Legal skills and debates in Scotland
Legal skills and debates in Scotland

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Legal skills and debates in Scotland

3.1  The literal rule 

Under this rule the judge considers what the legislation actually says, rather than what it might mean. In order to achieve this, the judge will give the words in the Act a literal meaning, that is, their plain ordinary everyday meaning, even if the effect of this is to produce what might be considered as an otherwise unjust or undesirable outcome.

The literal rule says that the intention of Parliament is best found in the ordinary and natural meaning of the words used. As the legislative democratic part of the state, Parliament must be taken to want to effect exactly what it says in its laws. If judges are permitted to give a non-obvious or non-literal meaning to the words of parliamentary law, then the will of Parliament, and thereby the will of the people, is being contradicted.

Lord Diplock once noted:

Where the meaning of the statutory words is plain and unambiguous it is not then for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they consider the consequences for doing so would be inexpedient, or even unjust or immoral.

Duport Steels Ltd and others v Sirs and others [1980] 1 All ER 529

Box 7 Example of the literal rule: Fisher v Bell [1960] 3 All ER 731

Fisher v Bell [1960] 3 All ER 731. The Restriction of Offensive Weapons Act 1959 made it an offence to offer for sale certain offensive weapons including flick knives. James Bell, a Bristol shopkeeper, displayed a weapon of this type in his shop window in the arcade at Broadmead. The Divisional Court held that he could not be convicted because, giving the words in the statute a tight literal meaning, Mr Bell had not offered the knives for sale. In the law of contract, placing something in a shop window is not technically an offer for sale; it is merely an invitation to treat. It is the customer who makes an offer to the shop when he proffers money for an item on sale. The court upheld that under the literal meaning of offer, the shopkeeper had not made an offer to sell and so was not guilty of the offence.

Note: The UK Parliament subsequently changed the law to make it clear that displaying a flick knife in a shop window was an offence.

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