Maunsell v Olins
[1975] AC 373(Judgment by: Lord Simon Of Glaisdale) Court:
Judges:
Lord Reid
Viscount Dilhorne
Lord Wilberforce
Lord Diplock
Lord Simon of Glaisdale
Judgment date: 27 November 1974
Judgment by:
Lord Simon Of Glaisdale
My Lords, the following speech has been prepared in collaboration with my noble and learned friend, Lord Diplock. It expresses the opinion which we share. The appeal turns on a very short point of construction--namely, the meaning of 'premises' in s 18(5) of the Rent Act 1968. In our judgment 'premises' there means 'the subject-matter of the letting referred to' (ie the superior tenancy). We would therefore allow the appeal.
Ordinarily, on an issue of statutory construction--where certainty in the law is most important--we would not have ventured in a dissenting judgment beyond this point. But there seems to be difficulty in agreeing on the proper interpretation of 'premises' in s 18(5); and a number of issues of statutory construction of general importance are in question, on which we feel we would be remiss not to express an opinion.
1. The 'golden' rule of construction
What Maxwell on Interpretation of Statutes [F3] calls 'the first and most elementary rule of construction'--
'is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and otherwise in their ordinary meaning.'
This 'golden' canon of construction has been so frequently and authoritatively stated that further citation would be otiose. It is sometimes put that, in statutes dealing with ordinary people in their everyday lives, the language is presumed to be used in its primary ordinary sense, unless this stultifies the purpose of the statute, or otherwise produces some injustice, absurdity, anomaly or contradiction, in which case some secondary ordinary sense may be preferred, so as to obviate the injustice, absurdity, anomaly or contradiction, or fulfil the purpose of the statute: while, in statutes dealing with technical matters, words which are capable of both bearing an ordinary meaning and being terms of art in the technical matter of the legislation will presumptively bear their primary meaning as such terms of art (or, if they must necessarily be modified, some secondary meaning as terms of art).
This is true as far as it goes, and it is sufficient to dispose of this appeal. If these are the two alternatives, the Rent Act 1968 deals with legal technicalities of leasehold tenure on which ordinary citizens consult their lawyers, rather than with everyday affairs; so that 'premises' must be construed presumptively in the primary sense which it bears as a term of art (ie the subject-matter of the habendum clause of a lease: Whitley v Stumbles ( [1930] 544 AC at 546); Bracey v Read ). But, in fact, these two statutory situations--dealing with ordinary people in their everyday lives, on the one hand, and dealing with technical branches of the law, on the other--are only two extreme situations. Statutory language, like all language, is capable of an almost infinite gradation of 'register'--ie it will be used at the semantic level appropriate to the subject-matter and to the audience addressed (the man in the street, lawyers, merchants, etc). It is the duty of a court of construction to tune in to such register and so to interpret the statutory language as to give to it the primary meaning which is appropriate in that register (unless it is clear that some other meaning must be given in order to carry out the statutory purpose or to avoid injustice, anomaly, absurdity or contradiction). In other words, statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances.
It is essential that this 'golden' rule is adhered to. An English court of construction must put itself in the place of the draftsman, and ascertain the meaning of the words used in the light of all the circumstances known by the draftsman--especially the 'mischief' which is the subject-matter of the statutory remedy. But an English court of construction cannot look at the parliamentary proceedings in order to ascertain whether the meaning thus identified of the statutory language is what the legislature meant to say. The canons of construction--including, first and foremost, the 'golden' rule--constitute a code of communication between the draftsman and the court of construction. Observing the code on his side, the draftsman will use language in such a way that its meaning represents what Parliament means to say; and it is only by observance of the code by the court on its own side that a divergence can be avoided between its interpretation of what the words mean from what Parliament meant to say.
The subject-matter of the legislation under your Lordships' instant consideration provides an example of what we mean by language having various 'registers'. In popular parlance 'landlord' can mean 'innkeeper'--indeed, even 'lessee from a brewery'. But in ordinary legal parlance, which is, we think, the appropriate register of language in legislation dealing with rent restriction and security of leasehold tenure, 'landlord' presumptively means 'lessor', and it would take a good deal to displace the presumption. Similarly, in popular parlance 'premises' can mean 'building'. But in ordinary legal parlance 'premises' means 'the subject-matter of a letting'. Or, even higher in the register, if the Rent Act 1968 is considered as dealing with legal technicalities, 'premises' presumptively bears its most ordinary meaning as a term of art--namely, the subject-matter of the habendum clause of the relevant lease.
2. Construction of consolidation Acts
Consolidation is not nowadays limited to mere re-enactment. Under a procedure recommended by the Law Commissions in 1965 under the Law Commissions Act of that year, even substantial amendments may be made in the pre-existing law, where such are deemed by the Law Commissions to be desirable in order to secure satisfactory consolidation. Such amendments are subject to full and traditional parliamentary control. But, even short of this, by the Consolidation of Enactments (Procedure) Act 1949, ss 1(1) and 2, a consolidation Act may embody such corrections and minor improvements as are confined to, and may be judged expedient with a view to--
'resolving ambiguities, removing doubts, bringing obsolete provisions into conformity with modern practice, or removing unnecessary provisions or anomalies which are not of substantial importance, and amendments designed to facilitate improvement in the form or manner in which the law is stated [including] any transitional provisions which may be necessary in consequence of such amendments ... '
Moreover, the very purpose of consolidation is to enact a compendious code standing on its own and making it unnecessary to scrutinize the consolidated legislation (which is, indeed, repealed in a schedule to the consolidation Act). For all these reasons it is, in our respectful submission, an incorrect approach to the construction of a consolidation Act (even one limited to re-enactment) to try to interpret it by reference to the repealed statutes which are consolidated.
It has been generally accepted in the past that there is a presumption that Parliament does not intend by a consolidation Act to alter the pre-existing law (see Maxwell [F4] ; Beswick v Beswick ( [1967] 2 All ER 1197 at 1202, [1968] 58 AC at 73)). How for this rule may need modification in the case of some types of consolidation under the 1949 Act or of consolidation under the 1965 procedure, and how the courts should inform themselves of the manner in which Parliament has proceeded, may have to be considered in some future case. But in any event such a presumption has no scope for operation where the actual words of the consolidation Act are not, as a matter of legal language, capable of bearing more than one meaning. The docked tail must not be allowed to wag the dog. It is only where the actual words used in the consolidation Act are ambiguous (in the sense of being fairly susceptible of bearing more than one meaning in their context and register) that recourse may be had to any difference in phraseology of the corresponding provision in the repealed enactment as an aid to their construction. Even in such a case the corresponding provision of the repealed enactment is capable of being an aid to the construction of the consolidation Act only if its own wording is unambiguous and its sole meaning is one of those which the words in the consolidation Act an fairly bear.
3. The use of the 'mischief' rule
It was suggested on behalf of the plaintiff that s 41 of the Housing Repairs and Rents Act 1954 was enacted to abrogate the decision in Cow v Casey so that its substantial re-enactment as s 18(5) of the Rent Act 1968 should be construed as if limited to dealing with Cow v Casey , thus giving a special colour to the word 'premises'. But, even were your Lordships concerned with construing s 41 of the 1954 Act and not s 18(5) of the 1968 Act, there is no such canon of construction as that suggested on behalf of the respondent. It is turning the rule in Heydon's case ((1584) 3 Co Rep 7a) on its head. The barons of the exchequer there resolved that, in construing an Act of Parliament, you identify the 'mischief' which the statute seeks to remedy (ie in modern parlance, the statutory objective), and so construe the statute that it advances the remedy and suppresses the mischief (ie in modern parlance, in construing the statute you bear its objective in mind). It is, in other words, a positive and not a negative canon of construction; it enjoins a liberal, and not a restrictive, approach. For a court of construction to constrain statutory language which has a primary natural meaning appropriate in its context so as to give it an artificial meaning which is appropriate only to remedy the mischief which is conceived to have occasioned the statutory provision is to proceed unsupported by principle, inconsonant with authority and oblivious of the actual practice of parliamentary draftsmen. Once a mischief has been drawn to the attention of the draftsman he will consider whether any concomitant mischiefs should be dealt with as a necessary corollary. What happened as a result of Cartledge v Jopling provides an example. Your Lordships there held, drawing attention to the injustice, that, under the then existing law of limitation, a cause of action for personal injuries based on the negligence of an employer was barred notwithstanding that the plaintiff, though knowing of the defendant's breach of duty, did not know, and could not reasonably know, by the expiry of six years from the accrual of his cause of action, that he had suffered injury as a result of that breach of duty. When Parliament came (in the Limitation Act 1963) to remedy this injustice, it is clear that the draftsman immediately considered two situations which were corollaries and which it would therefore be anomalous not to remedy at the same time--namely, first, where the plaintiff, though knowing that he had suffered injury, did not know, and could not reasonably know, that it was caused by breach of duty on the part of the defendant and, secondly, where the plaintiff knew that he had suffered some injury as a result of the defendant's breach of duty, but did not know, and could not reasonably know, that it was a serious injury. All the members of your Lordships' House who heard the appeal in Central Asbestos Co Ltd v Dodd were agreed that the draftsmen had gone at least as far as this beyond remedying the mischief of Cartledge v Jopling : the difference of opinion was as to whether the draftsman had gone further still. In other words, the mischief which was identified in Cartledge v Jopling can be recognised as the occasion for the remedy afforded by the Limitation Act 1963, but did not define the limit of the remedy which was provided.
It follows that there is no resumption that, when an Act of Parliament is amended by a subsequent Act which has the effect of rendering inapplicable previous decisions of courts of law as to the meaning of the legislation prior to the amendment, the intention of Parliament was confined to making no more extensive alteration in the law than was necessary to render those decisions inapplicable. The most that can be said is that it may be a natural, though irrelevant, inference that it was those decisions that originally attracted Parliament's attention to the need for some amendment to the legislation.
It is true that there have been pronouncements favouring a presumption in statutory construction against a change in the common law: see Maxwell [F5] . Indeed, the concept has sometimes been (possibly without advertence) in the form that there is a presumption against change in the law pre-existing the statute which falls for construction. So widely and crudely stated, it is difficult to discern any reason for such a rule--whether constitutional, juridical or pragmatic. We are inclined to think that it may have evolved through a distillation of forensic experience of the way Parliament proceeded at a time when conservatism alternated with a radicalism which had a strong ideological attachment to the common law. However valid this particular aspect of the forensic experience may have been in the past, its force may be questioned in these days of statutory activism. No doubt where, in a statute whose primary purpose manifested by its provisions taken as a whole is to effect reforms in a limited field of law, there appear in a particular provision general words which are capable as a matter of language of applying outside that limited field of law as well as within it, it may be reasonable to presume that Parliament intended them to apply in that limited field of law only. And no doubt, too, it is reasonable to look for plain words where the abrogation of a long-standing rule of law is in question. This absolves us from the necessity of any further discussion of the matter in the instant appeal. Whatever subsisting scope any canon of construction may have, whereby there is a presumption against change of the common law, it is clearly a secondary canon (see the way it was put by our noble and learned friend, Lord Reid, in Chertsey Urban District Council v Mixnam's Properties Ltd ( [1964] 2 All ER 627 at 631, [1965] 735 AC at 751)--of assistance to resolve any doubt which remains after the application of 'the first and most elementary rule of construction', that statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances. Moreover, even at the stage when it may be invoked to resolve a doubt, any canon of construction against invasion of the common law may have to compete with other secondary canons. English law has not yet fixed any hierarchy amongst the secondary canons: indeed, which is to have paramountcy in any particular case is likely to depend on all the circumstances of the particular case.
The rule in Heydon's case itself is sometimes stated as a primary canon of construction, sometimes as secondary (ie available in the case of an ambiguity): cf Maxwell on Interpretation of Statutes [F6] with Craies on Statute Law [F7] . We think that the explanation of this is that the rule is available at two stages. The first task of a court of construction is to put itself in the shoes of the draftsman--to consider what knowledge he had and, importantly, what statutory objective he had--if only as a guide to the linguistic register. Here is the first consideration of the 'mischief'. Being thus placed in the shoes of the draftsman, the court proceeds to ascertain the meaning of the statutory language. In this task 'the first and most elementary rule of construction' is to consider the plain and primary meaning, in their appropriate register, of the words used. If there is no such plain meaning (ie if there is an ambiguity), a number of secondary canons are available to resolve it. Of these one of the most important is the rule in Heydon's case. Here, then, may be a second consideration of the 'mischief'.
In the instant case, however, we ourselves find no reason to resort to any secondary canon.
4. The meaning of 'premises' in s 18(5)
We have seen no advantage in discussing the various meaning that have been canvassed for 'premises', alternative to what we regard as its primary and true meaning in its context. We therefore content ourselves with stating why we find unacceptable the meaning which counsel for the plaintiff finally settled for--namely, 'a building used predominantly for residential purposes'. In the first place, this is not a natural meaning of 'premises', either in a popular or technical context, or in any intermediate register. It therefore involves rewriting the subsection--quite unnecessarily and inadmissibly. In the second place, in our respectful opinion, it produces absurdity and anomaly. Why should Parliament wish to protect a sub-tenant of a flat in a block containing 40 per cent office accommodation and 60 per cent residential accommodation, but not a sub-tenant where the percentages are reversed? The case provides a striking example of how disregard of 'the first and most elementary rule of construction' can lead to the ascription of a parliamentary vagary. Appeal dismissed .