Tag: statutory interpretation
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Natasha Simonsen:Government cannot use a ‘statutory back door’ to implement major changes to legal aid services, Divisional Court says
In a judgment released yesterday a Divisional Court unanimously struck down the government’s attempt to introduce a residence test for eligibility for legal aid, finding it incompatible with the objective of the Legal Aid, Sentencing and Punishment of Offenders Act (‘LASPO’). The ratio of the judgment was that the residence test had been introduced via…
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Mark Aronson: Statutory Interpretation or Judicial Disobedience?
In Australia as in England, courts began “reading down” legislative grants of broad and seemingly unfettered discretionary power long before the currently fashionable “principle of legality” entered the public lawyer’s lexicon. Judges typically explained themselves as merely engaging in an exercise of statutory interpretation, saying that in the absence of express words or an absolutely…
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David Mead: “Don’t Think Of An Elephant”: How Conceptualising Is Able To Skew The Outcome In Human Rights Cases
In his 2004 book “Don’t think of an elephant” cognitive linguist George Lakoff offered his view on the recent US political landscape. I’m very grateful that Daithí Mac Síthigh made me aware of it. Specifically, Lakoff tried to set out what he thought accounted for the success of the Republican right in winning the battle…
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Richard Ekins: Rights-consistent interpretation and (reckless) amendment
Discussion about s 3 of the Human Rights Act 1998 (HRA) tends to focus on the scope of s 3(1). My interest in this post is in 3(2)’s direction that the section “applies to primary and subordinate legislation whenever enacted”. I suggest that this decision to extend s 3 to statutes whenever enacted amounted to…
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Tarun Khaitan: The ‘constitution’ as a Statutory Term
Constitution. A word that readers of this blog use and encounter frequently in academic, judicial and political discourse. It is one thing, however, for academics, politicians, or even judges to invoke ‘the constitution’, quite another for Parliament to do so in legislation. As that (other) great jurist Salmond once explained, unlike judgments, ‘one of the…
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Paul Daly: Taking Statutes Seriously
Drawing on English, American and Canadian material, I develop in A Theory of Deference in Administrative Law: Basis, Application and Scope (CUP, 2012) a unique approach to judicial review of administrative action. Animated by a desire to inspire change rather than wholesale implantation, I elaborate a comprehensive theoretical approach which is not tied to any…
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Bradley W. Miller: Proportionality and Legislative Purpose
In conducting constitutional review with a proportionality test, much depends on the how the purpose of the challenged legislation is characterized by the reviewing court. It is a commonplace that the loftier the purpose attributed to the legislation, the more difficult it will be to judge that legislation to be disproportionate at the balancing stage. …
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Richard Ekins: Yemshaw and “updating” statutes
Should judges update the meaning of statutes? Consider Yemshaw v London Borough of Hounslow [2011] UKSC 3, in which the Supreme Court updated a statute. The question in Yemshaw was the meaning of ‘violence’ in s 177(1) of the Housing Act 1996. The precursor to s 177 was s 1(2)(b) of the Housing (Homeless Persons)…
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Christopher McCrudden: Slavery and the constitutional role of judges
How far should judges “update” our legal concepts, or should they root their interpretation in the historical understanding of the concept, leaving updating to the legislature? In the United States, disputes between “strict constructionists” who seek to base the meaning of the Constitution on a literal meaning of the text infused with an understanding of…
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Secretary of State for Communities and Local Government v Welwyn Hatfield BC
Secretary of State for Communities and Local Government v. Welwyn Hatfield Borough Council [2011] UKSC 15. Mr. Beesley obtained planning permission to build a barn on his land. He built a construction that outwardly resembled a barn, but that was, in fact, a house. Having lived in the house for over four years, Beesley then…