2. PURPOSIVE APPROACH
The 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.
2
3. 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. 3
4. 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.
4
5. 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.
5
6. 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 –
6
7. 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
7
8. 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.
8
9. 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.
9
10. 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.
10
11. 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.
11
12. 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.
12
13. 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’
13
14. 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.
14
15. 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.
15
16. 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.
16
17. 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.” 17
18. 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.'
18
19. 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'.
19
20. 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.”
20
21. “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. 21
22. 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.
22
23. 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.
23
24. 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. 24
