Statutory interpretation - The purposive approach

Learning Outcomes

This article examines the purposive approach to statutory interpretation, focusing on how courts identify and apply legislative purpose where provisions are ambiguous, general, or open to competing interpretations. It discusses how the purposive approach compares with the literal, golden, and mischief rules, the situations in which each is likely to be employed, and their practical consequences. It analyzes the influence of the United Kingdom’s historical and constitutional development, European Union law and the Treaty of European Union, devolution settlements, and the Human Rights Act 1998 on interpretative approaches; presents judicial techniques and aids—internal and extrinsic—for ascertaining legislative purpose and the constraints and practicalities in doing so; and reviews recent case law and specific statutory provisions (such as s 3 HRA 1998) that mandate or encourage purposive interpretation, along with the implications and boundaries of the doctrine within English public law and its application to SQE1 FLK1-style scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the purposive approach to statutory interpretation, with a focus on the following syllabus points:

• Definition and essential features of the purposive approach to statutory interpretation.
• Contrasts between the purposive approach and the literal, golden, and mischief rules, with information into when each is likely to be invoked.
• The evolution of statutory interpretation in response to influences including EU law, devolution, and human rights legislation.
• Judicial use of internal and extrinsic aids for ascertaining legislative purpose, including Hansard and Law Commission reports.
• The role of the purposive approach under s 3 Human Rights Act 1998 and in light of devolution settlements.
• Scope and constraints of purposive interpretation, and its boundaries under the constitutional principle of parliamentary sovereignty.
• The effect of the purposive approach on legal certainty, predictability, and the separation of powers.
• Advantages and disadvantages of the purposive method for both courts and practitioners.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which rule of statutory interpretation allows a court to look beyond the literal meaning of words to ascertain Parliament's intention?
   1. The literal rule
   2. The golden rule
   3. The mischief rule
   4. The purposive approach
2. The case of Pepper v Hart [1993] AC 593 relaxed the rule against courts consulting which extrinsic aid to interpretation in specific circumstances?
   1. Dictionaries
   2. Academic articles
   3. Hansard (Parliamentary debates)
   4. Law Commission reports

3. True or false? The purposive approach requires courts to ignore the literal meaning of statutory words entirely.

4. Which UK statute strongly encourages a purposive interpretation in relation to Convention rights?
   1. European Communities Act 1972
   2. Human Rights Act 1998
   3. Interpretation Act 1978
   4. Constitutional Reform Act 2005

Introduction

Legislation is the principal source of law in England and Wales, with Parliament framing laws through Acts. However, it is for the courts to analyse and determine the meaning of legislative words, especially where terms are ambiguous, circumstances have changed, or issues arise outside the original statutory context. Statutory interpretation, therefore, is central to the common law tradition's development of the law, requiring judges to balance respect for the separation of powers and democratic legitimacy with the need for statutes to be practical, fair, and effective.

The purposive approach has emerged as a prominent mode of interpretation—especially in the context of evolving constitutional and legislative relationships, the requirement to give effect to supranational law, and an increased focus on aligning legal outcomes with policy or social objectives.

The Purposive Approach Explained

The purposive approach to statutory interpretation directs courts to ascertain and give effect to the objective or policy Parliament aimed to achieve by the legislation as a whole, rather than confining analysis solely to the ordinary, grammatical meaning of the particular words used. Where the text is ambiguous, or a literal reading would frustrate the statute’s intended effect, the courts may interpret statutory words and provisions so as to implement the Act’s legislative purpose—even if this requires departing from a strictly literal interpretation.

Key Term: Purposive Approach
An approach to statutory interpretation where the court seeks to determine the purpose of the legislation and interprets the words used in light of that purpose, even if it requires modifying the literal meaning.

The purposive approach is thus both a development from and a broadening beyond traditional English methods of interpretation. It requires active consideration of the context, policy, and social problem to which the statute is directed, as well as the meaning of the statutory language.

A key distinction lies between the purposive approach and other rules of construction:

• The literal rule applies the ordinary meaning of words, even if the result is surprising or harsh.
• The golden rule modifies the literal rule to avoid outcomes that are absurd or repugnant.
• The mischief rule (or rule in Heydon’s Case (1584)) allows courts to consider the specific ‘mischief’ the Act was intended to remedy.
• The purposive approach is broader than the mischief rule, allowing courts to consider the overall aim of the legislation rather than only the problem at common law being addressed.

Key Term: Literal Rule
An approach to statutory interpretation where words in a statute are given their plain, ordinary, dictionary meaning, regardless of the outcome.

Key Term: Golden Rule
An approach modifying the literal rule, allowing a court to depart from the ordinary meaning of words to avoid an absurd or inconsistent result.

Key Term: Mischief Rule
An approach to statutory interpretation originating from Heydon's Case (1584), where the court considers the state of the law before the Act, the 'mischief' the Act aimed to remedy, and interprets the Act to suppress that mischief.

Comparison with Other Interpretive Rules

While the literal and golden rules focus primarily on language and grammar—adopting a more restrictive approach to legislative purpose—the purposive approach encompasses a wider inquiry. Under the purposive method, judges may refer to the statute as a whole, its context, and background. The mischief rule, as historically applied, narrows the court’s focus to identifying the gap or defect the Act was intended to fill, but purposive interpretation permits consideration of more general aims, objectives, and the statute’s overall framework.

For example, under the literal rule, if a statute provided that it is an offence to "offer a reward to any person for the recovery of stolen goods," but a party offers to pay a thief for the return of their own property, the court would be obliged to apply the provision even where it is not the mischief Parliament intended to address. The purposive approach would look to whether Parliament intended to criminalise those acting to recover their own property.

The purposive approach has become more significant in the English legal system due to constitutional, statutory, and practical developments, which are explored below.

Development and Influences

The rise of the purposive approach in the UK is due to several interlocking factors:

Influence of European Union Law

During the period of the UK’s EU membership, British courts were required to interpret national law in a manner consistent with EU directives and treaties. The Court of Justice of the European Union (CJEU) favours a teleological or purposive approach, with an emphasis on the purpose and intended effectiveness (effet utile) of EU law. When implementing EU law, UK courts thus departed from more literal traditions, interpreting domestic statutes "in the light of the wording and purpose of the directive to achieve the result pursued by the latter" (Marleasing v La Comercial Internacional de Alimentacion (1990)). This methodology extended beyond EU matters, influencing interpretation of domestic legislation generally.

Human Rights Act 1998

The HRA 1998 requires all statutes to be "read and given effect so far as it is possible to do so" in a way which is compatible with the European Convention on Human Rights (s 3(1)). This statutory direction goes beyond a general presumption or aid, requiring courts—so far as the meaning allows—to adopt interpretations that conform with Convention rights. Only where it is impossible to interpret the legislation compatibly must the courts issue a declaration of incompatibility (s 4), leaving it to Parliament whether to amend the law.

Devolution Settlements

Devolution legislation (e.g., Scotland Act 1998, Wales Act 2017, Northern Ireland Act 1998) provides that devolved legislatures may not pass Acts outside their legislative competence or contrary to the European Convention on Human Rights (and, until the end of the EU transition period, contrary to EU law). UK courts and the Supreme Court have adopted a purposive approach when determining whether legislation falls within devolved competence, considering context, purpose, and intended effect.

Judicial Policy and Modern Drafting

Statutory drafting has become more complex, and Parliament is now more likely to legislate in broad and general terms, delegating detail to subordinate legislation. This, coupled with social, economic, and technological change, makes the purposive approach both necessary and appropriate; it enables statutes to be interpreted in ways that maintain their intended effect.

How the Purposive Approach Works

When applying the purposive approach, courts will:

• Identify the legislative purpose, often by reviewing the text of the Act, its structure, the long title, preambles (for older statutes), and, where permitted, extrinsic materials.
• Interpret disputed words or sections in the context of the statute as a whole and in a manner that gives effect to the identified purpose.
• Modify the literal meaning, or read words in or out, if necessary, to achieve the purpose, subject to the constitutional limits imposed by parliamentary sovereignty—meaning that the courts must not usurp the legislative role or create new law entirely.

Key Term: Parliamentary Sovereignty
The constitutional doctrine that Parliament is the supreme legal authority in the UK. Courts may not strike down an Act of Parliament, but must interpret and apply it.

Worked Example 1.1

A statute is enacted to regulate the employment rights of "workers," defining workers as "any person employed under a contract of service." A gig-economy worker brings a claim, arguing they fall within the definition, even though their contract describes them as self-employed.

Answer:
Using the literal rule, the court might conclude that those who are not "employed under a contract of service" do not qualify, so gig-economy workers are excluded even if that outcome undercuts policy. Applying the purposive approach, the court would examine the purpose of the legislation—likely to protect vulnerable individuals in subordinate working relationships—and could interpret "contract of service" more broadly, granting rights to gig-economy workers. This ensures that the Act achieves its policy objective rather than being frustrated by contractual labels.

Worked Example 1.2

A provision in a consumer law statute prohibits a business from applying "an additional charge, fee, or commission to any cash transactions." The business charges a small fee only on credit card payments, not cash payments, and argues that the law does not apply.

Answer:
The literal meaning of "cash transactions" might seem to exclude card payments, and the business could claim the law does not apply. By adopting a purposive approach, the court would look at the purpose—to prevent unfair surcharges discouraging the use of electronic payments—and may interpret the provision to apply to equivalent forms of payment such as cards, in the context of modern transactions.

Worked Example 1.3

A housing statute criminalises "persons who enter, occupy, or reside in a dwelling without the consent of the owner." A person is found camping on land adjacent to a house.

Answer:
The literal rule would likely exclude the person as they are not in a "dwelling." The purposive approach permits the judge to consider whether the mischief is the occupation or trespass on residential property, but if Parliament clearly targeted dwellings (and not land), purposive interpretation would be limited by the Act’s wording.

Aids to Interpretation

Under the purposive approach, a range of aids are utilised, with varying degrees of acceptance:

• Internal aids: The court starts with the text, including the entirety of the statute, its long title, preamble (if present), headings, marginal notes, punctuation, interpretation sections, and schedules. Modern statutes are often drafted with contextual clues and definitions.

• Extrinsic aids: Where ambiguity remains, courts may consider extrinsic materials, such as:

  • Hansard (official record of Parliamentary debates): Permitted in limited cases since Pepper v Hart [1993]—only where the legislation is ambiguous or obscure, or produces an absurd result, the material consists of clear statements of the minister or Bill promoter, and the statements relied on are clear.
  • Explanatory notes: Non-binding explanations (for modern statutes) that provide context and assist in clarifying intent.
  • Law Commission reports and pre-legislative materials: Reports and bill drafts, if the Act is based on a Law Commission proposal.
  • International treaties and conventions: Particularly relevant if statutory language implements international obligations.
  • Interpretation Acts: Such as the Interpretation Act 1978, which sets out common definitions and interpretive guides.

Key Term: Aids to Statutory Interpretation
Materials used alongside statutory text to assist courts in interpreting and applying the meaning of provisions, including both internal features (e.g., long title, schedules) and external materials (e.g., parliamentary debates, explanatory notes).

Worked Example 1.4

The court confronts an ambiguous term in a mental health statute, and finds that the Law Commission’s report—adopted by Parliament—discusses the purpose and proposed operation of the rule in detail.

Answer:
The judge may refer to the Law Commission report as an authoritative guide to the intended purpose, supporting a purposive and correct interpretation consonant with Parliament’s objectives.

Worked Example 1.5

A statute implementing an international convention uses terminology that appears ambiguous when litigated in the domestic court.

Answer:
The court will take into account the wording of the international convention and, if necessary, refer to international law and relevant foreign judgments to aid in interpreting the statutory language purposively and harmoniously with international obligations.

Worked Example 1.6

A criminal statute contains a provision that, if interpreted literally, would lead to a manifestly unjust outcome (e.g., penalising innocent conduct).

Answer:
The court may employ the golden rule to avoid the unintended injustice; if the legislative intent is clear and inclusion of innocent conduct is unforeseen, the court can adopt a purposive interpretation, reading the provision so as to exclude such cases where feasible, or else signal to Parliament the need for reform if the scope is inescapably broad.

Influence of EU Law and the Human Rights Act 1998

The Purposive Approach under European Union Law

EU law, and especially decisions of the CJEU, is characterised by a teleological or purposive style of interpretation. The CJEU will seldom apply a narrow literalism, instead seeking to secure effet utile—the effective application of EU policy objectives arranged in the Treaties and secondary legislation. During the UK’s membership, UK courts were required to interpret domestic law implementing EU requirements so as to give effect to the spirit and intent of EU legislation, reading words into domestic law where necessary (Litster v Forth Dry Dock). This method of construction continues to influence retained EU law under the European Union (Withdrawal) Act 2018, especially when UK courts interpret pre-Brexit EU-derived law.

Section 3 HRA 1998 and Rights-Consistent Construction

Section 3 HRA 1998 requires courts to interpret primary and secondary legislation, so far as it is possible, compatibly with Convention rights. This has sometimes led courts to adopt strained interpretations to avoid incompatibility, although they may not change the meaning to the extent that it contradicts the statutory text or inserts express terms Parliament has refused to enact (Bellinger v Bellinger (2003); Ghaidan v Godin-Mendoza [2004]). Where a rights-compatible interpretation is not possible, the court must issue a declaration of incompatibility.

Purposive Interpretation in the Devolution Context

The devolution legislation requires that the devolved legislatures remain within their competence; for instance, an Act of the Scottish Parliament is “not law” if outside its competence, including if incompatible with Convention rights. The Supreme Court takes a purposive approach to determining competence—construing both the legislative powers and the scope of restrictions contextually.

Practical Boundaries of Purposive Interpretation

While the purposive approach is broad, it is not limitless. The fundamental constraint on purposive construction derives from the separation of powers and the constitutional arrangement of parliamentary sovereignty. Courts must apply rather than make law, and are not entitled to override Parliament’s express wording or policy—especially where statutory language is clear and unambiguous. If a literal reading achieves the statutory purpose and causes no injustice, the court must apply it. The purposive approach will not enable a court to invent new principles that Parliament did not intend.

Key Term: Separation of Powers
The constitutional principle that separates the legislative, executive, and judicial functions of government, ensuring that courts interpret, but do not create, law.

Advantages and Disadvantages

Advantages:

• Promotes fair and just outcomes by giving effect to the intention and policy aims of Parliament rather than relying solely on sometimes rigid or outdated text.
• Facilitates statutory flexibility to unforeseen circumstances and social or technological change.
• Enables compliance with supranational legal obligations (e.g., EU law, ECHR).
• Avoids outcomes Parliament would not or could not have reasonably intended.

Disadvantages:

• May reduce predictability and certainty, as parties may not always be able to rely on the literal meaning of the language used in the statute.
• Risks undue judicial creativity, where unelected judges may potentially supplant, rather than interpret, the legislative function.
• Determining Parliament’s purpose is not always easy, especially for complex or multi-faceted statutes, or where extrinsic materials are limited or inconclusive.
• May blur the orderly development of the law if different judges attribute divergent purposes or attach different weights to various materials.

Judicial Precedent and the Purposive Approach

The doctrine of precedent (stare decisis) ensures consistency and certainty in the law. However, precedent is also responsive to shifts in interpretative principle. As purposive interpretation has gained prominence, decisions that apply a purposive (rather than literal) construction tend to shape later judicial reasoning—with the higher courts providing guidance on the best method according to principle, context, and the legislative purpose.

Key Term: Doctrine of Judicial Precedent
Requires courts to follow prior decisions of higher or coordinate courts (the ratio decidendi), promoting certainty and consistency in the law.

Revision Tip

When analysing a statutory interpretation problem for SQE1, consider all interpretive approaches. Start with the literal rule: if it produces a sensible, just result and aligns with the Act’s likely purpose, it may be applied. If it leads to absurdity, the golden rule may be used. If the Act plainly addresses a historical defect in the law, the mischief rule will be relevant. The purposive approach is especially significant for legislation derived from or influenced by EU law, devolution settlements, or human rights considerations. Always justify your choice of interpretation and recognise the boundaries to judicial law-making, especially where Parliament’s language is unambiguous.

Exam Warning

Do not assume that purposive interpretation always overrides other methods, or that it is always preferred by the courts. While it is a prominent approach—especially in matters with human rights or EU dimensions, or where the statute’s purpose is clear—a court will not always disregard the literal or golden rules. Be alert to the hierarchy and proper sequence of interpretive tools, the restrictions on the use of external aids (particularly Hansard), and the need to respect the division between judicial and legislative functions.

Key Point Checklist

This article has covered the following key knowledge points:

• The purposive approach requires courts to interpret statutes so as to effectuate Parliament’s objective or policy, particularly when language is ambiguous or literal application would frustrate the legislative aim.
• The purposive approach differs from the literal rule (ordinary meaning), golden rule (avoiding absurdity), and mischief rule (remedying specific prior defects in the law) in English statutory interpretation.
• The rise of the purposive approach is closely linked to the need for statutory interpretation to respond to constitutional, social, and technological changes, and was significantly shaped by the influence of EU law, devolution settlements, and the Human Rights Act 1998.
• Section 3 HRA 1998 imposes an obligation to interpret legislation compatibly with Convention rights, sometimes requiring courts to adopt non-literal readings.
• The use of internal aids (e.g., long title, schedules, interpretation sections) and external aids (e.g., Hansard, Law Commission reports, explanatory notes) assists courts in ascertaining statutory purpose—subject to principled restrictions and controls.
• The purposive approach promotes flexibility and justice, but may reduce predictability and raise questions about judicial overreach.
• The approach is bounded by constitutional principles, particularly parliamentary sovereignty and separation of powers, and does not give courts authority to rewrite clear statutory text.
• Judicial precedent shapes the manner and limits of purposive interpretation, ensuring consistency while accommodating necessary development of the law.

Key Terms and Concepts

• Purposive Approach
• Literal Rule
• Golden Rule
• Mischief Rule
• Parliamentary Sovereignty
• Doctrine of Judicial Precedent
• Aids to Statutory Interpretation
• Separation of Powers