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Published: Fri, 02 Feb 2018
Flawed Rules Of Statutory Interpretation
The purposive approach is now regarded as the predominant approach to statutory interpretation in the UK. Some scholars may argue that the literal rule and golden rule have been cast aside. However the reality is not simple, the flawed rules of statutory interpretation such as the literal rule and golden rule have not been cast aside, as judges may still use them if they wish, as they have judicial discretion. Judicial discretion allows a judge to use any principle of statutory interpretation without having to state the reasoning in their final judgement, this illustrates that the literal and golden rule have not been cast aside. Arguably this can also mean that the purposive approach is not the dominant approach now, as judges may have used approaches such as the literal rule and golden rule when interpreting statutes recently without stating which approach they used in their judgement. The shift towards the use of the purposive approach was recognised by the House of Lords in R v Secretary of State, where the House of Lords used the purposive approach to the interpretation of s1(1) of the Human fertilisation and Embryo Act 1990.  The approaches to statutory interpretation are referred to as rules, but they are more like principles which judges may adopt when interpreting statutes, so this means judges do not have to use a specific rule or approach for a particular piece of legislation. Also the purposive approach is not the paramount approach, when interpreting European law even though many European countries use this approach when interpreting statutes. When interpreting European law the courts should give preference to the teleological approach. In addition to this the courts have to interpret statutes in ways that are compatible with the Human Rights Act 1998.
There has been an increase in the amount of cases in recent years, which have used the purposive approach when interpreting a piece of legislation. According to the LEXIS database the phrase ‘purposive approach’ was first used in 1971 in Kamins Ballrooms Co. Ltd v Zenith Investments (Torquay) Ltd. Since then the phrase has been used in 398 cases. The judiciary have used this approach in 126 cases since the year 2000 which is a huge increase from the 1970s and 1980s where it was only used 48 times in cases.  This is a clear indication that the purposive approach is becoming more supreme as judges are using the approach more than it was used before. The courts now prefer using the purposive approach rather than interpreting statutes by the literal meaning of the language. This view can be backed up by the comments made by Lord Griffiths who stated in Pepper v Hart “the days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language.”  So this clearly indicates that when interpreting statutes in the UK, the purposive approach has become dominant.
The purposive approach becoming the dominant approach can cause problems, when it comes to legislative intent it can cause difficulties. For instance in a case where judges say the intent of Parliament in the statute is unclear, are they referring to the actual intent or the hypothetical intent of Parliament?  This gives judges a lot of power as they can refuse to follow the clear, ordinary meanings of words used by Parliament in a statute by insisting Parliaments intentions where different to the words used when enacting the piece of legislation. On the other hand the purposive approach allows judges to interpret legislation, where the words may be ambiguous or absurd more justly. Instead of following the exact words Parliament used in the statute the purposive approach allows judges to try to decide what the intention of Parliament was when enacting the legislation. This can be fairer in cases, as it is less likely an absurd or harsh result would occur. The purposive approach is based on the mischief rule so it allows courts to take into account the reasons why the legislation was passed; what ‘mischief’ was the legislation designed to cure. For instance it is an offence for a prostitute to solicit men ‘in a street or public place’.  6In Smith v. Hughes the question arose whether a women soliciting men from inside a building, committed an offence. Lord Parker C.J found the text unclear so he looked at the purpose of the legislation and said “everybody knows that this was an Act intended to clean up the street, to enable people to walk along streets without being molested or solicited by common prostitutes. Viewed in that way it can matter little whether the prostitute is soliciting while in the street or is standing in a doorway or on a balcony, or at a window or whether the window is shut or open…”  If the literal meaning of the act was followed the outcome would have been different and the women would not have been guilty, so this proves that the purposive approach is much more superior and flexible than the literal rule.
The literal rule has been criticised by many lawyers and scholars. It has strongly been criticised as the application of the literal rule can lead to absurd results. For example in Whitely v Chappell (1869), the defendant had voted in the name of a person who had died, however he was found not guilty of the offence of personating ‘any person entitled to vote’, as the dead person was not entitled to vote  . Surely the courts should have looked beyond the literal meaning of the Act in this case. On the other hand it can be argued that the courts should follow the literal meaning of the statute even if it creates an absurd result as it represents Parliaments intention through the words Parliament used. Even though that the literal rule and golden rule are criticised because of their flaws, they have not been cast aside. This can be backed up by the fact that judges have judicial discretion, so they may use the rules if they wish to. The choice of rules or approaches which the judge adopts can be based on their ideology and background values. Some judges may stick to the text whilst others base themselves on legislative intent. Nowadays judges tend to interpret statutes based on legislative intent more but this does not mean that sticking to the text has been cast aside.
The purposive approach may be the dominant approach when interpreting UK statutes; however when it comes down to interpreting European law the courts must give preference to the teleological approach. Arguably the purposive approach is similar to the teleological approach but the teleological approach is much broader. Also the interpretations of statutes are required to be compatible with the Convention rights defined under the Human Rights Act 1998.  This clearly shows that even though the purposive approach may seem paramount it is not as it has to be compatible with the Human Rights Act.
The increase of the number of cases using the approach after 2000 compared to the 1970s and 1980s illustrates the fact that the purposive approach is becoming more paramount. Courts prefer to use the purposive approach as it does not lead to absurd results occurring like in the case of Whitely v Chappell where the literal meaning of the words were taken into consideration. The decision in Smith v Hughes seems more understandable as it took into account Parliaments intention when making a decision. However having said that the purposive approach is paramount when interpreting statutes, it does not mean that the flawed rules of statutory interpretation such as the literal rule and golden rule have been cast aside. Because of judicial discretion, judges have the choice to use them rules when they feel it is right to do so. So it depends on the case and the relevant statute in question. For example if the wording is clear and plain in a statute the judges will interpret it using the literal rule rather than using the purposive approach. Also judges do not have to state in their judgement which approach they used so the literal rule and golden rule may have been used more often but this cannot be seen as judges did not say in their final judgement that they used those approaches.
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