50,000 pounds that his estate would receive. However, the court applied the ex
turpi maxim and held him not entitled.
262
Administrative Law
In administrative law one of the principal grounds for judicial review, natural
justice, operates as an implied qualification to statutory powers. Prima facie,
natural justice applies to any discretionary power that can have an adverse
effect on a person. It applies by force of a common law presumption and
does not depend on express exclusion in the statutory provision that
authorises the discretion. Natural justice requires a decision maker to allow any
party who will be affected by a proposed decision to present a case to them.
This allows the person to put evidence and arguments to the decision maker in
an attempt to have the decision made in their favour. Here the court
implements the
notion that a statutory discretion vested in an official is not to
be like a private discretion but must be exercised fairly and for the public
good.
263
Presumption of Efficacy
As was discussed above, there is a presumption of interpretation that says,
where possible, legislation
should be given some effect. This presumption is
expressed in the maxim ut res magis valeat quam pereat. Earlier discussion
of this maxim saw how it could be invoked to deal with two provisions in a
statute that were inconsistent. Here another use of the maxim is discussed,
namely its application to the case where
there is a challenge to primary or
secondary legislation on the basis that it is beyond the power of the legislature
or official who made it. By resort to the maxim a court will resort to an implied
qualification in order to read down the scope of the legislation and thereby
give it a narrower meaning than it has on the surface. By this means the court
can save the legislation
from invalidity –
better a narrower valid piece
of
legislation than a wider invalid piece.
General and Specific Provisions
Two presumptions of interpretation - noscitur a sociis and eiusdem generis -
deal with a situation where there is a general provision and a specific provision.
These presumptions
suggest that the specific provisions represent the policy
of the statute and so the general provision should be read down, by an implied
qualification, to bring it into line with this policy.
262
However a court in Ohio took the opposite approach in Deem v Millikin 6
OCC Rep 357 (1892), 360 and 53 Ohio St 668 (1895).
263
Sharpe v Wakefield [1891] 1 AC 173, 179
 |
 |
 |