Purposive Approach

This rule is where judges look at the positive reasons parliament created the legislation and
interpret the words to bring about that purpose. The purposive approach is regarded as
forward looking and is not concerned with the specific meaning of words or phrases in the Act
but what parliament created the acted to achieve.

The purposive approach is used in the European Court of Justice, the court that decides on legal
disputes between European Union (EU) countries and their citizens of which the UK has been a
member since 1973. The literal rule would be of little use in the European Courts since there
are several languages in operation and translation is not an exact science. Domestic judges are
required to apply the Purposive approach whenever applying a piece of EU law.

The purposive approach must also be used when considering issues to do with the Human
Rights Act. Again the European Convention on Human Rights is applied across numerous
countries so domestic judges must apply the Purposive approach whenever they are
considering human rights issues due to the ambiguities of translation.

The purposive approach allows judges to look at the aims of the Act in the current social
context so unlike the mischief rule judges can develop the law to meet parliament’s intentions
as perceived today.

Cases using the Purposive approach

 R v Registrar General - Ex parte Smith (1990): Smith, who was criminally insane and had
killed twice, had been adopted as a baby. In spite of the clear and seemingly absolute
right to his birth records provided by the Adoption Act 1976 he was denied access to
them on grounds of public policy. It was held that Parliament could not have intended
to put the natural mother at risk. He might well have killed her, the positive purpose of
the Act was to create closer family relationships.
 Jones v Tower Boot Co Jones, whose mother was white and father black, worked for the
Tower Boot company as a machine operative for a month. During his employment, he
was subjected to racial harassment from his work colleagues. He sued the company for
damages under s32 of the Race Relations Act 1976 which said the employer shall be
held liable for racial discrimination of its employees "in the course of employment". The
company argued that, the racial harassment was not done "in the course of
employment" because, under common law, the employees' conduct shall be deemed as
conduct in the course of employment only if it was authorized by the employer or
closely connected to the job they were hired to do.
 The court disagreed. The terms should not be restricted by the common law principles;
a broad interpretation has to be adopted. The court then looked at the purpose of the
Act and held the company was liable even though it had never authorized the racial
abuse and the abuse had nothing to do with the abusers' job. The positive purpose of
the Act was to encourage better racial harmony in the work place.
 Pickstone v Freemans plc (1998). D, a mail order company employed C (and 4 others) in
a warehouse where they claimed they did work of equal value to male colleagues, but
were paid less. They claimed equal pay, relying on the Equal Pay Act 1970, which had
been amended by Equal Pay (Amendment) Regulations 1983. The House of Lords
decided that the literal approach would have left the United Kingdom in breach of its
treaty obligations to give effect to an EU directive, an order to make a UK law by the EU.
It therefore used the purposive approach and stated that Miss Pickstone was entitled to
claim on the basis of work of equal value as this was the positive reasons for the UK
requiring equal pay across both genders
 RCN v DHSS See the mischief rule for the facts of the case. Some commentators believe
the House of Lords used the purposive approach to interpret the Abortion Act as the
positive aims of the Act was safe abortions which could equally be carried out by nurses
due to developing technology.
 R v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance)
(2003) A licence was requested so that a couple could have a child who would be tissue
typed to establish his suitability to provide an umbilical cord after his birth to help treat
his future brother. A licence had been granted subject to conditions, and the applicant,
the Pro life Alliance, now challenged the right of the Authority to grant that licence,
saying that the proposal was not treatment within the Human Fertilisation and
Embryology Act 1990 Act, which should only extend to assisting women overcoming
infertility. An embryo was defined in the Act as ‘a live human embryo where fertilisation
is complete’. However, embryos created using cloning, the type of approach required to
produce a child with the correct tissue type, are not fertilised.
The House of Lords used the purposive approach and said that looking at the Acts
positive aims as a whole Parliament would have wanted to include the scientific
possibility of an embryo that was not live as the act was designed to ensure societies
views on advances in human fertility treatments were properly considered under the
ethical framework stated in the Act.

Advantages and Disadvantages of using the Mischief Rule

Advantages
  It allows the law to develop to cover advances in medcial science. So in the case of
Quintavalle the House of Lords used the Purposive approach to decide that the cloning
of a saviour sibling should be included in the Human Fertilisation and embryology Act as
parliament would have wanted this contentious scientific development included within
the Act so that the positive benefits and potential risks could be properly debated and
controlled to ensure society would benefit as a whole.
 It is a flexible approach which allows judges to develop the law in with Parliaments
intentions So in the case of Jones v Tower Boot co the purposive approach was used to
interpret “in the course of employment” in broadest sense to include unpaid lunch
breaks in the employers place of work to encourage better racial harmony in the work
place.
 It allows judges to cope with situations unforeseen by Parliament. So in the case of Ex
parte Smith even though the literal interpretation of the Adoption Act was clear in
giving adopted children the right to the details of their biological parents the court used
the purposive approach to look at the positive aims of allowing this right. The court
decided that the aim of the Act was to try and encourage better social relationships and
as Smith was very likely to injure or kill his biological mother parliament would have not
allowed him to have the right to her details if they had foreseen this situation.
 It allows the courts to give effect to EU Directives. A directive is a legal document issued
by the EU which the UK must convert into laws. As it applies to all EU countries the
directive is uses very general wording as to what the law should broadly achieve as it
would be very difficult to translate into different languages. So in the case of Pickstone v
Freeman the purposive approach was used to give effect to an EU directive, ensuring
the UK wasn’t in breach of its EU treaty obligations and the Equal Pay Act so that Miss
Freeman would be paid the same wage as men completing the same job.
 Allowing reference to Hansard makes it easier for the courts to discover Parliament's
intention. So in the case of Pepper v Hart 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 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. The House of Lords used the purposive
approach holding that Hansard may be referred to and the teacher was not required to
pay tax on the perk he received.

Disadvantages

 Judges are given too much power to develop the law and usurping (without legal
authority) the power of Parliament. So in the case of Quintavalle the House of Lords
used the Purposive approach to decide that the cloning of a saviour sibling should be
 included in the Human fertilisation and embryology Act. However, cloning is a highly
contentious method of producing human life that should have been left to parliament to
debate as the elected authority for allowing such contentious scientific developments
instead of unelected judges.
 Allowing reference to Hansard may lead to prolonged examination of irrelevant material
by lawyers which adds to the cost and length of litigation as highlighted by Lord Mackay
in Pepper v Hart. For example in R v Deegan an application to consider Hansard was
rejected because what ministers said was not sufficiently clear. For example in R v
Deegan an application to consider Hansard was rejected because what ministers said
was not sufficiently clear.
 Judges become law makers infringing the Separation of Powers. So in the case of RCN v
DHSS judges interpreted the phrase “registered medical practitioner” to include nurses
as legally allowed to perform an abortion in the Abortion Act. However, using the
purposive approach risked judges taking the place of the legislature in enhancing the
abortion Act far beyond what parliament originally intended when creating this
contentious piece of legislation, as unelected judges.
 There is scope for judicial bias in deciding what Parliament intended. So in the case of
Pickstone v Freeman judges may have decided to use the purposive approach and
adopt a wide meaning to the legislation and the directive covering the issue of equal pay
due to political or social pressures to ensure women were paid the same as men. Judges
that prefer to use the literal would argue such decisions can only be made by parliament
as the elected body and judges are always going to bring a certain amount prejudice to
deciding a case like Pickstone.