Improving Law Quality by Interstitial Articulation

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1 F A R Bennion Website: Doc. No JPN (20 Sep 2008) Any footnotes are shown at the bottom of each page For full version of abbreviations click Abbreviations on FB s website Article in Justice of the Peace (Feature of the Week) Introductory Note by Francis Bennion 1. Since the following article was written a further case has been reported in which the court has used interstitial articulation. Or rather perhaps one should say that in this instance it has reworded the enactment. The case is R v Zafar and others [2008] EWCA Crim 184, [2008] 4 All ER 46. The enactment concerned was the Terrorism Act 2000 s. 57(1). As enacted this reads: (1) A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism. Lord Phillips of Worth Matravers CJ said (at [29]) that the provision should be interpreted as if read with the substitution, for his possession is for a purpose connected with of the words he intends it to be used for the purpose of. 2. The following article refers to the preparation of a Criminal Code by the Law Commission. It should have mentioned that the Commission have recently concluded that the project is not realistic, and have removed it from their Programme (see their Tenth Programme 2008, Law Com No 311, Page 619 Introductory Improving Law Quality by Interstitial Articulation FRANCIS BENNION It is a disgrace that we do not have laws of better quality. I am speaking not of the substance of the law but of its formal attributes. That is what I mean by law quality, and to mark my golden jubilee as a lawyer and legal reformer I have embarked on writing a book about it. This is provisionally titled Law Quality in Common Law Jurisdictions. The plan is that this new book will absorb various articles I am writing on improvement of the formal quality of law, of which the present is the second. 1 This one is about the need for greater use of what I call interstitial articulation by legal advisers, advocates and courts. I first argued for the use of this method in my book Statute Law, originally published in The method is also fully explained in Bennion on Statutory Interpretation 3. I am sorry the method has such a clumsy name, but I can t think of anything better. To articulate is to put precisely into words what is otherwise unexpressed, or expressed vaguely or diffusely. The OED 4 gives a reference to grievances which never get articulated, and also cites Carlyle s desire to articulate the dumb deep wrongs of the people. For lawyers the effort of articulating within the interstices of an enactment helps concentrate their minds and produces greater clarity of exposition. The OED defines interstice as: An intervening space (usually, empty); esp. a relatively small or narrow space, between things or the parts of a body (freq. in pl., the minute spaces between the ultimate parts of matter); a narrow opening, chink, or crevice.

2 The task is, within the spaces notionally left when an enactment is officially drafted, to add words which bring out expressly and clearly an alleged legal meaning of the enactment. It should be noted that an interstitial articulation is not concerned with improving the drafting of the enactment in question. It keeps to the official wording except so far as is needed to express clearly the legal meaning. Drafting defects which do not affect the legal meaning of the enactment, such as unnecessary repetition, should therefore be ignored. An interstitial articulation is directed solely to bringing out as clearly as possible the operative legal meaning of the enactment. This is especially useful in a case of disputed statutory interpretation where, as usually happens, each side argues for a different legal meaning in other words, where there are in question opposing constructions of the enactment. Opposing Constructions The nature of opposing constructions of an enactment is described at length in s.149 of Bennion on Statutory Interpretation. I will now give an outline of this. The usual circumstance in which a doubtful enactment falls to be construed is where the respective parties each contend for a different legal meaning of the enactment in its application to the facts of the instant case. These are referred to as the opposing constructions of the enactment. Neil MacCormick expressed the position in this way: The parties move the court for a decision in their favour supported by a particular version or reading of the law, in turn backed up by consequentialist arguments and arguments of principle. 5 In a leading case on statutory interpretation Lord Normand said: The courts are concerned with the practical business of determining a lis, and when the plaintiff puts forward one construction of an enactment and the defendant another, it is the court s business after informing itself of what I have called the legal and factual context to consider in the light of this knowledge whether the enacting words admit of both the rival constructions put forward. 6 That is only half the story. It is true that the courts are concerned with the practical business of determining a lis, that is a forensic contest between the parties in a case before it. But as respects the senior courts, they are also in the business of declaring the law in a way which will develop it for the future under the doctrine of precedent. It is true that the court will consider whether the words of the enactment in contention admit of both the rival constructions put forward. But if they do not admit of both of these the court has to go on to decide which construction is the correct one. Where a particular legal meaning favours a party, the legal adviser of the party, and then, if the matter goes to court, the party s advocate (who may be the same person), and thereafter the court itself, should express the legal meaning in specific words, if not necessarily words in all respects suitable for insertion in the enactment. In an Australian case on appeal from a tribunal, where the tribunal had decided against a literal application merely because that would have been unfair, the court held that this was not enough. The tribunal ought to have identified a construction of language, however slight Page 620 or tenuous, which could be preferred to the obvious and literal meaning 7. The art of determining precisely which is the most helpful yet plausible construction to advance to the court is an important forensic accomplishment. Reed Dickerson said: A knack for detecting the two (or more) meanings which are being confused in a disputed verbal question is of more service in reasoning than the most thorough knowledge of the moods and figures of the syllogism. 8

3 When the legal adviser, investigating a case brought in by a client, discovers that it turns on a doubtful enactment, the adviser should construct one interstitial articulation which brings out the legal meaning of the enactment favouring the client, and also another which expresses the opposing legal meaning favouring the opponent. To do this aids clarity of thought, and assists in the putting together of arguments favouring the former meaning and undermining the opposing meaning. The result is used in drawing up advice for the client. Then, if the matter goes to court, it will form the basis for the preparation of the skeleton argument which is to be presented to the court. If it is a senior court it will, in reaching its decision, perform the function known as the dynamic processing of the enactment. This may lead to the decision being regarded as a precedent for future cases. Dynamic Processing: The Judicial Processor For sound reasons, the courts have been reluctant to acknowledge their processing function in relation to legislation, since it is a function that is essentially legislative, rather than strictly judicial. However, there is considerable help in improving the clarity of the law when Judges can bring themselves openly to accept this undoubted function, and refine their technique accordingly. I am glad to see that this is happening in an increasing number of cases. How does a distinct judicial technique for processing operate? Let us begin with the case where judicial processing of the point in question has not occurred before. The Judge has a clean sheet. As soon as the Judge realizes that determination of the lis before the court requires resolution of a doubt as to the legal meaning or operation of a legislative text, he or she proceeds accordingly. With the aid of counsel in the case, the Judge makes sure that the judgment contains a passage appropriately worded for adding what is in effect a new sub-rule to the rule laid down by the enactment in question. Lord Bingham of Cornhill recently gave a striking example of interstitial articulation by the court when he spelt out a restrictive addition to the power of the Secretary of State under the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 s.19(3)(b). 9 Section 19 is directed to the practice by some would-be immigrants of entering into a marriage of convenience 10 for the purpose of facilitating their immigration into the United Kingdom. It applies to a marriage which is to be solemnized on the authority of certificates issued by a superintendent registrar under Pt. III of the Marriage Act 1949, and a party to which is subject to immigration control. Section 19(3)(b) says that the superintendent registrar:... shall not enter in the marriage notice book notice of a marriage to which [s.19] applies unless satisfied, by the provision of specified evidence, that the party subject to immigration control has the written permission of the Secretary of State to marry in the United Kingdom. It is desirable to give the exact words of Lord Bingham expanding this language. Section 19(3)(b) of the 2004 Act should be read as meaning:... has the written permission of the Secretary of State to marry in the United Kingdom [repeating the words of s.19(3)(b)] such permission not to be withheld in the case of a qualified applicant seeking to enter into a marriage which is not one of convenience and the application for, and grant of, such permission not to be subject to conditions which unreasonably inhibit exercise of the applicant s right under art. 12 of the European Convention. 11 The words I have italicized are those added by Lord Bingham. Article 12 of the European Convention on Human Rights says: Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

4 Some may criticize Lord Bingham for boldly purporting to add to, and thereby cut down the effect of, the language used by Parliament. On the contrary I respectfully applaud him for clearly setting out the juristic effect of the House of Lords decision in the case. Reasoning Out an Interstitial Articulation In preparing an interstitial articulation it is necessary to rely on reason. It is no use producing a formula which supports one s case if it cannot be upheld by convincing argument. The argument must of course be based on the recognized interpretative criteria. The starting point is always the basic rule: The basic rule of statutory interpretation is that the legislator s intention is taken to be that in any case of doubtful meaning the enactment shall be construed in accordance with the general guides to legislative intention laid down by law; and that where these conflict the problem shall be resolved by weighing and balancing the interpretative factors concerned. 12 This rule applies in every case. It is enabled to be expressed accurately and comprehensively in so few words Page 621 for one reason only: it operates referentially. In other words it can be fully understood only by a person who has studied and understood the multifarious interpretative criteria referred to, and the authorities on which they depend. Nowadays the leading interpretative criterion is purposive construction. The main argument in favour of a particular construction is likely to be that it promotes the purpose behind the enactment. Take for example the Misuse of Drugs Act 1971, s.27(1). Its purpose is to reduce the misuse of drugs so it says... the court by or before which a person is convicted of an offence under this Act... may order anything shown to the satisfaction of the court to relate to the offence to be forfeited Does this permit the forfeiture of a house? At first sight one would say yes, because a house is a thing and that reading furthers the purpose of the enactment. Here however we come up against one of the primary rules of statutory interpretation. One must always search for previous decided cases on the legal meaning of the enactment in question, otherwise known as processing of the enactment. If you do that here you find that the court has ruled that s.27(1) only covers personal property (as opposed to realty) and so does not cover real property such as a house. 14 Often the court, when finding there is a gap in an enactment, will say that it must be filled by finding an articulation that relies on implication. Thus in an employment case Lord Templeman said that in the Equal Pay Act 1970 s.1(2)(c) there must be implied in para.(c) after the word applies the words as between the woman and the man with whom she claims equality. 15 However such an implication can be found only where its presence is indicated by the interpretative criteria referred to above. One of these interpretative criteria is that Parliament is unlikely to have intended an absurdity, and one type of absurdity is impractability. 16 In a case concerning VAT Lord Denning MR said in response to an argument by counsel: I can see the force of [the argument]. It is literally correct. But it leads to such impracticable results that it is necessary to do a little adjustment so as to make the section workable. This can be done by reading in a few words, such as Bridge LJ suggested in the course of the argument. That is, after for any prescribed accounting period read in these words which is included in the notice of assessment. 17 Many more cases could be cited where Judges have suggested the addition of words in this way, but these are only a small fraction of cases where judicial articulation would have been both possible and helpful. 18

5 Helping Codification I would point out as an advantage of interstitial articulation that it aids subsequent codification of the enactment in question. One of the functions of the Law Commission is codification. It states on its web site: The Commission believes that the law would be more accessible to the citizen, and easier for the courts to understand, through a series of statutory codes. It is in fact a statutory function of the Commission to produce such codes. The Law Commissions Act 1965 s.3 says it is the duty of the Law Commission and the Scottish Law Commission to take and keep under review all the law with which they are respectively concerned with a view to its systematic development and reform, including in particular the codification of such law I was privileged to be the assistant draftsman to the late Sir Noël Hutton in drafting the Law Commissions Act Sir Noël was anxious to ensure that codification was among the functions conferred on the new body, and I shared that view. As we have seen, this was done. In the Commission s early days strenuous efforts were duly made to codify large areas of our law, but without much success 20. What is codification? I have defined it in this way: Codification consists in the useful reduction of scattered enactments and judgments on a particular topic to coherent expression within a single formulation. It may therefore condense into one Act, rules both of common law and statute. The codifying Act may also embrace custom, prerogative, and practice. 21 This condensing is a difficult operation for the legislative drafter, which is one reason why the Law Commission has not produced many codes. Brooke LJ, a former chairman of the Law Commission, said: Unhappily, because we do not have an easily accessible criminal procedure code in this country, [certain provisions] are not very easy to find, and a large number of mistakes have been made in applying the procedures. 22 The Law Commission has tried over many years to produce a Criminal Code, but has not succeeded. 23 Lord Lord Bingham of Cornhill has in various places bewailed this. I take as an example his article A Criminal Code: Must We Wait for Ever?, set out in his collection The Business of Judging 24 I propose to give some extracts from this, followed by my comments. Speaking of a draft Criminal Law Bill put forward by the Law Commission in 1994, Lord Bingham says: It has very largely withstood the appraisal and criticism to which it has been properly subjected, and has in general commanded respect and support. I respectfully dispute this statement. In an article titled The Law Commission s Criminal Law Bill: No Way to Draft a Code 25, which Lord Bingham does not mention, I subjected the draft Bill to heavy and detailed criticism. I am given to understand that it is to this criticism that the failure to enact the draft Bill is mainly due. But the code has not been enacted, not for want of confidence in its objects or its contents, but for lack of parliamentary time, a powerful but not, surely, an insuperable obstacle. Page 622 This is not the true reason. The vast majority of the Law Commission s Bills are duly passed into law. Time would have been found for the passage of a Bill of this importance were there not substantial objections to it. The Law Commission has tried, with indifferent success, to achieve what it can on a partial, piecemeal basis. But this is a far cry from a comprehensive code containing a general statement of principles, and defences, and offences, and penalties, and procedure and evidence, accessible to every citizen.

6 The first sentence refers to the individual criminal law Bills which, in default of obtaining enactment of its Criminal Code, the Commission has been forced to produce instead from time to time. As Lord Bingham would know if he had read my article, the second sentence is not in any way an accurate description of the draft Bill. Furthermore I simply do not understand how a man of Lord Bingham s learning and experience of the law can seriously believe that any criminal code that correctly reproduced the British criminal law of the 21st century could genuinely be accessible to every citizen, that is safely comprehensible by non-lawyers without legal assistance. The arguments in favour of codification are what they have always been. First, it would bring clarity and accessibility to the law.... Secondly, a code would bring coherence to this branch of the law.... Thirdly, a code would bring greater certainty to the law.... All these things might be true of a criminal code that was perfectly drafted. As my article shows, they are certainly not true of the Law Commission s draft Bill. If Judges who in the past have decided contested points of interpretation in criminal enactments had used the system of interstitial articulation in their judgments the Law Commission s task of codification would have been much easier. That reflects a wider complaint I have about the Law Commission s way of carrying out its statutory duty to codify. Following publication of my article titled The Law Commission s Criminal Law Bill: No Way to Draft a Code, referred to above, I received a letter of protest from the secretary of the Law Commission, Mr M. H. Collon. He pointed out that the draft Bill had been widely circulated in Consultation Paper No.122 and added regarding the points I had raised: These policy questions were considered with great care, by a very wide range of commentators, in the debate that was evoked by Consultation Paper No.122: a debate in which... you unfortunately chose not to take part. The Commission s recommendations on these and other points follow the weight of opinion expressed to it. I acknowledge that it was unfortunate that through pressure of other work I was unable to take part in the debate at the stage Mr Collon mentions. However, as my article says, most of the views expressed in it had been available for some years in the published sources specified. The salient point is that the Law Commission have never thought fit to carry out an investigation, such as it seems obvious needed to be done at an early stage, into the best method of carrying out their statutory duty of codification. I am not aware that any experts on techniques of codification entered into the debate Mr Collon mentioned. One vital methodology question, which should have been investigated exhaustively before the Law Commission embarked on any codification, is this. Into how much detail should a code go? The Ten Commandments say Thou shalt not kill, which is plainly insufficient. The Code Napoléon enacted the whole law of tort in two sentences: Any act whatsoever by a man that causes damage to another obliges the person at fault to make good the damage. Everyone is responsible for the damage he causes not only by his act but also by his negligence or imprudence. This is insufficient for common law drafters because it leaves far too much to the Judge s discretion. It seems that this important question was not examined by the Law Commission, and so they began their difficult task on the wrong foot. Francis Bennion is an author, constitutional lawyer and draftsman of state constitutions. A former UK Parliamentary Counsel and member of the Oxford University Law Faculty, he is currently a Research Associate of the Oxford University Centre for Socio-Legal Studies. 1 The first article is Multilex and Monolex: Aspects of Law Quality, to be published in the next issue of the Commonwealth Law Journal. 2 The last edition was the third, published by Longman as Bennion on Statute Law in For the text of the book see www. francisbennion.com/1990/002.htm.

7 3 LexisNexis Butterworths, 5th edn, See index entries under interstitial articulation. 4 Second edition, Neil MacCormick, Legal Reasoning and Legal Theory (1994) Oxford Clarendon Press, p A-G v. Prince Ernest Augustus of Hanover [1957] AC 436 at Secretary, Department of Social Security v. Clear (1991) 23 ALD 22 at Materials on Legal Drafting (1981) West Publishing, p R (on the application of Baiai and another v. Secretary of State for the Home Department (Nos 1 and 2) [2008] UKHL 53, [2008] 3 All ER 1094, at [32]. 10 Described as a sham marriage by the Immigration and Asylum Act 1999: see s.24(5). 11 My italics 12 Bennion on Statutory Interpretation, section My italics. 14 R. v. Beard (Graham) [1974] 1 WLR Pickstone v. Freemans plc [1989] AC 66 at Bennion on Statutory Interpretation, s S J Grange Ltd v. Customs and Excise Comrs [1979] 2 All ER 91 at For interesting discussions between Judge and counsel as to what words might properly be treated as inserted in an enactment see R (on the application of B) v. Chief Adjudication Officer [1998] EWCA Civ and R (on the application of Zenovics) v. Secretary of State for the Home Department [2002] EWCA Civ 273 at para My italics. 20 See my account in G. Zellick (ed.), The Law Commission and Law Reform (Sweet & Maxwell, 1988) pp , 21 Bennion on Statutory Interpretation, p R. v. St Helens Justices ex parte Jones [1999] 2 All ER 73 at See F. A. R. Bennion, The technique of codification [1986] Crim. LR 295, 24 OUP 2000, pp [1994] Stat LR 108, See the riposte by Professor Sir John Smith QC in 16 Stat LR 105.