Legal Certainty in European Law
Should the interpretation of European Directives and UK law giving effect to them be literal, purposive or purely creative? First published in the Criminal Law & Justice Weekly (2013) 177 JPN 475 and 492.
Literal v Purposive
The general rule providing for the literal interpretation of United Kingdom law is fundamental in achieving legal certainty and results in a high degree of confidence that it will be interpreted consistently by all those who have occasion to apply it. Hence ordinary words and phrases should be given their ordinary meaning having regard to the context in which they appear or, as Viscount Dilhorne said in Brutus v Cozens [1973] AC 854: "Unless the context otherwise requires, words in a statute have to be given their ordinary natural meaning". Lord Scarman made the point in Shah v Barnet London Borough Council [1983] 2 AC 309, that: "By giving the words their natural and ordinary meaning one helps to prevent the growth and multiplication of refined and subtle distinctions in the law's use of common English words. Nothing is more confusing and more likely to bring the statute law into disrepute than a proliferation by judicial interpretation of special meanings, when Parliament has not expressly enacted any." Lord Scarman went on to say: "Judges may not interpret statutes in the light of their own views as to policy. They may, of course, adopt a purposive interpretation if they can find in the statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament's purpose or policy." Generally Parliament's intention is to be found in the words it has enacted and if those words do not fulfil the statutory purpose it is for Parliament, and not the courts, to change them. However, in Pepper (Inspector of Taxes) v Hart [1993] AC 593, Lord Griffiths said: "The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears on the background against which the legislation was enacted. Why then cut ourselves off from the one source in which may be found an authoritative statement of the intention with which the legislation is placed before Parliament." He agreed, as did the majority of the law lords, with Lord Browne-Wilkinson that: "... subject to any question of parliamentary privilege ... the exclusionary rule should be relaxed so as to permit reference to parliamentary materials where: (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied on consists of one or more statements by a minister or other promoter of the Bill together if necessary with such other parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied on are clear." Although Lord Griffiths said that the courts now adopt a "purposive approach", that purpose generally remains to be found, where they are clear, unambiguous and not absurd, in the ordinary words used in statutes and, for the most part, certainty continues to prevail through a literary interpretation.
Where UK legislation is made to give effect to a European Directive, the determining factor in its interpretation is not so much the purpose or intent of Parliament, but the purpose of the Directive. As highlighted in Marleasing SA v La Commerical International de Alimentacion SA [1990] ECR I-4315 - Case-106/89, article 288 of the Treaty on the Functioning of the European Union (previously article 189 of the Treaty Establishing the European Economic Community) states that: "A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods." Another way of looking at it is that Parliament's intention is to give effect to the European Directive and hence Parliament's intention is to fulfil the purpose of the Directive. Lord Oliver of Aylmerton in Litster v Forth Dry Dock and Engineering Co Ltd [1990] AC 546, said that the UK's obligations under a European Directive "are to be ascertained not only from the wording of the ... directive but from the interpretation placed upon it by the European Court of Justice at Luxembourg - such a purposive construction will be applied even though, perhaps, it may involve some departure from the strict and literal application of the words which the legislature has elected to use."
The ECJ's decision in Purely Creative
European Directives, written as they were to cater for a myriad of cultures, languages and legal systems, can often be unduly cumbersome and this is reflected in the UK law intended to give effect to them. Given also that the need for legal practitioners to be cognisant of both European and national law and of the interrelationship between them, law enforcement agencies may lack confidence in their own interpretation of such legislation being upheld by the courts. One of the most unwieldy pieces of legislation of recent times is the Consumer Protection from Unfair Trading Regulations 2008 ("CPUTR"). The CPUTR, which have both criminal and civil enforcement provisions, were enacted to give effect in UK national law to the Unfair Commercial Practices Directive 2005/29/EC ("UCPD"). Confidence in the CPUTR's meaning waned even further when the High Court, in Office of Fair Trading v Purely Creative Ltd and ors [2011] EWHC 106 (Civil), held that the CPUTR should not be interpreted literally, but purposively in line with the UCPD. The nine defendants in that case were each engaged in a practice of inviting consumers, via personalised letters and inserts, such as scratch cards, in newspapers and magazines, to claim prizes which the Office of Fair Trading ("OFT") claimed were unfair commercial practices prohibited by reg.3 of the CPUTR. The OFT had initially sought to deal with the defendants' conduct under the Enterprise Act 2002 ("EA") by giving them the opportunity to give undertakings to comply with the CPUTR. When the parties were unable to agree on the content of such undertakings, the OFT applied for an enforcement order under s.215 EA to prevent the defendants from further distributing their promotions. Reg.3(4) CPUTR provides that a commercial practice is unfair, inter alia, if "(d) it is listed in Schedule 1." Para.31 of sch.1 reads: "Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either- (a) there is no prize or other equivalent benefit, or (b) taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost." Under reg.12 CPUTR it is an offence for a trader to engage in a commercial practice set out in any of the paragraphs listed in sch.1 (apart from paras.11 and 28). The OFT contended that even if a consumer only had to pay for the cost of a stamp in order to claim their "prize", para.31 would be breached as the prize would be subject to the incurring of that cost. Briggs J, however, whilst acknowledging that the OFT's interpretation was supported by a purely literalist or grammatical interpretation, held that "falsity lies at the heart of the prohibition in para.31". He considered that the OFT's interpretation lent itself to absurd results serving "no identifiable purpose, whether expressed in terms of avoiding misleading or aggressive commercial practices, or even in terms of providing a high level of consumer protection." He could not "conceive of any reason why a consumer who has won, say, a new car for free delivery at the consumer's home, requires to be protected from the cost of telephoning or posting a letter to the promoter specifying his address, and a convenient time at which he will be at home in order to receive his prize". The OFT did not dispute that a purposive interpretation was appropriate, but appealed to the Court of Appeal in Purely Creative Ltd and others v Office of Fair Trading [2011] EWCA Civ 920, contending that the defendants undertakings should state that they would not create the impression that consumers had won a prize when the prize was subject to "the consumer paying money or incurring a cost" or, at least, "anything other than a de minimis cost". The Court of Appeal agreed with the OFT that: "Literally the words apply to any money or any cost. There is no requirement that they should be substantial in comparison with any other cost. Taking the words of paragraph 31 at their face value each of these promotions infringes the provision." In terms of the CPUTR's purpose, the Court of Appeal considered that the restrictions the defendants sought to impose on the meaning of para.31 were contrary to one of the clear purposes of the UCPD, namely "to establish a high level of consumer protection". However, in the absence of any precedent on the matter, the Court of Appeal stayed the appeal pending a referral to the European Court of Justice ("ECJ") for a preliminary ruling.
Continued in Part 2.
See also Möbel Kraft GmbH & Co KG v ML