The ‘Always Speaking’ Principle: Cracking an Enigma

Abstract

Common-law judges frequently invoke the ‘always speaking’ principle/rule. But they also recognise — rightly — that they are confused about it, with Lord Leggatt recently calling the metaphor ‘enigmatic’. In this article I show that there is so much confusion about this ‘principle’ because the ‘always speaking’ metaphor has come to be associated with five distinct types of principle, each of which responds to a different issue (although they share a common theme: change over time). I clear up this confusion by explaining these issues, and the ‘always speaking’ metaphor, and showing how they relate to each other. I also explain why it is important to recognise that these five issues are distinct, focusing on separating principles of dynamic/ambulatory interpretation from judicial powers to strain or ‘revise’ legislation to produce a satisfactory outcome for a ‘novelty’ (i.e. something unforeseen by the enacting legislature). In doing so, I analyse the judgments in the recent UK Supreme Court decision in News Corp.

Keywords: Legislation, originalism, dynamic interpretation, ambulatory interpretation, law and time, law and language, legal theory, separation of powers, rule of law, judicial reasoning