Wilsonian statutory interpretation and banking insolvency
The writer was never lectured by the late Professor WA Wilson on the topic of statutory interpretation, but has read with great pleasure his many articles on the subject (detailed in note 1 to Professor Gerry Maher's "Statutory interpretation: the Wilsonian Analysis" in Scots Law into the 21st Century (ed HL MacQueen, 1996). His examples remain popular with students.
For example, the Vehicles (Excise) Act 1971, s 8 (1) provided
“If any person … keeps on a public road any mechanically propelled vehicle for which a licence is not in force … he shall be liable to …” [penalty]
In relation to which Professor Wilson drew attention to Holliday v Henry (1974) RTR 101 which considered whether an unlicensed car, without a gearbox, balanced on four roller skates is “on” a public road?
In reading The Bank Insolvency (Scotland) rules (SI 2009/351) (in force from 25th February) rule 3, in particular, seemed to be a provision that would have appealed to Professor Wilson
“(7) Where a rule in the 1986 Rules (Rule A) contains a reference to another such rule (Rule B)
(a) both Rule A and Rule B are applied by these Rules; or
(b) Rule A is applied by and the provision in Rule B to which Rule A refers is substantially
repeated in these Rules;
the reference in Rule A shall be treated, for the purpose of these Rules, as being, respectively, to the rule in these Rules that applies Rule B or the provision in these Rules that substantially repeats the provision in Rule B.
(8) Where a rule (Rule A) refers to another rule (Rule B) and Rule B applies a rule of the 1986
Rules (Rule C) with or without modifications, the reference in Rule A includes a reference to
Rule C as applied to Rule B”
Clearly, this is a provision which needs little explanation.
The Bank Administration Scotland Rules (SI 2009/350) also came into force on 25th February – with provisions that are similarly opaque.
Some time ago Roy Goode wrote of the general rules on administration that
“To read the amended Insolvency Act 1986 it no longer suffices to be a lawyer; it is necessary to become a physical geographer in order to find one’s way around provisions which are randomly dispersed among the body of the Act, the bizarrely numbered Schedules A1 and B1 and the Insolvency Rules, with seemingly no logic in the distribution nor any conception that it might be useful if all the provisions dealing with the same subject were brought together in clearly stated requirements. … [T[hose who enjoy finding their way round mazes might give Hampton Court a miss and try their hands at tracking down the meaning of “hire purchase agreement” in paragraph 43 (3). All that is required is perseverance and a passion for concentric circles” [Principles of Corporate Insolvency (3rd edn, 2005), preface]
And while the new rules don’t seem to add to that last mentioned problem it would seem that they do not improve the difficulties Sir Roy identified.