Part I Statutory Texts explains what statute law is, then describes
the drafting of legislation. the arrangement of an Act of Parliament,
statutory instruments, legislation of the European Communities, statute
consolidation and revision, an the official publication of texts.
Part II Statutory Interpretation describes the technique of statutory interpretation under common
law systems, explaining that the criteria consist of (1) rules of construction, (2) principles derived
from legal policy, (3) presumptions derived from the nature of legislation, and (4) linguistic canons
of construction.
Part III the Need for Processing of Texts explains the difficulties of the statute user and the
vices that block comprehension. It then discusses in turn five doubt factors: ellipsis, the broad term,
politic uncertainty, the unforeseeable development, and the fallible drafter.
Part IV Dynamic and Static Processing of Texts explains the nature of dynamic processing of legislative
texts, then describes first the administrative processor and then the judicial processor. It concludes
by describing static processing of texts.
2.3.4.3. Citations of Bennion on Statute Law
The book has been widely cited. See for example
the copious citations of it in
Extracts from ‘A Unified Theory of
Statutory Interpretation’ by R.N. Graham, Assistant Professor, Faculty
of Law, University of New Brunswick. The text of the article is drawn from “A
Unitarian Theory of Statutory Interpretation”, R.N. Graham, 1999,
York University. That paper elaborates the ideas set out in this article
by reference to the theories of deconstruction and critical legal studies.
26
Unlike Coté’s archaeologists, the “dynamo” refuses to see a statute’s
meaning as an artifact to be discovered through the use of historical evidence. Instead, the dynamo
sees the statute’s text as clay that can be shaped in ways that were not necessarily intended
by the statute’s drafters. Where the requirements of logic, justice or political correctness
suggest that an enactment should be interpreted in a way that differs from the drafters’ understanding
of the language, dynamic interpretation permits the interpreter to select a construction that fits
with current needs and departs from historical expectations. According to Coté, dynamic interpretation
permits an enactment to be moulded in response to “needs which are identified at the time the
rule is being applied, either with reference to the current rather than the historic will of the legislature,
or with respect to what the interpreter considers is dictated under the circumstances”.51
Dynamism’s view of the statute as an organic, “evolutive” document
is elegantly described through Francis Bennion’s nautical analogy:
‘. . . the ongoing Act resembles
a vessel launched on some one-way voyage from the old world to the new.
The vessel is not going to return; nor are its passengers. Having only what
they set out with, they cope as best they can. On arrival in the present,
they deploy their native endowments under conditions originally unguessed
at.’52
27
According to this view of legislation, statutory language must grow and adapt in response to changing
social conditions.
52 Francis Bennion, STATUTE LAW (London, England: Oyez Publishing
Limited, 1980), 356.
57
The power to garner sufficient votes to ensure the passage of a Bill is not the only reason for using
vague language. A second function of vague language is to demonstrate Parliament’s intention
to grant discretion to the courts and other officials charged with the task of administering legislation.
According to Francis Bennion:
‘By use of a word or phrase of wide meaning, legislative power is
delegated to the processors whose function is to work out the detailed effect
. . . until the details are worked out, it will be doubtful what exactly
they are.’96
96 Bennion, STATUTE LAW, at 120.
Reception of BENNION ON STATUTE LAW by
legal profession
All three editions were published by Longman.
The first edition, published in 1980, was well received. A Lord of Appeal,
Lord Cross of Chelsea, wrote-
‘Mr Bennion is very well qualified
for the task which he has undertaken. In the first place he was for many
years one of the Parliamentary Counsel and so knows every aspect of his
subject thoroughly from the inside. Secondly he has the gift not too common
in writers on legal subjects of making rather dry bones live . . . I regard
this as a very good and important book. It ought to be read and, I do not
doubt, will be read, by Parliamentary Counsel. It ought also to be read,
though I am less confident that it will be read, by judges in appellate
courts who are constantly called upon to wrestle with problems of statutory
interpretation. Finally, I hope that it may be read by many academic lawyers
and encourage those who do not already do so to include the study of statute
law in their courses.’ - Statute Law Review (1981) p. 122
Sir David Williams, Vice-Chancellor of Cambridge
University, noted in the Law Society’s Gazette that academic
study of the subject had recently increased. He added: ‘Bennion's
book rounds off this burst of activity in a most useful and stimulating
fashion’. He went on: Bennion's lively style carries the reader through
both exposition and criticism. Whether or not you regard yourself as a word
processor, you are one. Study of Bennion's work will make you a better one.’ Alec
Samuels said in the Solicitors Journal that the author ‘has been a
parliamentary draftsman here and abroad, has played an important part in
developing understanding of statute law and its problems, and has advanced,
as he does in this book, many original and stimulating ideas’. He
added: ‘It is a marvellous book’. Professor P S Atiyah QC, FBA
described it in his book Law and Modern Society as the leading
modern book on legislation (p. 155).
The first edition also attracted attention overseas.
In Australia Stephen Mason wrote: ‘The book is limited to United Kingdom statutes, but this does
not in any way detract from its usefulness to Australian readers . . .It is readable, witty and clearly
structured’ - Australian Law Journal
In South Africa David Dyzenhaus said that the
author’s ‘combination of talents’ made the book ‘eminently
practical’. He thought it ‘will be deservedly influential’ - South
African Law Journal
The success of the book made a second edition necessary in 1983. It was considerably altered, to take
account of developments in the subject. The preface began-
‘This is a book about the need
people feel to know where they stand. Having this recognised could be numbered
among human rights, but few lawyers seem to take it seriously.’
It went on to complain of reluctance in the
profession to consider the novel ideas the book presented, and said-
‘It is time for heads to go down,
and for close attention to be paid to this subject. There is more to it
than most people seem to think. It concerns the way our lives are lived,
and merits concentrated care for that reason. Theories about rules in
general are all very well, but statutory rules matter in a special way.
They also
possess special characteristics. If we are to take rights seriously, it
is time we took statutes seriously.’
Among reviewers of the second edition, David
Nelken wrote-
‘The arguments of the book, even
at their most provocative, are clear, well organised and brilliantly documented.
Bennion rightly emphasises and demonstrates the sheer intellectual difficulty
of drafting and interpreting statute law . . . Bennion has a considerable
insight into the dialectical relationship between the parliamentary draftsmen
and judges . . . Certainly, he sometimes sounds like Jeremy Bentham as he
berates politicians, lawyers, judges and draftsmen for their toleration
and exploitation of obscurity. But, like Bentham, perhaps he too over-estimates
the possibilities of reducing law to order’. - The Journal of
the Law Society of Scotland
L S Sealy said -
‘Mr Bennion is well known as
a former parliamentary draftsman who has written extensively on statute
law, and as a founder of the Statute Law Society and its Chairman from
1977 to 1979 . . . His latest book, STATUTE LAW . . . is naturally
enough written from a stance of some authority and with the clarity of expression
one would expect from so experienced a wordmaster . . .’ - Cambridge
Law Journal
Benedict Birnberg wrote –
‘ . . . until Francis Bennion,
whose career as a Parliamentary Counsel has been spent in drafting legislation,
emerged on the scene, there was little critical analysis of statute law.
Bennion has been largely instrumental in raising the study of statute law
to a specialisation and in establishing the Statute Law Society. He has
long been an advocate of a more rational and methodical approach to statute
law and he has now produced a book in which he sets out lucidly an analysis
and critique of our traditional methods of writing our laws . . . Statute
Law fills an amazing gap in our understanding of the mysteries and myths
of law-making.’ - The Freethinker
Again, there was overseas interest.
Graham Parker wrote –
‘Bennion suggests quite rightly
that the judges do make law. It is simply a legal fiction to think otherwise
but he is suggesting that we should try to regularise this process . . .
He is aiming at some kind of synthesis. While Driedger gives us much valuable
information, his book lacks this vision.’ - The Canadian Bar Review
The preface to the third edition explained
that the work was now complemented by the addition of a detailed section
distilled from Bennion’s major work STATUTORY INTERPRETATION,
first published by Butterworths in 1984 (fourth edition 2002). The third
edition of BENNION ON STATUTE LAW marked a wholly new approach
to this vexed subject, which has since gained general acceptance by the
legal profession. The preface said-
‘The essence of my new treatment
of statutory interpretation is to anchor the subject firmly within the main
currents of law. Instead of attempting to get by with rules of thumb like
the so-called ‘mischief rule’, ‘golden rule’ and ‘literal
rule’, it appears that the law really requires the matter to be treated
more seriously and thoroughly. Legislative enactments bring in by implication
all relevant rules and principles of law, and must be interpreted accordingly.
In a particular case it may be necessary to apply numerous interpretative
criteria . . . A balancing exercise must then be carried out.’
