Statutory interpretation: the “always speaking” principle

Including the words "always speaking" in the title carries with it the risk that non-lawyers will think that I'm about to comment on one of the characteristics of the legal profession. But, while that may be a good descriptor of some of our number, the phrase carries with it an entirely different significance.

It is used to describe the principle that a statute may be applied in circumstances which were not contemplated at the time of its enactment because the statute, on its true originalist construction, invites its application to new or changed circumstances.

The "always speaking" principle does not only apply to domestic statutes. It is often talked about most in relation to international treaties such as the European Convention on Human Rights, where the Strasbourg court has developed a "living instrument" doctrine in order to expand the rights available under the Convention. An obvious example of that expansion is in relation to the article 3 right not to be "subjected to torture or to inhuman or degrading treatment". What constitutes degrading treatment, for example, inevitably evolves over time with changes in the collective values of society. But the application of the doctrine carries with it risks, particularly that the court will use it to read into statutes or treaties words that are neither in the document itself nor are a natural implication from its terms. Lord Sumption has commented extensively on that risk, again in the context of the ECHR, and specifically the article 8 right to respect for private life, home and correspondence which the Strasbourg court has developed into what it calls a "principle of personal autonomy" (see Trials of the State: Law and the Decline of Politics, 2019).

Digital newspapers?

Recently the Supreme Court had to consider the "always speaking" principle in an entirely different context. In News Corp UK & Ireland Ltd v Commissioners for HM Revenue & Customs [2023] UKSC 7 the court was faced with a question under the Value Added Tax Act 1994. For those tempted to stop reading at this point, the interesting question was not a tax question per se but rather whether the "zero-rating" of VAT on newspapers extended beyond print newspapers to "digital editions" (i.e. editions for e-readers, tablets, smartphones and websites). The answer to that question, according to the majority of the court, involved a balance between the "always speaking" principle on the one hand and the EU requirement to interpret exemptions from VAT strictly on the other.

In relation to the "always speaking" principle, the court started with a quote from Lord Wilberforce in the well-known decision in Royal College of Nursing of the UK v Department of Health & Social Security [1981] AC 800. That case itself was interesting. The question there was whether an abortion carried out under a new technique was lawful under the Abortion Act 1967, because that Act legalised "termination of a pregnancy by a registered medical practitioner" and the new technique meant that it could be carried out by a nurse under the supervision of a doctor who might be on call but might not be present during the procedure. The court held by a majority that it was covered by these words and, therefore, lawful. In other words, even though in 1967 Parliament could not have imagined the development of the sort of treatment in question, it was lawful under the Act. 

Lord Wilberforce explained the principle in the following terms: "In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament's policy or intention is directed to that state of affairs… [W]hen a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the new subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take under the law of this country: they cannot fill gaps; they cannot by asking the question, ‘What would Parliament have done in this current case, not being one in contemplation, if the facts had been before it?’, attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself”.

Having outlined the freezing effect of the standstill provisions on VAT under EU law, the Supreme Court in the News Corp case went on to consider whether the always speaking principle and a purposive interpretation of the legislation could lead to the conclusion that digital editions would fall within the zero-rated category of "newspapers". In relation to the purpose of the provisions, the court considered that a narrow meaning had to be given to the word "newspapers" given the reasons behind the legislation. The constraints of EU law meant that the "always speaking" principle could not be applied so as to interpret "newspapers" as covering digital editions.

What kind of changes?

Lord Leggatt's concurring judgment is worth particular consideration. Having looked at the EU law and the distinction between the hard copy and digital editions of newspapers, he turned his attention to the "always speaking" principle. Lord Leggatt points out that this principle has itself evolved significantly since it was first introduced into English law but that, whatever the origins of the principle, "the idea that legislation should as a general rule be given an ‘updating’, ‘ambulatory’, ‘dynamic’, ‘evolutionary’ or (if the term is preferred) ‘always speaking’ interpretation has come to be seen as orthodox". He goes on to say, however, that the "always speaking" principle relied upon in this appeal is perhaps stated at too high a level of generality to be meaningful. Rather, there are different types of change that can occur after a statute is enacted to which different considerations may apply.

First, there are linguistic changes – i.e. where a word has acquired a different meaning over time. He gives the example of a statute enacted in the reign of Henry VII which required a member of the King's household accused of conspiring to murder the King or any Lord of the realm to be tried by a jury of "twelve sad men", the word "sad" in these days meaning "sober and discreet". That clearly requires an originalist construction because it would be "absurd", as Lord Leggatt puts it, to have the accused tried by a group of very unhappy people. The other example given is the case of R v Munks [1964] 1 QB 305, where the defendant had arranged two wires within his house so that when his wife opened the window she received a severe electric shock. He was convicted of an offence under s 31 of the Offences against the Person Act 1861, of placing "any spring gun, mantrap or other engine" calculated to inflict grievous bodily harm on another person. In 1861 the word "engine" just meant any product made or designed by humans. The Court of Appeal updated the meaning of the word when giving its judgment but that, according to Lord Leggatt, was plainly wrong.

Secondly, changes in values. The point made here is similar to the one outlined above in relation to what may or may not constitute "degrading treatment" under the ECHR. In cases of this kind, it is not the meaning of the statute that changes but simply its application to new cases. The Supreme Court considered that in Owens v Owens [2018] UKSC 41, affirming [2017] EWCA Civ 182, in the context of a contested divorce and what "cannot reasonably be expected to live with" meant these days as compared to 1973 when the Matrimonial Causes Act was enacted. Lord Leggatt emphasised the importance of realising the distinction between the meaning of the statutory language and its application to things.

Thirdly, advances in scientific knowledge. Words used should be applied in a way that reflects modern scientific understanding. For example, in R v Ireland [1998] 1 AC 147 the House of Lords held that the term "bodily harm" used in the Offences against the Person Act 1861 could include psychiatric injury, which it would undoubtedly not have done when the Act was brought into force.

In the present case, Lord Leggatt explained that what was at issue was technological change. He disagreed with the notion that the "always speaking" doctrine applies where there have been developments in technology. This type of change was not the same as changes in social values or scientific knowledge. He considered that there was "no equivalent justification for any general rule or presumption that a statute is intended to apply to a newly invented object or process. In the case of inventions, there is no reason why the law should favour novelty for its own sake".

He gave a hypothetical example of a law prohibiting vehicles in a public park. Some objects clearly fall within "vehicles" such as motorbikes. But what about a skateboard? And why does it matter whether the law was enacted before or after skateboards were invented? In either case, he explained that "the interpreter will need to ask whether as a matter of ordinary language the word ‘vehicle’ is capable of being used to refer to a skateboard and also to identify the purpose of the law and ask whether a skateboard falls within the mischief at which it is aimed. The legislative history might be relevant in answering the latter question, and whether skateboards existed when the law was made may be relevant when considering the legislative history. But, if so, this is merely a contingent fact and has no bearing on the correct approach to interpretation". Lord Leggatt pointed out that the decision in Royal College of Nursing did not turn on the application of the "always speaking" doctrine. None of the members of the majority of the court mentioned it and Lord Wilberforce's famous passage, while aptly describing how to approach such a case, was not articulating the "always speaking" principle.

Accordingly, in the present case, Lord Leggatt did not consider that the "always speaking" principle had a role to play. He considered that there was no good reason why legislation made in the UK in 1972 or 1994 should give rise to any presumption that "newspapers" should be read as including digital editions after they were invented. The correct approach was simply to ask whether, in accordance with ordinary principles of statutory interpretation, the newly invented object fell within the statutory language having considered the legislative purpose. It would be equally wrong to draw the opposite inference – i.e. because digital editions didn't exist then, they automatically couldn’t fall within the definition now. The word "newspapers" is capable of being read narrowly or broadly as including digital editions and in order to understand how it should be read in this case, it is the purpose of the provision in question that is important. In this case, it had to be read narrowly and the provisions interpreted strictly in order to accord with EU law.