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Advantages
- An advantage is that the purposive approach gives effect to the true intention of
Parliament. This is because, the judge can look at the context in which the Act was
passed and this allows interpretation which is much closer to what Parliament
intended. In R v Registrar General ex parte Smith a serial killer sought to contact
his birth mother after discovering he was adopted. Under the literal rule, he should
have been allowed access to this information. However the judge used the
purposive rule and said that it was not the spirit of the law – the intention of
Parliament to re-unite serial killers with a vulnerable old lady (his mother).
Parliament could not have intended to put the old lady at risk so this result was in
line with their intentions.
- Another advantage is that the purposive approach provides practicality and
consistency across Europe. The purposive approach is adopted in other European
countries and is used by the European Court of Justice. As different countries and
languages are involved in drafting EU law a literal translation would be impractical.
Lord Denning supports the purposive approach and has said in Bulmer v Bollinger
(an EU case): “no longer must they examine the words in meticulous
detail…they must look to the purpose or intent of the Act.”
- Another advantage is that the purposive approach produces fair and reasonable
outcomes. In Jones v Tower Boot Company a young black worker was racially
abused by work colleagues. Under the literal rule, his employers were not liable
under the Race Relations Act 1976 as the colleagues were not acting within the
“course of their employment”. This would have resulted in an unfair decision,
however, the judge used the purposive approach to find the employers liable. The
spirit of the law – intention of Parliament was to prevent racism so they were liable.
This is a just and fair outcome and so shows that it leads to justice in individual
cases.
- This rule allows for new developments in technology and society to be taken into
account. For example, in R (Quintaville) v Secretary of State, the court took into
account that there was new technology which was unknown when the law was
enacted (cloned embryos were now possible). If the literal rule had been applied
then it would have been necessary for Parliament to create new law to deal with the
situation
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Disadvantages
- A disadvantage is that the purposive approach allows unelected judges to make
law and so allows for a great deal of judicial creativity as they are deciding what
the law should be rather than what was is written down. This limits Parliamentary
sovereignty. In R v Registrar General ex parte Smith, if Parliament intended for
there to be exceptional circumstances where adopted people could not obtain details
of their birth parents then they should have said so in the Adoption Act 1976. They
did not and under our constitution it is not for judges to change the law. This is
undemocratic and goes against the separation of powers theory. Lord Simonds has
described use of the purposive approach as judges creating the law, when it isn’t
their job. The democratic solution is for judges to decide the case according to the
words Parliament enacted and if Parliament do not like the result they can pass an
amending Act. (like they had to do to the Restriction of Offensive Weapons Act
1959 after the literal interpretation in Fisher v Bell which was an absurd outcome).
Instead under the purposive approach, the judges ignore the words in the Act.
- Each judge could come to a different conclusion about Parliament’s intentions,
therefore another disadvantage is that this approach can lead to inconsistent and
unjust interpretations of Acts of Parliament. For example, a different set of
judges may have not allowed the appeal in Jones v Tower Boot Company or
allowed R v Registrar General ex parte Smith to have access to his birth records.
This creates uncertainty in the law.
- Another disadvantage is that It can be difficult for judges to identify what
Parliament intended when they passed the Act of Parliament. Referring to what a
minister has said in Parliament, as Pepper v Hart allows, may not reflect what
Parliament as a whole intended. It would be reasonable to argue that what
Parliament intended can only be seen in the Act of Parliament itself.
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