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
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