Abstract
In chapter III it was mentioned that, where the status to be accorded to the Treaty and Acts of Union of 1707 is concerned, the most straightforward argument is between those who see them as pieces of legislation like any other and those who see them as creative of fundamental law and as providing a (partially) fixed constitution. The possible interpretations of their constitutional effect cover a much wider range than that though.1 The first — that, while the Scottish Act of Union destroyed the Scottish constitution, the only effect of the English Act was to give the Scots a minority role to play in English constitutional processes — and its rejection in MacCormick v Lord Advocate have already been discussed.
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References
For a full discussion of the underlying issues see Upton, ‘The Marriage Vows of the Elephant: the Constitution of 1707’ (cit. ch III, n. 44). This is also rich in its citation of other sources.
See, for example, Dimbleby & Sons v NUJ [1984] 1 All E R 751; [1984] ICR 386.
It is suggested in by D Neil MacCormick and Robert S Summers in D Neil MacCormick and Robert S Summers eds, Interpreting Statutes: A Comparative Study (Aldershot and Vermont: Dartmouth, 1991) at p 533 that ‘In all the systems studied here, the linguistic aspect of interpretation has the greatest prominence in the sense of nearly always coming first in order of consideration’.
BeckevSmith 18362M& Wat 195.
[1974] 2 All E R 97; [1974] 1 WLR 505. Although this sense of “or” is commonplace amongst logicians, it is not so often encountered in ordinary langauge.
Pepper (Inspector of Taxes) v Hart [1992] 3 WLR 1032, making reference to Parliamentary proceedings before the passage of the Finance Act 1976. See Neil Walker, ‘Discovering the Intention of Parliament’ 1993 SLT 121. The Right Hon Sir Nicholas Lyell QC MP, ‘Pepper v Hart: The Government Perspective’ (1994) 15 Statute Law Review 1.
For more detail on this and later points see Zenon Bankowski and D Neil MacCormick, ‘Statutory Interpretation in the United Kingdom’ in Interpreting Statutes (cit. n.3).
Heydon’s Case (1584) Co Rep 7a at 7b.
Besides Pepper v Hart, other examples of recent inroads into what has been the more restrictive of the two views, as adopted in the UK, are offered by the cases of Pickstone v Freemans plc [1989] AC 66 and Owens Bank Ltd v Bracco [1992] 2 AC 443.
Interpreting Statutes (cit. n. 7) at p 387.
The Pure Theory of Law (cit. ch I, n. 2) ch 8.
1977 SC (JC) 38.
at p 44.
at p 51.
Ross v H. M. Advocate 1991 SLT 564; 1991 SCCR 823. Note, however, the restrictions subsequently specified in Sorley v HMA 1992 JC 102 and Ebsworth v HMA 1992 SCCR 671.
Ronald M Dworkin, A Matter of Principle (Oxford: Clarendon Press, 1986) p 16.
R M Dworkin, Law’s Empire (London: Fontana Paperbacks, 1986) p 93.
Ibid pp 95–6.
Ibid p 210.
Ibid p211.
Id.
Ibid p 213.
Ibid p 225.
Ibid p 245.
Ibid p 213.
Vide, ibid pp 204–5.
Ibid p 211. Consider in this context, the ideas of Jürgen Habermas (see ch XII).
Stewart v Henry 1989 SLT (Sh Ct) 34 and Fraser v MacCorquodale 1989 SLT (Sh Ct) 39.
atp37.
1991 SLT 330, before the First Division.
at p 333.
That this continued to be a matter of sensitivity is evidenced by Bentham in A Fragment on Government (cit. ch II, n. 1) ch IV para 37 note 1.
See, for example, Lord Advocate v Earl of Moray’s Trustees 1905 7F (HL) 116; Inland Revenue v Glasgow Police Athletic Association 1953 SC (HL) 13. My thanks are due to Martyn Jones for the point and the references.
See cases cit ch III nn. 55, 57 and this ch n. 28.
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© 1997 Springer Science+Business Media Dordrecht
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Attwooll, E. (1997). Matters of Interpretation. In: The Tapestry of the Law. Law and Philosophy Library, vol 26. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-8800-3_7
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