NATURE OF STATUTE LAW

The most important source of law is legislation. Legislation means enacted law, that is, law laid down by
a body constituted for that purpose, e.g. the Malawi Parliament. Enacted laws of this kind are called
statutes. In practice statutes often amend, and sometimes abolish, established rules of common law or
equity, overrule the effects of decisions of the courts or make entirely new law on matters which
previously have not been the subject of legislation.
There are two types of legislation, parliamentary and delegated legislation.

i. Parliamentary legislation means laws enacted by the legislature itself e.g. Acts of Parliament.
This is also known asDirect Legislation.

ii. Delegated legislation means rules or laws laid down by a body or person to whom the legislature
has delegated power to make such rules e.g. regulations laid down by a Minister under power
given to him by an Act of Parliament. This also known as Indirect Legislation.

Delegated legislation comes into being when Parliament confers on persons or bodies,
particularly ministers in charge of government departments, power to make regulations for
specified purposes. Such regulations have the same legal force as the Act under which they are
made. Local Councils are delegated to make rules and regulations, known as ‘By-laws’ whose
operation is restricted to the locality to which they apply.

The Functions of Acts of Parliament

i. Law reform. Relatively few statutes are concerned with changing substantive rules of law. Where
such change does take place it often follows from an unpopular decision of the Supreme Court, or
on a recommendation of the Law Commission.

ii. Consolidation. Where existing legislation is gathered into one Act this is known as
consolidation.

iii. Codification. This takes place when all the law on a topic (both case and statute law) is included
in one Act.

iv. Revenue Collection. The annual Finance Acts which implement the budget proposals are the main
revenue collection statutes.

v. Special legislation. These Acts are concerned with the day-to-day running of society, for example
the RENT ACT 1974.

An Act will come into force on the day on which it receives the Royal Assent, unless some other date is
specified in the Act itself. It will cease to have effect only when it is repealed by another Act.

The Superiority of Legislation

The rationale for the supremacy of legislation is that the will of elected representatives should prevail
over that of appointed judges. The evidence for its supremacy may be summarized in three statements:

a) No court may question the validity of an Act of Parliament.

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 In CHENEY v CONN (1968) the claimant objected to his tax assessment under the FINANCE ACT
1964 because the government was spending part of the tax collected on making nuclear weapons. He
alleged that this was contrary to the GENERAL CONVENTIONS ACT 1957 and in conflict with
international law. The court, however, held that the 1964 Act gave clear authority to collect the taxes
and being more recent it prevailed over the 1957 Act. It was said ‘It is not for the court to say that a
parliamentary enactment,the highest law in this country, is illegal.’

b) An Act of Parliament may expressly or impliedly repeal an earlier statute.

In VAUX-HALL ESTATES v LIVERPOOL CORPORATION ACT (1932) if compensation for
compulsory purchase were assessed under an Act of 1919 the claimant would receive £2370, whereas
if it were assessed under an Act of 1925 they would only receive £1133. Furthermore the 1919 Act
provided that any Act inconsistent with it would have no effect. It was held that this provision did not
apply to subsequent Acts, i.e. Parliament cannot bind its successors. The 1925 Act impliedly repeals
the 1919 Act so far as it was inconsistent with it, and the claimants therefore received £1133.

c) A statute may be passed to vary or revoke the common law or even to retrospectively reverse a
judicial decision. THE WAR DAMAGE ACT 1965 operated to remove vested rights to
compensation from the Crown and was controversially expressed to apply to proceedings commenced
before the Act came into force. It thus reversed the decision of the House of Lords in BURMAH OIL
v LORD ADVOCATE (1965).

Interpretation of Statutes

Since Parliament is the sovereign legislative body, the courts cannot challenge the validity of an Act of
Parliament. But they can influence the effect of the Act by the way in which they interpret it when called
upon to apply it in a case.

Rule governing interpretation of statutes

There are three differing approaches to the problem of interpretation and are as follows.

a) The Literal Rule

Where the words of a statute are clear and unambiguous “you must follow them, even though they
lead to absurdity. The court has nothing to do with the question of whether the legislature has
committed an absurdity”: per Lord Esher. Thus if the words are clear, no “interpretation” as can take
place.

Fisher v. Bell (1960)

A shopkeeper displayed in the shop a flick knife with a price ticket, and was prosecuted for offering
for sale an offensive weapon contrary to the Restriction of Offensive Weapons Act (1959). The
Divisional Court said the phrase “offer for sale” was taken literally, in accordance with its meaning in
contract law, and that D’s display of the weapon was no more than an invitation to treat. This

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 interpretation made the relevant section of the statute almost wholly useless but was consistent with
strict approach commonly adopted towards penal provisions.

Wallwark v Giles (1970)

In one of the early cases under the new breathalyzer laws, D was charged with failing to give a
sample of breath when required to do so by ‘a constable in uniform’. The magistrates acquitted
evidence that the constable had not been wearing a helmet at the time and so was not ‘in uniform’, but
the Divisional Court remitted the case with a direction to convict. Parliament had clearly intended
only that the constable should be recognizable as such.

b) The Golden Rule

The Golden Rule says that if the literal rule produces an absurdity, the court should look for another
meaning of the words that avoids the absurdity result.

In RIVER WEAR COMMISSIONERS V. ADAMS (1877) as involving that “we take the whole statute
together, and construe it altogether, giving the words their ordinary meaning” unless to do so would
result in “some inconsistency, absurdity, inconvenience or repugnance” the natural meaning is
therefore preferred, but this rule enables the courts to depart from this occasionally.

In SIGSWORTH (1935) the golden rule was applied to prevent a murderer from inheriting on the
intestacy of his victim although he was, as her son, her only heir on a literal interpretation of the
ADMINISTRATION OF ESTATES ACT 1925.
c) The Mischief Rule
The mischief rule requires the court to take into account the gap in the law that the statute was
intended to fill, and interpret it to “suppress the mischief” Parliament intended to remedy.

Elliott v Grey (1959)

A man ‘A’ appealed against his conviction for using a motor car on a road without a valid insurance
policy, contrary to s.35(1) of the Road Traffic Act 1930. The car was parked outside A’s house; it had
broken down some months before, the engine would not work, and there was no petrol in the tank. A
had therefore cancelled his insurance, but said (and it was accepted) he would have renewed it before
driving the car again. The Divisional Court affirmed his conviction: Lord Parker CJ said the mischief
was the protection of third parties, so “use” should be taken to mean “have the use of”. Quite apart
from the fact that another vehicle had collided with the stationary car,; it was on a hill and could have
rolled away if someone had let the brake off.

Fisher v. Bell (1960)

A shopkeeper displayed in the a flick knife with a price ticket, and was prosecuted for offering for
sale an offensive weapon contrary to the Restriction of Offensive Weapons Act (1959). The
Divisional Court said the phrase “offer for sale” was taken literally, in accordance with its meaning in
contract law, and that D’s display of the weapon was no more than an invitation to treat. This
interpretation made the relevant section of the statute almost wholly useless but was consistent with
strict approach commonly adopted towards penal provisions.

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 Where the Act is passed to remedy a mischief the court must adopt the interpretation which will have
the effect of remedying the mischief in question. For example, the AFFLIATION OF
PROCEEDINGS ACT (1957) refers to a ‘single woman’.

This has been interpreted to include not only unmarried women, but any woman with no husband to
support her, because the mischief which the Act was passed to remedy was the possibility of a woman
having an illegitimate child with no means of supporting it.

General Rules and Principles of Interpretation

Whenever the courts are concerned with to give their interpretation to a statute, they observe the
following principles; this is, of course, unnecessary where the literal rule can be followed.

a) The courts must always and only attempt to ascertain, and give effect to the intention of Parliament.

b) The courts may not look into the “background” of a statute (travaux preparatoires) to assist them;
they cannot, therefore, refer to Parliamentary debates, though in order to establish the mischief the
statute seeks to remedy, they may look at such things as reports of commissions, like the Law
Commission: BLACK CLAWSON v PAPIERWERKE (1975).

c) Penal statutes should be interpreted favourably to persons accused of crimes so as not to conflict with
their common-law rights.

d) A major constitutional change, or a major change in the common law, can be effected only by clear
and positive words; in the absence of such words, the courts will presume that no such change is
intended.

e) Words should be added or subtracted no more than is absolutely necessary.

f) Ambiguities as to particular words may be resolved by the following rules of construction:

i. Ejusdem generis: where a number of words, all of similar meaning, are followed by one of
doubtful meaning, then that word should be interpreted as having a similar meaning to the others.
Example: “No tradesman, artificer, workman, labourer or other person whosoever.” Held in
GREGORY v FEARN (1953) that an estate agent was not included, as being different from
“workmen, labourers etc.

ii. Expressio unius est exclusio alterius:the mention of one word in itself rules out a contrary
meaning.
Example: It is an offence to have an unlicensed motor-vehicle; clearly any vehicle which is
propelled other than by a motor is not included.

Advantages of Delegated Legislation

a) It saves time of Parliament, allowing Parliament to concentrate on discussing matters of general

policy.
b) It can be brought into existence swiftly, enabling ministers to deal with urgent situations, such as a
strike in an essential industry.
c) It enables experts to deal with local or technical matters.

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d) It provides flexibility, in that regulations can be added to or modified from time to time without the
necessity for a new Act of Parliament.

Disadvantages of Delegated Legislation

a) Law-making is taken out of direct control of elected representatives and is placed in the hands of
employees of government departments. This is in theory less democratic.
b) Parliament does not have enough time to effectively supervise delegated legislation or discuss the
merits of the rules being created.
c) A vast amount of law i.e. created, statutory instruments outnumbering by far the amount of Acts
passed each year.

Control of Delegated Legislation

a) Judicial control. If a minister or government department or local authority exceeds its delegated
power its action would be held by the courts to be ultra vires (beyond the powers of) and therefore
void.

b) Parliamentary control. There are several methods of parliamentary control. Some statutory
instruments must be laid before Parliament and will cease to be operative if the House so resolves
within 40 days. Others require a vote of approval from the House. In addition there is a Joint
Committee of the House of Commons and Lords whose function is scrutinize statutory instruments
with a view to seeing whether the attention of Parliament should be drawn to the instrument on one of
a number of specified grounds, for example because the instrument is obscurely drafted, or because it
imposes a tax on the public.

The Law Commission

The Law Commission is a major agent of the law reform in England and Wales. The commission’s role is
to keep the whole of the law under review with the aim of achieving a systematic development and
reform of the law programme. Proposals for reform go to the Lord Chancellor where, if approved, go
forward as a Bill to be put before Parliament. The LAW COMMISSION ACT 2009 charges the Lord
Chancellor to prepare an annual report to be laid before Parliament on the implementation of any Law
Commission proposals.

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