A flood of light?: comments on the interpretation act 2005

AuthorSeán Patrick Donlan - And Rónán Kennedy
PositionSchool of Law, University of Limerick. B.A. (Houston), J.D. (Louisiana), Ph.D. (Dublin) - School of Law, University of Limerick. B.Comm. (N.U.I.), H.Dip.Sys.Anal. (N.U.I.), LL.B. (NUI, Galway)
Judicial Studies Institute Journal [6:1
The Interpretation Act 2005 consolidates previous
legislation and contains some new provisions inspired by a Law
Reform Commission report. These may bring about a subtle but
significant change in the methods of statutory interpretation.
However, the Act is silent on the permissibility of extrinsic aids
in interpretation, particularly parliamentary debates, traditionally
prohibited by the exclusionary rule. This should indicate that the
prohibition continues but an examination of the debates on the
2005 Act shows that the Oireachtas does not have a clear
understanding of practice in the courts.
This article considers the impact of the Act, tracing the
development of the traditional and modern approaches to
interpretation. Placing these issues in a comparative context, it
pays particular attention to the use of parliamentary history in
light of English developments, European trends and recent Irish
case law. It concludes that the Act requires the courts to take a
more purposive approach to the interpretation of legislation but
that in this instance, because the Oireachtas misunderstood
practice, their desire to permit use of parliamentary debates is not
reflected in the language of the Act.
* School of Law, University of Limerick. B.A. (Houston), J.D. (Louisiana),
Ph.D. (Dublin).
School of Law, University of Limerick. B.Comm. (N.U.I.), H.Dip.Sys.Anal.
(N.U.I.), LL.B. (NUI, Galway), B.L., LL.M. (N.Y.U.). Our thanks to The Hon.
Mr. Justice Ronan Keane, Mr. Brian Hunt and our colleagues Mr. Ray Friel
and Dr. Nathan Gibbs for their helpful comments.
2006] The Interpretation Act 2005 93
A. Historical Overview
Methods of statutory interpretation in the English-speaking
world have varied considerably, against a background of diverse
views about the institutions of government.
Viewed as a whole, the canons of interpretation
represent a position taken by the judiciary on their
constitutional role in relation to those who
establish the political programme, those who have
to carry it out, and those affected by it. The
interests of these groups may well conflict, so that
the canons adopted by the judges will effect a
balance between them.1
Modern statutory construction is thus conducted on the basis of
both formal statutory rules and judicial principles and informal,
often implicit and unarticulated, assumptions.2
Judicial and legislative powers were fused for much of early
English history. Law resided in the ‘common learning’ of the Inns
and the courts. Most important for the future were the royal courts
in which a law common to the kingdom evolved. For centuries,
both judiciary and legislature were seen to declare the existing
law rather than make it.3 For the same reason, statutes were read
in light of pre-existing law, an assumption common to both
legislators and judges. Medieval legislation was broadly phrased
and both judicial and legislative reporting was limited. There
were thus few authentic texts. Over time, a “new concept of
legislation [and] a new reverence for the written text” emerged.4
1 Bell and Engle, Cross on Statutory Interpretation (3rd ed., 1995), p. 4.
2 For discussion of legal theory focusing on legislation, see Sunstein, “Norms
in Surprising Places: The Case of Statutory Interpretation” (1990) 100 Ethics
803, Waldron, “The Dignity of Legislation” (1995) 54 Maryland Law Review
633 and Wintgens (ed.), Legisprudence: A New Theoretical Approach to
Legislation (2002).
3 Like legislation itself, judicial “opinions were not sources of law, but simply
evidence as to what the law was.” Baker, An Introduction to English Legal
History (3rd ed., 1990), p. 227.
4 Baker, An Introduction to English Legal History (3rd ed., 1990), p. 237.
Judicial Studies Institute Journal [6:1
Debates about the powers of monarchy, and consequently
the legislature and judiciary, came to a head in the seventeenth
century. Common lawyers aligned themselves with parliament in
defence of the ‘ancient constitution’ against both the king and
England’s numerous other jurisdictions. With the ‘Glorious
Revolution’ and the Bill of Rights 1689 came a restored and more
limited monarchy. Although parliamentary supremacy was in the
ascendant in the eighteenth century, Blackstone continued to
articulate a theory of both unlimited parliamentary power and a
judiciary that acted as “oracles of the law”.5
The traditional methods of statutory construction are well-
known, if not always clearly differentiated. These are not strictly
speaking rules, but are rather “general principles which guide the
function of interpretation”.6 The ‘mischief rule’ was articulated as
early as the sixteenth century (in Heydon’s Case7). This involved
an analysis of existing law or social conditions to determine the
problem the statute was intended to remedy. While this would
seem to be a purposive approach necessitating a look at
parliamentary history, it was frequently used by the courts to
narrow the effect of legislation. It focused on legislative intent at
only the most general and ‘objective’ level.
Where clearly authentic, statutory text has always been
significant to judicial interpretation. The ‘literal rule’ gives the
words of the statute their literal, plain, or ordinary meaning. The
approach was important to legal certainty and honoured (at least
in appearance) the increasingly central role of parliament. The
necessary corollary was the ‘exclusionary rule’, the judicial
principle barring the use of parliamentary debates. The rule
arguably emerges from the seventeenth century and concerns
about breaching the parliamentary privilege of free speech under
5 Blackstone, Commentaries on the Laws of England: Book the First (1765), p.
6 Byrne and McCutcheon, The Irish Legal System (4th ed., 2001), p. 471.
These have been presented as consistent with HLA Hart’s ‘rules of
recognition‘ as well as Dworkin’s ‘principles’ used in his critique of Hart. Cf.
Bell and Engle, Cross on Statutory Interpretation (3rd ed., 1995), p. 42 and
Freeman, Lloyd’s Introduction to Jurisprudence (6th ed., 1994), p. 1291.
7 (1584) 3 Co. Rep. 7a; 76 E.R. 637.

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