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BENNION ON STATUTORY INTERPRETATION
5th edition, LexisNexis 2008
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Publishers: LexisNexis, 2008
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Doc. No. 2008.013.1381 |
Appendix A
Court technique
As explained in Code s 2, the interpreter’s duty
is to arrive at the legal meaning of the enactment under inquiry. The following account
details the steps to be gone through.
It is presented from the advocate’s viewpoint, but largely reflects the judicial
function also. Further assistance may be gained from the checklist in Appendix B. The
reader may also find it helpful to visit www.francisbennion.com/2007/004.htm. This gives
details of the author’s NESSSI method of statutory interpretation, which is based
on suggestions given in the present work. An article by Kay Goodall ‘Teaching Statutory
Interpretation: Citings of NESSSI in Scotland’ (171 Justice of the Peace 604) can
be accessed at www.francisbennion.com/nfb/2007/005.htm
The following assumes, which will not always be the case,
that the advocate chooses to make use of the optional techniques of selective comminution and
interstitial articulation. Where
this is not done, the account needs to be read with appropriate adaptations. The following
takes no account of the compatible construction rule laid down by Human Rights
Act 1998 s 3.
Before going into court
1. Determine, by reference to the facts of your
case, the date, territory and application of the law to be applied.
2. Obtain the relevant statutory
text or texts, including the texts containing any amending, repealing, Commencement or
transitional provisions.
3. Identify the enactment which is the unit
of inquiry in relation to your problem of statutory interpretation. There may be two or
more enactments
which
have to be read together.
4. Ascertain the relevant juridical factual outline,
that is the factual outline laid down by the enactment which is the unit of inquiry or
(where
that has been the subject
of judicial processing) the narrower factual outline laid down by the court.
5. Ascertain
the relevant legal thrust of the enactment.
6. Relate the juridical factual outline
to the relevant facts of the instant case.
7. Frame the crucial question of law.
8. Determine
the opposing constructions of the enactment under inquiry.
9. Decide whether there is
a real doubt as to which of the opposing constructions embodies Parliament’s intention. If there is no real doubt that a particular construction of the enactment embodies the
legislator’s intention, that construction is to be
followed. Otherwise it is necessary to proceed further.
10. Diagnose the cause of the
doubt.
11. If necessary, work out a selective comminution of the enactment under enquiry.
12. Check the selective comminution (if one has
been prepared) against the relevant facts of the instant case.
13. Work out an interstitial
articulation for each of the opposing constructions.
14. Identify the relevant interpretative
criteria.
15. Assemble from the relevant interpretative
criteria, by applying the criteria to the text of the enactment and the relevant facts
of your case, the interpretative
factors that bear on the point of interpretation in question.
16. Devise the arguments that support
the factors which are in your favour and undermine those of your opponent.
In court
17. Hand copies of the selective comminution
(if prepared) to the court and your opponent, making clear that it consists only of the
actual
wording of the enactment
subject to
any necessary ‘carpentry’. It may usefully be embodied in a skeleton argument.
18. Explain the point of interpretation to the
court by reference to the numbered clauses of the comminution.
19. Hand copies of the
two articulations to the court and your opponent, making clear that they consist of
the actual wording of the enactment elaborated as might have been
done by the drafter if it had been desired to determine the point at issue by express
words.
20. Present the arguments to the court, which,
after hearing your opponent, will determine which of the opposing constructions (as articulated)
is supported by the
heavier weight
of interpretative factors.
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. See Code s 139.
. See Code s 178.
. See Code s 421.
. As to the temporal, territorial and personal
operation of Acts see Code s 30.
. The statutory texts are described in Code Pts II and
III. As to commencement, amendments, repeals etc see Code Pt IV.
. For the enactment as
the unit of inquiry see Code s 137.
. As to this see Code s 143.
. See Code s 144.
. As to the opposing constructions see Code
s 149.
. For the concept of ‘real doubt’ see Code
s 3.
. Causes
of doubt are dealt with in Code s 150.
. For selective comminution see Code s 139.
. Interstitial articulation
is described in Code ss 177 to 179.
. The concept of the interpretative criterion is explained
in Code s 180.
. The nature of interpretative factors is explained in
Code s 183.
. The weighing of interpretative factors is explained
in Code s 186.
. For the skeleton argument see Code s 206.
. For a worked example
see Code s 190.
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