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An Opportunity Missed? Some Comments on the Interpretation and Legislative Reform (Scotland) Bill

Document Cited authorities 11 Cited in Related
Vincent
Pages487-493
Published date01 June 2009
DOI10.3366/E1364980909000626
AuthorIain Jamieson
Date01 June 2009

The Interpretation and Legislative Reform (Scotland) Bill has now been introduced into the Scottish Parliament,1

The Bill, together with accompanying documents, is available at http://www.scottish.parliament.uk/s3/bills/27-InterpretLegRef.

following upon a consultation by the Scottish Government earlier in the year.2

See Scottish Government, Interpretation and Legislative Reform (Scotland) Bill: Consultation Paper (available at http://www.scotland.gov.uk/Publications/2009/01/12112118/0).

 Two of the main purposes of the Bill are to make provision for the interpretation of Acts of the Scottish Parliament (ASPs) and instruments made under them, and for the ways in which a Scottish statutory instrument (“SSI”) may be scrutinised in the Scottish Parliament. It is surprising that for the past ten years questions as to how ASPs are to be interpreted and how SSIs are scrutinised by the Scottish Parliament have been determined by transitional orders made under the Scotland Act by the UK Government. It is long overdue that the Scottish Parliament and Government should make their own provision about such matters. The Bill is therefore to be welcomed. However, the opportunity to have a Bill dealing with such matters comes very rarely, making it all the more important that the Bill does all that is required. It is therefore unfortunate that this opportunity has been missed in four main areas INTERPRETATION

The provisions in the Bill dealing with interpretation of ASPs and Scottish instruments are based upon, and largely replicate the effect of, the existing Interpretation Order3

The Scotland Act 1998 (Transitory and Transitional Proceedings) (Publication and Interpretation etc of Acts of the Scottish Parliament) Order 1999, SI 1999/1379.

with one or two exceptions. That Order was in turn based upon the Interpretation Act 1978 which deals with how Westminster Acts and instruments made under them are to be interpreted. This means that, by and large, ASPs are interpreted in a similar way to Westminster Acts. This in itself is not surprising. In following the Westminster model, the Bill follows the same tradition as certain Commonwealth countries.4

See Interpretation Act 1867 (Canada); Interpretation Act 1901 (Australian Commonwealth); Interpretation Act 1999 (New Zealand).

 The main purpose of that model is to shorten Acts by providing a dictionary which expresses what is implied by certain provisions or which defines certain terms which are commonly found in them. It does not lay down any substantive principles or rules by reference to which the courts are to interpret Acts or which may assist them in doing so.5

It is only in certain exceptional cases that Parliament has given the courts a direction as to how to approach the interpretation of Acts or ASPs, such as in s 3 of the Human Rights Act 1998 and s 101 of the Scotland Act 1998.

 Instead this is to be left to the judges. There are, however, two objections to this approach

First, this interpretative function frequently involves the courts in controversy because they may be perceived, or may perceive themselves, as encroaching on the legislative function of Parliament. It is contradictory to protest when courts do this and yet at the same time to argue that interpretation is a matter which should be left to the judges without any statutory intervention. Fundamentally, it should be for the Parliament, and not for the courts, to decide how its Acts should be interpreted.

Secondly, as the Law Commissions pointed out in their joint Report on the Interpretation of Statutes in 1969,6

Law Commission and the Scottish Law Commission, Report on The Interpretation of Statutes (Law Com No 21, Scot Law Com No 11, 1969) para 81.

while it may not be possible to have a comprehensive statutory enumeration of the factors to be taken into account by the courts in interpreting statutes, a limited degree of statutory intervention would be useful for certain purposes. The purposes identified by the Law Commissions remain fundamentally relevant. It is, for example, still unsatisfactory not to know, without extensive and expensive litigation

how the courts will interpret a statutory provision and, in particular, whether and in what circumstances, and to what extent, they will adopt a literal or a purposive approach;

whether breach of a statutory duty or provision will enable someone who suffers loss as a result of that breach to recover damages; and

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