Literally? Finding the plain meaning of legislation

In our latest blog, Cormac Hickey considers the bane of a budding law students’ early career, statutory interpretation. In this educative piece, Mr Hickey details the fundamentals of the primary device in statutory interpretation – the literal approach. Against this backdrop, Mr Hickey traces the impact of recent developments in the law of statutory interpretation.

Cormac Hickey is a graduate of UCC (BCL (Law and French)) and the University of Edinburgh (LLM(r)), and a current BL candidate at the Honorable Society of King’s Inns.

Introduction

One of the first, and most boring, topics I covered as an undergraduate student in UCC dovetailed nicely with one of the most fiendishly complicated topics that came up in my final year exams: statutory interpretation. In an increasingly codified common law world, it is ever more essential for lawyers to have a strong grasp of the principles of statutory interpretation as this is the key to unlock success in a swelling number of cases.

But one basic principle of the exercise has been examined a number of times in recent Supreme Court case law: the literal approach. The primary task of the Court in interpreting a statutory provision is to give effect to the will of the Oireachtas, and the literal approach is the first device used in this exercise.[1] But what does the literal approach entail? [2]

Literally?

The adjective has of course been diluted in ordinary speech – we use literally as a term of emphasis rather than precision – but this concept is not as clear-cut as pedants would wish to believe. The idea that a literal meaning, or the ‘plain, ordinary meaning’ as it is frequently referred to in the case law is nothing but the meaning of the words free of any exterior influence is plainly wrong. As Oliver Wendell Holmes pointed out over a century ago, cases are decided not by general propositions but by intuitions or judgments more subtle and internal.[3] To follow this statement to its logical end, this would mean that our own intuitions and judgments feed into our understandings of statutory provisions. Therefore, one judge’s interpretation of the plain meaning of a legislative enactment may differ immensely from another judge’s understanding of the self-same words – guided solely by their own pre-conceptions and experiences. So what to do?

In order to avoid the worst effects of the horror scenario in which judicial interpretation of a plain, ordinary meaning varies from day to day and from judge to judge, practitioners have sought to revert to isolated dictionary definitions of terms, which are then pieced together to produce what is said to be the literal meaning of the enactment. While this approach owes much to the deconstruction approach favoured by Jacques Derrida[4] – of isolating the meaning of each individual word in a sentence and then piecing these meanings together – which has tormented Law & French students seemingly since the beginning of time, it skews too far the other way from Holmes’s concern of judges importing their own pre-conceptions into cases.

And, in the light of such Derrida-esque arguments being pursued with vigour through the courts, the Supreme Court has had the opportunity to consider what the literal approach actually entails, with the result that this crucial tool in unlocking the meaning of an Act has been sharpened.

Recent Developments

Beginning two years ago, the Supreme Court has considered the meaning of the literal test in a handful of cases which have slipped somewhat under the radar, being overshadowed by weighty judgments on the definition and scope of the family under the Constitution,[5] the defence of provocation,[6] and the duty of care in negligence,[7] to cite just three.

In Dunnes Stores v Revenue Commissioners,[8] McKechnie J cited a number of earlier cases in concluding that ‘a provision should be construed in context having regard to the purpose and scheme of the Act as a whole, and in a manner which gives effect to what is intended’.[9] Further, the Court held that, even where a literal approach is available, if this is absurd or fails to give effect to the purpose of the Act, the Court will decline to apply it.[10]

In the same sphere of taxation, the Court had the opportunity to reconsider the meaning of a literal interpretation a year later, in Bookfinders v Revenue Commissioners.[11] In this case, the appellant – a franchise of the fast-food chain Subway – had sought to import a Derrida-esque interpretation of the words which were then pieced together in a manner which read the term ‘food and drink’ to mean only items of food and drink bought together, and not food or drink bought separately (which under this ingenious argument would allow it to benefit from a 0% tax rate) and other arguments subjecting the separate elements of a sandwich to individual rates of taxation. Rejecting the argument, O’Donnell J (as he then was) discussed the meaning of the literal approach and criticised the attempts by the appellant to reduce it to a scientific method in which the meaning of words were divorced from the overall surroundings of the Act itself:

It is not, and never has been, correct to approach a statute as if the words were written on glass, without any context or background, and on the basis that, if on a superficial reading more than one meaning could be wrenched from those words, it must be determined to be ambiguous, and the more beneficial interpretation afforded to the taxpayer, however unlikely and implausible.[12]

Another sphere which has recently seen a number of debates over the impact and meaning of a literal approach is that of the criminal law. In DPP v TN, McKechnie J commented on the use of the literal approach that: ‘[t]he primary route by which the intention of the legislature is ascertained is by ascribing to the words used in the statute their ordinary and natural meaning’.[13]

Similarly, in DPP v Doherty, a case dealing with the meaning of ‘beset’ in s10 of the Non-Fatal Offences Against the Person Act 1997, the majority relied on the statutory context of s10, in which the other methods of committing the offence of harassment require the physical presence of the accused, in finding that the meaning of the term required the accused’s physical presence.[14]

Very recently, in one of three judgments delivered in DPP v AC, O’Donnell CJ once more considered the literal approach, preferring to describe it in different terms:

I prefer to describe this as ‘the plain meaning approach’ rather than a ‘literal approach’, because it may be that the literal meaning may, at its margin, have a connotation of strict or even artificial interpretation, and the two terms are used relatively interchangeably. It is important, however, that this approach does not invite a court to isolate the critical words…and consider if they have a plain or literal meaning in the abstract.[15]

Once more, what emerges from this is both the Court’s dislike of the term ‘literal approach’ and the attendant limitations of that approach.

Conclusion

What does all this mean for the literal approach?

Firstly, the literal approach – however it is categorised – is still the primary device in statutory interpretation. The exercise aims to find and fulfil the intention of the Oireachtas, and this is still best achieved through the plain, ordinary meaning of the words.

However, and in a way which appears to address any Holmes-type concerns of judges’ pre-conceptions influencing the plain, ordinary meaning of legislative enactments, this plain, ordinary meaning is influenced by the context of the provision, either within an Act or in a Statutory Instrument giving effect to an Act. Similarly, this approach does not allow for a Derrida-type exercise in which the words are taken away from their context, given their dictionary meaning and then put back together, often creating an utterly unnatural interpretation.

This clarified approach is one which appears to give greater primacy to context in statutory interpretation, and avoids the perils of both stilted understandings and the unwitting use of external influences which may in fact add requirements to the text of the Act. As such, it is a positive development which – though insufferably boring and often unattainable to first-year students – is crucial to the application of law in people’s lives, which is ultimately the purpose of the legal system. And, happily, neither Holmes nor Derrida win out.

[1] DPP v TN [2020] IESC 26 [119] (‘TN’). [2] Dunnes v Revenue Commissioners [2019] IESC 50 [63] (‘Dunnes’). [3] Lochner v New York 198 US 45 (1905). [4] See, for example, Jacques Derrida, ‘Du Droit a la Justice’ in Jacques Derrida (ed), Force de Loi (Galilée 1994). [5] Gorry v Minister for Justice & Equality [2020] IESC 55. [6] DPP v McNamara [2020] IESC 34. [7] UCC v ESB [2020] IESC 37. [8] Dunnes (n 2). [9] ibid [70]. [10] ibid [71]. [11] [2020] IESC 60. [12] Ibid. [13] TN (n 2) [118]. [14] [2020] IESC 45. [15] [2021] IESC 71 [3].