Equitable Interpretation

I argued in section I of this chapter that the central object of statutory interpretation is the legislature’s intended meaning. I argue now that in some exceptional, unforeseen cases the reasoned choice on which the legislature acts comes apart from the legislature’s intended meaning and that the reasoned choice is authoritative and should be taken to qualify or extend the law otherwise made out by the intended meaning. Interpreters should recognize exceptions or extensions to the statute’s intended meaning in such cases. This recognition is a response to the legislative intent in enacting the relevant statute; it is not the exercise of a power on the part of interpreters to change the law that the

legislature enacted. That is, what the legislature acts to make law is the set of propositions articulated in its intended meaning, taking that meaning as qualified by reference to its reasoned choice, a

qualification which is apparent in exceptional cases. This way of understanding and giving effect to statutes is equitable interpretation, or at least one important kind of equitable interpretation.

The legislature acts to introduce into law a set of propositions that it judges there is good reason to introduce. The legislature chooses the propositions it articulates by way of the intended meaning of the statutory text for these reasons. However, the intended meaning may capture (or fail to capture)

types of case that are unforeseen, in which the reasons that explain the choice of this intended meaning

are absent (or are present). In such cases, the application of the rule made out in the intended meaning —the letter of the rule—may cause injustice, not because the rule is generally unsound, nor for some adventitious facts or circumstances apart from the legislative plan, but rather because the rule extends to cases that fall outside, or fails to extend to cases that fall within, the legislature’s reasoned choice —a choice that could be called the spirit of the rule. The injustice of the rule’s application to such unforeseen cases is in a sense an unintended side-effect of the legislative choice. The injustice is avoided, and the justice Aristotle termed equity is done,58 if one understands the exercise of legislative authority as introducing such propositions as are articulated in the intended meaning subject to qualification (exception or extension) by reference to the reasoned choice. That is, the spirit of the rule qualifies the letter.

The legislative predicament is how to make law despite limited foresight.59 This predicament entails that in relation to some cases, the legislature’s intended (and expressed) meaning may come apart from its reasoned choice. The point of exercising legislative authority is to change the law for good reasons, which in turn entails that when intended meaning comes apart from reasoned choice the latter should take priority, for the point of the intended meaning is to articulate this reasoned choice. It would be unreasonable to exercise legislative authority with a view to making one’s intended

meaning law ‘come what may’.60 Instead, one should act to introduce the propositions made out in the intended meaning subject to an unarticulated proviso that the set of propositions is to be taken to be qualified by reference to the reasoned choice that explains the act, which is to say that the legislature should take for granted that its intended meaning will be qualified in exceptional, unforeseen cases. And interpreters should understand the legislature’s exercise of authority accordingly.

The proviso ‘in exceptional, unforeseen cases’ is important because my argument is that only in such cases is it possible for intended meaning and reasoned choice to diverge. Equitable

interpretation is not rule scepticism. It does not involve the collapse of every rule to its reasons, such that, per Raz and Marmor,61 one is free to change or jettison a rule whenever one concludes it is an inept means to the rule maker’s ends. Rather, it involves determining the rule that the legislature enacted while being alert to the possibility that the rule otherwise made out by the intended meaning may not reflect the choice that the legislature made, a choice which there is good reason to prefer to the intended meaning.

Endicott argues that ‘[e]quitable interference with legal duties or powers or rights’ is not interpretation.62 He works with the example of a bylaw that prohibits vehicles in the park and in which an ambulance enters the park to save an injured person. The driver of the ambulance is exempt from the bylaw, Endicott maintains, not because the bylaw is best interpreted as subject to an implicit exception, but rather because it would be unconscionable for the driver’s action to be proscribed and because his action was ‘compatible with respect for the role of the local authority in regulating the

use of the park’.63 I agree that there is no implicit exception, for there are no grounds to infer any such implication; the problem is rather that this type of case, in which there is a pressing reason to enter the park, was not foreseen by the legislature (whether or not some individual members of the legislature did foresee it). However, the absence of any such implication does not prove that equitable

interpretation is a misnomer. Endicott wrongly assumes that interpretation concerns only the

linguistic meaning of the bylaw. The interpreter should aim, I say, to understand the reasons on which the local authority acted, for this is highly relevant to whether an exception is compatible with the rule maker’s authority. Apart from such reflection, the interpreter is left simply to assert that an exception is warranted, which fails entirely to address, face up to, and acknowledge the authority of the

lawmaker to choose what is to be done. Endicott’s is not an uncommon position.64 It is nonetheless unsound for when one sees that the legislative act is a reasoned choice, reflection on the legislature’s reasons helps one determine whether an exception is consistent with what the legislature chose.

It is telling, I think, that Endicott deals only with the one example,65 thus collapsing the variety of equitable interpretations into one type, lending support to the claim that interpreters make exceptions to rules whenever this is morally justified. In truth, there are three types of equitable interpretation (a fourth is only a distorted instance), the variety of which helps make clear the importance of reasoning about the legislature’s reasoned choice.

The legislature’s intended meaning picks out various general classes by way of a set of

propositions, which regulate or provide for some types of case to be regulated in a certain way. The reasons for this choice are that the members of the relevant class are taken to have certain features, to form a certain type or types, which warrant the regulation. Some exceptional, unforeseen cases may fall within the intended meaning, which picks out the relevant class, and yet lack the relevant features. Alternatively, some cases may fall within the relevant class and, while they possess the relevant feature, there is also present an unexpected feature which provides a powerful reason to act otherwise. There are also cases in which the intended meaning is thought to capture all cases of a certain type, yet where an exceptional, unforeseen case is of this type (within the legislative choice) and yet falls outside the scope of the intended meaning.

Cases of the first of these types call, I shall say, for corrective exceptions, the second for outweighing exceptions, and the third for corrective extensions.66 The first and third are more

obviously cases where the legislature’s reasoned choice comes apart from its intended meaning. This is less obvious for outweighing exceptions, because the reasons for the choice do obtain. However, the analysis holds because the legislature chose the relevant course of action after considering reasons apart from the very pressing reason that arises in this exceptional case. For example, in making it an offence for persons to take vehicles into the park the lawmaker did not take into account the importance of emergency vehicle access. If it had, it would have made an exception to this effect. Hence, the legislature’s reasoned choice does not support the application of its intended meaning to this case. It follows that in considering outweighing exceptions, unlike corrective exceptions or extensions, one is reflecting in part on what the legislature would have intended had this new reason been before it.67 Still, equity centres on what the legislature chose, for an outweighing exception is only warranted if it is likely that the legislature that enacted the rule would qualify it in this new case, which requires one first to infer the reasons for which it acted.

Quite different is extension by analogy, or what was once termed interpretation ‘on the equity of the statute’,68 in which the statute is taken to extend to all cases to which the reasons for this statute

are also relevant. This is not equitable interpretation as I have outlined it for it does not aim to capture and give effect to the reasoned choice on which the legislature acted, which is to introduce some particular set of propositions for some reasons, not to stipulate ends for action which may then be extended to any relevant case. Evans rejects extension by analogy, in part because it is difficult to subject to principled limits and because extension of different statutes would create frequent

contradiction.69 This is true, but more important is its detachment from what the legislature has

chosen. Extension by analogy does not respond to the exercise of the legislature’s authority, in which what is chosen (which may be a compromise and/or a set of complex, limited means-ends chains) settles what is to be done. Hence, it is not a licit mode of interpreting legislative acts.

I will not trace the history of equitable interpretation in judicial practice.70 I will, however, consider some examples to elaborate how equitable interpretation should proceed. I begin with corrective exceptions. An example of Blackstone’s, which he attributes to Cicero, is instructive:

There was a law, that those who in a storm forsook the ship should forfeit all property therein; and the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship, except only one sick

passenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give

encouragement to such as should venture their lives to save the vessel: but this is a merit, which he could never pretend to, who neither staid in the ship upon that account, nor contributed anything to its preservation.71

The lawmaker acted to reward those who risk their lives to save their ship and by means of that end (which is valued in its own right) to encourage others not to forsake the ship (which is in turn a means to the end of avoiding loss of life and property by shipwreck). The happy accident of the sick

passenger’s survival was an exceptional, unforeseen case that fell within the letter (the intended meaning) of the rule but not within its spirit (the reasoned choice, the means-ends chain that explains the rule), which warrants recognizing an exception to the rule.

Consider also the case of Re Bidie (Deceased).72 The Inheritance (Family Provision) Act 1938 allowed a widow to apply to court to set aside the provisions of her husband’s will. Section 2(1) provided that ‘…an order under this Act shall not be made save within six months from the date on which representation in regard to the testator’s estate for general purposes is first taken out’. In this case, letters of administration were taken out on the assumption the deceased died intestate. Fifteen months later, but before distribution, a lost will was discovered disinheriting the widow. The widow immediately applied under the Act. The court at first instance ruled the application out of time. The appellate court reversed, holding that in this context ‘representation’ meant ‘representation in relation to a will’, that is probate. This reading avoided the present (unintended!) injustice but would not suffice if a second will were discovered, for the time limit would run from the date of probate for the first will. The court suggested that one might read ‘representation’ to mean ‘representation in relation to the will that is the subject of an application under the Act’. However, this is a tenuous inference about the intended meaning of ‘representation’.

The case warranted a corrective exception. The point of the 1938 Act was to qualify testamentary freedom where testators had made insufficient provision for their dependants. The point of s 2(1) was to provide sufficient time for the widow to call testamentary provision into question, to encourage prompt applications, and to enable certain distribution of the estate. The means to this set of ends was a six-month time limit to run from the date of representation. The legislature failed to foresee the prospect of a will (or a second will) being discovered after representation had been taken out. This subsequent will might fail to provide adequately for the widow and should, on the legislature’s

reasoning, be open to challenge. However, the intended meaning of s 2(1), which the legislature took to express its reasoned choice, entails that no application is possible because the time limit runs from the initial representation. In this way, the intended meaning applies, and the time limit bites, while the reasoned choice that explains the time limit (that it makes possible a fair, certain period of time in which one may contest an unfair will) does not. It is sound to make an exception to the intended meaning of the rule on the grounds that the reasoned choice does not apply. (This is in fact a mixed case, calling also for a corrective extension to make the time limit run from the date of representation in relation to the later will.)

Consider now corrective extensions. The statute 9 G. 4,c. 40,s 38(a) authorized justices to order lunatic paupers to be removed to the county lunatic asylum ‘and if no such county lunatic asylum shall have been established, then to some public hospital or some house duly licensed for the reception of insane persons’. In R v Ellis,73 there was a county asylum, but it was full and by law could not take additional persons. The court held there was no jurisdiction to order removal to a duly licensed house. I say the case called for a corrective extension. The point of the statute was to provide for the care of lunatic paupers. The means to this end was to authorize their removal to an appropriate

institution—in the first instance an asylum, but if no asylum had been established then a hospital or licensed house. The legislature took for granted that if an asylum had been established it would be capable of receiving lunatic paupers, who should therefore be sent to the asylum rather than

elsewhere. What the legislature did not foresee was that an asylum might not be able to receive someone, because full, or damaged by fire, etc.

The intended meaning of the statutory provision is narrower than the legislature’s reasoned choice, for the meaning of the rule ousts the relevant jurisdiction whenever there is an asylum, even if it is incapable of receiving persons. And this entails that in such cases the justices are unable to send the lunatic pauper either to an asylum or to an alternative institution. This conclusion defeats the object of the Act and more importantly departs from the chosen means. The reasoned choice that animates and goes beyond the intended meaning is that justices should have authority to remove lunatic paupers to an appropriate institution, in the first instance to an asylum, but failing this to a hospital or licensed house. There is good reason to extend the proposition made out in the intended meaning to better capture what the legislature thought there was reason to do and indeed thought it was doing, viz. making provision for removal either to an asylum or, if impossible, to an alternative.

In Lloyd v Saddler74, two women held a joint tenancy together. One left to be married and the other remained in possession. The landlord applied for possession and the remaining tenant relied on the statutory protection open to ‘the tenant’. However, the landlord argued, logically enough, that ‘the tenant’ had been the joint tenants and that the remaining woman had never been the tenant. The court refused his application, noting that in conferring protection on ‘the tenant’ Parliament had overlooked the problem that joint tenants may not remain together over time: one may die, for example. The court held that it should understand ‘the tenant’ to include each joint tenant considered alone. In effect, this was to extend the intended meaning of ‘the tenant’ to better capture Parliament’s reasoned choice, which was that all persons in a tenancy should be entitled to the relevant protection. Thus, the court rightly recognized, without full explanation, a corrective extension.

Outweighing exceptions are more difficult. In R v Registrar General, ex p Smith,75 the court had to consider s 51(1) of the Adoption Act 1976, under which the Registrar General had a duty to disclose to the applicant his birth certificate. The Registrar refused to provide the certificate on the grounds that the applicant was detained in a mental hospital after having killed two persons, one of whom he

had thought was his foster mother, and was very likely to use the information provided in the

certificate to attempt to kill his birth mother. The court upheld his refusal, reasoning that the statute was subject to an implied exception based on public policy, i.e. that statutory rights do not hold when their use may facilitate the commission of serious crimes. Sir Stephen Brown said, ‘It is clear that the facts giving rise to this application and to this appeal are wholly exceptional. I do not believe that Parliament intended to provide an absolute right to the relevant information “come what may”’.76 Staughton LJ reasoned that otherwise absolute duties may be subject to implied limitations; hence he thought this was an interpretation of the meaning intended by Parliament.77

It is true the facts were exceptional. But it is not plausible to infer that the intended meaning of s 51(1) was that the Registrar’s duty was subject to public policy in this way. Rather, the legislature enacted a general duty to disclose (subject to specified exceptions, which were not relevant in this case), reasoning that persons were entitled to the information made out in their birth certificate.