As a general rule, laws are interpreted on the “always speaking” principle. A law drafted at an earlier point in time will normally cover changes in events that take place in later years. On the other hand, there is a “standstill” principle, where the words and expressions used in a statute have to be considered in the manner originally drafted. Such laws do not apply to later changed circumstances.
Last year, the U.K. Supreme Court had occasion to decide the taxability of digital newspapers News Corp UK and Ireland Ltd. v. Commissioners for HMRC (2023) 2 WLR 513 . Newspapers were not charged to any duty or tax and the Value Added Tax, 1994 made newspapers “zero-rated”. The advantage of zero-rating is that an assessee not only enjoys the benefit of exemption but can also take credit on inputs used to make zero-rated products. By 2010, many newspapers had introduced digital editions that could be accessed on computers, tablets, smartphones and websites. The newspapers claimed that digital newspapers should also be zero-rated and no VAT should be levied. The first tax tribunal held against the newspapers but the upper tribunal allowed the appeal by applying the “always speaking” principle. The Court of Appeal reversed this review and held in favour of the revenue. The matter finally reached the U.K. Supreme Court.
The Supreme Court discussed the applicability of the “always speaking” and “standstill” principles. It held that the word “newspapers” would apply only to physical copies and digital editions would not be entitled to the benefit of exemption. The Supreme Court held that the VAT provisions and EU laws required a strict construction and rejected the argument that digital editions, being a technological advance, were also entitled to exemption. It is submitted that the decision of the U.K. Supreme Court is incorrect and the “always speaking” principle ought to have been applied. The exemption to digital editions was also justified by a purposive interpretation.
However, the U.K. Supreme Court decision is significant because it has a detailed discussion on these two methods of interpretation. In the concurring judgment of Lord Legatt, the four facets of the “always speaking” principle are explained. He accepted that both primary and secondary legislation must normally be accorded an “always speaking” interpretation, unless the statute revealed an intention to retain its original and historical meaning. He also noted that the “standstill” principle is a rarity. He then highlighted the four different types of changes that are to be considered in the “always speaking” principle:
(i) Linguistic changes: Every language is always in the state of flux and even the meaning of words can change over time. The court referred to a law made during the time of Henry VII which called for trial by a jury of “twelve sad men”. At that time, the word “sad” meant persons who were sober and discreet! Naturally, it would be absurd that this meaning should continue and the jury should consist, according to Lord Legatt, of “twelve dolorous individuals”.
(ii) Changes in value: Social attitudes and norms change with the passage of time. What was reasonable or obscene or cruel at an earlier point of time may not be so at the present moment. A particular statute gave succession rights to a member of the tenant’s “family”. The word “family” as originally used contemplated a husband and wife but over a period of time, the word “family” would also include same-sex partners. Having regard to the changes in societal attitudes, the word “family” would have to be interpreted in a different manner.
(iii) Change in scientific knowledge: The advancement in science must also be taken into account while applying the “always speaking” principle. In an important decision [R v. Ireland (1998) 1 AC 147], the House of Lords held that the term “bodily harm” used in an 1861 statute had to be interpreted to include even psychiatric injury.
(iv) Technological changes: This has been frequently applied and courts have applied the previous law to include products or services that would have been in the contemplation of the legislature if the law was to be made again. Interestingly, this was applied differently in a criminal case and in a tax statute. A particular criminal law made it an offence to drive “any sort of carriage” in a rash manner. The courts interpreted the word “carriage” to include bicycles even though they had not been invented at the time the old statute was enacted. The purpose of the law was to punish rash and negligent driving that caused injury or bodily harm to another person. At the same time, the carriage, in the context of a taxing statute was held not to include a bicycle. This law levied a toll on “carriages” using roads. It was held that a bicycle would never have been in the contemplation of the lawmakers to be subject to a toll.
Lord Halsbury held that there must be a distinction between laws contemplated for protection of the public and laws levying taxes. The former must be given the widest possible meaning.
These are exceptions and the examples are indeed rare. Lord Wilberforce in Royal College of Nursing v. Department of Health (1981) AC 800 pointed out that before applying the “always speaking” principle to a new state of affairs or fresh facts, the court must first determine whether a statute has a clear purpose that can be applied to future changes as well. If a statute is restrictive or circumscribed in operation, then the “standstill” principle must apply. He pointed out that it is not open to the court to decide what Parliament could have done and supply the answer. The answer must be found in terms of the Act itself. It is submitted that this principle may not be strictly correct. If there is no “answer” in the Act, the courts must contemplate whether the law would apply to changed circumstances by applying the purposive test.
An example of “standstill” laws was the case where a bicycle was not included in the word “carriage” for the purpose of taxation. Lord Hoffmann interpreted the expression “maintenance of highways” in a standstill manner. Such a duty imposed by the law in 1959 did not contemplate a duty to remove ice and snow. Lord Hoffmann held that the duty of “maintenance” would not include the duty to remove ice and snow.
The difference between the “always speaking” principle and “standstill” principle has been elaborately discussed in Chapter 14 of Bennion’s Statutory Interpretation. One can conclude that a statute is ordinarily 'always speaking' and will normally apply to changed facts and circumstances. In rare exceptions, however, the law may 'standstill'.
Arvind P Datar is a Senior Advocate of the Supreme Court