REVIEWS
| Published date | 01 January 1963 |
| Date | 01 January 1963 |
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb00701.x |
REVIEWS
MAXWELL
ON
THE
INTERPRETATION
OF
STATUTES.
Eleventh edition.
By
ROY
WILSON,
Q.C.
and
BRIAN
GALPIN.
[London: Sweet
&
Maxwell, Ltd.
1962.
cxxxii
and
448
pp.
(with index).
23
10s.
net.]
“
I
LU
indeed proud,’’ says the Master of the Rolls,
“
to have been asked to
write
a
Foreword to the new edition of this important book.” The point, he
explains, is that more and more of the cases which come before the courts-
and particularly the Court of Appeal-turn on the interpretation of Acts
of Parliament. Hence the value of a textbook “which can serve as
a
guide
not only to the courts but to the whole legal profession, whose essential
duty and responsibility it is to expound (and, indeed, to justify) the law
to the rest of the community.”
I
find this very depressing. That the legal profession should need
a
book
of this sort at all is
a
sad reflection on our legislature, our law courts and
our language. Consider on the one hand the synoptic Gospels. The teaching
of Jesus was given in Aramaic, recorded later in Greek, and translated later
still into English. We have it therefore
at
third hand and can readily
excuse
a
good deal of scholarly debate and conflicting interpretation.
Consider on the other hand the voice of the legislature. Parliament has now
been enacting laws,
off
and on, for more than
six
centuries; for the last two
of them it has done
so
in language which ought to be familiar to any compe-
tent candidate for the G.C.E.; and for the last twenty-five ‘years
or
so
it
has
done
so
in the idiom of our own contemporary speech. One might surely
have hoped that, by now, those who draft Acts of Parliament and those
who have to apply them would have developed some common medium of
communication which.they both understand. One might even have hoped that
they would not have needed any process of development, and that the riches
of the English language would have been enough to enable them
to
speak
intelligibly to each other without the need of contrivance
or
innuendo. Nay
more, it might have struck one that Parliament enacts laws not primarily,
nor even incidentally, to provide cannon-fodder for the Court of Appeal
but for the purpose of promoting order and good government in the com-
munity, and that the people who are intended to understand and observe
them are the general body of electors. But
so
far are these notions from
fruition that the editors of the new edition have found it necessary to cite
more than
4,000
cases; and this is what
I
find
so
depressing.
Is
it our
legislators,
our
judges
or
our
teachers of English who ought to feel the
most ashamed?
On page
3
we are introduced to the first and most elementary rule
of
construction (and
I
strongly suspect that
I
should have thought
of
it for
myself even without the assistance of Bailey
J.)
:
“
It is very desirable in all
cases
to
adhere to the words of an Act of Parliament, giving to them that
sense which is their natural import in the order in which they are placed.”
It is distressing to find it suggested that in spite of the simplicity and
obviousness of this prescription the practitioner is not adequately equipped
to discern the meaning of Parliament’s language unless he has access to
the following
400
pages
of
text. And the ghastly truth is that he is not;
for
it happens as often as not that when an Act of Parliament is fully
processed
by
the
legal machine it turns out to mean something quite different
from what its authors supposed.
103
104
TEE MODERN LAW REVIEW
VOL.
26
Judges and barristers find it very tempting to throw all the blame for
this on the legislature and to justify themselves by citing such gems of
draftsmanship
as
section
12
(6)
of the Increase
of
Rent and Mortgage
Interest (Restrictions) Act,
1920
:
“
Where this Act has become applicable
to any dwelling-house
. .
.
it shall continue to apply thereto whether
or
not
the dwelling-house continues to be one to which this Act applies.” But this
degree of inscrutability is in fact rather rare; it is a legislative
tour
de
force
comparable to doing a hole in one on the golf course, and
I
do not believe
that, in general, Parliament is much more to blame than the courts. Compare,
for instance, section
4
of the Statute of Frauds which said that “no action
shall be brought” on an agreement not
to
be performed within a year (and
was held to mean that you could bring one if you liked and take the chance
of the defendant relying on the statute), with the Gaming Act,
184.5,
section
18,
which said that “no suit shall be brought
or
maintained in any court of
law
or
equity for recovering any sum of money
.
.
.
alleged to be won upon
any wager,” and was held to mean exactly what it said
(Luckett
v.
Wood,
24
T.L.R.
617).
Over and over again one finds rules of construction laid
down by one court and subsequently denied by another-e.g., that the
marginal note cannot be used as an aid to the construction of a section
(per
Willes
J.
L.R.
3
C.P.
at
p.
523),
and that it can
(per
Collins
M.R.
[
19041
2
K.B. at p.
567);
or
that the words “nearer
or
more commodious” in
s.
85
of the Highway Act,
1835,
mean nearer
and
more commodious (R. v.
Shiles
(1841)
1
Q.B.
919)
and that they do not
(R.
v.
Phillips
(1866)
L.R.
1
Q.B.
648).
Moreover, the search for certainty may know no end, for, as the
editors remark
at
p.
304,
the mere fact that a statute is re-enacted after it
has received judicial interpretation does not prevent
a
superior court from
overruling that interpretation (see
Royal
Crown
Derby Porcelain
Go.
v.
Rwsell
[1949] 2
K.B.
417).
Another deplorable aspect
of
the judicial process is the emergence of a
stream of maxims in dog Latin (the editors cite thirty) which are supposed
to be an aid to the construction of Parliamentary English. All that they do,
in my disrespectful submission, is to invest the subject with an artificial
mystique which serves at once to bemuse the layman and to provide the
advocate with something to talk about (thereby increasing the cost of litiga-
tion). Take, for instance, the following
:
Zncivile est nisi tota
legs
perspeeta
una
aliqua
particzlla
ejw
proposita judicare
vel
respondere,
cited by the
editors at p.
27.
By all means try this over in your bath to the tune of
Annie Laurie, but
do
not try to persuade me that it helps anyone to interpret
anything.
I
suspect that Lord Evershed suffers occasional bouts of the same
melancholia as overcomes me on looking into
Maamell
because he writes in
the Foreword
:
“
It
is my hope that out of the vast body of judicial decisions
on the interpretation of statutes there will, in the end, emerge
rules,
few in
number but well understood, generally applicable
or
applicable to particular
and defined classes of legislation, which may supersede and render obsolete
other dicta derived from
a
different age and
a
different philosophy.” But
the hope seems unlikely to be realised. More than thirty years ago Lord
Hewart
C.J.,
confronted by the question what was meant by a “person
aggrieved,” remarked that “as has been said again and again there is often
little utility in seeking to interpret particular expressions in one statute by
reference to similar expressions in different statutes which have been enacted
alio intuitu” (Sevenoaks
U.D.C.
v.
Twynam
[1929] 2
K.B.
440,
443);
but
this precept has not generally been followed and did not prevent the
Sevenoaks
case from being cited along with
four
others when it became
necessary to determine who was a
“
person aggrieved
”
within the meaning
of another Act in
1959
(Eding Corpn.
v.
Jones
[1969]
1
Q.B.
384).
I
suspect
that the urge to rely upon case-law which has become second nature to every
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