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In the UK, the combination of a “sovereign parliament” and the doctrine of “separation of powers” means that judges are not law-makers; simply law enforcers. Thus when faced with an Act of Parliament they must try as far as possible to give the words their “plain ordinary meaning” so as not to distort the purpose of the legislation. Unrestricted by a Written Constitution or Bill of Rights, parliament can pass any laws it likes; e.g. that “all redheads should be decapitated”. In the absence of legislation to the contrary, the monarch is presumed to have absolute power, (the Royal Prerogative).
THE MISCHIEF RULE
If the words are ambiguous the courts will try to adopt the meaning which is most likely to give effect to the purpose or reform which the statute is intended to achieve: i.e. parliament’s intention in passing the statute, even if that purpose offends fundamental human rights: e.g. the Anti-Terrorism Crime and Security Act 2001.
THE GOLDEN RULE:
Even if the meaning of the legislation is clear, the courts may still have limited discretion at common law to apply some other legal principle to avoid a repugnant or absurd result in the instant case Therefore, if an individual’s rights are being infringed in the UK, our courts are only interested in HOW this is being done. If it is an exercise of prerogative power of the Crown, (increasingly exercised by Ministers rather than the monarch personally), the courts are very unlikely to question the exercise of such powers on the assumption that the “King/Queen can do no wrong”. If such rights are being infringed by clear words in an Act of Parliament, the doctrine of "parliamentary sovereignty" obliges the courts to enforce these powers by giving the words of the statute their plain ordinary meaning.
THE PURPOSIVE RULE
The United Kingdom’s membership of the Council of Europe in 1951 and the European Communities/Union in 1972/3 has led partly to the introduction of the “purposive” approach to interpretation favoured by continental judges. It is very similar to the Mischief Rule, but wider in scope, since it need not be restricted to the intention of parliament. E.g. in the context of European Union law, statutes are construed to give effect to the underlying “purpose” or aims of the founding Treaties including “freedom of movement of people, goods, services and capital.” Under the European Convention on Human Rights infringement of civil liberties is restricted. It is assumed that the Treaties and Convention as higher sources of law cannot be infringed by ANY means without good reason.
Even where a statute or exercise of prerogative power can be reconciled with European law in principle, it may still fall short of the requirement of “proportionality”, whereby a proper balance must be maintained between any adverse effects which the decision of an administrative authority may have on the rights, liberties or interests of persons and the purpose which it pursues. It offends against the principle of proportionality to impose a sanction, restriction or penalty that is disproportionate in severity or extent to the mischief that it is intended to cure. Now, rather than simply asking HOW such powers are being exercised and being unable to question prerogative powers or clear words in an Act of Parliament, courts will now the following questions. 1) WHY is this power being exercised? 2) Is it NECESSARY? Could the same objective be achieved by other means?