Discuss the advantages and disadvantages of the operation of the purposive approach
The purposive approach is flexible as noted by Lord Bingham who described it as the
.. creative process of supplying flesh to a spare and loosely constructed skeleton... (Samex Case). In Pepper v Hart Lord Reid stated
..to achieve the intent and produce a reasonable result we must do some violence to the words....
The approach allows for scientific advances as illustrated by Quintavalle, a case concerning a new process for creating live human embryos. The court decided if Parliament had wanted to ban cloning it would have said so the new approach was not prohibited.
The approach allows for a decision in the case without referring back to Parliament. This saves time and money and helps ensure justice in individual cases. In Tesco v Brent London Borough Council , a 14 year old was illegally sold a video rated 18, the court held not the company not the checkout operator was liable.
The approach makes interpretation more consistent with Europe. In Pickstone v Freemans the purposive approach was used to decide an equal pay case.
The rule allows for judicial law making which can be argued is undemocratic as it gives power to decide to unelected judges. In Magor and St. Mellons Rural District Council v Newport Corporation Lord Simmons said it was
..a naked usurpation of the legislative function under the thin disguise of interpretation.... In Fitzpatrick v Sterling Housing Association the purposive approach was used to decide
family in the Rent Act 1977 included homosexual relationships. The dissenting judges argued it was public policy matter not for judges to decide.