This slim volume publishes the three Hamlyn Lectures which Professor Burrows gave in 2017. It is written in his trademark straightforward and accessible style, and brings the subject of statutory law to life.

The first lecture is on statutory interpretation. Burrows traces the move from textualism to contextualism. As he explains, judges are now willing to construe statutes purposively, taking into account the legislative history (including, exceptionally, the Hansard report where the Pepper (Inspector of Taxes) v Hart [1993] A.C. 593 test is satisfied) and sometimes “rectifying” the words of a statute. And that is even before arriving at “non-standard interpretation”, permissible in the context of European human rights and European Union law, where the words used in a statute must be strained to ensure compatibility with higher laws. Burrows notes the limits imposed on a non-standard interpretation, which must still conform to the “grain of the legislation”, but he does not dwell on the attendant practical and theoretical difficulties.

Having thus set the scene, Burrows turns to three issues. First is the practice of framing statutory interpretation as seeking to implement the intention of Parliament. Burrows agrees with those who view this as an unhelpful fiction or mask. He seeks to squares this with the purposive interpretation techniques on the basis that the underlying policy of a statute is not dependent on identifying any person's intentions. The question for Burrows remains the statute's purpose. This is not wholly persuasive. The exercise of purposive interpretation typically involves looking at the intentions of the initiating agency within legislative process (e.g. the intentions of a sponsoring government department or the Law Commission as they appear from their pre-legislative papers).

Next is the concept that a statute is always speaking, viz. a statute can apply to circumstances that cannot have been foreseen at the time that the statute was. For example, the Supreme Court has held that modern meaning of “violence” in the Housing Act 1996 must include, in the domestic context, non-physical violence: Yemshaw v Hounslow Borough Council [2011] UKSC 3, [2011] 1 W.L.R. 433. “Foreseen by whom”, one might ask, if one is not allowed reference to the intention of Parliament (or the initiating agency in the legislation process)? Burrows has a ready and convincing answer: “always speaking” is a misnomer for a rule that judges should adopt the best possible interpretation of a statute at the time that the judge is reading it. Thus, it is argued, English law adopts the opposite approach to the powerful originalist and textualist schools of statutory interpretation in the US (perhaps most associated with the late Justice Scalia).

Finally, Burrows pithily compares and contrasts statutory interpretation, contractual interpretation and the interpretation of judgments. He cogently criticises the attempts to assimilate contractual and statutory interpretation (cf. Attorney General of Belize v Belize Telecom Ltd. [2009] UKPC 10, [2009] 1 W.L.R. 1988, at [16], per Lord Hoffmann), but recognises greater (though not complete) identity in the exercises to be conducted in respect of statutory and judgment interpretation. So concludes the first lecture.

The second and most thought-provoking lecture is on the interaction between statute and the common law. Burrows is an unashamed advocate of judicial development of the law. He argues that the Supreme Court should rarely decline to develop the law on the basis that the development should be left to Parliament. Four points are emphasised. First, a democratic check on judicial development is provided by the fact that Parliament can always override case law. Second, if judges did not develop the law, very often the law would not be developed at all. Third, there is a sliding scale from technical law through to social policy; while even technical law involves policy choices, that should not hold back judicial development. Fourth, judge-made law is incremental and constrained. There is something to be said for all of these points, but they are rather defensive and do not add up to a positive case for judicial development of the law.

Burrows tackles the question of whether the common law can be developed by analogy to statute. This has been a subject on which there has been intense academic disagreement in the past. Burrows sides with Professor Sir Rupert Cross against Professor Atiyah and cites a number of examples in which the common law has been developed by reference to statute, such as in the law of limitation, the common law duties of financial advisers, and the tort of privacy. Drawing an example from an area of his particular expertise, Burrows argues that the Law Reform (Frustrated Contracts) Act 1943 could be used by the Supreme Court to abolish the “total” requirement in failure of consideration claims. However, Burrows leaves unanswered the fundamental question of when it is appropriate to develop the common law by reference to statute; he is content with saying that this is a matter for the courts. No attempt is made to suggest the principles which might guide the courts in determining this question.

The second lecture also considers whether statute can freeze development in the common law. The answer – “it depends” – is clearly right. A statute can of course abolish common law rules (e.g. the Occupiers’ Liability Act 1957); in those circumstances, no future development of the common law in that area is possible, although a new body of case law will develop on the interpretation and application of such a statute. The question of whether the statute replaces the common law is not expressly answered in the statute itself, leading to difficulties. Thus, the House of Lords rejected a nuisance claim for periodic flooding where the scheme of the Water Industry Act 1991 also applied (Marcic v Thames Water Utilities Ltd. [2003] UKHL 66, [2004] 2 A.C. 42) but allowed the Revenue to seek recovery from a VAT fraud by way of the unlawful means tort in addition to its statutory powers of recovery (Revenue and Customs Commissioners v Total Network SL [2008] UKHL 19, [2008] 1 A.C. 1174). Burrows neatly captures the critical difference between the cases: in Marcic, a nuisance claim would have been inconsistent with the statutory scheme, whereas in Total Networks a conspiracy claim was not. Subject to express restrictions on the common law, and this principle of not undermining a statutory scheme, Burrows otherwise urges the courts not to hold back from developing the common law even in areas of legislation.

The third and final lecture is entitled “improvement”. Burrows addresses issues of style, the role of Parliamentary Counsel, the role of the Law Commission, and legislative scrutiny. The latter three raise practical concerns about cutbacks at the Office of Parliamentary Counsel and the Law Commission (particularly in its consolidation and repeal functions) and in the pre- and post-legislative scrutiny processes. As to style, Burrows goes beyond the usual complaints about the complexity of modern legislation, and suggests a change in approach to the drafting of statutes. He argues that the shift from a textual to a purposive interpretation opens the space for the drafter to move from producing detailed provisions to more straightforward principles-based drafting. The operation of those principles in practice can be guided by examples of the sort seen in the Consumer Credit Act 1974 – although Burrows, rightly, suggests that, as these are examples, they are better placed in Explanatory Notes along with a statement of the purpose of the legislation rather than in the statute itself. As for the level of detail, Burrows argues this should be left to the common law, and in the process of that argument, he candidly reflects on how the Contracts (Rights of Third Parties) Act 1999 (for which he was the responsible law commissioner) could have benefitted from that broader-brush approach.

This is a little book containing some big ideas. It is highly recommended as a starting point for anyone studying or researching statute law, particularly on the question of its interaction with the common law.