6.3 The relationship between making, interpreting and applying rules
Although the processes of making, interpreting and applying rules can be explored separately, as we have done in this course, it is important to realise that they are all part of one larger process. A new rule is often made because the interpretation and application of an existing rule does not solve the problems which that rule now has to confront. In turn, that new rule may be drafted in such a way that its interpretation leads to consequences that were unintended by the rule-maker, and the process has to start all over again.
To remind ourselves of the relationship between making, interpreting and applying rules, the last activity in this course brings all these processes together. Think about what you have learned from the course as a whole as you read the passage which forms the basis for the activity, and try to answer the questions on it without referring back to the material you have read. The purpose of this activity is to provide you with an opportunity to explore the ways in which the meaning of a rule develops, from its initial formulation through to its application and interpretation.
Box 7 The Smoking in a Public Place (Prohibition) Act
The Government's Department of Health wants to introduce a law which makes it a criminal offence to smoke in a public place. It formulates a simple policy:
STAGE A The Government believes that, in the interests of public health, smoking in public places should be a criminal offence. It believes that the term ‘public places’ should be understood as restrictively as possible, so as to ensure that people are not turned into criminals unless there is good reason.
This policy is then translated into legislative drafting instructions by lawyers in the Department. These instructions read as follows:
STAGE B Instructions to Counsel
Draft a new offence which makes it a criminal offence to smoke in a public place.
Draft the offence so that it is clear that ‘smoking’ includes the smoking of cigarettes, cigars and pipes.
Draft the offence so that the term ‘public place’ will be interpreted restrictively.
Those instructions are then sent to Parliamentary Counsel, whose job it is to translate them into a Bill. They come up with the following:
STAGE C The Smoking in Public Places (Prohibition) Act
It shall be a criminal offence to smoke in a public place.
In this Act ‘smoking’ shall include, but not be limited to, the smoking of
In this Act ‘public place’ means a place to which the public have access as of right.
STAGE D When the Bill is introduced in the House of Commons the
Secretary of State for Health sets out the purpose of the Bill in the following terms:
… Mr Speaker, this Government is committed to improving the health of the nation. To that end, we have brought forward a Bill which will go a long way to achieving this most important of objectives. The Bill is a simple one. It makes it a criminal offence to smoke in a public place – any public place. It will not be possible for a person to claim, as some Honourable and Right Honourable Members opposite have asserted, that he or she was not in a public place if people are in that place as of right, as members of the general public …
There follow a number of stages, during which MPs and Peers debate the Bill. Some of them object to, and some support, the new offence. During one of the debates, an MP who opposes the Bill asks the following question, and receives a reply from the Minister for Public Health (Note that the Secretary of State for Health and the Minister for Public Health are different people):
STAGE E The Hon. John Pereira MP: Mr Speaker, when the Secretary of State introduced this rotten Bill he made it clear that only those smoking in a place to which the public have access as of right will commit an offence. Will the Minister confirm that this is his understanding too?
The Minister for Public Health: Yes, Mr Speaker, I can confirm that those smoking in places to which the public ordinarily have access will commit a criminal offence.
STAGE F The Bill completes all its legislative stages, receives Royal Assent and becomes an Act of Parliament. The wording of the Act is identical to that of the Bill. On the day it comes into force, the Act becomes law which can be enforced. It is now up to the police to enforce the law. Let us suppose that a week after the rule comes into force, the police are called to the Roxy cinema. There has been a complaint by the cinema owner about Fred, who has been smoking in the foyer. The police are satisfied that Fred has committed the offence, charge him and pass the file to the Crown Prosecution Service (CPS). They review the case, are satisfied that the offence has been committed, and draw up the indictment against Fred.
STAGE G Fred appears at the Crown Court, where he pleads Not Guilty. Although he admits to smoking, he says that there were no notices saying that smoking was prohibited and, more importantly, he contends that the cinema foyer was not a public place within the meaning of the Act. He did not therefore commit any offence. The prosecuting lawyer puts the opposite case. He says that the phrase ‘public place’ must be given its ordinary meaning, and that a cinema foyer is such a place. After receiving directions on the law from the judge, the jury retire to consider their verdict. They find that the offence has been proved and return a verdict of Guilty.
STAGE H Fred seeks leave to appeal, on the basis that the judge misdirected the jury about the law. Leave to appeal is granted. Eventually, after one unsuccessful appeal in the Court of Appeal, his appeal is heard by the Judicial Committee of the House of Lords. The members of that Committee (the Lords of Appeal in Ordinary, or ‘the Law Lords’) listen to arguments on both sides and agree with those put forward by Fred's barrister. In the leading judgment, Lord Smith explains the decision as follows:
‘The meaning of the term ‘public place’ is at the heart of this appeal. Although we were impressed by the arguments put forward by counsel for the Crown, we cannot accept that the meaning of ‘public place’ is one which includes a cinema foyer. A cinema is private property, access to which is subject to the permission of the cinema owner. That owner is at liberty to prevent a person from entering the cinema, or to require a person to leave. Even if a person is permitted to enter, it is clear that he remains there subject to any conditions which the owner wishes to impose. All this leads me to conclude that a cinema, and – as a matter of inexorable logic – its foyer, is not a place to which the public have access as of right within the meaning of the Act. A street would be, as would open countryside. But the Roxy cinema is neither of these. The appeal is therefore allowed.’
As the result of Fred's appeal, his conviction is overturned.
Activity 8 The Smoking in a Public Place (Prohibition) Act
Read the piece in Box 7 about the making, interpretation and application of a fictional rule, similar to the one introduced in Ireland which we looked at earlier in the course.
What values would you associate with the government's policy on smoking? (Stage A)
Do you think that the instructions to counsel to ensure that the meaning of ‘public place’ is interpreted restrictively (Stage B) have been taken on board in the draft Bill? (Stage C) Give reasons for your answer.
Do you think that the Secretary of State for Health accurately describes the meaning of ‘public place’ when he introduces the Bill? (Stage D) Give reasons for your answer.
Does John Pereira MP get a straight answer to his question from the Minister for Public Health? (Stage E)
On what basis do you think the police are satisfied that Fred has committed an offence? (Stage F)
On the basis of the wording of the Act, do you think it would be relevant for the court to consider the fact that there is no notice in the cinema prohibiting smoking? (Stage Gv)
Do you think that Lord Smith has given effect (a) to the meaning of the Act; and (b) to the Government's intentions in introducing the Act? (Stage H)
Do you think Lord Smith has adopted a literal interpretation of the Act, or one which tries to avoid absurdity? (Stage H)
Can you think how changing the wording of section 3 of the Act would have enabled Lord Smith to reach the opposite conclusion, and what that change might be? (Hint: there is a clue elsewhere in the Act) (Stage C)
Throughout the passage you have just read, a number of people and institutions have been involved in making, interpreting and applying the rule. Fill in the table (attached as a pdf below) by marking the different processes they are engaged in:
Table 1 (PDF, 1 page, 0.4MB).
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The policy could be said to express the value of security, insofar as that concerns the physical safety of the community. It could also be said to restrict the liberty of people who smoke, because it limits where they may smoke, and their autonomy (the right to make their own decisions about the way they behave).
Arguably not. The draft Bill defines a ‘public place’ as a place to which the public have access as of right. This is not a restrictive definition – on the contrary, it would appear to be a very broad one.
Arguably not. The Secretary of State's reply is contradictory. He explains first that ‘public place’ means ‘any public place’, whereas the language of the Bill qualifies the term as one meaning a place to which the public have access as of right (which might be thought to limit the meaning in some way). The Minister makes this point towards the end of his speech, but it is impossible to say – given the contradiction – what he actually understands by the term.
No. The Minister introduces a new definition of ‘public place’ as one to which the public ‘ordinarily have access’. This may not be the same thing as a place to which the public have access ‘as of right’.
They are presumably satisfied (a) that Fred was smoking and (b) that he was smoking in a public place (on the basis that the foyer of the cinema is a place to which the public have access as of right).
No. The Act does not provide a defence of any kind on this basis. If Fred was smoking, and if he was smoking in a public place, then the absence of a notice makes no difference to whether the offence is committed.
As to (a), arguably yes. Lord Smith has given reasons why, in his opinion, a cinema foyer is not a place to which the public have ‘access as of right’, and so cannot be treated as a public place for the purposes of the Act. As to (b), arguably no. We saw that the Government, through the Secretary of State and the Minister, had rather different understandings of what ‘public place’ meant. The Secretary of State suggested that ‘public place’ meant any public place (which might be interpreted to include a cinema foyer since that is somewhere in which the public congregate), and the Minister suggested that it meant a place ‘to which the public ordinarily have access’, which could be interpreted in the same way.
Lord Smith has adopted a literal approach – he has looked at the plain meaning of the words in the Act.
If the ‘means’ were changed to ‘shall include, but not be limited to’ (as in Clause 2), then it would have been possible for Lord Smith to conclude that the range of places which should be treated as public places could include a cinema foyer. The use of the word ‘means’ limits the meaning, whereas the change in wording would have expanded it.
Your complete table should look like this:
Table 2 (PDF, 1 page, 0.4MB).
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If you thought that the Department lawyers and Parliamentary Counsel had also interpreted the rule, that would be wrong because you cannot interpret a rule which has not yet become one! (They are involved in interpreting the policy.)