THE PURPOSIVE APPROACH

An alternative method is the purposive approach, which looks outside the wording of the

statute. The rule is used in the interpretation of statutes involving European Community

Law, as their legislation is drafted in favour of simplicity whilst setting out the general

principles with a high element of abstraction. European Communities legislation is

drafted in a very different way to English Legislation. The EC favours a civil law

approach and is a simpler drafting.  

The purposive approach is required for all EC law under s.2 (4) of the European

Communities Act 1972. Where there is a conflict between EC law and UK law, UK

courts must choose an approach that interprets legislation implementing EC law. The

courts must consider wide economic and social aims of the EC/EU. 

In Lister v. Forth Dry Dock and Engineering Co Ltd [1989] 1 ALL ER 1134 a business

was sold or transferred to new ownership. One hour before transfer of ownership the

employees were dismissed.  Employees claimed to have been unfairly dismissed.  Under

regulation 5 of the transfer of undertakings (a statutory instrument implemented in the

UK to give effect to an EC directive), it was provided that a transfer does not terminate

employment ‘immediately before a transfer’ took place.  Using a Purposive approach the

House of Lords implied these additional words into the statutory instrument: “or would

have been so employed if he had not been unfairly dismissed before the transfer” for a

reason connected with the transfer.  Since the aim of the statutory instrument was to

protect employees’ rights it was necessary to import these additional words using the

purposive approach to ensure proper implementation of the EC Directive. 

Generally speaking therefore it can be said that there are two contrasting views as to how

judges should interpret a statute. Using the literal approach, dominant in the English legal

system, judges look primarily at the words of legislation to construe its meaning. Using

the more liberal but very limited rules of construction judges look outside of, or behind

the legislation in an attempt to find its meaning. It is evident that there are several ways

for statutes to be interpreted.  The literal and, to a lesser extent the, golden rules look to

the actual wording of the statutes. The mischief and purposive approach go beyond that.

Judges cannot make law, that is the role of Parliament, but they can and do try to give

effect to Parliament’s intentions by using the later three rules/approach to statutory

interpretation. This many would say, allows judges to create law, by assuming to know

Parliament’s true intention in a given piece of legislation or provision of it. It can be seen

as the courts interfering in areas outside their remit, as per the doctrine of Separation of

Powers.

There are two broad approaches the interpretation he literal approach and the

purposive approach. The literal approach is dominant in the UK. The judge looks at the

words in the statutevand it is rare for him to look outside the Act to find the meaning. In

contrast, the Purposive approach looks beyond the words of the statute. This is

common in civil law countries. Legislation is set out as general principles and filled in by

judges later. European community Law adopts the continental style and brings the

purposive approach into English Law when judges are interpreting European Law.

There are three canons of interpretation, which are not really rules but rather principles or

approaches. They have been developed by the courts and are secondary rules of

recognition. They form part of the common Law.

The idea that 'The purposive rule is derived from the case of Pepper v Hart [1993] AC

593' is wrong, as it says: In Pepper v. Hart [1993] AC 573, the House of Lords held that

courts now take a purposive approach to interpreting legislation

Cross defines statutory interpretation as:

“The process by which the courts determine the meaning of a statutory provision for

the purpose of applying it to the situation before them” (Statutory Interpretation, 2nd

Ed, at 30)

Statutory Interpretation’s main question is whether it should give effect to the wordings

of the statute or to parliaments intention.

Parliament is the supreme lawmaker. Common law is subordinate to legislation. The

declaratory theory of law should be followed. It is for the courts to apply law and not

make it.

“The interpretation of statutes is a constitutional function rather than a mere technical

matter... it bestows considerable power on the courts.”(Ashworth “Interpreting

Criminal Statutes: A Crisis of Legality?” 1991 107 LQR 419, at 426)

By interpretation you can change the meaning of a statute. It is for the courts to interpret

and apply the law. Note: The danger with statutory interpretation is that biased judges can

interpret law so as to promote their prejudice.

Tesco v Brent LBC [1993] DC

A 14 year old was sold a video with a "18" classification, and the supermarket chain were

prosecuted for an offence under the Video Recordings Act 1984. The Act provided that

it would be an offence to sell such a video where the seller had reason to believe the

buyer was under age; on the facts, this applied to the checkout operator but not to the

company itself. Staughton LJ said Parliament clearly intended the company to be liable

on the strength of its employee's knowledge, otherwise no national company could ever

have been prosecuted.

Maunsell v Ollins (1975)

Lord Simon (not the Simonds in Magor)

‘The first task of a court of construction is to put itself in the shoes of the draftsman – to

consider what knowledge he had and, importantly, what statutory objective he had …

being thus placed…the court proceeds to ascertain the meaning of the statutory

language.’

Royal College of Nursing v DHSS (1981) HL

Section 1(1) of the Abortion Act 1967 states that ‘a person shall not be guilty of an

offence under the law relating to abortion when a pregnancy is terminated by a

registered medical practitioner…’ Terminations, which involve nurses playing a

substantial role, are acceptable provided that a registered medical practitioner accepts

responsibility. Therefore, a doctor need not be present at a termination.

 

It appears that their Lordships had not engaged in interpretation but rewriting legislation

or as Lord Edmund-Davies put it, "redrafting with avengance", this may have been to

protect a large number of nurses who otherwise would have been performing illegal

abortions since 1972. The literal and mischief rules appeared not appropriate.

INCO Europe v First Choice Distribution (2000) HL

Lord Nicholls

Before adding or omitting words the court must be

1. ‘Abundantly sure [of] the intended purpose of the statute or provision in question;

2. That by inadvertence the draftsman and Parliament failed to give effect to that purpose

in the provision in question; and

3. The substance of the provision Parliament would have made, although not necessarily

the precise words Parliament would have used, had the error in the Bill been noticed.

The third of these conditions is of crucial importance.

"Even when these conditions are met, the court may find itself inhibited from interpreting

the statutory provision in accordance with what it is satisfied was the underlying

intention of Parliament. The alteration in language may be too far-reaching."