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

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3.4  Criticisms and reviews

As mentioned earlier there have been a number of reviews in relation to the interpretation and drafting of legislation. Some of these (the Renton Committee 1975) helped to inform the general interpretation Acts of the Scottish (Interpretation and Legislative Reform (Scotland) 2010) and UK Parliaments (Interpretation Act 1978 and its predecessor the Interpretation Act 1889). Others have been partially implemented whilst the observations of some remain relevant today. Box 9 contains some of the observations made in a 1969 report.

Box 10 Observations of the Scottish Law Commission and Law Commission 1969

It is evident that a programme of law reform, which must necessarily use the instrument of legislation, depends for its successful realisation on the interpretation given by the courts to the enactments in which the programme is embodied. The rules of statutory interpretation, although individually reasonably clear, are often difficult to apply, particularly where they appear to conflict with one another and when their hierarchy of importance is not clearly established. The difficulty which faces the courts may be enhanced by present limitations on the means, other than reference to the actual text of the statute, for ascertaining the intention of the legislature.

It is self-evident that in order to understand a statute a court has to take into account many matters which are not to be found within the statute itself. Legislation is not made in a vacuum, and a judge in interpreting it is able to take judicial notice of much information relating to legal, social, economic and other aspects of the society in which the statute is to operate. We do not think it would serve a useful purpose to attempt to provide comprehensive legislative directives as to these factors. […]

The Law Commission and The Scottish Law Commission (LAW COM. No. 21) (SCOT. LAW COM. No. 11) THE INTERPRETATION OF STATUTES.

Take a few moments and reflect on the literal rule you learnt about earlier. Think about what this rule indicates about the relationship between Parliament and the judiciary. Some criticism is made about the way in which the rules of interpretation are used. The judiciary is interpreting the meaning of Parliament. In doing so some commentators believe that the judiciary is usurping the role of Parliament. You explore the relationship between Parliament and the judiciary in later weeks.

The literal rule constitutionally respects the right of Parliament to make any laws it wishes no matter how absurd they may seem. However, the judiciary has tended to overemphasise the literal meaning of statutory provisions without giving due weight to their meaning in a wider context. The use of this rule can sometimes lead to absurdities and loopholes which can be exploited by an unmeritorious pursuer.