context , the subject-
matter the effects and consequences or the spirit and reason of the law.’

Guiding lines to frame intention of legislature are: –

The context (pari materiae. external aid to interpretation).

The subject matter.
The effects and consequences.
The spirit or reason of the law.

Intention of legislature is assessed either in express words or by necessary implication in keeping mind the
purpose or object of the statute.
According to J , A mechanical interpretation of the words and application of legislature intent devoid of
concept will make most of the remedial and beneficent legislation futile (ineffective). Judiciary would mold or
creatively interpret legislation as they are finishers, refiners and polishers of legislation.

Case
Case law
law
: “The Quary owners association V/s The State of Bihar”, AIR 2000 SC 2870; - words in statute-
dynamic meaning which gives full thrust and satisfaction to achieve objectivity intended by legislature is to
be adopted.
Case
Case Law
Law
: “Aswini Kumar V/s Arabinda Bose”, in this case the petitioner argued that being an advocate in the
Supreme Court he had a right to act and plead all by himself without any instructions from the attorney. The
Supreme Court accepted this contention by a majority. One of the minority judges held that , to find out the
true intention of the legislature, it was necessary to take all the parts of the statute together for interpreting
any provision in it.

Case
Case Law
Law
: “Newspapers Limited V/s State Industrial Tribunal”, the Supreme Court held the reference had on the
ground that it was not an industrial dispute of which the dismissed employee was a workman of the
employers. It was observed that the industrial dispute act as a whole should be read while interpreting the
constituent parts of it.

Conclusion
Conclusion
Statutory interpretation is the court's primary role. The statute is passed by the Legislature and is in the
possession of the court to interpret it if there is a conflict. As it reflects the will of the legislature in the form of
a law. The starting point for interpretation is the law
The judges should only assume the role of interpreters and not the role of the reformers which belong to the
legislators and if they do so, such decisions can be overruled and nullified legislators.
 4YFPMWLIH MR -RWXMXYXI W .SYVREP .YP] 7ITXIQFIV

INTERPRETATION OF STATUTES

Justice A.K. Srivastava,

Judge,
Delhi High Court at New Delhi

Words spoken or written are the means of communication. Where they are possible of
giving one and only one meaning there is no problem. But where there is a possibility of two
meanings, a problem arises and the real intention is to be sorted out. It two persons
communicating with each other are sitting together; they can by subsequent conversation clear
the confusion and make things clear. But what will happen if a provision in any statute is found
to convey more than one meaning? The Judges and the Lawyers whose duty it is to interpret
statutes have no opportunity to converse with the Legislature which had enacted a particular
statute. The Legislature, after enacting statutes becomes functus officio so far as those statutes
are concerned. It is not their function to interpret the statutes. Thus two functions are clearly
demarcated. Legislature enacts and the Judges interpret.

The difficulty with Judges is that they cannot say that they do not understand a
particular provision of an enactment. They have to interpret in one way or another. They cannot
remand or refer back the matter to the Legislature for interpretation. That situation led to the
birth of principles of interpretation to find out the real intent of the Legislature. Consequently,
the Superior Courts had to give us the rules of interpretation to ease ambiguities,
inconsistencies, contradictions or lacunas. The rules of interpretation come into play only
where clarity or precision in the provisions of the statute are found missing.

Good enactments are those which have least ambiguities, inconsistencies,

contradictions or lacunas. Bad enactments are gold mine for lawyers because for half of the
litigation the legislative draftsmen are undoubtedly the cause.

The purpose of the interpretation of the statute Is to unlock the locks put by the
Legislature. For such unlocking, keys are to be found out. These keys may be termed as aids for
interpretation and principles of interpretation.

The aids for interpretation may be divided into two categories, namely, Internal and
External.

The Internal Aids are those which are found within the statute. They may be as
follows:-
1. Long title of the statute.
2. Preamble of the statute.
3. Chapter Headings of the statute.
4. Marginal Notes to every section of statute.
5. Punctuations.
6. Illustrations given below the sections.
7. Definitions.
8. Provisos.
9. Explanation.
10. Saving Clauses and non-obstante Clauses.

1
 External Aid for interpretation are those which are not contained in the statute but
are found else-where. They may be as follows:-
1. Historical background.
2. Statement of objects and reasons.
3. The original Bill as drafted and introduced.
4. Debates in the Legislature.
5. State of things at the time a particular legislation was enacted.
6. Judicial construction.
7. Legal dictionaries.
8. Commonsense.
As stated above, the Superior Courts have formulated certain principles of
interpretation to find out the real intent of. the Legislature. These principles may be enumerated
as follows:-

1. Literal construction

In construing a statutory provision the first and the foremost rule of construction is that
of literal construction. All that the Court has to see at the very outset is, what does the provision
say? The Courts are bound by the mandate of the Legislature and once it has expressed its
intention in words which have a clear significance and meaning, the Court is precluded from
speculating. If the provision is unambiguous and if from that provision the legislative intent is
clear, the other rules of construction of statutes need not be called into aid. They are called into
aid only when the legislative intention is not clear. But the courts would not be justified in so
straining the language of the statutory provision as to ascribe the meaning which cannot be
warranted by the words employed by the Legislature.

2. No external aid Where words plain and unambiguous-

Where the words of a statute are plain, precise and unambiguous, the intention of the
Legislature is to be gathered from the language of the statute itself and no external aid is
admissible to construe those words. It is only where a statute is not exhaustive or where its
language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades
of meaning that the external aid may be looked into for the purpose of ascertaining the object
which the Legislature had in view in using the words in question.

3. Mischief rule (Heydon's case)-

When a question arises as to the interpretation to be put on an enactment, what the

Court is to do is to ascertain "the intent of them that make it," and that must of course be
gathered from the words actually used in the statute. That, however, does not mean that the
decision should rest on a literal interpretation of the words used in disregard of all other
materials. The literal construction, then, has, in general, but prima facie preference. To arrive at
the real meaning, it is always necessary to get an exact conception of the aim, scope and object
of the whole Act; to consider:
1. What was law before the Act was passed?
2. What was the mischief and defect for which the law had not provided?
3. What remedy Parliament has resolved and appointed to cure the disease? and
4. The true reason of the remedy and then the judges have to make such construction
as shall suppress the mischief, and advance the remedy, and to suppress subtle
inventions and evasions for continuance of the mischief.

2
4. Words coupled together to take colour from each other-

The rule is when two or more words which are susceptible of analogous meaning are
coupled together, they are understood to be used in their cognate sense and they take their
colour from each other, the meaning of the more general being restricted to a sense analogous
to that of the less general. This rule, however, does not apply where the Legislature has
deliberately used wider words in order to widen the scope of the provision.

5. The golden rule: No hypothetical considerations-

Argument on hypothetical considerations should not have much weight in interpreting

a statute. However, if the language so permits, it is open to the Court to give to the statute that
meaning which promotes the benignant intent of the legislation. A Court has the power to
depart from the grammatical construction, if it finds that strict adherence to the grammatical
construction will defeat the object the Legislature had In view. No doubt, grammar is a good
guide to meaning but a bad master to dictate.

6. Absurdity or hardship-

If a literal interpretation of a statute leads to absurdity, hardship or injustice,

presumably not Intended, then a construction may be put upon it which modifies the meaning
of the words and even the structure of the sentence. Again, however, the Court has no power to
give the language of the statute a wider or narrower meaning than the literal one, unless there is
compelling reason to give such other meaning. If the language is plain the fact that the
consequence of giving effect to it may lead to some absurd result is not a factor to be taken into
account in interpreting a provision, as it is for the Legislature to step in and remove the
absurdity. If on either of two possible views hardship must result to one or the other party, then
the considerations of hardship ought to be ignored.

7. Contextual interpretation-

Although the meaning of the statutory provision has to be ascertained only from the
words employed by the Legislature, the set up' and context are also relevant for ascertaining
what exactly was meant to be conveyed by the terminology employed. The same words may
mean one thing in one context and another in a different context. In ascertaining the true
intention, of the Legislature, the Court must not only look at the words used by the Legislature
but also have regard to the context and the setting in which they occur, The exact colour and
shape of the meaning of words in an enactment is not to be ascertained by reading them in
isolation, The provisions of the statutes which bear upon the same subject-matter must be read
as a whole and in their entirety, each throwing light on and illumining the meaning of the other.
The Court must have regard to the aim, object and scope of the statute to be read in its entirety.
It must ascertain the intention of the Legislature by directing its attention not merely to the
clause to be construed but to the entire statute; it must compare the clause with the other parts
of the law, and the setting in which the clause to be Interpreted occurs. If the context clearly
suggests that a particular rule of grammar is inapplicable then the requirement of context must
prevail over the rule of grammar.

8. Liberal construction-

In construing a provision of a statute the Court should be slow to adopt construction

which tends to make any part of the statute meaningless or ineffective. An attempt must always

3
be made to reconcile the relevant provision as to advance the remedy intended by the statute.
Where the literal meaning of the words used in a statutory provision would manifestly defeat
Its object by making a part of it meaningless and ineffective, it is legitimate and even necessary
to adopt the rule of liberal construction so as to give meaning to all parts of the statute and to
make the whole of it effective and operative. Whether the narrower or the wider sense of a term
should be adopted depends not only on the provisions of the statute in which that term occurs
but also on facts and circumstances of each case. But again if the words used In the statutory
provision are reasonably capable of only one construction the doctrine of liberal construction
can be of no assistance. Procedural enactments should be construed liberally in such a manner
as to render the enforcement of substantive rights effective. But the requirements as to the
time-Iimit within which an administrative act is to be performed are to be liberally construed.
Provisions ensuring the security of fundamental human rights must, unless the mandate be
precise and unqualified, be construed liberally so as to uphold the right. This rule applies to the
interpretation of constitutional and statutory provisions alike. Welfare, social and beneficial
statutes are not to be construed strictly. Doubts are resolved in favour of the class of persons for
whose benefit the statute is enacted. On the other hand penal and taxing statutes and statutes
excluding Court's jurisdiction should be strictly construed.

9. Harmonious construction-

Every statute has to be construed as a whole and the construction given should be a
harmonious one. It is a cardinal rule of construction that when there are in a statute two
provisions which are in such conflict with each other, that both of them cannot stand together,
they should possibly be so interpreted that effect can be given to both and that a construction
which renders either of them inoperative and useless should not be adopted except in the last
resort. It is the duty of the Courts to avoid conflict between two provisions, and whenever it is
possible to do so to construe provisions which appear to conflict so that they harmonise. This
rule of harmonious construction applies not only to different provisions in one Act but also to
different cognate Acts such as the Court Fees Act and the Code of Civil Procedure. Where,
however, the words of the statute are not reasonably capable of the construction canvassed,
then It would be unreasonable and illegitimate for the Court to limit the scope of those words -
arbitrarily solely for the purpose of establishing harmony between the assumed object and the
scheme of the Act.

10. Construction to avoid invalidity-

It is the duty of the Court to endeavour as far as possible to construe a statute in such a
manner that the construction results in validity rather than its invalidity and gives effect to the
manifest Intention of the Legislature enacting that statute. An interpretation leading to the
failure of the plain intention of the Legislature by reason of a slight in exactitude in the
language of the provision should be avoided. A statute is designed to be workable, and the
interpretation thereof by a Court should be to secure that object, unless crucial omission or
clear direction makes that end unattainable.

The reason behind the maxim is that it is to be presumed that the Legislature or other
legislative authority would not make an infructuous or unconstitutional provision. The words
of a statute must be construed so as to give sensible meaning to them. An interpretation which
would defeat the purpose of the statutory provision and, in effect obliterate it from the statute
book should be eschewed. If more than one construction is possible, the one which preserves its
workability and efficacy should be preferred to the other which would render it otiose or sterile.

4
 Thus, an Act of Legislature must be so interpreted, wherever possible, so as to make it
constitutional rather than unconstitutional. Likewise, a rule, i.e. a piece of delegated legislation,
should be so interpreted as to make it not only constitutional but also within the authority
conferred by the Legislature on the Government while conferring on it the power to make rules.

11. Reading down -

While making such construction It is permissible for the Court even to "read down" a
provision in order to so understand it as not to attempt something beyond the competence of the
legislative body. This is called the principle of "reading down".

12. Ejusdem generis:-

The ejusdem generis rule is explained in Halsbury's Laws of England thus:-

'"As a rule, where in a statute there are general words following particular and
specific words, the general words must be confined to things of the same kind as those
specified, although this, as a rule of construction;, must be applied with caution, and
subject to the primary rule that statutes are to be construed in accordance with the
intention of Parliament. For the ejusdem rule to apply, the specific words must
constitute a category , class or genus; if they do constitute such a category, class or
genus, then only things which belong to that category , class or genus fall within the
general words "

13. Same words, same meaning-

Where a Legislature uses same expression in the same statute at two places or more,
then the same interpretation should be given to that expression unless the context otherwise
requires. But the application of the rule of "same word, same meaning" may be excluded by the
context. If one construction will lead to an ambiguity while another will give effect to what
common sense would show was obviously Intended, the construction which would defeat the
ends of the Act must be rejected even if same words used In the same section and even in the
same sentence have to be construed differently.

14. Later law abrogates earlier laws not consistent with It-

This principle is expressed in the Latin maxim posteriores leges priores contrarias
abrogant. This principle has been applied by the Supreme Court in several cases.

After discussing the principles of interpretation it would also be useful to discuss about
mandatory and directory provisions.

Mandatory and Directory Provisions :

The study of numerous cases on this topic does not lead to formulation of any universal
rule except this that language alone most often Is not decisive. The use of words 'shall' and
'may' is not the determinant factor. Regard must be given to the context, subject matter and
object of the statutory provision in question, in determining whether the same is mandatory or
directory. The rules may be as follows:

5
a- The golden rule is that when consequences are provided by statute then the
provisions are definitely mandatory .If no consequences then the provisions are
merely directory.

EXAMPLES OF MANDATORY PROVISIONS;

1. The provisions relating to limitation for seeking remedy in Courts or Tribunals;
2. The provisions relating to principles of natural justice;
3. The provisions relating to registration of certain documents;
b- Use of negative words shows a clear intention that the provision
enacted is mandatory-EXAMPLES;-
Section 80 CPC.
Section 87 B, CPC.
Section 77 of Railways Act, 1890,
Section 213 of the Succession Act, 1925, Section 7 of the Stamp Act, 1899.
Section 20 (1) of the Prevention of Food Adulteration Act, 1954,
c- Affirmative words stand at a weaker footing than negative words for reading the
provision as mandatory.
d- When no discretion, the provision Is generally treated as mandatory. When
discretion given then the provision is directory.

[J.T.R.I. JOURNAL – First Year, Issue – 3 - Year – July – September, 1995]

6
The role of purpose in legislative interpretation: inescapable but problematic necessity

Presentation at the Oxford University and University of Notre Dame Seminar on Public Law
Theory: Topics in Legal Interpretation, 19 September 2024

Lord Sales1

Introduction: philosophy/background

Statutes are expressed in words. Courts interpret and apply statutes according to their proper
meaning. But words are not simple building blocks constituted of fixed and unalterable
datums of meaning which are put together like Lego bricks to reveal clear and perspicuous
meaning of composite sentences. Words have shades of meaning, which becomes determinate
when used in specific contexts for specific purposes.
There are therefore philosophical reasons why the meaning of words involves recourse to the
purposes of the person who uses them.2
Modern statutory interpretation implicitly draws on insights derived from the later work of
Ludwig Wittgenstein3 about how language works and how meaning is conveyed. Words do
not have a simple correspondence with objects in the world or concepts. Language is
autonomous, in the sense that it is detached from the world. Sense or meaning is given by the
use to which it is put by the person using it.4 This view of language necessarily involves
greater recourse to context in order to explain how the words in which a statute has been
expressed are being used, and with what object. How is the agent using the words, as a tool to
convey the meaning he or she wishes? As Adam Kramer says in relation to contractual
interpretation, “meaning is discovered by the recognition of the fact that the communicator
intended it to be discovered”.5
The jurisprudential tradition associated with H.L.A. Hart emphasises the relative
indeterminacy of language and hence of the law, which depends on language.6 Natural

1
I am grateful to my Judicial Assistant, Alex Hughes, for his assistance with research for this
presentation.
2
For the first part of this paper, I draw on P Sales ‘Contractual Interpretation: Antinomies and
Boundaries’ in E Peel and R Probert (eds) Shaping the Law of Obligations: Essays in Honour of
Professor Ewan McKendrick KC (2023), as the issues arising in relation to interpretation of contracts
are similar.
3
In particular, in L Wittgenstein, Philosophical Investigations, tr GEM Anscombe (3rd ed, 1968), and
writers drawing on his work. See also HP Grice, Studies in the Way of Words (1989).
4
See the account in GP Baker and PMS Hacker, Wittgenstein: Understanding and Meaning (1980), in
particular ch VIII (‘A word has a meaning only in the context of a sentence’), ch XI (‘Vagueness and
determinacy of sense’), ch XVI (‘Understanding and Ability’), ch XVII (‘Meaning and
Understanding’).
5
A Kramer, “Common Sense Principles of Contract Interpretation (and how we’ve been using them
all along)” (2003) 23 OJLS 173, 175.
6
See H.L.A. Hart, The Concept of Law (3rd ed, 2012), ch VII, ‘Formalism and Rule-Scepticism’.
1
languages like English are “irreducibly open-textured”.7 As a result, law and legal rules also
have an open texture.8 We do not live in a world suitable for “mechanical” jurisprudence, in
which no choice has to be made to determine the meaning of a text or utterance which is to be
given normative effect across time: “human legislators can have no such knowledge of all the
possible combinations of circumstances which the future may bring. This inability to
anticipate brings with it a relative indeterminacy of aim”.9
New and unanticipated cases arise which call for the judge to supply a specific degree of
determinacy in the language and the aim of the rule, when applying it to decide the case at
hand in accordance with it. “When the unenvisaged case does arise, we confront the issues at
stake and can then settle the question by choosing between the competing issues in the way
that best satisfies us. In doing so we shall have rendered more determinate our initial aim, and
shall incidentally have settled a question as to the meaning, for the purposes of this rule, of a
general word”.10 For these purposes, where the enforcement of the rule, such as in a statute,
depends on the decision of a judge, what “best satisfies us” is what best satisfies the judge.11
But at the same time, the linguistic formulation of the rule, since it appeals to general
standards of language in relation to which there is some (and often a considerable) degree of
settled meaning, albeit it might become questionable in marginal cases, does provide
substantial guidance independent of the judgment of a judicial official.
It is not feasible to expect that words can be used with total clarity as regards their application
in all future circumstances. But this feature of language does not mean that the careful use of
language serves no purpose. On the contrary, language may be used in a way which clearly
and adequately does serve the primary objects which legislators have in mind when they
choose it. The indeterminacy in marginal, unanticipated cases does not constitute ignorance
about its meaning. It is just that, as regards those cases, “We do not know the boundaries
because none have been drawn … we can draw a boundary – for a special purpose. Does it
take that to make the concept usable? Not at all! (Except for that special purpose.)”12
In the statutory legal context, the special purpose is the application of a legal rule in a
situation which was not immediately and clearly in the contemplation of the legislature when
it framed the rule, but where it is accepted that the rule has to be interpreted both to see
whether it has any application at all and, if it does, to work out what it must be taken to mean.
Legislators will frame the statute by focusing on what is most directly important to them and
their choice of language will be directed to that. But since the language is used to create a
legal regime which endures across time and which necessarily has wider implications and
constitutes more of a general legal framework than the legislators could readily construct in
detail, which covers more cases than they had directly to mind, the legal solution to a dispute
has to be capable of dealing with the marginal cases which are within the ambit of the general
framework of the statute but are not its primary focus. The courts have to do this by

7
Ibid, 128.
8
Ibid, 124-136.
9
Ibid, 128.
10
Ibid, 129.
11
Ibid, 135.
12
Wittgenstein, Philosophical Investigations, para 69.
2
constructing meaning, by drawing inferences about what the legislature as a collective agent13
is likely to have intended, which really means would reasonably have intended, had it
concentrated more directly on the situation which has now occurred and given rise to the
dispute.
The potential extent of legitimate disagreement about linguistic meaning is reduced further by
the specification of an accepted methodology for how to address the resolution of the cases of
uncertainty at the margins of linguistic meaning. However, such a methodology cannot
wholly eliminate the uncertainty which might arise and in the ultimate analysis difficult cases
can only be resolved by an exercise of judgment.
Arguments about statutory interpretation often resolve into contests between apparent natural
meaning of a text according to grammatical rules (but assessed in the light of a very thin
notion of context) and meaning (ie natural meaning) assessed in the light of the purpose of
the statute, which is a thicker and more dense specification of the context in which the
language has been used. Ordinary grammatical sense tends to be overinclusive in relation to
the aims of the legislature. This feature of interpretation is particularly strong in relation to
statements of law, because they have authoritative effect across time and situations
potentially far removed from those to which the legislature directed its attention and there is
no simple mechanism for recourse back to it for clarification as new circumstances arise.
Courts have to interpret legislation to arrive at what the legislature “really” meant. On this
view, but on the critical assumption that the courts are able accurately to identify the general
purpose of the legislature in enacting the legislation, purposive interpretation best reflects
fidelity to enacted law, with the courts as faithful agents of the legislature.
The opinion of Foster J in Lon Fuller’s Case of the Speluncean Explorers thought
experiment14 expresses this idea:
“No superior wants a servant who lacks the capacity to read between the lines. The
stupidest housemaid knows that when … her master tells her to ‘drop everything and
come running’ he has overlooked the possibility that she is at the moment in the act or
rescuing the baby from the rain barrel. Surely we have the right to expect the same
modicum of intelligence from the judiciary. The correction of obvious legislative
errors or oversights is not to supplant the legislative will, but to make that will
effective.”15
According to Foster J, a law must “be interpreted reasonably, in the light of its evident
purpose”.16
Since interpretation is inevitably teleological to some degree, so that the specification of the
purpose for which language is being used affects meaning, it becomes important to work out
what the purpose is. That may be more difficult the more the inference of meaning has to be
drawn in circumstances which are remote from the use of the language being interpreted. But

13
See P Sales, ‘In Defence of Legislative Intention’ (2019) 48 Australian Bar Review 6; Richard
Ekins, The Nature of Legislative Intent (2012).
14
(1949) 62 Harv L Rev 616
15
Ibid, 625-626. Also see Adrian Vermeule, Common Good Constitutionalism: Recovering the
Classical Legal Tradition (2022), 74-75, citing F Schauer, Playing by the Rules (1991).
16
Ibid, 624.
3
it is not as though no context at all can be discerned, and it may nonetheless appear that
ordinary grammatical meaning could well be overinclusive of the situations which the
legislature intended to catch by its enactment. However, the role which identification of
purpose plays in the interpretive exercise places a large premium on that concept and on the
methodology by which the relevant purpose can be inferred.
Also, since courts are not themselves legislators and are required to operate within the bounds
of their legitimate authority, they need to be able give an account of the process by which
they identify the purpose of the legislature which is objectively justified as legitimate and
within the scope of that authority. This poses problems, because there are no clearly settled
criteria to identify such higher order purposes which exist apart from the simple words used
by the legislature, and identification of relevant purposes may be highly contestable.
As Eskridge points out:17
“Although one advantage of grounding statutory interpretation on legislative purpose
is that general purpose is more easily determinable than specific intent, a
corresponding disadvantage is that purpose is too easy to determine, yielding a
plethora of purposes, cross-cutting purposes, and purposes set at such a general level
that they could support several different interpretations. Purposive statutory
interpretation, therefore, might be even less determinate than more traditional
approaches.”
He identifies a main line of attack against a strongly purposive approach to statutory
interpretation: because purpose is fictional (ie something ascribed to the legislature rather
than explicitly declared by it) interpretation becomes judicial law-making and judicial
lawmaking is questionable for reasons of democratic theory and institutional competence, and
on grounds of unjustified elitism.
If the purpose for which a statute is promulgated affects its meaning, it may be critical in the
inquiry as to meaning to identify what that purpose is. However, this process of identification
poses a series of problems, since the legislature does not generally state the purpose for which
it is enacting a statutory provision. Identification of purpose arises as a second order inquiry,
at a higher level of generality than identification of the words used in the statute and their
ordinary grammatical meaning. In the interests of legal objectivity and predictability, and
maintenance of the legitimacy of the courts’ own role as interpreters rather than law-makers,
it is important for the courts to adopt a reasonably settled and coherent methodology for the
identification of legislative purpose.

The juristic nature of the exercise of interpretation of a statute draws judges and litigants into
an exploration of the context in which words are written with a view to creating a statutory
rule. Statutes are to be interpreted in an objective, rather than subjective way (ie by reference
to the subjective understanding and intentions of individual members of the legislature, which
are unlikely to correspond and are not an object of investigation). An objective interpretation

17
W. Eskridge, “The Case of the Speluncian Explorers: Twentieth-Century Statutory Interpretation in
a Nutshell” (1993) 61 George Washington Law Review 1731,
4
is also called for because statutes are addressed to third parties who are bound by them and
have to be able to understand them in order to know what their legal obligations are.
It follows from the objective approach to statutory interpretation, which is normatively
justified for these reasons, that both the user of the words and the recipient of them are
constructs rather than real people. Since interpretation is an exercise in construction of
meaning in the context of the statute, rather than a function of evidence about the particular
subjective psychological state of legislators or individual citizens, some understanding of the
context is in fact critical for the interpretive exercise.
Where the language used in a statute is clear in its grammatical sense as to the result for a
particular case, and there is no contextual ground for concern that that sense may be
overinclusive in relation to the legislature’s aim such as to require deeper investigation on
that point, the court can confidently proceed on the basis that this represents the true objective
meaning chosen by the legislature. Such an approach provides a good discipline for the
legislature to think carefully about what is important from its perspective and to specify this
clearly. The better and more precise the drafting, the less there is for the courts to do in
making sense of it and the more the norm-specifying space is truly filled by the legislature
itself, with less scope for imaginative contribution from the court.18
On the other hand, where the statutory language is not clear, the courts have to move to
identify the legislature’s intention as to meaning at a higher level of abstraction, employing a
wider range of materials. Then, the inference to be drawn as to its intention is more
debateable and obscure. One may be dealing with a situation to which it had given no thought
at all or which was left to one side as too difficult in the parliamentary processes and
negotiations aimed at securing majority support to bring a law into existence, perhaps in the
hope it would never arise. Interpretation then shades into construction. This involves a
process of imagining how a legislature placed as this one was would have wished the
statutory rule to be articulated and applied in this new situation.
The court is then effectively obliged to proceed by reference to what a reasonable legislature
(on notice that its legislation will bind, and will fall to be interpreted by, reasonable citizens)
would have wished to do if it had notice of the problem, and to call on a wider range of aids
to interpretation which offer clues to answering that question. It is still possible to locate this
constructed meaning within a framework of inference as to the legislature’s intention,
inferred in appropriate cases from these wider background factors. In a well-known
formulation, Henry Hart and Albert Sacks19 said judges should presume legislators are
"reasonable men pursuing reasonable purposes reasonably".
There is a spectrum of circumstances in which purpose may potentially have a greater or
lesser role in deriving meaning from a statutory text, rather than a clear dividing line as to
when it is relevant and when it is not. It always has some relevance, but may be simple to
understand from the text as used in the immediate context of the statute itself. Difficult
questions arise, though, when trying to decide whether there is sufficient doubt about the
apparent meaning given at that stage of the inquiry as to justify inquiring further and more

18
P Sales, “The Contribution of Legislative Drafting to the Rule of Law” [2018] CLJ 630, 632.
19
Henry M. Hart & Albert M. Sacks, The Legal Process: Basic Problems in the Making and
Application of Law (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994), 1124-1125.
5
deeply in order to specify the purpose more precisely; and where that is done, in trying to
determine the extent to which any purpose so identified may impact upon and change that
apparent meaning. There is no simple test to resolve these issues.
In constructing a model of the legislature on the lines proposed by Hart and Sacks, there is
scope for a judge to inject an element of his or her own values and predispositions as
normative content to fill out the idea of the reasonable author. What a judge thinks a
reasonable person would do is likely to reflect to some degree the judge’s own values and
expectations. However, the principle of a statute as a matter of legislative choice by a
democratic legislature requires that the inquiry should be framed as one into the presumed
intention of the legislature as agent. It is relatively simple to posit the legislature as a single
unified person exercising its own agency, and to look for clues in the properly available
evidence as to how that person would have been likely to have intended to resolve the
particular case. But to proceed in this way requires careful attention to be given to what
counts as the properly available evidence.
The available clues are the language chosen by the legislature, the internal scheme of the
statute and the background context in which the statute was made (in so far as that casts light
on the purposes the legislature was trying to achieve when it made it). There is no simple
metric or stated rule which can govern where the balance is struck between linguistic
meaning and internal and external context. These are incommensurable ingredients, all of
which are relevant for a legal solution. Certainty and predictability therefore require a high
degree of regularity of approach among legal practitioners. To a significant degree, this
depends upon the strength of the legal culture as well as upon statements of the methodology
to be used.20

Judicial sensitivity to these features of law and language: the UK experience

For judges it is a commonplace that in carrying out the task of statutory interpretation the
court is “seeking the meaning of the words which Parliament has used”: Williams v Central
Bank of Nigeria [2014] UKSC 10; [2014] AC 1189, para 72 (Lord Neuberger). In Black-
Clawson Ltd v Papierwerke AG [1975] AC 591, 613 Lord Reid said
“We often say that we are looking for the intention of Parliament, but that is not quite
accurate. We are seeking the meaning of the words which Parliament used. We are
seeking not what Parliament meant but the true meaning of what they said.”
But this distinction between “meaning” and the “true meaning of what they said” is
problematic. The contrast is really between the subjective intentions of individual legislators
and the objective intention of the collective legislature, as the agent employing the words it
has chosen. The purpose of the legislature is relevant. At p 614 Lord Reid said:
“It has always been said to be important to consider the "mischief" B which the Act
was apparently intended to remedy. The word "mischief" is traditional. I would

20
See eg Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals (1960) pp. 185-86, 202,
213-16.
6
 expand it in this way. In addition to reading the Act you look at the facts presumed to
be known to Parliament when the Bill which became the Act in question was before it,
and you consider whether there is disclosed some unsatisfactory state of affairs which
Parliament can properly be supposed to have intended to remedy by the Act.”
As was pointed out by the UK Supreme Court in Rossendale Borough Council v Hurstwood
Properties (A) Ltd [2021] UKSC 16; [2022] AC 690, para 10 (Lord Briggs and Lord
Leggatt), there are numerous authoritative statements in modern case law which emphasise
the central importance in interpreting any legislation of identifying its purpose. An example
given was R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003] 2 AC
687, where Lord Bingham said (para 8):

“Every statute other than a pure consolidating statute is, after all, enacted to make
some change, or address some problem, or remove some blemish, or effect some
improvement in the national life. The court’s task, within the permissible bounds of
interpretation, is to give effect to Parliament’s purpose. So the controversial
provisions should be read in the context of the statute as a whole, and the statute as a
whole should be read in the historical context of the situation which led to its
enactment.”
The House of Lords in R v Secretary of State for the Environment, Transport and the Regions,
ex p Spath Holme Ltd [2001] 2 AC 349, at 396-398 (Lord Nicholls), and the Supreme Court
in R (Project for the Registration of Children as British Citizens) v Secretary of State for the
Home Department [2022] UKSC 3; [2023} AC 255, paras 29-31 (Lord Hodge), have placed
emphasis on the importance of interpreting statutory words in their context. In the latter case
the Court stated (paras 29-30):
“Words and passages in a statute derive their meaning from their context. A phrase or
passage must be read in the context of the section as a whole and in the wider context
of a relevant group of sections. Other provisions in a statute and the statute as a whole
may provide the relevant context. They are the words which Parliament had chosen to
enact as an expression of the purpose of the legislation and are therefore the primary
source by which meaning is ascertained.

“External aids to interpretation therefore must play a secondary role. Explanatory

notes, prepared under the authority of Parliament, may cast light on the meaning of
particular statutory provisions. Other sources, such as Law Commission reports,
reports of Royal Commissions and advisory committees, and Government White
Papers may disclose the background to a statute and assist the court to identify not
only the mischief which it addresses but also the purpose of the legislation, thereby
assisting a purposive interpretation of a particular statutory provision.”

A hierarchy of indicators of purpose proceeding from the statutory text falling to be

interpreted itself and broadening out through other features of the statute, and treating
external aids as of second order importance seems broadly justified, in that the legislature
will have focused very directly on the wording and structure of the statute. But sometimes the
purpose for which legislative intervention was required may be the very prominent focus for

7
the legislative activity which follows from it, and thus may frame in a particularly strong way
the context in which that activity takes place. In such circumstances, where there is a doubt
regarding the specific meaning of the words used which has to be resolved, it is difficult to
see why the text should count for more than external indicators of the legislature’s purpose.
So again there is no simple test which orders the priority and weight to be given to these
different factors.
The features of language and law described above find expression in the cases. Exactly where
within the open-textured range of meaning of a word or sentence the precise meaning is
intended to be fixed is governed to a large extent by an understanding of the purpose for
which the word or sentence is being used. As explained by H.L.A. Hart, however, that
purpose may itself require to be elaborated by the person applying the rule which contains
that language.
The courts recognise that words are not regarded as having simple, fixed meanings like
building blocks. As Lord Mance put it:21
“In matters of statutory construction, the statutory purpose and the general scheme by
which it is to be put into effect are of central importance. They represent the context
in which individual words are to be understood. … ‘the notion of words having a
natural meaning’ is not always very helpful …, and certainly not as a starting point,
before identifying the legislative purpose and scheme. …”
Similarly, Lord Nicholls, discussing the meaning of the words ‘occupier’ and ‘occupation’ as
used in a statute, said:22
“… the concept of occupation is not a legal term of art, with one single and precise
legal meaning applicable in all circumstances. Its meaning varies according to the
subject matter. Like most ordinary English words ‘occupied’, and corresponding
expressions such as occupier and occupation, have different shades of meaning
according to the context in which they are being used. …
In many factual situations questions of occupation will attract the same answer,
whatever the context … the answer in situations which are not so clear cut is affected
by the purpose for which the concept of occupation is being used. In such situations
the purpose for which the distinction between occupation and non-occupation is being
drawn, and the consequences flowing from the presence or absence of occupation,
will throw light on what sort of activities are or are not to be regarded as occupation
in the particular context.”
A further issue related to the purpose served by legislation arises in the UK, because of the
application of an external human rights normative template to evaluate the compatibility of
domestic legislation with the Convention rights in the European Convention on Human
Rights, pursuant to the Human Rights Act 1998. A typical inquiry is whether legislation is a
proportionate response to a legitimate aim, which places analytical pressure on the

21
Bloomsbury International Ltd v Department for Environment, Food and Rural Affairs [2011] UKSC
25; [2011] 1 WLR 1546, [10].
22
Graysim Holdings Ltd v P & O Property Holdings Ltd [1996] AC 329, 334-335.
8
identification of the relevant aim. I do not expand upon this aspect of legislative purpose in
this paper.

However, it is a principle of statutory interpretation that the courts will infer that Parliament
did not intend to legislate to create absurd results. This is a function of the approach that
Parliament is presumed to be a reasonable agent that legislates in a coherent and sensible
way. See R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28, para 43:

“The courts will not interpret a statute so as to produce an absurd result, unless clearly
constrained to do so by the words Parliament has used: see R v McCool [2018] UKSC
23, [2018] 1 WLR 2431, paras 23-25 (Lord Kerr of Tonaghmore), citing a passage in
Bennion on Statutory Interpretation, 6th ed (2013), p 1753. See now Bennion, Bailey
and Norbury on Statutory Interpretation, 8th ed (2020), section 13.1(1): “The court
seeks to avoid a construction that produces an absurd result, since this is unlikely to
have been intended by the legislature”. As the authors of Bennion, Bailey and
Norbury say, the courts give a wide meaning to absurdity in this context, “using it to
include virtually any result which is impossible, unworkable or impracticable,
inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a
disproportionate counter-mischief”. The width of the concept is acceptable, since the
presumption against absurdity does not apply mechanistically but rather, as they point
out in section 13.1(2), “[t]he strength of the presumption … depends on the degree to
which a particular construction produces an unreasonable result”. I would add that the
courts have to be careful to ensure that they do not rely on the presumption against
absurdity in order to substitute their view of what is reasonable for the policy chosen
by the legislature, which may be reasonable in its own estimation. The constitutional
position that legislative choice is for Parliament cannot be undermined under the guise
of the presumption against absurdity. …”

The purpose ascribed to Parliament may be relevant to determination of whether a particular

result on a particular interpretation of the legislation is to be taken to be absurd, so as to
attract the operation of this principle, or not.

The purpose to be ascribed to the legislature is especially important in the context of

discretionary powers conferred on public authorities, in view of the doctrine that such powers
must be exercised for proper purposes, determined as a matter of statutory interpretation:
Padfield v Minister for Agriculture, Fisheries and Food23 and Spath Holme.

Four problems

Four problems arise in relation to identification of legislative purpose in the context of

statutory interpretation: (i) what evidence as to purpose is properly admissible? (ii) to what

23
[1968] AC 997.
9
extent can courts inject normative content by an assumption that Parliament has legislated to
accommodate particular background constitutional or human rights objectives (“the principle
of legality”)? (iii) how should the courts react where there are multiple (and potentially
conflicting) purposes? (iv) what should courts do where there is a compromise involving a
deliberate obfuscation, limitation or non-implementation of conflicting purposes?

Problem (1): what evidence is admissible?

As noted above, there is evidence of purpose which is internal to the statute itself: (a) the
language of the particular section to be construed; (b) its place in the scheme of the particular
part of the statute in which it appears; and (c) its place in the scheme of the statute as a whole.

In Spath Holme Lord Nicholls said (pp 397-8):

“Use of non-statutory materials as an aid to interpretation is not a new development.
As long ago as 1584 the Barons of the Exchequer enunciated the so-called mischief
rule. In interpreting statutes courts should take into account, among other matters, "the
mischief and defect for which the common law did not provide": Heydon's Case
(1584) 3 Co Rep 7a, 7b. f Nowadays the courts look at external aids for more than
merely identifying the mischief the statute is intended to cure. In adopting a purposive
approach to the interpretation of statutory language, courts seek to identify and give
effect to the purpose of the legislation. To the extent that extraneous material assists in
identifying the purpose of the legislation, it is a useful tool. This is subject to an
important caveat. External aids differ significantly from internal aids. Unlike internal
aids, external aids are not found within the statute in which Parliament has expressed
its intention in the words in question. This difference is of constitutional importance.
Citizens, with the assistance of their advisers, are intended to be able to understand
parliamentary enactments, so that they can regulate their conduct accordingly. They
should be able to rely upon what they read in an Act of Parliament. This gives rise to a
tension between the need for legal certainty, which is one of the fundamental elements
of the rule of law, and the need to give effect to the intention of Parliament, from
whatever source that (objectively assessed) intention can be gleaned.

…
That said, courts should nevertheless approach the use of external aids with
circumspection. Judges frequently turn to external aids for confirmation of views
reached without their assistance. That is unobjectionable. But the constitutional
implications point to a need for courts to be slow to permit external aids to displace
meanings which are otherwise clear and unambiguous and not productive of
absurdity. Sometimes external aids may properly operate in this way. In other cases,
the requirements of legal certainty might be undermined to an unacceptable extent if
the court were to adopt, as the intention to be imputed to Parliament in using the

10
 words in question, the meaning suggested by an external aid. Thus, when interpreting
statutory language courts have to strike a balance between conflicting considerations.”

There may also be evidence of purpose which is extrinsic to the statute: (a) background
reports, white papers and Law Commission reports which operate as the spur for the
particular legislative activity (see, in particular, Black-Clawson); (b) statements made in
Parliament by the promoter of a Bill; (c) Explanatory Notes published in relation to the Bill.

It was only in Pepper v Hart [1993] AC 593 that the House of Lords accepted that statements
in Parliament could be treated as admissible evidence of Parliament’s intention. Three
conditions were laid down: (a) the legislation is ambiguous or obscure or leads to an
absurdity; (b) the material relied upon consists of statements by a minister or promoter of the
Bill; (c) the statements relied upon are themselves clear (as it was put in Spath Holme, p 391,
the statements must themselves be ‘clear and unequivocal’; and these criteria must be strictly
applied - p 392).

The relevance of explanatory notes has been addressed in several cases. In PACCAR the
legislature created a problem by adopting concepts which were the subject of specific
definitions in one statutory context as the building block concepts in a different statutory
context. It was common ground that the definitions used were so specific that the inference
was that Parliament intended them to have the meaning they had in the earlier legislation.
After referring to authority I said (para 41): “The purpose and scheme of an Act of Parliament
provide the basic frame of orientation for the use of the language employed in it”, and
continued (para 42):

“It is legitimate to refer to explanatory notes which accompanied a Bill in its passage
through Parliament and which, under current practice, are reproduced for ease of
reference when the Act is promulgated; but external aids to interpretation such as
these play a secondary role, as it is the words of the provision itself read in the context
of the section as a whole and in the wider context of a group of sections of which it
forms part and of the statute as a whole which are the primary means by which
Parliament’s meaning is to be ascertained: R (Project for the Registration of Children
as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3;
[2023] AC 255, paras 29-30 (Lord Hodge). Reference to the explanatory notes may
inform the assessment of the overall purpose of the legislation and may also provide
assistance to resolve any specific ambiguity in the words used in a provision in that
legislation. Whether and to what extent they do so very much depends on the
circumstances and the nature of the issue of interpretation which has arisen.”

Problem (2): to what extent can courts inject normative content by an assumption that
Parliament has legislated to accommodate particular background constitutional or
human rights objectives (“the principle of legality”)?

What lawyers in the UK call “the principle of legality” is an approach to legislative

interpretation which proceeds from an underlying assumption that Parliament intends by its
legislation to further certain general social objectives: “a principled presumptive commitment

11
by the legislators to certain basic principles which can be viewed as underpinning a liberal
democracy committed to the rule of law.”24 In Black-Clawson Lord Wilberforce explained:25

“The saying that it is the function of the courts to ascertain the will or intention of
Parliament is often enough repeated, so often indeed as to have become an incantation.
If too often or unreflectingly stated, it leads to neglect of the important element of
judicial construction; an element not confined to a mechanical analysis of today's
words, but, if this task is to be properly done, related to such matters as intelligibility to
the citizen, constitutional propriety, considerations of history, comity of nations,
reasonable and non-retroactive effect and, no doubt, in some contexts, to social needs”).
As Bell and Engle explain in Cross on Statutory Interpretation, “[Statutes] are not
enacted in a vacuum. A great deal inevitably remains unsaid. Legislators and drafters
assume that the courts will continue to act in accordance with well-recognised rules. …
Long-standing principles of constitutional and administrative law are likewise taken for
granted, or assumed by the courts to have been taken for granted, by Parliament.”26

The principle of legality is concerned to ensure that legislation that overrides fundamental
common law principles or rights can clearly be appreciated as such at the time of its passage,
so that Parliament’s intention to achieve that result is properly established.27 A paradigm
example is the presumption against retrospective effect of laws, in particular in relation to
imposition of criminal liability. “The role for the principle of legality is … not so much to
inject normative content into legislative texts purely on the authority of the judges, but to
exercise a checking or editorial function to see that the legislature and the executive, which
has the prime role in promoting legislation …, have sufficiently held in mind the longer term
principles, rights and freedoms which support the moral claims of democratic rule, when
legislating to adopt a particular statutory text”.28

With due adjustment for the UK’s local constitutional traditions and principles, this style of
reasoning as regards the interpretation of legislative intention can be located in what Adrian
Vermeule calls common good constitutionalism in the mode of the classical legal tradition.29

This calls for the union of well-ordered reason, directed to certain objectives, with public
authority: ‘law is ordered to the common good … it is law’s nature to be so ordered … and …
the positive law based on the will of the civil lawmaker, while worthy of great respect in its

24
P Sales, “Legislative Intention, Interpretation, and the Principle of Legality” (2019) 40 Statute Law
Review 53, 62; and see P Sales, “A Comparison of the Principle of Legality and Section 3 of the
Human Rights Act 1998” (2009) 125 LQR 598. See, eg, R v Secretary of State for the Home
Department, ex p. Pierson [1998] AC 539, 573G-575D (Lord Browne-Wilkinson), 587C-590A (Lord
Steyn). See also Maxwell on the Interpretation of Statutes, 12th ed. by P. St. J. Langan, pp. 251ff
(“Statutes Encroaching on Rights or Imposing Burdens”).
25
[1975] AC 591, 629-630.
26
Cross, Statutory Interpretation (3rd ed.) ch. 7, “Presumptions”, at p. 165.
27
See R v. Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 at 131E-G (Lord
Hoffmann).
28
P Sales, “Legislative Intention, Interpretation, and the Principle of Legality” (2019) 40 Statute Law
Review 53, 62.
29
Adrian Vermeule, Common Good Constitutionalism: Recovering the Classical Legal Tradition
(2022).
12
sphere, is contained within a larger objective order of legal principles and can only be
interpreted in accordance with those principles’.30 As Vermeule explains, the specific
expectations embodied in a legal text provide no theoretical criterion for resolving new cases
over time that differ from the paradigm case, in terms of identifying which features of the
expected application of the statute are legally relevant: ‘The moment that one begins to
generalize, one needs a theory, and that theory will inevitably be normative, a theory about
the point of creating the category in the first place’.31 ‘Those who apply the law must
inevitably, in some domain of cases, have recourse to general background principles of law
and to the natural law in order to decide how texts should best be read’.32
The principle of legality thus functions as a third order form of purposive reasoning, sitting
behind the text of the statute itself and the specific types of evidence of statutory purpose, but
capable of providing guidance in relation to the meaning of both of those. Again, there is no
simple test which determines which form of evidence should predominate as guidance as to
meaning. Judgment is called for to assess the relative weight of text, explanatory materials
and background constitutional principles.

In Spath Holme the exercise of an open-ended statutory power enabling a Minister to make
an order restricting rents chargeable for residential property was challenged by property
owners, who argued that it could only be exercised for the purpose of countering inflation and
not (as it had been) for the purpose of achieving greater fairness between landlords and
tenants. The argument succeeded in the Court of Appeal but failed in the House of Lords. In
support of their argument the property owners sought to rely on a presumption that
Parliament does not legislate to take away property rights without compensation. However, in
the House of Lords this was treated as a factor which was outweighed by other circumstantial
evidence regarding the context in which the relevant legislation had been enacted. Lord
Nicholls also pointed out (p 399) that a Pepper v Hart statement in Parliament might conflict
with background constitutional principles, the respective weights of which would have to be
assessed.

Problem (3): how should the courts react where there are multiple (and potentially
conflicting) purposes?

In Spath Holme it was common ground that the ambit of the statutory power was limited to
the purposes for which it was granted.33 So how should those purposes be identified? Were

30
Ibid, 2. In this regard Vermeule aligns himself with Ronald Dworkin’s theory of interpretation.
31
Ibid, 96. See generally ch 3, “Originalism as Illusion”. Cf the doctrine of a statute as “always
speaking” to cover new situations identified as falling within the policy of the law as originally
enacted, as explained in Quintavalle.
32
Ibid, 111.
33
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, 1030.
13
they limited to combating inflation, or could the provision be used to protect tenants against
high rent rises?

The wide language used in the provision was not ambiguous or obscure, and did not lead to
absurdity,34 but still the House of Lords was left with a concern that to give the text its wide
grammatical meaning would be excessive. So it went back to predecessor legislation to see if
that legislation as properly construed indicated any narrowing of meaning. Taking account of
a range of indications – the predecessor legislation was not specifically directed to inflation,
by contrast with other legislation enacted shortly before it; the statutory power was not
limited in time or subject to any sunset provision; one would have expected Parliament to
make more specific reference to a counter-inflationary purpose if such a limitation was
intended - it was concluded that it did not.35

The House of Lords relied on the speech of Lord Simon of Glaisdale and Lord Diplock in
Maunsell v Olins [1975] AC 373, 393, in which they warned against a simplistic approach to
construction based on an assumption that the drafter has sought to remedy one mischief only
(or, in other words, that a statutory provision has only one statutory objective):
"For a court of construction to constrain statutory language which has a primary
natural meaning appropriate in its context so as to give it an artificial meaning which
is appropriate only to remedy the mischief which is conceived to have occasioned the
statutory provision is to proceed unsupported by principle, inconsonant with authority
and oblivious of the actual practice of parliamentary draftsmen. Once a mischief has
been drawn to the attention of the draftsman he will consider whether any
concomitant mischiefs should be dealt with as a necessary corollary."

In general terms one can say that legal reasoning is a form of practical reasoning in which
reasons for action are evaluated. In practical reasoning ends and means interact. It is inherent
in deciding whether to pursue some goal that one has to take account of available means and
the costs associated with them. So it is by no means unusual that courts have to consider
cases in which specification of purposes by a court involves identifying conflicts between
those purposes, so that purpose-based reasoning poses its own problems of interpretation at
the same time as it might potentially provide resources to assist in resolving problems of
interpretation of a specific statutory text.

Examples may be given in which the courts recognise the existence and relevance of
competing purposes.

In Gray’s Timber Products Ltd v Revenue and Customs Commissioners [2010] UKSC 4 Lord
Walker said (paras 4-7) that the provisions of Part 7 of the Income Tax (Earnings and
Pensions) Act 2003 reflected three different, and to some extent conflicting, legislative
purposes: to encourage employees to own shares in the company for which they work; to
charge tax on some chargeable event instead of, or in addition to, a charge on the employee’s

34
See eg [2001] AC at 398 (Lord Bingham).
35
Ibid, 390 (Lord Bingham).
14
original acquisition of rights; and to counteract artificial tax avoidance. However, he did not
address how to deal with or reconcile these conflicting purposes.

In Medical Board of Australia v Kemp (2018) 56 VR 51 the Victoria Court of Appeal

observed that there may be circumstances where a statute or a particular provision may have
multiple or competing purposes. The case concerned the extent to which medical confidence
could be overridden in order to obtain evidence for use in civil proceedings. The relevant
interests (purposes) were summarised at para 108:

“Section 28(2) operates at the intersection of various interests but in a specific

context. First, there is the interest of the patient in protecting medical confidence.
Second, there are the interests of the parties to the suit, action or proceeding who will
be denied access to the material that, it must be assumed, would otherwise be
obtainable and probative of some issue in dispute. Third, there is the public interest
that the administration of justice shall not be frustrated by the withholding of
documents or evidence which must be produced if justice is to be done.”

At para 116 the Court observed: “Having identified the various interests in play, it is apparent
from its terms that s 28(2) does not operate to favour only a single interest.” In such cases, the
Court considered that the interpretive task involves assessing how the statute or provision
balances those purposes which are relevant to that task. So at para 126-127 it held:
“there is a balance between competing private interests in the context of the broader
public interest in ensuring that the court has access to all relevant material. However,
the essential balance that is struck is between competing private interests. Section
28(2) is intended to provide a rule of evidence or procedure that is limited in scope and
mediates between those competing private interests.
… in contrast to criminal proceedings where the interests of the public are thought to
outweigh considerations of medical confidence, the State ‘refuses to be a participant in
the breach of a personal trust’ ‘where individual rights only are in controversy’.”
A1 Properties (Sunderland) Ltd v Tudor Studios RTM Company Ltd [2024] UKSC 27
concerned the effect of non-compliance with a statutory procedural rule in terms of the
validity of a process for the transfer of management rights in respect of a building subject to
residential leases which followed from the invocation of the statutory procedure. The statute
did not specify the consequences of non-compliance. In the judgment, Lord Briggs and I said:

“57. … the appropriate starting point for analysis is the guidance given in Soneji. The
case concerned the making of confiscation orders in the Crown Court pursuant to the
proceeds of crime legislation against defendants who had been convicted and
sentenced in criminal proceedings, in circumstances where the stipulated statutory
time limit for making such orders of six months after date of conviction had been
exceeded. The Court of Appeal ([2003] EWCA Crim 1765; [2004] 1 Cr App R (S)
219) allowed an appeal against the making of the orders. The House of Lords ([2006]
1 AC 340) allowed the Crown’s appeal and upheld the orders notwithstanding the
breach of the statutory procedural requirement.

15
58. As Lord Steyn held in his speech (with the substance of which the other members
of the Appellate Committee agreed) the correct approach to a failure to comply with a
provision prescribing the doing of some act before a power was exercised was to ask
whether it was a purpose of the legislature that an act done in breach of that provision
should be invalid. In summary, the court’s power to postpone the making of a
confiscation order was to make the sentencing process rather than the confiscation
procedure as effective as possible; the judge’s failure to adhere to the statutory
requirements for making a confiscation order had caused no prejudice to the
defendants in respect of their sentences and any other prejudice to them caused by the
delay was outweighed by the public interest in not allowing convicted offenders to
escape conviction for bona fide errors in the judicial process; and that accordingly that
failure would not have been intended by Parliament to invalidate the confiscation
proceedings, so the orders should stand. …

61. The point of adoption of the revised analytical framework in Soneji was to move
away from a rigid category-based approach to evaluating the consequences of a
failure to comply with a statutory procedural requirement and to focus instead on (a)
the purpose served by the requirement as assessed in light of a detailed analysis of the
particular statute and (b) the specific facts of the case, having regard to whether any
(and what) prejudice might be caused or whether any injustice might arise if the
validity of the statutory process is affirmed notwithstanding the breach of the
procedural requirement. We therefore consider that in the present statutory context
Osman v Natt needs to be considered and applied with some caution, particularly in
its suggestion that cases where it becomes necessary to infer the intended
consequences of non-compliance can for that purpose be divided into distinct and
watertight categories and its apparent suggestion (para 31) that in the second category
the possibility of a middle position as identified in Soneji between outright validity or
outright invalidity is excluded. Instead, it is appropriate to go back to the basic
principled approach as explained in Soneji, as applied in light of the particular
statutory context and the specific facts of the case.

62. This does not mean that application of procedural rules in every statutory context
turns on detailed examination of the consequences arising from the particular facts of
the case, nor that a test of substantial compliance is properly to be applied in relation
to every procedural rule. Examination of the purpose served by a particular statutory
procedural rule may indicate that Parliament intended that it should operate strictly, as
a bright line rule, so that any failure to comply with it invalidates the procedure which
follows. An example would be the notice requirements for extending business
tenancies under the Landlord and Tenant Act 1954, where failure to serve a notice in
proper time means that the tenant loses their right to extend. The procedural rules
there apply in a context where there is an established bilateral relationship between
landlord and tenant, where the tenant is in a position to know clearly what it has to do
and where both parties need to know clearly what property rights they have and may
dispose of in the market. …

68. In our view the correct approach in a case where there is no express statement of
the consequences of non-compliance with a statutory requirement is first to look

16
 carefully at the whole of the structure within which the requirement arises and ask
what consequence of non-compliance best fits the structure as a whole. …”

Problem (4): what should courts do where there is a compromise involving a deliberate
obfuscation or non-implementation of conflicting purposes, or simply opacity in terms
of identifying the purpose of a statutory provision?

In certain situations, evidence regarding the purpose pursued by the legislature may be
lacking or obscure. Ekins and Goldsworthy observe:36

“Although we maintain that legislatures frequently do have relevant intentions, they

may not have an intention with respect to every interpretive dispute that arises. In
addition, in some cases objective evidence of their intentions may be unavailable or
inconclusive: as Kirby J once said: ‘A “purposive” approach founders in the shallows
of a multitude of obscure, uncertain and even apparently conflicting purposes’ (Avel Pty
Ltd v. A-G for NSW (1987) 11 NSWLR 126, 127). Consequently, legislation may
remain stubbornly ambiguous, vague or otherwise insufficiently determinate to resolve
an interpretive dispute, after all admissible evidence of legislative intent has been
examined. Judges who find themselves in this predicament tend to be reluctant to
acknowledge that they have no alternative but to act creatively, and choose which way
of resolving the indeterminacy would be preferable, all things considered, including the
purpose of the legislation, justice and the public interest. Rather than admitting that they
are forced to embroider the statute, they tend to attribute their own handiwork to
legislative intention. This does involve attributing a fictional intention to Parliament.”
Elsewhere, I have written:

“[W]hat might appear as unprincipled compromise in legislative drafting may reflect

a deeper principle, the desirability of seeking compromise as a way of balancing
competing views in a viable modus vivdendi, which seeks to optimize the practical
realization of competing values”.37

Where the evidence regarding purpose, and hence the legislature’s true intention, is thin the
courts do not abandon the search but have to do the best they can to reconstruct it, bearing in
mind that the legislative text might simply have been a compromise. More exiguous
indicators assume more importance, as they did in Spath Holme. The courts also tend to be
driven back to the simple grammatical meaning of the text, because there is an absence of
evidence of more specific purpose to qualify or limit this (as again occurred in Spath Holme).

36
R Ekins and J Goldsworthy ‘The Reality and Indispensability of Legislative Intentions’ (2014) 36
Sydney Law Rev 39, 61
37
P Sales, “Legislative Intention, Interpretation, and the Principle of Legality” (2019) 40 Statute Law
Review 53, 61. For modus vivendi as a principle of liberalism, see J Gray, Two Faces of Liberalism
(2000).
17
They also tend to be driven back to reliance on general indicators of meaning, under the
principle of legality.

If a legislative text is regarded as a form of compromise, a court may recognise that the
legislature enacted it with several purposes in view, but which are not clearly ranked. This
makes the situation into a variant of that addressed under Problem (3). The court then has to
infer how the identified purposes are to be balanced. Its reasoning then approximates to the
reasoning typical in cases involving the common law and identification of rights arising
under that law, in which different and competing interests have to be brought into account.38

An example where the evidence of legislative purpose was diffuse is R (Countryside Alliance)
v Attorney General [2007] UKHL 52, concerning the Hunting Act 2004 to restrict fox-hunting.
There were strong views on each side of the debate and a free vote in Parliament. In the context
of assessing the compatibility of the Act with EU law and the European Convention on Human
Rights, the House of Lords held that the objective of the Act was to prevent or reduce
unnecessary suffering to wild animals on the basis that causing such suffering for sport was
unethical. Lord Bingham referred (para 40) to the judgment of the Divisional Court which had
said:

“We discern from evidence admissible on the [relevant] principles … that the legislative
aim of the Hunting Act is a composite one of preventing or reducing unnecessary
suffering to wild mammals, overlaid by a moral viewpoint that causing suffering to
animals for sport is unethical and should, so far as is practical and proportionate, be
stopped. The evidential derivation for this legitimate aim comprises the terms of the
legislation and the admissible contextual background. This background includes the
Burns Report, the Portcullis House hearings, the ministerial basis for and the terms of
the original Michael Bill, the obvious inference that the majority of the House of
Commons considered the original Michael Bill inadequate, and the well-known
opposing points of view in the prolonged and much publicised hunting controversy.”

Lord Bingham continued:

“Plainly, as I think, the Divisional Court was entitled to have regard to the materials
listed, … and its approach was not challenged, save (by the Attorney General) to
suggest that it could have taken account of other parliamentary materials. I consider
that the courts below accurately expressed the rationale of the Act. The appellants did
not accept this. They pointed out, correctly, that this rationale was nowhere expressed
in the Act, that this did not reflect the Government’s intention in introducing the Bill
and that virtually no parliamentary statement expressed the rationale in this way. But,
as the Divisional Court recorded in para 12 of its judgment, endorsed by the Court of
Appeal in para 6, the Labour Party in 1997 had advocated new measures to promote
animal welfare, including a free vote in Parliament on whether hunting with hounds
should be banned. So concern for animal welfare was the mainspring of the legislation.
It was originally proposed by the government, in the Michael Bill, to achieve that end
by prohibiting deer hunting and hare coursing but permitting fox, hare and mink hunting

38
See also, P Sales, “Modern Statutory Interpretation” (2017) 38 Statute Law Review 125.
18
 subject to regulation according to the principles of utility and least suffering already
noted. But the latter proposal, although enjoying a measure of support in the House of
Lords, was plainly unacceptable to a majority in the House of Commons, who did not
feel that it went far enough. Why not? I do not think the appellants proffered any answer
to this question. The only answer can, I think, be that it was felt to be morally offensive
to inflict suffering on foxes (and hares and mink) by way of sport.”
Presidential Insurance Company Ltd v Resha St Hill [2012] UKPC 33 is a case in which context
did not offer meaningful information about purpose. The Privy Council found (para 28) there
was a “lack of any obvious explanation” for the amendment to section 4(7) of the Trinidad and
Tobago Motor Vehicle Insurance (Third Party Risks) Act. There was “no real assistance” to be
derived from Hansard and the work of the Law Commission. In such circumstances, the Privy
Council found that the natural meaning of the provision was “clear” and “must prevail”: paras
32-33; that is, it found no good reason to depart from the ordinary grammatical meaning it had
identified.

Mitchell v Bailey [2008] FCA 426 is another example in which the text and context did not
provide meaningful clues about the purpose of a statutory provision. The court therefore
adopted a similar approach to the Privy Council in Resha St Hill. Tracey J (para 31) held: “In
the absence of any clear identification of the legislative purpose intended to be served by the
words appearing in parenthesis in s 360(1)(iii), the case would seem to be one in which it is
necessary to focus on, and give effect to, the literal words chosen by the legislature.”

Monis v The Queen [2013] HCA 4 is an example where, in the absence of specific evidence
about the purpose of a statutory provision, the court had recourse to the principle of legality.
At para 20, French CJ said:

“It is sufficient to observe that a relevant statutory purpose of s 471.12 is the prevention
of offensive uses of postal and similar services. That purpose does not aid in the
construction of s 471.12 as it is a purpose derived from the text itself. It can only be
given content by the construction of the section applying other criteria. Criteria relevant
in this case are that the provision attaches a criminal sanction to an offensive use of
postal or similar services and that such uses may include the content of a
communication thereby affecting freedom of expression. The criminal sanction and the
application of the principle of legality both indicate a requirement for a high threshold
to be surmounted before the content of a communication made using a postal or similar
service can be characterised as ‘offensive’. A useful definition of any larger statutory
purpose based upon common attributes of or significance to be attached to ‘postal or
similar services’ is elusive.”

19