Statutory Interpretation II - The Purposive Approach
With the inclusion of the United Kingdom into the European Union and with the rising number of cases that involved members of other European nations, especially in areas of trade and commerce, a new mode of interpretation was adopted and an approach that was more common in neighboring European countries was used. It is called the purposive approach and when using the approach the courts will first look at the intention of parliament.
Under normal circumstances or in most instances, the function of the courts is to ascertain the meaning of what parliament had said by giving the words their ordinary and natural meaning but this approach requires extreme clarity from draftsmen and it may be to a degree, that in all probability, is difficult to satisfy. It is an inescapable fact that despite all the care that is given to drafting documents, that there would be certain terms or clauses that turn out ambiguous.
It is a lot to ask of draftsmen to be precise in drafting documents especially when words and phrases can have numerous meanings. Paying too much attention, to construing words, may at times lead to a decision otherwise than that which was intended by parliament.
In Candler v Crane, Christmas & Co (1951), in comparing the various mechanisms that judges used to interpret statues, Lord Denning pointed out that the judiciary has always been divided in their approach.
On the one side there were judges who preferred the more traditional approach and on the other there were judges who were prepared to be more liberal and in the center, were the doctrines of Parliamentary Supremacy and the Separation of Powers.
In Magor and St Mellons Rural District Council Appellants v Newport Corporation (1950) Lord Denning clearly favored the purposive approach - “We do not sit here to pull the language of Parliament to pieces and make nonsense of it. This is an easy thing to do, and it is a thing to which lawyers are too often prone. 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 than by opening it up to destructive analysis.”.
Lord Denning was of the belief that it was the function of the judiciary to first determine the intention of parliament rather than construed the words or the sentences that were used.
The case also tells us that the purposive approach is by no means a new approach and that it has been around for some time. It has however been used sparingly.
In James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd, (1977), Lord Denning stated his view that the courts have for too long relied on the literal approach and in interpreting article 17 and article 23 of the Convention on the Contract for the International Carriage of Goods by Road, he said, the proper approach to use was the European Method or the "schematic and teleological" method of interpretation i.e. an approach that first identifies the purpose of the enactment.
When using this approach, judges do not go by the literal meaning of the words or the grammatical structure of the sentence. Instead they go by the design or purpose behind it. He went on further to say that in interpreting the Treaty of Rome and laws with regards to the European Union, the purposive approach should be the preferred approach.
In Pepper v Hart (1992) - the case was with regards to a teacher in a private school and the amount of taxes that he had to pay in lieu of the fringe benefits that he received.
Because there had been debates on the matter in parliament, the parties sort to refer to Hansard (an official record of debates in parliament).
The court departed from the rule in Davis v Johnson (1978) that stated that transcripts in Hansard cannot be used in court proceedings. Using the purposive approach, they allowed the parties to refer to Hansard.
The court also stated that reference to parliamentary material should be allowed as an aid to construing legislation when using the golden rule and the literal rule leads to an absurd result, but should be limited to the material that shows the intention of parliament and the mischief that it intends to remedy (parliamentary privilege still applies in that members are free to speak their minds).
In Wilson v Secretary of Trade (2003) it was held that only statements made by a minister or promoters of a bill could be looked at by the courts.
Copyright © 2019 by Dyarne Ward