purposive approach disadvantages - model answer

• Evaluation 1:

  The first disadvantage of the purposive approach is that gives power to unelected judges to decide what the law should be. All the judge needs to consider is the 'purpose' the law was trying to achieve. This allows judges a lot of flexibility in how they achieve the purpose of the Act. This allows judges to create law. This should only be parliament's job and infringes on Montesquie's idea of the separation of powers.
• Evaluation 1:

  For example, R v Registrar-General Ex Parte Smith shows judges using too much power. Here they inserted sections into the Adoption Act 1975 which didn't exist, they created a whole new rule, that murderers who are adopted cannot get records of their birth parents. This wasn't in the original law.
• Another disadvantage is that it can result in inconsistent outcomes. Different judges will apply the purposive approach in different ways. Subsequently, this undermines the justice system as it means that the outcome may vary based on the judge and their interpretation. In Maursell v Olins, there were five judges in the House of Lords who heard the case. Of those five judges, three agreed to using the purposive approach to give more rights to tenants, whilst 2 dissented and disagreed.
• The process of the purposive approach is arguably expensive. It allows judges to read through records in Hansard to find the purpose of an Act of parliament. This leads to extended court cases and higher costs for parties in a case as the judge will take longer to consider the details in Hansard. In the case of Pepper v Hart, the House of Lords decided that it could refer to Hansard in interpreting the purpose of a statute. This case itself was long and complex because of the decision by the House of Lords.
• A final disadvantage is that the purposive approach runs the risk of judicial bias, meaning the judiciary may be able to give biased or prejudicial judgements based on their own subjectivity.

  As they are giving their opinion on what they think parliament were trying to do, this does not give a clear and accurate picture of parliaments intention. This can lead to the law being more about what the judges think, rather than the legislator.