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Duncan Bunce - With respect, there's nothing in law obliging judges (including magistrates) to follow any of the 'rules', or to say which one they are following if they do decide to follow one - how often does a judge say in court 'I'm being Golden today....' ?? That's the main reason why 'rules' is a very misleading wordhere, 'guidelines' is much more accurate. Also, since it's judges themselves who decide whether legislation is ambiguous or obscure or literally absurd, they can in practice choose whichever 'rule' they want to follow (if they choose to follow any of them). If a judge, or indeed a magistrate, decides and says that 'this legislation is literally absurd' no lawyer can 'stop' this decision - the judge/ magistrate rules !! Of course an appeal might result in a different decision.
Rules of Statutory Interpretation are not "rules" in the conventional context of the rules that compel our conduct. It would be more accurate to call them guidelines, thus, a Judge is not obliged to follow the rules of interpretation, otherwise, there would not have been dissenting judges in the Royal Nursing College v DHSS case, because all would have been obliged to reach a similar conclusion if that were the case. Rather, the "rules" of interpretation are employed as servants of the court, not masters of it. Judges are free to apply them or NOT apply them as they find fitting. What would be an apt argument, however, would be that the precedent set will have a certain degree of persuasiveness on future cases falling within the ambit of Royal Nursing College v DHSS. Correct me if I have misdirected myself here but I believe that the precedent set has more weight in as far as obliging the judiciary to adhere to stare decisis. Even more so, arguably, than the invocation of the Mischief Rule.
