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Burrows, John F --- "Statutes and the Ordinary Person" [2003] WkoLawRw 1; (2003) 11 Waikato Law Review 1

THE HARKNESS HENRY LECTURE

STATUTES AND THE ORDINARY PERSON

BY JOHN F BURROWS[*]

Everyone is deemed to know the law. It would be good if ordinary members of the community could consult the law that affects them, and understand it, particularly if it imposes duties on them. If they cannot understand that law they do not know what their conduct should be unless someone explains it to them. If the law is obscure, there is a risk that they might lose respect for it.

Today most of our law is contained in statutes. So our question becomes: how far is it possible for an ordinary person to read a statute and understand his or her rights and obligations?

Some say it will never be possible. Bennion, whose large tome on Statutory Interpretation is a bible on the subject, is vehement. He describes the view that statutes should be understandable by the ordinary person as facile, and as pandering to an impossible dream.[1] The ordinary person, he believes, will always need legal advice.

It is this subject I wish to explore.

Let me first settle what I mean by “an ordinary person”. Lord Evershed quoting Shakespeare once described an ordinary man as a man “base, common and popular”.[2] That seems a little harsh. I will define my ordinary person as a person who

is not a lawyer;

is of reasonable intelligence and education;

is not a practised reader of statutes; and

has a real interest in knowing what a particular statute says.

(Some non-lawyers are practised readers of statutes. You probably have in your university administrators who are very familiar with the education legislation, the Official Information Act, the Privacy Act and so on).

Obviously statutes are not all of the same kind. They form a spectrum. We may exclude from our discussion those at one end of the spectrum which are obviously directed to a specialist audience. Some of these are pure lawyer’s law – statutes on trusts, taxation and property, for instance. They use terms like “estate”, “fee simple”, and “beneficiary”, which are legal terms of art. There can be no better example than the Perpetuities Act 1964. Other statutes at this top end are directed at different types of specialist audience. A good example is the Cadastral Survey Act 2002. The ordinary person will know at first sight that such Acts are not for him or her.

At the other end of the scale, however, there are many statutes which are not specialist and not what we might describe as lawyer’s law. They lay down requirements which have to be met by ordinary people, particularly in their employment. There is nothing conceptually mysterious about them. In some ways they can be regarded as laying down administrative rather than legal requirements. For example, if one is involved in a child-care centre, one needs in the day-to-day operation of the centre to be familiar with the Education (Early Childhood) Regulations 1998. Those manufacturing or selling food need to know the requirements of the Food (Safety) Regulations 2002. A landlord should at least have a working knowledge of the requirements of the Residential Tenancies Act 1986. An employer, whether of a large or small staff, needs to know something about the requirements of the Employments Relations Act 2000. The question is whether it is realistic to expect such people to acquire a copy of the necessary legislation, read it, and understand what is expected of them.

It is a fact that such Acts are indeed purchased and presumably read by many people. Parliamentary Counsel Office keeps a list which it describes as its “best seller list”. At the top of that list for 2002 was the Code of ACC Claimants’ Rights which sold a staggering 6,047 copies. The Education (Early Childhood Centres) Regulations, then four years old, sold almost 2,000 copies. The Employment Relations Act 2000, although by this time three years old, sold over 2,000 copies.

This is evidence that we live in a compliant society. People are anxious to do things according to law.

But let us now come to the important question. When the ordinary person acquires a statute of this kind, does he or she understand it? Until relatively recently the answer would have been that he or she would not have a hope of doing so. In times past, statutes were not a good read. In the late nineteenth Century, Grove J said:

The language of statutes is peculiar ... and not always that which a rigid grammarian would use.[3]

Let me go back in history. In very early times in Britain, many statutes were drafted by the judges. Their language was brief, and was described as being rather loose. But in the late fifteenth century it appears that the drafting of statutes was handed over to conveyancers, presumably because it was felt that they had acquired the necessary skills in drafting deeds. But the product that emerged from these people could only be described as unsatisfactory. If we look at a statute from the time of Henry VIII we find it contains almost laughably long sentences containing excessive detail, much repetition, many words which add nothing to the sense, and awkward grammar. It is alarming to find that, centuries later, even in New Zealand, little had changed. The Customs Ordinance 1841 (NZ) was even worse than the examples from Henry’s time. It had one sentence of over 700 words. As late as 1957 the Charitable Trusts Act (NZ), which is still in force and used today, contained many of the same problems. Its section 3 contains over 200 words. Moreover, many of these relatively modern Acts contain the antiquated language of years gone by, and add a further complexity of frequent cross-referencing which means that a provision is meaningless on its own and has to be read in conjunction with provisions elsewhere in the Act. The Holidays Act 1981, of substantial interest to the ordinary person, is a good example.

It is interesting to speculate today exactly why this style was thought to be necessary. There is probably a combination of reasons. In the old days drafters were paid by the page: not exactly an incentive to be brief. The transition of the language of the law from French and Latin to English led to many romance words being retained in the law and to much coupling of romance and English words (“goods and chattels”, “will and testament”, for example). Particularly after 1688, parliamentary supremacy added another dimension: Parliament wished to make it clear that it was the law maker and felt it desirable to spell out its requirements in considerable detail. And finally - and I think in some ways this was the most important factor - it has been said that drafters needed to make their statutes as “judge-proof” as possible. It is well known that in early times judges construed statutes unsympathetically.[4] Judges regarded many of the statutes as unnecessarily intrusive into the rights of individuals and thus interpreted them as narrowly as possible so that they would do the least possible damage. That kind of judicial attitude invited drafters to spell things out in even more detail.

When it is asked who these drafters were drafting for – in other words who their audience was – the answer, I believe, is no-one. The drafter’s job was to get it down on paper as precisely and comprehensively as possible leaving it to others to explain to the audience what it was all about. Thus drafting was not seen as a type of communication at all. The results were obvious. The readers of statute were a privileged elite – the legal profession. They alone had the key, and understanding such language became a skill for which one needed legal training. The language of statutes rendered them inaccessible to the ordinary person. The language was often derided, even laughed at; judges sometimes expressed the hope that one day statute law might be able to be brought closer to the people. Lord Coleridge once said of an Electoral Act that “it is of the last importance that it should be easily comprehensible by the mass of ordinary voters”.[5] Mackinnon LJ said of certain Rent Acts that “the horrors of these Acts are hastening many judges to a premature grave”.[6]

During the twentieth century there was gradual improvement, which really accelerated in the middle 1990s. Since that time there has been a sea-change in drafting practice in New Zealand. We must thank the Law Commission and Parliamentary Counsel Office for the efforts they have made to achieve it. There is no doubt that these days the communication aspect of statutes has emerged as important, and there is now a desire to make the language of statutes intelligible to the widest possible audience. (I concede there are some doubts as to exactly who this audience is, but it includes at least the “ordinary person” as I have defined him or her). A page of a modern statute looks totally different from its predecessors. Sentences are shorter; where they need to be longer than usual they are usually paragraphed to separate their constituent elements; there are no wasted words; the language is more user-friendly and the statute as a whole is better organised. There are new aids to interpretation too, such as tables (as in the succession rules in the Administration Act), examples (as in the Personal Property Securities Act) and “overview” sections summarising the principles of the Act in clear language.

These advances are to be commended.

But is it now the case that the ordinary person can read many of these statutes and clearly understand what they require him or her to do? Often yes, I think. I believe that anyone could read the Education (Early Childhood Centre) Regulations 1998 and get a clear picture of what is required.

That is not say that there are not some pitfalls.

Firstly, there is a risk that the ordinary person may not find all the legislation which is relevant to the topic under consideration. Reading the Education (Early Childhood Centre) Regulations 1998, one could be forgiven for thinking that they were exhaustive of the subject. They lay down a list of requirements which looks comprehensive enough. That is not the case. The Buildings Act 1991 lays down requirements about disabled access to such Centres; the Fire Service Act 1975 lays down requirements about evacuation procedures. The 1998 regulations do, in fact, briefly cross-refer to those provisions, so at least the reader has them flagged for consideration. But that is not so of other requirements. The Education Act 1989, for example, lays down such important rules as that the Centre must have a Charter, and some basic rules for the treatment of young children (for example corporal punishment is not allowed). And the Health (Immunisation) Regulations 1995, which are not mentioned in our 1998 Regulations at all, lay down very important requirements about keeping immunisation registers for the children attending such a Centre. Not many statutes in our system are self-contained codes. It is the case in our system, as in most others in the English-speaking world, that sometimes relevant law is hidden in strangely inaccessible places. A seller of books, for example, probably would have heard of the Consumer Guarantees Act 1993 and the Sale of Goods Act 1908, but may well not know that there are important rules in the Mercantile Law Act 1908 about selling books, such as encyclopaedias, by instalment. The new electronic statutes no doubt help in searching these matters but not all ordinary readers will know of them and may indeed find the information provided confusing. Our bookseller, for example, if he or she searches on the Status website, will find the term “books” used in 752 provisions of Acts and 133 provisions of Regulations.

Secondly, all statutes, being part of the wider legal system, are liable to have links to other parts of that system. To understand a statute properly one may sometimes need to know more than is visible from the printed page of that statute. Thus, the Interpretation Act 1999, the handbook for interpreting all statutes, will probably be a closed book to our ordinary person. In a huge majority of cases that is not going to matter much because, all in all, the Interpretation Act makes little difference to the interpretation of statutes. But sometimes it could matter. Our Early Childhood Regulations, for example, require that “written notice” of certain requirements be given. The Interpretation Act makes it clear that that can include electronic communication. Those regulations also refer to the “person responsible” for carrying out certain obligations. We as lawyers know from the Interpretation Act that that can include a company. In some situations the New Zealand Bill of Rights Act 1990 can also have implications for interpreting other legislation. More than that, some apparently simple modern provisions have brought baggage with them from a former life. They may be a new plain language version of an older much more complex provision; they may have a common law background; or they may contain words and concepts which have been much interpreted by judges over the years. In such cases, words which may seem plain to the ordinary reader may not mean quite what he or she thinks they do. To take one example from our Early Childhood Regulations, they impose a requirement of “consultation” in certain situations. “Consultation” is a word which has been the subject of much judicial interpretation. Some such words are shrouded in layers of precedent. I think that particular care is needed with employment legislation: it is not for nothing that we have a specialist Employment Court and lawyers who specialise in employment law.

These impediments may sound significant, and sometimes no doubt they are, but I do not wish to exaggerate them. In the great majority of cases our ordinary person can still get a very good picture of what is required of him or her simply from reading the plain language of these new statutes. After one reading he or she will take away a reasonably good understanding of the principles.

But a third problem creates more difficulty, not just for the ordinary person but often also for the lawyer advising him or her. However simply something is drafted it will often still require interpretation. While plain drafting will usually make the meaning of a provision clear, it will not always give a clear answer on how that meaning applies to a problem case. There is, in other words, a distinction between meaning and application. This is because (i) words are not precise in the way that mathematical symbols are, and have an aura of vagueness at their boundaries; and (ii) no drafter can ever foresee or provide for everything that is going to happen in the future. So a provision which seems crystal clear when one reads it in the abstract can suddenly collapse into doubt when one tries to apply it to get an answer to a problem. I always like the example in Claytons’ case.[7] The transport legislation contains an apparently simple provision that, if one’s licence has been suspended, one cannot “drive a motor vehicle”. Anyone on reading that can understand what it means. But what of a person like Clayton, who was seen in a car in the passenger seat with his hand on the steering wheel assisting his wife who was in the driver’s seat? Is he “driving”? (The answer is yes, apparently). Our admirably clear Childhood Centre Regulations could give rise to such problems in virtually every regulation. For example, Regulation 40 provides:

The parent or guardian has a right of entry to the Centre whenever the child is there... [with certain exceptions]

The parent or guardian and those running the Centre will immediately understand that principle. But imagine the following questions. To what parts of the Centre does the parent or guardian have access? How long can the parent or guardian stay – all day every day? And indeed, what is a parent – does this include the birth mother of an adopted child? Does “guardian” include a grandmother who is looking after the child for a week while the parents are away? The answer to none of those questions is as crystal clear as the short principle might lead one to believe at first sight. Over the years statutory provisions have thrown up some remarkable questions. Is a live goldfish an article?[8] Is a sweet container a toy?[9] Does the term “imitation fire arm” include a real gun?[10] (The answer to the last two of these questions is “yes” by the way, the answer to the first is “no”). In other words, you cannot capture all of life’s vagaries and possibilities in a verbal formula, and that is so whether the style of drafting adopted is plain or obscure. Generally speaking, the modern plain drafting is shorter than its earlier equivalent (although this is not inevitable), and because it contains less detail may be more susceptible to this sort of problem. In the history of our law some of the shortest statutory provisions have caused the most litigation.

So if our ordinary person does not know the answer to a question of this kind, he or she may end up having to seek advice from a lawyer. The lawyer initially will probably not know the answer either, but will better know the interpretive methods that have to be employed to find one.

Please do not misunderstand me. I am not denigrating plain English drafting. Far from it: I am a very strong supporter of it. It enables an ordinary person to understand principle and to get a picture of what is required far more than was ever possible in the old days. And it will often provide a very clear answer to the problem. However, as we have seen it is not, and could not be expected to be, a panacea for all our problems.

There has never been a statute that did not sometimes require interpretation. In a case where a statute needs interpretation it may end up in court, and what the court says will be decisive. Judges have the final word on what a statute means and how it applies. In 1975, Lord Wilberforce said:

This legislation is given legal effect upon subjects by virtue of judicial decision, and it is the function of the courts to say what the application of the words used to particular cases or individuals are to be. This power which has been devolved upon the judges from the earliest of times is an essential part of the constitutional process by which subjects are brought under the rule of law – as distinct from the rule of the King or the rule of Parliament; and it would be a degradation of that process if the Courts were to be merely a reflecting mirror of what some other interpretation agency might say.[11]

But will the interpretation which the court accords the statute be in line with what our ordinary person might expect? If the court produces an answer which the ordinary person would regard as distinctly odd, that person’s confidence may suffer a setback. The law will again seem shrouded in mystery. Thus, the English and Scottish Law Commissions once said:

The intelligibility of statutes from the point of view of ordinary citizens or their advisers cannot in fact be disassociated from the rules of interpretation followed by the courts. For the ability to understand a statute depends in the ultimate analysis on intelligent anticipation of the way in which it would be interpreted by the courts.[12]

So, then, are our rules of interpretation developing in accordance with the ordinary person’s expectations? My answer to that is a mixed one.

In some ways the answer is yes. For example, in these days headings, sub headings and section headings can be used in the interpretative process.[13] That did not used to be so.[14] Headings, and other indications on the printed page, are a critical part of how our ordinary person understands a statute.

There are also judicial statements that if a statute uses ordinary words the judge should usually not attempt to paraphrase them or give them a legal definition.[15] The judge should simply ask in each case what the ordinary meaning is and how it applies to the facts.

There is also an increasing tendency today to give statutes deriving from the past their most modern meaning. If, for example, an Act or its predecessor was passed in 1950, the court may well ask what it means today, as read through 2003 eyes, rather than what it meant when it was enacted fifty years ago. That question has come to the fore recently in a group of cases in England which had to interpret the term “family” in a statute which gives security to a member of a tenant’s family who is living with that tenant when he or she dies. Does the word “family” include an unmarried partner, whether of the same sex or the opposite sex”? The Act in question was passed in the 1920s and there is no doubt that in those days the answer would have been “no”. Even in 1949 the English Court of Appeal still gave that answer.[16] But now in the twenty-first century the House of Lords has said “yes”.[17] These days the culture has changed, attitudes have changed, and most people reading the Act would think that “family” includes a stable de-facto relationship. The ordinary person would approve of that because, when he or she reads this 1920s Act, he or she reads it through twenty-first century spectacles. He or she knows nothing about the origins of the Act, and probably will not be interested in opinions held about it by those members of the original Parliament which passed it. The ordinary person reads the Act as if it was speaking to him or her at this very moment. Indeed one of the judges in the Court of Appeal which had to consider the provision put it in precisely that way:

Would an ordinary person addressing his mind to the question of whether the defendant was a member of the family have answered “yes” or “no”?[18]

I should perhaps point out that in the most recent House of Lords case, Lord Nicholls said that he did not find that question particularly helpful.[19] It is the judge who must answer the question, and a judge is not the typical ordinary person.

I must also say that cases of this kind, which are growing in number, pose some real questions for any theory of interpretation. Can the meaning of words in a statute really change from time to time, or is it rather that the meaning stays the same but the application broadens? Can you, and should you, detach the meaning given by a modern reader from the intention of the Parliament which originally passed the Act? What does that do to any theory of parliamentary sovereignty? And, in any event, should judges really be changing the law in this way; is the matter not rather one for Parliament?

While those trends of interpretation may be said to recognise the ordinary person, there are others which sometimes may not. I hark back to Lord Wilberforce. It is the judges who say how statutes apply to the community. If in interpreting statutes they take into account factors in addition to ordinary meaning, this may from time to time result in interpretations which are out of line with the ordinary person’s understanding and expectation.

First, these days purposive interpretation is the order of the day. Acts are interpreted to give effect to the purpose they were passed to achieve. In a modern state where legislation is one of the main instruments of government policy that is inevitable. But does enthusiastic execution of the purposive approach ever result in an interpretation of words which the ordinary person would find extraordinary? Possibly so. Bennion has no doubt of it. He has said:

There are very many modern cases where courts have attached meanings to enactments which by no stretch of the imagination could be called meanings the words are grammatically capable of bearing.[20]

Thus, “toy” includes a sweet container;[21] a dead kiwi is “protected wildlife” which is defined as “an animal living in the wild”;[22] industrial “plant” includes a horse.[23] Extreme examples of the purposive approach of this kind do render the law less predictable, less certain, and less accessible to the ordinary person. The ordinary person will be inclined to say “I thought I understood this Act, I now find I don’t”. How important you regard this dissonance as being depends on how you balance the factors of certainty, predictability and accessibility against the importance of realising the purpose of the statute and the social desirability of the result the court has reached. If we think that from time to time an extreme interpretation serves the common good, we will be inclined to excuse a little jiggery-pokery with the words, whatever the ordinary person may think about it.

There is a second development too, which is closely related to the purposive approach. It is the increasing resort by counsel and courts to extrinsic materials to interpret statutes. They include parliamentary materials (Hansard, select committee reports and explanatory notes to bills); reports of the Law Commission and other law reform committees; and treaties, both domestic and international. In principle, this is a good thing; the more one reads around any document the better one is likely to understand it.

But the problem is that the ordinary person reading a statute will usually have at hand only the statute itself. He or she may not know that the other material exists, and, even if he or she does know, might have trouble getting access to it. (For example, some of the reports of the old Law Reform Committees are as rare as hens’ teeth these days). So one faces the difficulty that the ordinary person and the courts begin the interpretation exercise on a playing field which is not level. That will only be problematic if, as a result of reading the extrinsic materials, the court places an interpretation on the statutory words which no ordinary person would think they would bear. It is not often that that happens, but sometimes it might. I would draw your attention, for example, to Frucor Beverages Ltd v Rio Beverages Ltd[24] where, crudely (and probably unfairly) put, the Court of Appeal might be said to have preferred an explanatory note to a bill over the words of the statute. And in another case[25] qualifications were notionally read into a statute to square it with an international treaty. I think it is probably fair to say that no person reading the Act alone in those cases would place the meaning on it that the court did.

Nevertheless, in mitigation I would say that in both cases justice was done, and in both of them the statute involved was one the ordinary person would not regard as directed to him or her. Both, in other words, were specialist statutes. Nevertheless, the tendency they exhibit would, if taken too far, be a matter of concern.

It is very plain that the House of Lords is becoming impatient with the overuse of extrinsic materials, particularly Hansard. In Robinson v Secretary of State for Northern Ireland, Lord Hoffmann drew into his argument none other than our friend the ordinary person:

I am not sure that it is sufficiently understood that it will be very rare indeed for an Act of Parliament to be construed by the Courts as meaning something different from what it would be understood to mean by a member of the public ... who was not privy to what had been said by individual members (including Ministers) during the debates in one or other House of Parliament.[26]

Let me conclude. There are undoubtedly some traps for the ordinary person in reading statutes, however plainly they may be drafted. Nor will a reading of those statutes automatically solve all that person’s problems. But there is no doubt that plain drafting brings the law much closer to the ordinary person. He or she gets from it a better understanding, and a clearer picture of his or her rights and obligations than was ever possible before. Lawyers should be grateful, too, in that plain drafting renders statutes more accessible to them as well. It would be of concern if the courts, in interpreting such legislation, departed too far from the ordinary person’s understanding in too many cases or for anything other than the most worthy cause.

[*] Professor of Law, University of Canterbury, Christchurch.

[1] Bennion, F A R Statutory Interpretation (4th ed 2002) 686.

[2] Langdon v Horton [1951] 1 KB 666 at 669.

[3] Lyons v Tucker [1881] UKLawRpKQB 30; (1881) 6 QBD 660, 664.

[4] According to Harlan Stone they treated statutes as “an alien intruder in the house of the common law”: (1936) 50 HLR 4, 15. It made one think, said Pollock, that “Parliament generally changes the law for the worse”: Essays in Jurisprudence and Ethics (1882) 85.

[5] Knill v Towse [1889] UKLawRpKQB 207; (1889) 24 QBD 186, 195.

[6] (1946) 62 LQR 34.

[7] R v Clayton [1973] 2 NZLR 211.

[8] Daly v Cannon [1954] 1 WLR 261.

[9] Commerce Commission v Myriad Marketing Ltd (2001) 7 NZBLC 103404.

[10] (2001) 159 CCC (3d) 319.

[11] Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg A/G [1975] UKHL 2; [1975] AC 591, 629.

[12] The Interpretation of Statutes (1969) 3.

[13] Interpretation Act 1999, s 5(2)(3).

[14] Acts Interpretation Act 1924, s 5(f)(g).

[15] Taylor Bros Ltd v Taylors Group Ltd [1988] 2 NZLR 1, 39.

[16] Gammans v Ekins [1950] 2 KB 328.

[17] Fitzpatrick v Sterling Housing Ltd [2001] 1 AC 27. See also Dyson Holdings Ltd v Fox [1975] EWCA Civ 8; [1976] QB 503.

[18] Cohen LJ, cited in Fitzpatrick, ibid, at 59.

[19] Fitzpatrick, ibid, at 45.

[20] Understanding Common Law Legislation (2001) 42-43.

[21] Supra note 9.

[22] Police v Johnson [1991] 3 NZLR 211.

[23] Mentioned by Lord Wilberforce in IRC v Scottish and Newcastle Breweries [1982] 1 WLR 322, 324.

[24] [2001] 2 NZLR 604.

[25] Sellers v Maritime Safety Inspector [1998] NZCA 248; [1999] 2 NZLR 44.

[26] [2002] UKHL 32.