Regina ( Haw ) v. Secretary of State for the Home Department: Statutory Interpretation, Liberalism and Ambiguity
In a recent instance [ 1 ] the cardinal issue of statutory reading and the court’s attack to this issue has come into focal point and brought with it a familiar contention. The background to the difference was a protest by Mr. Haw [ 2 ] being conducted in Parliament Square. His protest came into struggle with a proviso with new demands in the jurisprudence enacted via the Serious Organised Crime and Police Act 2005 ( the “Act” ) which required that all dissenters in ‘designated countries’ [ 3 ] have mandate to make so – Parliament Square is a designated country. This work wishes to concentrate on comparing the attitude of the tribunal of first case and the appeal tribunal to the rule normally referred to as ‘Strict Interpretation’ [ 4 ] or the regulation that ‘If there is a sensible reading[ of a stute ]which will avoid the punishment in any peculiar instance, we must follow that building’ [ 5 ]
The major difference in theHawthorninstance surrounded the statutory instrument used to get down the consequence of the Act [ 6 ] . In it there were commissariats impacting the subdivision necessitating mandate for presentations in a designated country. Specifically, it stated that the demand would use as if mentions to get downing a presentation in the Act ‘were mentions to presentations get downingor go oningon or after 1 August 2005’ [ 7 ] . This appeared to be in direct response to a question brought up by Mr Haw’s canvassers that the Act would non use as it made no reference of catching presentations that commenced prior to the Act. The tribunal at first case found by a bulk in favor of Mr Haw but the determination was overturned on entreaty.
At first case Lord Justice Smith enunciated the classical description of the Strict Interpretation where in happening for the Claimant he stated ‘The words of subdivision 132 are clear and they give consequence to a absolutely reasonable intent …In my position, penal legislative acts should be purely construed and, if there is any ambiguity, it should be resolved in favor of the autonomy of the topic.’ [ 8 ] However, on appeal the tribunal took a really different attack when Sir Anthony Clarke MR stated ‘Parliament intended …the Act should use to presentation in the designated country, whether started before or after they came into force. Any other decision would be entirely irrational and could reasonably be described as obviously absurd.’ These remarks at first glimpse seem to be unreconcilable differences between the Court of Appeal and that at first case.
The first topographic point in looking for the span between these two places is to analyze the opinions [ 9 ] . The tribunal of entreaty distinguished the determination by looking at a broader context than that of first case: they looked at the Public Order Act 1986 [ 10 ] which gave senior constabulary officers powers to enforce conditions on ‘assemblies’ that were likely to do public upset, harm or break. As Loveland states the relevant subdivision ‘doubtless gimmicks assemblies which have already begun’ . The tribunal took the position that because this proviso was specifically disapplied by s.132 of the current Act it was clear that parliament intended the new act to use to bing ‘demonstrations’ [ 11 ] . This issue was ne’er put in forepart of the Divisional Court [ 12 ] and as such explains why ‘Both the Divisional Court and the Court of Appeal believed the significance of the legislative act to be clear’ despite the fact that ‘…their logical thinking which led to the ‘clarity ‘ produced opposite consequences’ [ 13 ]
In some of the commentary this is surely the ground cited as persuasive in accommodating the two tribunals diverging determinations. However, in some respects this merely begs the inquiry: the Divisional Court looked at the diction and concluded the linguistic communication was clear and could non be interpreted purposively. The Court of Appeal had to look outside the linguistic communication of the legislative act in order to happen its significance. It is arguable that these represent divergent rules between Interpretive techniques that are varyingly described as: Strict and Liberal ; broad and narrow ; limited and good [ 14 ] ; Literal and Interpretive [ 15 ] ; or non-contextual and contextual attack [ 16 ] . In truth there are many illustrations of opinions between different instances that sit every bit anxiously as the opinions in the current instance do [ 17 ] .
The relationship between these determinations has ne’er been clear for illustration in A-G V Sillem [ 18 ] Pollock CB stated that ‘…the differentiation between a rigorous building and more free one has…in modern times about disappeared…the inquiry now is, what is the true building of the legislative act? ’ [ 19 ] . In add-on The rigorous Roman Law, that was inherited by Civil Law Tradition, at many points revered actual reading [ 20 ] but purposive reading besides has a long-history being first explained by St Thomas Aquinas in his celebrated analogy sing the conjectural offense of opening the metropolis gates before dawn [ 21 ]
It is ill-defined to what degree these paralell constructs can be reconciled and there is non room to make so. At their extremes they represent jurisprudential bete-noires: on the one-hand legal positivism sees activist judicial reading as incorrect because jurisprudence ought to stand for a‘‘closed logical system’ in which right legal determinations canbe deduced…from preset regulations’ [ 22 ] . This is founded on the classical broad impression that jurisprudence ought non to be made up of indeterminate Torahs applied randomly [ 23 ] . However, on the other side is an every bit forceable legal tradition of pragmatism that seeks in some instances to moralize the jurisprudence [ 24 ] or in others to turn out the false beliefs perpetrated by positive opinions that disguise jurisprudence is truly ‘arbitrary, contingent, unneeded and deeply unfair’ [ 25 ]
In decision the determination above illustrates that there is no incorporate theory of statutory reading [ 26 ] . Halsbury efforts to explicate the two comepting theories by reasoning that they are ‘methodsor techniques by which the tribunal applies the interpretive standards’ [ 27 ] . It may be possible to happen a practical rapprochement between the two judicial pronouncement of Lord Justice Scott and Sir Clarke along those lines: they merely represent an accommodation in the application of interpretive standards given new information available to the tribunal. However, basically underlying these two places are two unreconcilable jurisprudential constructs that continue to contend it out in many countries including scholarship on constitutional jurisprudence, the regulation of jurisprudence and statutory reading. The Court of Appeal’s determination merely show the practical consequence of such a battle and indicate that the formal rule ‘is less purely applied today, peculiarly in the face of a purposive attack to reading.’ [ 28 ]