The Purposive Approach

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What is the Purposive Approach?

  • Goes beyond the mishchief rule
  • Judges looking for the purpose of Parliament and interpreting the law to achieve that purpose
    • Lord Denning likes this approach 'We sit here to find out the intention of Parliament 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'
  • Champion of this apprach is Lord Denning (Magor and St Mellons v Newport Corporation (1950)).
    • Lord Denning heard the appeal in the Court of Appeal (Civil Division). The case was then appealed to the House of Lords where they criticised Denning's decision and they overturned the judgment.
  • Criticised in the HoL-Lord Simonds said it was 'a naked usurpation of the legislative function under the thin disguise of interppretation' and 'a blatent taking over of Parliament's role whilst claiming to be interpreting what parliament said with their own interpretation'
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R v Registrar-General, ex parte Smith (1990)

  • Court interpreting S51 of the Adoption Act 1976 which required the Registrar-General 'to supplu such information as is necessary to enable (an adopted person) to obtain a certified copy of the record of his birth'
  • Charles Smith applied to obtain his birth certificate, in the correct manner and was prepared to see a counsellor.
  • He'd been convicted of 2 murders and was in Broadmoor.
  • The literal view was that he should be supplied with his certificate.
  • It was possible he would be hostile to his natural mother and so the Court decided that the risk was too great and didn't supply him with his certificate.
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R (Quintavalle) v Secretary of State (2003)

  • The HoL had to decide whether organisms created by Cell Nuclear Replacment (CNR) came within the definition of 'embryo' in the Human Embryology and Fertilisation Act 1990 which laid out a set of rule reguarding the topic.
  • S1(1)(a) of the Act states that 'a live human embryo where fertiliation is complete'
  • CNR was not  possible in 1990
  • Fertilisation is not used in CNR
  • Lord Bingham said 'The Court's task, within permissible bounds of interpretation is to give effect to Parliament's purpose...Parliament could not have intended to distinguish between embryos produced by, or without, fertilisation since it was unaware of the latter possibility'
  • Quintavalle= pro-life alliance who took the case to court. They argued Embryolofy Authority didn't have the right to licence research with reguard to cloning.
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Advantages of the Purposive Approach

  • Produces justice in individual cases
  • Broad approach covering more situations
  • Fills in gaps in the law
  • Useful where ther is new technology unknown at the time of the Act (R(Qunitavalle) v Secretary of State (2003))
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Disadvantages of the Purposive Approach

  • Can make the law uncertain
  • Unelected judges deciding what the law should be rather than using the literal meaning of the words Parliament approved
  • Difficult to discover the intention of Parliament-Hansard (a recording of everyhing that was said by a Minister who introduced the Act in a debate in Parliament) can be confusing.
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