Introduction

• approach has emerged more recently
• courts look to identify what they believe Parliament meant to achieve

  Magor & St Mellons Council v Newport Corporation (1950)

  • Lord Denning: .. we sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment by opening it up to destructive analysis.

  Notham v Barnet LBC [1978]

  • Lord Denning: [purposive approach] .. will promote the general legislative purpose underlying the provisions.

Application

• purposive approach has been used in many cases

  Shah v Barnet LBC [1983]

  • Lord Scarman: [purposive interpretation may only be adopted if judges] .. can find in the statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament's purpose or policy .

  Pepper (Inspector of Taxes) v Hart [1993]

  • Lord Reid: To apply the words literally is to defeat the obvious intent of the legislature. To achieve the intent and produce a reasonable result we must do some violence to the words.
  • Lord Griffiths: The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.

  Spath Holme (2000)

  • Lord Cooke: While today the purposive principle of interpretation is the governing one if available, other established canons may come into play... such as that Parliament does not lightly take the exceptional course of delegating to the executive the power to amend primary legislation; that, when it does so, a restrictive approach to interpretation is legitimate; and that, in the absence of clear language Parliament is presumed not to take away property rights without compensation.

European approach

• purposive approach is used by most European countries
• also the approach taken by European Court of Justice in interpreting EU law
• UK's EU law obligations are considered by domestic courts using the approach

  European Communities Act 1972

  • domestic courts obligation to construe law consistently with EU law
  • should use purposive approach to do so

  Human Rights Act 1998

  • S3: so far as possible read to give effect European Convention on Human Rights
  • S4: statement incompatibility can be issued by court

  R v A [2001]

  • Youth Justice & Criminal Evidence Act 1999 S41(3)(b) prohibits questioning rape V on their sexual behaviour unless contemporaneous
  • D wanted question V on their alleged continuing relationship
  • House of Lords took purposive approach to comply with ECHR Article 6 (right to fair trial)
  • stated that appropriate test: whether questioning could obtain evidence relevant to consent
  • went beyond words of Act

Advantages:

Flexible

• allows courts to rule justly in individual cases

  Customs & Excise Commissioners v Samex [1983]

  • Lord Bingham: .. creative process of supplying flesh to a spare and loosely constructed skeleton...
• overcome drafting issues where circumstances have not been foreseen

Expediency

• decision in case without referring back to Parliament

Consistent

• brings the English legal system more in line with European counterparts

  Pickstone v Freemans plc (1998)

  • C was a woman working in warehouse
  • she earned £1.22 per week less than male colleagues
  • House of Lords took purposive approach to give effect to EU Equal Pay directive
  • C entitled to make her claim

Disadvantages:

Undermines democracy

• judicial law making

  Magor & St Mellons Council v Newport Corporation (1950)

  • Lord Simmons: .. a naked usurpation of the legislative function under the thin disguise of interpretation... if a gap is disclosed, the remedy lies in an amending Act.
• can also create public policy issues if judges are making decisions