Modern Statutory Interpretation

* Lord Justice of Appeal, Court of Appeal of England and Wales. This article is based on the text of a lecture delivered at the Society of Legal Scholars Conference at St Catherine’s College, Oxford, in September 2016.

Cite

Rt Hon Lord Justice Sales, Modern Statutory Interpretation, Statute Law Review, Volume 38, Issue 2, June 2017, Pages 125–132, https://doi.org/10.1093/slr/hmw041

Extract

Most of the law which the courts are called on to apply is statutory. Yet statutory interpretation languishes as a subject of study. For the most part, law students are expected to pick it up by a sort of process of osmosis. It is more fun and engaging to study cases, as vignettes of real life. So the common law and common law method win out.

However, in many ways, modern statutory interpretation has become closer to common law method. By common law method, I mean the familiar process of extrapolation of underlying principles and values from disparate sources, with a view to identifying the particular rule to apply to the case in hand. In the last 40 years or so, the courts have used this sort of method in their approach to statutory interpretation both more widely and with increasing depth of effect. The words of a statute are taken as the starting point for analysis, rather than the start and finish. In some respects, they are not even the starting point, because the court goes through a process of orientation by reference to the context and subject matter of the statute to set a framework within which the words are to be read. Nonetheless, for the courts the words continue to be of critical importance. The final outcome has to be compatible with the language used and it controls the exercise of interpretation, even if often only in a relatively loose sense. How should one understand this process?