The return of the king

“Well, what do they all amount to, these kings and captains and bishops and lawyers and such like? They just leave you in the ditch to bleed to death; and the next thing is, you meet them down there, for all the airs they give themselves.”
― George Bernard Shaw, Saint Joan.

The reign of Queen Elizabeth has ended. The reign of King Charles has begun. Tolkien embraced the concept of “heroic kingship” in his books, and Frazer, “sacrificial kingship” in The Golden Bough. But neither of those arguments explain why the majority of the people in this country support or tolerate a hereditary ruler. Indeed part of the reason why monarchy is enduringly popular in this country is because although the monarch reigns, they do not rule.

The kings were progressively defanged and declawed by the Provisions of Oxford, the Civil War, the Glorious Revolution and (arguably) the great Reform Act of 1832. The king is subject to law and you are not at practical risk any more of being taken by Royal Warrant before the Court of Star Chamber, or committed to the Tower of London to be “questioned”. Contrast the position in the hereditary absolute monarchies around the world, such as Syria or North Korea, where their kings are not bound by law.

Truly, it has been a momentous month. A new prime minister, followed by the death of the longest reigning monarch in our country’s history and a new king. Escalating war on the periphery of Europe and renewed nuclear threats. Inflation and recession. And on Friday, Truss-onomics, the lineal descendant not of Thatcherism, but rather Reaganomics leapt fully formed out of the pages of Britannia Unchained, into the real world.

If you have not read Britannia Unchained, a book authored by amongst others our new Prime Minister and Chancellor of the Exchequer, it is readily available now on Amazon’s Kindle. I read it recently, and found it short on data, and long on argument. It also struck me, that it was not promoting a genuine political argument as it seemed curiously dated, parroting many of the cliches of political debate in the 1980s, but rather was a polemic, written to raise the profile of the authors in Conservative circles.

Well how wrong I was.

The old neo-liberal agenda of massive financial transfers to the interests of capital at the expense of those who have only their labour is being implemented again, and the proletariat told that they can lie back, with their mouths open, and will surely receive some of that gorgeous trickledown wealth in due course.

Without cutting tax on corporate profits, and high earners the message runs, entrepreneurs will flee en masse from the Surrey Hills, to greener pastures overseas; abandoning their children in expensive schools in the  Home Counties and depriving Harrods of their spouses expenditure, to our general detriment. I am afraid that it will all end in tears, but the farce still has some two years yet to run.

In the meantime, all the indications are that a lot of legislation is undoubtedly going to be made, and I anticipate that some of it will impinge on civil justice system generally, and the law and practice of costs more particularly.

Which brings me at last to the topic of this post: how statutes made in Parliament are interpreted by the courts and therefore how they take effect in the real world, beyond the political pale. I wrote about this topic a couple of months ago, but recently the text of this lecture by Lord Burrows, the Supreme Court justice came to my attention: Lord Burrows Lecture on Statutory Interpretation.

As a sitting member of the final court of appeal, what he has to say on the subject is surely worthy of consideration, even if he carefully assures the reader that his views are his own and not that of the Supreme Court. The first point that he makes is that the interpretation of statute law, is probably the central task facing judges at appellate level:

In this lecture, I want to try to bring alive what is probably the most important topic in the study of statutes, namely the law on statutory interpretation. How do the courts in the modern era decide what a particular statutory provision means?

It is crucial to realise just how important, in the practice of law, statutory interpretation has become. As Justice Kirby formerly of the High Court of Australia has said, ‘[T]he construction of statutes is now, probably, the single most important aspect of legal and judicial work … This is what I, and every other judge in the countries of the world that observe the rule of law, spend most of our time doing.’ In line with this, I can confirm that, since I started on the Supreme Court in June 2020, over two thirds of the cases that I have sat on in the Supreme Court have involved some issue of legislative interpretation. In many of the cases I have been in on the Supreme Court, the decision has turned almost entirely on statutory interpretation. This was the position in, for example, TW Logistics Ltd v Essex County Council, a wonderful case on the law on town and village greens, which involved interpreting provisions in the Inclosure Act 1857, the Commons Act 1876, and the Commons Act 2006. Rittson-Thomas v Oxfordshire CC, a case on statutory trusts for schools, also turned almost entirely on statutory interpretation, in this case ss 2 and 14 of the School Sites Act 1841; and the same was also true in Kostal UK Ltd v Dunkley, concerned with offers being made directly to trade union members, undermining collective bargaining, which turned on the correct interpretation of s 145B and 145D of the Trade Union and Labour Relations (Consolidation) Act 1992. In other cases I have been involved in on the Supreme Court, statutory interpretation has been the backdrop to, or an additional point to, the application of the common law, as in Tinkler v HMRC which concerned estoppel by convention in relation to dealings between HMRC and a taxpayer.

He then discusses the various approaches to interpretation of legislation set out in the caselaw, but a real gem in the lecture is his dispassionate analysis of why the concept of Parliamentary intention is a McGuffin which lacks reality as an applicable principle, and is indeed inconsistent with other principles such as the concept that legislation is “always speaking” and may fall to be considered against a matrix of events or law, that is different from that which applied when it was originally enacted.

Ultimately therefore my first objection to the reference to Parliamentary intention is that, even if one
can identify what is here meant by intention, it is unhelpful because it offers no real practical assistance in the exercise of interpretation.

Secondly, reference to Parliamentary intention is not merely unhelpful but tends to obscure the true reasoning being adopted. In other words, without great care, it can become an obstruction to transparent reasoning. Put another way still, Parliamentary intention is often used as if it were a reason for a particular interpretation whereas it is in fact being used as a conclusion for reasoning that is otherwise left unarticulated.

So many times since I have been on the Supreme Court I have heard counsel in their submissions say that Parliament must have intended this or Parliament cannot have intended that, as if they were reasons themselves for adopting a particular interpretation. But the actual reason needs to be carefully focussed on. It may be, for example, that one interpretation rather than another leads to unreasonable or absurd consequences. But that is the good reason for adopting a particular interpretation and nothing is being added by saying that Parliament cannot have intended those consequences.

Thirdly, although not impossible, it is difficult to reconcile reliance on Parliamentary intention with the “always speaking” doctrine. As we have seen, that doctrine requires the judges to apply the best interpretation of the legal rule laid down by the statute in the light of developments since the Act was passed. This task of deciding on the best interpretation of a statute with the benefit of hindsight falls to the judges and it is, in this sense, somewhat analogous to their role in interpreting a common law precedent although the words of a statute impose important constraints on statutory interpretation that do not apply to common law precedents. A serious objection to any reference to legislative intent is that, at least at first sight, it appears to advocate an approach which favours the law’s ossification by inappropriately freezing the law in the past.

For these three reasons, I regard Justice Kirby, the Australian judge, as having been on the correct lines when he wrote in 2002, “It is unfortunately still common to see reference … to the intention of Parliament. I never use that expression now. It is potentially misleading.” Certainly since joining the Supreme Court I have tried to avoid placing any reliance on the language of Parliamentary intention. 

There are momentous changes afoot in civil costs, with a new broad regime of fixed costs about to land. The tools of statutory interpretation, will have to be sharpened by anyone working and advising in this area, as the new provisions fall to be considered and unpicked. 

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