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Much of our law comes from Acts of Parliament. These are also known as statutes and a large number of them are passed by Parliament each year. The law needs to be clear and certain but there are many occasions when the meaning of a statute or specific part of it is the subject of a dispute in a case which comes before the courts. In such cases the court has the difficult task of deciding upon the exact meaning of a particular word or purpose.
The courts are helped in this task by a number of well tried and tested rules of statutory interpretation. Judges have their own preferences as to these rules and judges are free to choose which approach to adopt depending upon the circumstances.
The various rules are the literal rule, the golden rule, the mischief rule and the purposive approach.
The purposive approach is probably the broadest approach of all the rules of interpretation. 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.
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. In other words what is the purpose of the Act? We shall also see that the purposive approach may even come into play in new situations that have developed since the passing of an Act.
The broad approach taken by the purposive approach allows the judges to look beyond the words used to find an interpretation which is more consistent with the general purpose of the legislation as enacted by Parliament. Other rules such as the literal rule and golden rule are more concerned with meaning of individual words and phrases themselves. In this regard the purposive approach starts from a much more positive position in that it is similar to the mischief rule in that it looks for the purpose or intention of Parliament. Whereas any systematic or unified approach which takes as its starting point the plain ordinary meaning of words is much further back from seeking the purpose or intention of Parliament.
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. This being the case judges using the purposive approach are much flexible in their approach to extrinsic aids than judges using other more traditional rules.
Lord Simon was quite clear in his approach as he sought the meaning of 'premises' for the purposes of the Rent Act in Maunsell v Olins (1975) when he said ‘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.’ The purposive approach changes the emphasis as to way the court approaches statutory interpretation right from the start.
In particular if legislation has come about as a result of a review of the law by the Law Commission, and recommendations for change and improvements then the judges may well be willing to consider the Law Commission's Report. The Law Commission's Report might well include draft provisions for inclusion in any subsequent Bill. This is because the judges will realise quite sensibly that the Law Commissions work will have been arrived at as a result of a fully considered examination of the area of the law in question including any shortcomings or other areas for improvement. The Law Commission is after all charged with keeping the law under review and was set up in 1965 for this very purpose.
Similarly, the judges may well be willing to consider any government minister’s introductory statement made in support of the proposed legislation at the time it was introduced. Such considerations are now permitted under the House of Lord‘s ruling in Pepper v Hart (1993) which overruled Davis v Johnson (1967), subject to the limitations as to its use set out in the judgement.
It is also the case that as part and parcel of the purposive approach, judges will find it essential and necessary to consider a range of external aids in their quest for what they believe Parliament meant to achieve. This might include such matters as the works of leading academics such as the late Prof Smith in the case of criminal law and Prof Glanville Williams in respect of constitutional law. It would not be out of the question for judges to consider work carried out by Royal Commissions.
Up until now we have been concerned with matters within the knowledge or awareness of Parliament at the time when legislation was passed but what if the courts encounter a situation which suggests it concerns something that was not within the contemplation of Parliament? This very point arose in the case of Royal College of Nursing of the United Kingdom v Department of Health and Social Security (1981) and it was Lord Wilbeforce who took the view that judges cannot fill in the gaps by asking themselves what would Parliament have done in the case before them. So the purposive approach should not be thought of as a blank canvass as such but the purposive approach was said to be allowable if the subject matter of the case was of the same genus as addressed in the legislation and Parliament's intention was found to be clear and an extended approach was necessary to give effect to it. So this permitted, albeit subject to limitations, for the further development and progress of the law to new situations.
An example of such an extended interpretation using the purposive approach can be found in the case of R (Quintavalle) v Secretary of State for Health (2003). The then House of Lords had to consider whether organisms created by cell nuclear replacement (CNR) fell within the definition of 'embryo' for the purposes of the Human Embryology and Fertilisation Act 1990. In arriving at a decision that such organisms came within the definition and did not distinguish between embryos created through fertilisation or through CNR as Parliament was concerned about the potential for a wrong use of embryos through fertilisation as CNR had not been developed at the time. The courts in so extending the approach were giving effect to the purpose of the Act for affording the same protection to embryos created through CNR.
The case of R v Registrar-General ex parte Smith (1990) concerned the application for information to enable Smith to obtain a birth certificate which in turn might allow him to ascertain the whereabouts of his natural mother. Smith had two convictions for murder. Although the relevant words of the Act in question were clear, the Court of Appeal decided that the Act could not have been intended to facilitate serious crime and ruled that the Registrar-General did not have to supply the information sought. The legislation in issue in this case was clear and unambiguous and the case demonstrates seeking out Parliament's intentions allows more flexibility than the other rules in its approach to interpretation.
Lord Denning was a champion of the purposive approach and did not attempt to disguise his perception of his role of a judge. This was clearly shown in the case of Magor and St Mellons v Newport corporation (1950) when he used words to the effect that ‘we sit here to find out the intention of Parliament and carry it out we do this better filling in the gaps……….’ However whilst he was supported in this approach by the likes of Lord Steyne, he did have his opponents not least, Lord Simmonds and Lord Scarman, who were both of the firm opinion that it was Parliament’s job to intervene in such circumstances.
However it could be argued that it is more likely to respect the wishes of Parliament since it seeks to find and fulfil the legislative purpose. This is not necessarily the case with either the literal or golden rules. In the case of the literal rule it is often criticised for leading to unfair and absurd decision which can hardly be argued to be Parliament's true intentions. The golden rule is a modification of the literal rule and can lead to compromise and dissatisfaction.
The purposive approach is modern and can be said to be more akin to the interpretation of European legislation and the Human Rights Act which are written in very broad terms setting out general principles. Under this approach judges interpret according to ‘the spirit rather than the letter’ of the law.
As regards the matter of membership of the European Union, and the influence of European law we should note several aspects about the implications for the purposive approach. It is the preferred method by many of the member states when it comes to their own legislation. The European Court of Justice also adopt this approach when interpreting European law. Furthermore, the Treaty of Rome states that all Member States must 'take all appropriate measures …...to ensure fulfilment of the obligations'. In Marleasing SA v La Commercial Internacional de Alimtacion SA (1992) the European Court of Justice ruled that when interpreting national law it should be done so in light of the wording and aim of the European law. This was the case even if the national law had not been enacted to implement a directive; the obligations applied irrespective of whether the national provisions came into effect before or after any directive was issued and national courts are required to interpret domestic law in a way as to ensure that the objectives of a Directive are achieved.
This preference for the purposive approach can be found in Section 2 (4) of the European Communities Act 1972 and is also responsible in some part for why the purposive approach has grown in use. We are told by the UK Parliament site that '…...As a consequence of the rule of construction in section 2(4) all primary legislation enacted by Parliament after the entry into force of the ECA on 1 January 1973 is to be construed by the courts and take effect subject to the requirements of EU law'.
The willingness of UK courts to apply EU Treaty directly can be seen in Diocese of Hallam Trustee v Connaughton (1996). In this case a Josephine Connaughton successfully claimed for discrimination in respect of her employer's appointment of a male successor to her job at a much larger salary than she was paid at the time she left her employment. The Employment appeal Tribunal were satisfied that the scope of the Art 157 of the Treaty of Rome provision was sufficiently wide to allow the claimant to make a claim.
In Pickstone v Freemans Plc (1989) this departure from the literal words chosen by Parliament can be seen as the House of Lords realised that the reading of words into a statute was required to avoid an infringement of EU requirements. The claimant, Miss Pickstone brought a claim against her employer. The claim was made under under the Equal Pay Act 1970. The claimant was employed as a warehouse operative and was paid the same as male warehouse operatives. Despite this, Miss Pickstone was able to claim that the work of the warehouse operatives was of equal value to that done by male warehouse checkers who were paid more than she was.
Section 3 of the Human Rights Act 1998 says that in so far as it is possible to do so, legislation must be read and interpreted in a way which is compatible with the rights set out in the European Convention on Human Rights although not all cases involve human rights. The effect of this provision is to widen the approach to interpretation at times to ensure that Convention rights are not infringed. This was illustrated in the case of R v Offen (2001) which involved the meaning of the word 'exceptional' for the purposes of the Crime (Sentences) Act 1997. The Act required a life sentence to be given to an offender of a second serious offence unless there were 'exceptional circumstances'. Prior to the commencement of Human Rights Act, the courts in R v Kelly (2000) had decided that 'exceptional' should be given its plain ordinary meaning this resulted in a strict approach which led in turn to life sentences where this could be seen as overly harsh.
In Offen the Court of Appeal took the view that this limited approach was capable of leading to arbitrary and disproportionate sentences in breach of Articles 3 and 5 of the ECHR and found a solution by saying that exceptional for the purposes in question meant that the court had to consider whether the offender was a danger to the public. If the offender was not thought to be a danger then he or she fell within the meaning exceptional circumstances and a life sentence was not imposed. It can be argued the difference the Human Rights Act has made to interpretation leans towards the purposive approach to interpretation, as it requires judges to consider overriding rights and factors beyond the legislation in question.
The opponents of the approach such as Lord Scarman argued that the only way to discover Parliament’s intentions is by applying the words used in the statute. It is not for a judge to argue that ‘Parliament said one thing but meant another’. It is also argued that the purposive approach does not respect the sovereignty of Parliament whose job it is to legislate in accordance with democratic principles. Judges are not elected and it is said that the rule allows them too much judicial creativity.
It could be said that the purposive approach encourages judges to take matters into their own hands and remedy defects or gaps in the law without the need to refer the matters to Parliament. However it could be argued that the use of the rule is simply allowing the judges to make use of their skills and experience in an appropriate and effective manner. Using this approach brings about change without the need for considerable delay which would be the case if a change in the law had to wait for Parliamentary legislation. Parliament’s legislative programme can mean a delay of months or years. There will be a considerable saving in terms of time and resources as a result not to mention justice for those seeking redress in the courts.
Some might argue that it may not be possible to identify Parliament's intentions at the end of the day for the purposes of resolving the case before the judges even after an examination of extrinsic aids. The use of Hansard in some cases does not necessarily mean that Hansard will be helpful. In 2005 the former House of Lords in Jackson and others v Her Majesty's Attorney General acknowledged that the decision in Pepper v Hart was under something of a judicial cloud and that this may have been in part to due to the view that references to Hansard seldom assist. The Lords did speak of the value of ministerial statements as an interpretative aid.
Court costs have long since been a concern for those using the courts and the use of the purposive approach and subsequent consideration and scrutiny of extrinsic aids will have an affect on costs as well as court time. In recent years cuts and court closures have become a real concern as well and this is a constant reminder that we need to bear such factors in mind. The use of Hansard is limited to instances of where the words of the Act are ambiguous or obscure or would lead to absurdity and should only be used if there was a clear ministerial statement made when the legislation was introduced and this resolves the problem. It is worth remembering that the Lord Chancellor was a member of the court when the Lords sat to deal with Pepper v Hart. Lord MacKay was the only judge not to agree with the decision allowing Hansard's use and opposed such use on the grounds of time and cost but some members of the legal profession may agree with the predictions of the former Lord Chancellor.
In addition a study of some 34 cases by Vera Sachs in 1982 (pre Pepper) found that 'in every case studied the disputed clause was either undebated or received obscure and confusing replies from the Minister'. Prof Michael Zander conducted a study of cases dealt with by the House of Lords after 1992 and found that there were virtually no cases which showed that the court's decision had been influenced after reading Hansard. This perhaps confirms the view that the reading of Hansard and any ministerial statement is important to the overall interpretative process but that such materials in themselves rarely provide a conclusive and definitive answer.
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Note: R (on the application of Gibson) (Appellant) v Secretary of State for justice (Respondent) (2018) R (on the application of Gibson) (Appellant) v Secretary of State for Justice (Respondent) where the Supreme Court reminded everyone that 'Penal legislation is construed strictly, particularly where the penalty involves deprivation of liberty' with the result that the Court did not approve of the need to add words to section 79(2) of the Magistrates' courts Act 1980.
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