UKSC 40′ < http://ukscblog.com/case-comment-cusack-v-london-borough-of-harrow-2013-uksc-40/> accessed 30thth December 2017
1 Statutory Instruments Act 1946
2 ‘Statutory Instruments’ accessed December 25th 2017
3 ‘Negative Procedure’ accessed 25th December 2017
4 ‘How laws are made’ 27th December
5 Catherine Elliott & Frances Quinn ‘English Legal System’ (published 2015, Pearson Education Limited) 55
6 ‘Case comment: Cusack v London Borough of Harrow 2013 UKSC 40’ accessed 30thth December 2017
7 ‘The Literal Rule of Statutory Interpretation’ accessed 1st January 2018
8 ‘Statutory Interpretation’ accessed 4th January
9 ‘Humans Rights Act 1998’ accessed 6nd January 2018
10 Catherine Elliott & Frances Quinn ‘English Legal System’ (published 2015, Pearson Education Limited) 308
11 Kat Crossley ‘How to Find the Ratio Decidendi’ (9th April 2014) accessed 7th January 2018
‘Obiter dictum’, however, is an opinion or remark made by a judge which does not form a necessary part of the court’s decision and thus, statements constituting obiter dicta are not binding.12 In this case, obiter dictum occurs in the following statement: “Different forms of thong briefs are sold widely and are very popular among a certain age group of people”. This statement constitutes obiter dictum as Lord Sahni is stating information about types of thong briefs which are commonly worn by different age brackets which is irrelevant in aiding the court to make a decision. He continues: “I am not in that age bracket, but that does not entitle me to condemn as public offensive a prevailing trend in underwear.” This statement also constitutes obiter dictum as Lord Sahni is referencing to himself and giving his reasons for his decision and thus, his statement will not be legally binding as a precedent.
‘Ratio decidendi’ refers to the part of the judgement, delivered at the end of a case explaining the reasons for the decision.11 In R v Mackenzie, ratio decidendi was comprised of the evidence which Lord Sahni and Lloyd LGC believed to be conclusive, which was that not only was the appellant not “nude” in the literal sense but he was also not dressed in such a manner which would offend the public. To explain this argument, Lord Sahni stated that although the idea of seeing an individual in thong briefs may be “shocking” and “disgusting” to some, it would be a step too far to say that someone would be offended by this, particularly when the individual did not deliberately, nor intentionally aim to expose themselves.
This point, however, is questionable as under s2 of the Offending Public Decency Act 2010, Mr Mackenzie’s choice of clothing could be interpreted as a person who is dressed in such a manner as to offend the public, and if so, he can be prosecuted under the 1998 Act. Thus, I believe that Mr Sahni’s inclusion of Article 8 of the Humans Rights Act 1998 is easily discredited.
In R v Mackenzie, it can be argued that if the court deems Mr Mackenzie to be guilty of the offence, Article 8 of the Humans Right’s Act 1998 will have been breached on the following grounds. Firstly, Mr Mackenzie is being prosecuted for public indecency based primarily on how he was dressed. Under Article 8 of the 1998 Act, individuals have the right to look or dress as they wish and so Mr Mackenzie’s right covers him being able to wear thong briefs in the privacy of his home. To prosecute Mr Mackenzie for this reason alone, would breach Article 8 of the Humans Rights Act 1998.
Article 8 of the Human Rights Act 1998 centres around the right to respect for private life, family life, an individual’s home and their correspondents’.9 The concept of ‘private life’ references to an individual’s right to live their life with privacy and without interference by the state. It covers things such as the right to develop personal identity, sexual orientation, your lifestyle, how you look or dress.10
The first rule of construction adopted by Lord Sahni is the Literal Rule. Using this approach, the literal rule gives the words of a piece of legislation there natural and ordinary meaning.7 Thus, in R v Mackenzie, Lord Sahni looks at the literal meaning of the words “nude”, “overt” and “openly done, unconcealed”, using the Oxford English Dictionary to construe certain words . An additional example of this rule is in Fischer v Bell where the court applied the literal rule to explain that goods on display are not ‘offers’ in the technical sense, but merely invitations to treat.8 Lord Sahni also applies the Purposive Approach; this method looks at the policy behind the Act or statute by finding the purpose as to why the Act was passed. In reference to R v Mackenzie, Lord Sahni uses this approach to explain that the purpose of introducing the Offending Public Decency Act 2010 was “to protect the public from overt displays of nudity and public indecency”.
When judges encounter obscure or equivocal legislation, it becomes unclear as to how the law should be interpreted and applied. In such circumstances, judges need to provide legislation with effective meaning and so, rules of construction which are a form of statutory interpretation are used; these rules are applied to interpret legal instruments, statutes and contracts, providing clarification to the court.5 Although they are an effective method of deducing legislation, the Supreme Court has made it clear in Cusack v London Borough of Harrow 2013 UKSC 40 that whilst these approaches have a valuable part to play in interpreting statutes, they should be treated as “guidelines rather than railway lines.”6
In contrast, primary legislation starts with its representation as a Bill in the House of Commons in a first reading followed by a general debate in the second. It then passes onto the committee stage where the Bill undergoes a detailed examination and close scrutiny followed by an opportunity for amendments in the reports stage. In the third reading, there is a final debate and further opportunity for amendments before being passed onto the House of Lords where the same procedure is applied. In the final stage known as the assent stage, the legislation is then signed off by the queen.4 In contrast to SI’s, the copious amount of procedures makes the primary legislative process onerous and creates extreme difficulty if amendments need to be made to the legislation.
The most appropriate form of secondary legislation to use here is statutory instruments (SI’s)1; these enable the provisions of an Act to be brought into force or altered without Parliament having to pass a new Act.2 SI’s are made when signed off by a delegated authority who has been entrusted with law making-powers and are put into effect using either one of the two following procedures: negative resolution or affirmed resolution.3 Ultimately, the method of creation is beneficial if ever, circumstances change or unforeseen problems occur as alterations can be made swifty due to the flexible, efficient creation process.