The Purposive Approach

• Goes beyond the mischief rule - instead of simply looking at the gap in the law, judges look at what Parliament was trying to achieve with the law
• In 1952 (during Magor and St Melons Rural District Council v Newport Corporation), Lord Denning said:

"We do not sit here to pull the language of Parliament to pieces and make nonsense of it... 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"

Below are some examples cases where the Purposive Approach has been used:
R v Registrar-General, ex parte Smith (1990):

•  This case concerns the interpretation of the Adoption Act 1976, which allowed an adopted person aged 18 or over to obtain a record of their birth, provided that they had undertaken counselling
• The applicant Charles Smith clearly met this criteria that was set out by Parliament, and so was legally entitled to his birth certificate.
• The problem was that he had been convicted of two murders and was detained in Broadmoor for psychiatric illness
• The courts decided that it would not be right to allow him access to his birth certificate as this could have put his birth-mother at risk
• If they had used any other approach, he would have been given his birth certificate. The Purposive Approach allowed them to avoid this

R (Quintavalle) v Secretary of State (2003)

• The House of Lords had to decide whether organisms created by cell nuclear replacement (CNR) came within the definition of 'embryo' in the Human Fertilisation and Embryology Act 1990
• The Act stated that 'embryo means a live human embryo where fertilisation is complete'
• The problem was that in 1990, when the Act was passed, there was only artificial insemination. By 2003, CNR was available and used cloning
• The House of Lords used the Purposive Approach, believing that Parliament's purpose would not have been to distinguish between embryos depending on how they were made

Advantages of the Purposive Approach:

• Allows for more situations to be covered than the literal rule
• Leads to justice in many individual cases
• It is useful where technology or scientific advancement is made for otherwise Parliament would have to legislate
• Gives judges more discretion to avoid an absurd situation

Disadvantages of the Purposive Approach:

• Judges refuse to follow Parliament's clear words (it gives too much power to judges)
• Difficult to discover what Parliament's intentions were
• Unelected judges are making law
• Leads to uncertainty in the law and it is unclear when it will be used, difficult for lawyers to advise clients