Purposive Approach

• What is the purposive approach?

  Updated version of mischief rule - but doesnt require problem with old law

  
  

  It asks what is the purpose of the law then makes a decision to meet the purpose

  
  

  This gives judges more flexibility. Requires extrinsic aids to find purpose - e.g. Hansard
• Rule used by: European Court of Justice because translation issues make literal and golden rule too complex.

  Meaning this rule is favoured by UK judges
• Case Law

  R (Quantavalle) v HFEA

  ---> made it possible for scientific research on fertilised embryos. HFEA did cloned embryos.

  • Approach - allow research to continue as purpose of law was research

  R v Registrar General ex parte Smith

  ---> allowed adoptees access to birth certificate at 18.

  • Purpose of law - reconnect with birth parents

  Prisoners intention was to access but kill birth mother - access denied was not in line with purposive approach
• Advantage of Purposive Approach

  P- Leads to justice in individual cases

  
  

  DEV- Looks at each case individually and makes decision that is most fair when looking at the purpose of Parliament making the law unlike literal rule

  • Ex Parte Smith

  E- However, it can give judges too much discretion which allows them to interpret laws based on their own views, not what Parliament intended
• Advantage of Purposive Approach

  P- Useful for new technological or scientific developments

  
  

  DEV- This allows the law to be updated quickly rather than waiting for Parliament to change the law as judges can consider what Parliament would have included if developments had existed when it was written

  • Quantavalle

  E- However, it risks judges stepping into role of lawmakers which is Parliaments job. Judges may interpret law different to what Parliament intended
• Advantage of Purposive Approach

  P- Saves time for Parliament

  
  

  DEV- Judges make decision which sets a precedent to be followed in future cases meaning Parliament don't have to go back and change laws like the literal rule.

  • Ex parte Smith

  E- However, this may give judges too much power which could lead in inconsistency when applying the law as seen in Ex parte Smith this can result in law making becoming undemocratic
• Disadvantage of Purposive Approach

  P- Undemocratic

  
  

  DEV- Rule gives too much power to unelected judges as they can change the law without Parliament. This isn't democratic as judges are not elected meaning only Parliament should have power to do it

  • Quantavalle

  E- However, this rule helps Parliament by filling gaps where they are able to update the law to new developments. e.g. Quantavalle
• Disadvantage of Purposive Approach

  P- Uncertainty

  
  

  DEV- It's impossible to predict how judge might interpret law meaning that lawyers may be unsure on how to advise their clients. Potentially this rule gives too much power to judges

  • Ex Parte Smith

  E- However, it makes sure law is applied in a way that is more flexible to individual cases which results in more fair outcomes
• Disadvantage of Purposive Approach

  P- Judges ignoring wording of Parliament

  
  

  DEV- Judges may use this rule even when the wording is clear in order to make a decision that they feel is more fair when this isn't their job

  • Ex Parte Smith

  E- However, this rule ensures that law is applied in a way that reflects its purpose especially in cases where wording doesn't account for modern circumstances.