Possibly the most important thing to realize when hockey umpires speak of ‘interpretation’ is that there is a principle of separation of powers in operation when it comes to drafting and approving Rule and Rule Interpretation (Explanation) in the game of hockey.
An umpire officiating on a pitch is no more able to make Rule or formulate interpretation than a judge in a Court of Law can make the Law for Parliament or a policeman can compose the Statutes he enforces. High Court Judges have in fact a great deal more discretion (Case Law) about the interpretation of words in Rules (Statutes) than a hockey umpire has information concerning the meaning of the words used in Hockey Rules and Explanations.
A hockey umpire should be interpreting player actions for compliance with the FIH published Rules, not ‘interpreting’ those Rules ‘on the fly’ in a match situation or prejudging situations which require subjective judgement (i.e. have to be witnessed before any decision may be made about them).
The FIH Rules Committee (FIH RC) cannot by itself enact a Rule of Hockey. The FIH RC composes draft Rule which it submits to the FIH Executive for approval and (if approved) the draft is then enacted and published by “the FIH”. If the draft is not approved it is not corrected by the FIH Executive and then published, because they alone also do not have the power to enact a Rule; it is sent back to the FIH RC (with comment) for redrafting and re-submission to the Executive. This separation of powers is supposed to ensure that no Committee and no individual committee member is able to go beyond their powers (but the ‘gains benefit saga of 2007 demonstrated that this aim is not always achieved – one might reasonably say that these days it is seldom achieved).
In this situation it may be appreciated that having individual Umpire Managers issuing Rules Interpretations and instructing umpires to act upon them (especially when the outcome is obviously contrary to a reasonable understanding of the FIH published Rules) is utterly wrong.
There is a framework of Rules of Interpretation used in the legal profession called the Rules of Statutory Interpretation. They are general rules used to try to decide what Parliament meant when drafting and then enacting a Statute by Act of Parliament. These Rules are sometimes called crude or dangerous (despite all the care that can be expected from High Court Judges when using them) but pointers can be taken from them when determining the meaning of the words used in the Rules and Explanations of Application of the Rules of Hockey – and why not when the alternative may be the personal opinion of someone with no legal training and whose native language is not the language the Rules of Hockey are published in (which takes us into the field of translation where different languages may not have words of exactly equivalent meaning) ?
A law book quote and a student essay.
“The rules of statutory interpretation] are rather crude labels for describing a complex mechanism, i.e. making sense of what someone else has written. The labels are still in common use, but they are dangerous. For a start, they use the word ‘rule’, and this gives the impression that if you follow a particular pattern you will not go wrong.”– Learning Legal Rules (7th edition) by James Holland and Julian Webb.
The following is an edited (the law cases used in support of the arguments have been removed for brevity) essay (not mine) on the views expressed in the above quotation.
Laws are created by Parliament; Judges interpret the laws using Statutory Interpretation. Draftsmen, when drawing up statutes endeavour to ensure they are clear and unambiguous; however, statutes can contain wording with uncertain meanings and with society’s progression, old statutes, though still applicable, may contain wording unused in the present day. There may be other errors unnoticed by Parliament and statutes cannot cover every eventuality therefore; judges are required to interpret the meanings of statutes using the Rules of Statutory Interpretation. There are four Rules of Statutory Interpretation, these are the Literal Rule, the Golden Rule, the Mischief Rule and the Purposive Approach.
The Literal Rule requires courts to interpret statutes in their plain, literal and ordinary sense. The courts will not examine the intention of Parliament. This rule is used frequently as judges are not authorised to make laws and by following the statute to the letter judges cannot be accused of making law. This rule has positives, it does not question Parliament therefore upholds the law made even where it seems illogical, thus preserving the separation of powers. In limiting the role of the judge; verdicts are based on facts not opinion or prejudice. On the negative side, it creates loopholes where discrepancies in interpretation of the literal meaning occur, as it is ineffective in identifying limitations and complexities in English language. Occasionally use of this rule has defeated the original intention of parliament; The use of this rule can lead to injustice, weaken society’s confidence in the law and create precedents which require correction by Parliament. (Note. as an example in hockey we could consider the literal meaning of “attempting a tackle”, the absence of “preventing a tackle attempt”, and the use of Rule 9.13. to avoid applying Rule 9.12, which results in absurdity. It needs to be appreciated that the Rules of Hockey have been assembled ‘piecemeal’ over a period of about 170 years and some of them are still very badly written despite what we are told about constant revision and long term “simplification and clarification”. I regard the last rewrite of the entire rule-book in 2004 as an act of vandalism that has still not been recovered from – the ‘over haul’ in 1995/6 wasn’t any better. The FIH does not employ professional people with experience of drafting Rule for the game)
The Golden Rule, is used where the Literal Rule would result in an absurdity or an obnoxious result. The court investigates whether the statute wording conveys Parliament’s intention. The positives are that judgments are usually parallel with the legislator and errors in drafting are amended before awkward precedents are set, thus closing loopholes. Using common sense within law usually provides justice restoring public confidence in the legal system. It is problematic though as judges have power to interpret the statute as they wish, changing or adding to its meaning. It flouts the separation of powers.
The Mischief Rule, used to interpret gaps (ultra vires) Parliament intended to cover and apply a ruling that remedies the problem in ambiguous statutes. This rule allows for the adaption of statutes in a progressive society and closes loopholes. However, the judges have a law-making role infringing on the separation of powers and giving opportunity for a crime to be created after the event. Judges could make decisions based on their own opinions which could lead to injustice.
The Purposive Approach is implemented to ensure the law is effective as Parliament would have intended. In statutory interpretation courts rely on presumption, language, intrinsic and extrinsic aids. Presumptions are that common law has not been amended unless the Act shows intention to amend; Parliament cannot have retrospectively amended the law. In criminal cases Mens rea is necessary.
The rules of language are Ejusdem Generis, a list of words is followed by general words, which are limited to the same type of item as the specific words . Secondly, Expressio unius exclusio alterius the express mention of one thing excludes others; (in hockey this creates a problem for reasonable application of the Rule prohibiting the raising of the ball towards an opponent within 5m – as flicks and scoops are listed, but hits and intentional deflections are not) with the the Act applies only to items in the list. Finally Noscitur a sociis, a word is known by the company it keeps and must be looked at in the context of the Act.
Intrinsic aids are matters within an act itself which may make the meaning clearer. Finally extrinsic aids put an Act into context using case law, dictionaries from the time and historical setting. In consideration of the above quotation it is worth noting that the Law itself is a structure based upon rules, these rules are partly built upon social and moral rules.
It is reasonable for Statutory Interpretation to be labeled “Rules”. Rules are utilized in many activities from games like hockey to the etiquette expected in a particular working environment. They are responsible for regulating and guiding a behaviour or action against which an action or behaviour may be assessed and judged. Rules set a standard. In general rules can be applied to cases without having to reassess the intrinsic worth of each case; this provides a consistent result and can be both predicted and stable.(Note. an approach which is a problem in a game like hockey where a particular individual action is supposed to be judged on subjective criteria. For example, ball body contact is an offence only if use of the body is intentional or an advantage is gained because of it). There is however the argument that as the law is expressed in language there are factors that will influence the interpretation and application of legal rules, however by having a set of rules to follow in the interpretation of the rules, it does not suggest rigidity in the result and it is possible for the result to be the “wrong” result. However, the rules of statutory interpretation are varied, it is not one set rule, and therefore the most effective rules should be applied in consideration of the case. Together the rules allow for contemplation and are the starting point to allow for the most effective action in upholding the law.
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That process seems so much more considerate than “Because I say so.”
Quote: -Craig Gribble from Umpire Mangers Briefing Video Rio Olympics 2016. – “ Of course a defender on the goal-line cannot expect the protection of the Rules because the goal-line is properly the domain of the goalie.“
”What Rule, I wonder, is that statement an interpretation of?
Rules of Hockey 