STATUTORY INTERPRETATION The Purposive Approach

Mischief rule v Purposive approach… The mischief rule looks for the gap between previous legislation and aim to find the mischief the legislation being considered, aimed to fix. The purposive approach (PA) to statutory interpretation seeks to look for the purpose of the legislation before interpreting the words The mischief rule:The purposive approach:

Why the purposive approach?  Considered to be the modern interpretation of the mischief rule  Used by the European Court of Justice when deciding cases  Why would this be the case? Why is the literal rule no good for the EU?  Many different languages to interpret and translation is not an exact science  When applying any EU legislation, domestic judges are required to use the PA

Maunsell v Olins[1975]  Lord Simon explained the purposive approach: '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.’ Thus the purposive approach seeks to look for the purpose of the legislation before interpreting the words.

EU and the PA  Other (particularly EU) systems of law routinely use the purposive approach to interpretation meaning that they will look outside the act to give the words meaning that would allow the Act to achieve its purpose.  As a result, when looking at domestic legislation designed to implement Union legislation (e.g. HRA 1998), judges must use purposive rule in that interpretation.  Pickstone v Freeman [1988] – House of Lords ruled that to give effect to EU law, court had to read words in to an inadequately drafted domestic equal pay statute.

Mix of rules?  Some say PA is a mixture of domestic rules…  Whereas the domestic rules require the courts to apply the literal rule first to look at the wording of the Act…  The PA starts with the mischief rule in seeking the purpose or intention of Parliament

What benefits does this have?  More flexible approach  Gives judges greater scope to develop the law in line with what they perceive to be Parliament's intention  More readily embraces the use of extrinsic aids to assist in finding Parliament's intention (These are outside sources of information)

Pepper v Hart (1992)  The House of Lords had to decide whether a teacher at a private school had to pay tax on the perk he received in the form of reduced school fees.  The teacher sought to rely upon a statement in Hansard (record of Parliamentary debate) made at the time the Finance Act was passed in which the minister gave his exact circumstance as being where tax would not be payable.  Previously the courts were not allowed to refer to Hansard  The House of Lords departed from a previous case and took a purposive approach to interpretation holding that Hansard may be referred to and the teacher was not required to pay tax on the perk he received.

Further comment…  Lord Griffiths on the purposive approach:  "The days have passed when the courts adopted a literal approach. The courts use a purposive approach, which seeks to give effect to the purpose of legislation and are prepared to look at much extraneous material that effects the background against which the legislation was enacted."

R v Secretary of State for Health (2003)  The Human Fertilisation and Embryology Act 1990 is legislation which covers licensing for research on embryos  The case concerned whether or not licensing the creation of cloned human embryos was covered under legislation  An embryo was defined in the Act as ‘a live human embryo where fertilisation is complete’. However, embryos created using cloning are not fertilised.

What did the court decide?  At the time of the Act, cloning technology did not exist. Therefore it was held that Parliament could not have intended to distinguish between the two scenarios  The House of Lords decided that Parliament could not have intended to leave embryos created by cloning unregulated.  Therefore the Act would apply to cloning in the same way it would apply to an embryo created any other way

Advantages of the Purposive Approach:  It is a flexible approach which allows judges to develop the law in line with Parliament's intention  It allows judges to cope with situations unforeseen by Parliament It allows the law to develop to cover advances in medical science  It allows the courts to give effect to EU Directives  Allowing reference to Hansard makes it easier for the courts to discover Parliament's intention

Disadvantages of Purposive Approach:  Judges are given too much power to develop the law and usurping the power of Parliament  Judges become law makers infringing the Separation of Powers (Montesquieu)  There is scope for judicial bias in deciding what Parliament intended  It assumes Parliament has one intention and ignores the fact that Parliament is divided on party lines  Allowing reference to Hansard may lead to prolonged examination of irrelevant material by lawyers which adds to the cost and length of litigation

Consolidation: 1. What does the purposive approach look at? 2. Why does the ECJ use the purposive approach? 3. What was the principle of Pepper v Hart (1992)? 4. Identify 2 advantages of the PA 5. Identify 2 disadvantages of the PA 1. The intention of Parliament 2. Many different languages, more European style 3. Allowed to use Hansard to look at intention of Parliament – more flexible approach