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RULES OF INTERPRETATION

PURPOSIVE APPROACH

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PURPOSIVE APPROACHThe purposive approach is a modern version of the

mischief rule.

It is certainly more flexible than either the literal rule or the golden rule which tend to concentrate upon the meaning of individual words or phrases.

This rule allows a judge to add or ignore words in an Act to help them give a decision that supports, in their view why the Act was created.

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The purposive approach is often compared to the mischief rule. Under the mischief rule the court is looking to see what gap there was in the old law and how Parliament has filled the gap and what remedy has been provided for.  The purposive approach, on the other hand, is broader still in that it is not just looking to see what gap might have existed in the law previously, but the judges are attempting to identify what they believe Parliament meant to achieve.

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As a natural consequence of this approach the judges find themselves concerned with matters which are outside the confines of the particular statute itself.  This includes the context in which the law was created.  The judges therefore consider it quite appropriate and proper to examine the concerns of the government and Parliament at the time the Act was passed.

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Literal Rule vs. Purposive Approach

The literal approach takes each word literally. The purposive approach is very broad and does not look at the precise meaning of each word.

Golden Rule vs. Purposive Approach

Golden rules look to the actual wording of the statutes. The mischief and purposive approach go beyond that.

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Intention of the Legislature……..

“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.”

- Lord Griffiths in Pepper v Hart –

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In purposive approach judges do not go by the letters of the statute. Instead they go by the spirit of the statute – Intention of the Legislature.

Legislative intention – a fictitious concept.

Legislative intention with regard to a particular statute can be the intention of

majority of the parliamentarians agency

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In Mischief Rule courts resort to the mischief a particular Act intended to remedy.

But in Purposive Approach the courts look for the intention of the parliament. In that sense Purposive Rule is broader than the mischief rule.

Exception – Heydon’s case.

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Constitutional reasons for retaining the notion of intention of the parliament.

Subordination of the judiciary to the parliament.

The desire of the judiciary to disavow a large creative role in the interpretation of statutes.

Legal certainty.

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Preamble.

Preamble defines reasons and cause for enact the Act.

This is not essential part of a statute.Preamble have for a long time been

something of a rarity.

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When there is a preamble, it sets out the facts and assumptions upon which the statute is based.

The long title and preamble are discussed together because the law with regard to the use which may be made of each is the same, and what is strictly a long title is sometimes erroneously referred to as a preamble.

The accepted position as regards the use that may be made of a preamble was stated by Lord Normand in the following terms in AG v Prince Ernest Augustus of Hanover.

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The preamble itself was none too clear, but the Hanover case is clear authority for the proposition that the fact that the enacting words under consideration go beyond the scope of the purposes mentioned in the preamble is not a reason for declining to give effect to otherwise unambiguous statutory words.

Lord Parker CJ said: It is impossible to look at the preamble of the Act as controlling the operative words of the Act itself unless those words are ambiguous, adding that there was anyway no inconsistency between the preamble and the words of the section.

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This approach has emerged in more recent times. Here the court is not just looking to see what the gap was in the old law, it is making a decision as to what they felt Parliament meant to achieve.

Lord Denning in the Court of Appeal stated in Magor and St. Mellons Rural District Council v Newport Corporation (1950), ‘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’.

We do not sit here to pull the language of Parliament to pieces and make nonsense of it. We sit here to find out the intention of Parliament and carry it out and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis’

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Pickstone v Freemans plc (1998).

Here, women warehouse operatives were paid the same as male warehouse operatives. However, Miss Pickstone claimed that the work of the warehouse operatives was of equal value to that done by male warehouse checkers who were paid £1.22 per week more than they were. The employers argued that a woman warehouse operative was employed on like work to the male warehouse operatives, so she could not bring a claim under section 1(2) (c) of the 1970 statute for work of equal value. This was a literal interpretation of the 1970 statute. The House of Lords decided that the literal approach would have left the United Kingdom in breach of its treaty obligations to give effect to an EU directive. It therefore used the purposive approach and stated that Miss Pickstone was entitled to claim on the basis of work of equal value even though there was a male employee doing the same work as her.

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Contd…

This attitude was criticized on appeal by the House of Lords. Lord Simmons called this approach ‘a naked usurpation of the legislative function under the thin disguise of interpretation’. He went on to say that ‘if a gap is disclosed, the remedy lies in an amending Act’.

These comments highlight one issue with the purposive approach. How Parliament's intentions can be determined and whether judges should really be refusing to follow the clear words of Parliament.

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Contd…….First, the courts have been required to accept that, from 1973,

the purposive approach has to be used when deciding on EU matters.

Second, as they use the purposive approach for EU law they are becoming accustomed to using it and more likely to use it to interpret domestic law.

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Regina -v- Barnet London Borough Council, Ex parte Shah; HL 1983

The five applicants had lived in the UK for at least three years while attending school or college. All five were subject to immigration control, four had entered as students with limited leave to remain for the duration of their studies, and the fifth had entered with his parents for settlement and had indefinite leave to remain. They challenged the refusal to allow them grants for their education.

Held: The House construed the expression “ordinarily resident” in the 1962 and 1980 Acts.

Lord Scarman said: “Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that ‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.”

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Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg AG [1975] HL

Held: The report of the Foreign Judgments (Reciprocal Enforcement) Committee 1932 could be considered in order to ascertain the mischief to be averted, but the majority stressed that such reports could not be used to interpret the meaning of the words. 

Lord Reid said: 'We often say that we are looking for the intention of Parliament, but that is not quite

accurate.  We are seeking the meaning of the words which Parliament used.  We are seeking not what Parliament meant but the true meaning of what they said.  ...I have more than once drawn attention to the practical difficulties... but the difficulty goes deeper.  Questions which give rise to debate are rarely those which later have to be decided by the courts.  One might take the views of the promoters of a Bill as an indication of the intention of Parliament but any view the promoters may have about the questions which later come before the court will not often appear in Hansard and often those questions have never occurred to the promoters.  At best we might get material from which a more or less dubious inference might be drawn as to what the promoters intended or would have intended if they had thought about the matter, and it would, I think, generally be dangerous to attach weight to what some other members of either House may have said... in my view, our best course is to adhere to present practice.'

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Stock v Frank Jones (Tipton) Ltd (1978) HL

Lord Edmund-Davies; Clear words must be applied - even if the result is absurd.

Viscount Dilhorne: The aim of the court is to find the intention of Parliament as expressed in the words

it used.

 "When the language of a statute is plain it is not open to the court to remedy a defect of drafting"

Held: "dismissal of employees who take part in a strike", did not include 'dismissal of employees taking part in a strike'.

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Lord siman:

A court would only be justified in departing from the plain words of the statute were it satisfied that:

(1) there is clear and gross balance of anomaly;

(2) Parliament, the legislative promoters and the draftsman could not have envisaged such an anomaly, could not have been prepared to accept it in the interests of a supervening legislative objective;

(3) the anomaly can be obviated without detriment to the legislative objective;

(4) the language of the statute is susceptible of the modification required to obviate the anomaly.”

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“But it is essential to bear in mind what the court is doing. It is not declaring Parliament has said X, but it obviously meant Y, so we will take Y as the effect of the statute. Nor is it declaring Parliament has said X having situation A in mind, but if Parliament had had our own forensic situation B in mind, the legislative objective indicates that it would have said Y. So we will take Y as the effect of the statute as regards B. What the court is declaring is Parliament has used words which are capable of meaning either X or Y, although X may be the primary natural and ordinary meaning of the words, the purpose of the provision shows that the secondary sense, Y, should be given to the words. So, too, when X produces injustice, absurdity, anomaly or contradiction. The final task of construction is still, as always, to ascertain the meaning of what the draftsman has said rather than to ascertain what the draftsman meant to say.

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The advantages of the purposive approach

1. Leads to justice in individual cases.

2. 2. where there is new technology which

was unknown when the law was enacted.

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The disadvantages of the purposive approach

It makes the law less certain.

It also allows unelected judges to ‘make’ law as they are deciding what they think the law should be rather than using the words that Parliament enacted.

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It also leads to uncertainty in the law. It is impossible to know when judges will use this approach or what result it might lead to. This makes is difficult for lawyers to advise clients on the law.

Another problem with the purposive approach is that it is difficult to discover the intention of Parliament. There are reports of debates in Hansard, but these give every detail of debates including those MP’s who did not agree with the law that was under discussion. The final version of what Parliament agreed is the actual words used in the Act.

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THANK YOU!