The Law That Broke The Camel's Back... Brexit and Statutory Interpretation

Before Parliament was prorogued, MPs from across the House passed the European Union (Withdrawal) (No. 2) Act 2019, which requires the Prime Minister to request an extension to the art.50 deadline in order to prevent a 'no deal' Brexit.

Interestingly, there have been rumours that the government is seeking to challenge this law in court, interpret it as broadly as possible, or ignore it entirely. Foreign Secretary Dominic Raab has been reported as saying he will "test to the limit" this new legislation in order to ensure that the UK leaves the EU by the October 31st deadline, as reported by the Daily Mail. 

But how can you test legislation? Dicey wrote that an Act of Parliament, validly passed, cannot be brought into question in any court, but that still allows our judges to interpret legislation, even perhaps to the extent of ignoring its main purpose. 

There are three main different types of statutory interpretation: Literal, 'The Golden Rule', and Purposive. Let's deal with these all in turn, and explore how they can be used in relation to a no deal Brexit. 

Literal

This does what it says on the tin: it looks at the letter of the law and assumes that Parliament meant what it wrote down. There is no need to look at any contextual factors, but simply to read the statute, and apply the common meaning of the words written down. In a literal sense, the Act in question cannot be read to be a suggestion or an advisement, but it clearly states that "The Prime Minister must seek to obtain from the European Council an extension" if a deal is not made by a certain date. Raab is going to have a tough time arguing Parliament wrote down anything else. 

An interesting case which took a literal approach to statutory interpretation relates to Jaffa Cakes, and whether they are cakes or biscuits. Under VAT laws, chocolate-covered biscuits are covered by tax, but chocolate-covered cakes are not. Therefore United Biscuits (the producers of the product) sought to argue that Jaffa Cakes are, indeed, cakes, and thus are exempt from VAT. The judges, quite literally, sought to uncover what constitutes a 'cake' and determine whether Jaffa Cakes fit that description. In any event, they did. Whilst Jaffa Cakes are marketed, packaged, and sold like biscuits, their ingredients and properties are more similar to cakes, and thus were exempt from VAT. 

If Dominic Raab could somehow convince a court that the Act was referring to something quite different from the UK's exit from the EU, I'd give him a chance, but I wouldn't bet on it. 

The Golden Rule

The Golden Rule refers to looking at statutes as a whole - what does the Act mean? The statute must be read as a whole, not word-by-word like a 'literal' judge would, and then judged on its entirety. Words must be given their common meaning, not necessarily their dictionary definition, and the judgments must reflect this. 

HOWEVER... if the judgment reached by this method causes an inconvenience, an inconsistency, or an absurdity (in the words of Lord Blackburn), then the Court may then take liberties to reach a more common-sense conclusion. 

This is where Raab has a chance. If the Court was to judge that the Act preventing a no deal Brexit caused an 'inconvenience', an 'inconsistency' or an 'absurdity' then the Act has the potential to be ignored. Is it inconvenient to prevent no deal? Brexiteers and the government would argue yes. Is it inconsistent to prevent no deal? Parliament has voted numerous times to uphold the results of the 2016 Brexit referendum, and the government has spent the past 3 years doing exactly that, so it is arguably inconsistent for Parliament to then turn around and say that no deal is off the table, isn't it? Finally, is it absurd to prevent no deal? Economists, main-stream politicians, and the general public would argue that it is not, whereas Boris Johnson and Nigel Farage would declare that is is the height of absurdity. 

These questions are for political discourse, not judicial debate. In legal terms, it is not inconvenient, not inconsistent, and not absurd to prevent a no-deal Brexit, and I simply cannot see a way a court would rule any other way. 

Purposive

The purposive approach, to me, is the most sensible method of legal interpretation. It involves looking at what the purpose of the law was - and in this case, it was to prevent the UK leaving the EU without a deal. 

The important thing to remember with this approach is that it looks at to what Parliament intended, not you or I. For instance, the case of DPP v Bull... 

• The Street Offences Act 1959 s.1(1) set out that "it shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purposes of prostitution." The issue in this case was whether a man could be a 'common prostitute'. Mann LJ looked at what led Parliament to make this law, and discovered it was as a result of a recommendation found in the dark depths of a Report of the Departmental Committee on Homosexual Offences and Prostitution, which left Mann in no doubt that the committee was only talking about female prostitutes, and thus there was no way a man could be considered to be a common prostitute by these standards. In the words of Mann himself: the Act intended to remedy "a mischief created by women."

I don't particularly agree with Mann's judgment, nor the sexist recommendations of a committee, and I would advise any aspiring male prostitutes out there to not be disheartened by his words: in my eyes, you are just as much a prostitute as any female prostitute. However, his reasoning is clear, and he certainly did what Parliament intended: stopped women from being prostitutes.

With this approach, Raab would have his work cut out for him in arguing that Parliament did not intend to prevent a no deal Brexit.

To sum up:

• Under the literal approach, Raab has no hope in interpreting the Act to deliver a no deal. 
• Under the Golden Rule approach, Raab has some tenuous legal standing if the court is feeling particularly political that day. 
• Under the purposive approach, Raab, once again, is on the losing side. 

Better luck next time, Dominic.

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