Introduction
Statutes consist of written rules or regulations, agreed by Parliament or other legislators. In order for statutes to be enacted, the words of the statute have to be understood, interpreted and applied. Statutes can be valid for many years despite changing social, political, technological, linguistic and economic landscapes. For example, certain sections of the Statute or Marlborough Act 1267 are still valid and were originally handwritten in a language that bears little resemblance to modern English. Linguistic problems also present when statutes have to be presented in multiple languages, such as in European Law. Add to this that when statutes are written, unforeseen circumstances such as advances in technology can’t be catered for. Therefore, interpretation is not always easy and disagreements over meaning can ensue. In this essay, the literal and purposive approaches will be critically analysed to show that the purposive rule is superior to the literal rule, not because of its flexibility, but because it gives greater transparency to the meaning of the law. For the purposes of this essay the word transparency is defined as: ‘a lack of hidden agendas with all information being available’. Flexibility is defined as being able to conform to new situations.
Let us look first at the literal rule of statutory interpretation. Adherents of this rule maintain that the law is to be found using the meaning of the words in the Act itself, within the context of that Act and by reference to cannons of construction. When this works well, clarity and transparency can be achieved in interpretation, without the need for flexibility. For example, it seems very clear what the sentence: ‘This Act does not extend to Northern Ireland’ means in the Abortion Act. However, in other situations use of the literal rule alone would be insufficient to achieve transparency in meaning. Solan, in his book on the language of Statutory Interpretation cites United States v Winn, where a ship’s officer had been prosecuted for unlawfully imprisoning a fellow officer. The regulation that dealt with this matter stated that it was against the law for, ‘Any master or other officer’ to hold prisoner ‘any one or more of the crew of such ship’. The Oxford English dictionary gives two similar, valid, but different meanings to the word crew:
1 A group of people who work on and operate a ship, aircraft, etc.
1.1 A group of people working on a ship, aircraft, etc. other than the officers.
So, in this instance, a strictly literal approach is of limited help in interpretation. Adopting a purposive approach allowed the judiciary to interpret ‘crew’ in a way that reflected the intent of the regulation, which was the protection of the rights of those aboard the ship and the defendant was found guilty.
As well as addressing drafting oversights, the purposive rule allows a framework for interpretation of the law in situations that are new or unforeseen by the legislators. Failure to use it can allow gaps in the law to be exploited and require Acts to be rewritten. This is what happened in the case of Fisher v Bell, where a retailer was brought to court under the Restriction of Offensive Weapons Act for having a flick knife on display in his shop window. The Act states that: ‘Any person who … sells or hires or offers for sale or hire,…..any knife which has a blade … sometimes known as a “flick knife”……. shall be guilty of an offence….’ The defence argued that the act of displaying the knife was not to be treated as an offer of sale. This is because until a negotiation has taken place, an offer of sale doesn’t exist under contract law. The defendant was found not guilty. Thus, a strictly literal interpretation can lead to gaps in the law being exploited by using the language of the statute to confuse and subvert its intent. A purposive interpretation would have been superior as it could allow the judgement to apply the law, as Parliament intended.
In order to agree that the purposive rule gives more transparency of meaning to the law depends on whether the meaning of the law is limited to the meaning of the written words, or can also include a framework of legislative ‘intent’. Flexibility of interpretation, in and of itself, is not an advantage if it takes us away from the meaning of the law. The purposive rule is more flexible than the literal rule as it allows consideration of circumstances that don’t fit neatly into how the words were written. However, it is superior to the literal rule because it gives us a method to interpret the meaning of the written words of the law using extrinsic, but relevant evidence.”[T]he reason and spirit of the law, or the causes, which led to its enactment, are often the best exponents of the words, and limit their application’. The purposive rule lets us consider why the law was written, what law it replaced and what it was trying to achieve:
The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.
The superiority of interpretation using the purposive rule can be seen in SPUC v The Secretary for State. SPUC alleged that the supply and the use of emergency contraception equated to the procurement of miscarriage, according to the Offences against the Person’s act, as the morning-after pill can prevent implantation of fertilised embryos. SPUC argued that, as the morning after pill was an abortifacient, the terms of the Abortion Act 1967 weren’t being adhered to and that supply or use of emergency contraception was a criminal act. Justice Munby, in the overview of his judgement agrees that the definition of the procurement of a miscarriage in the 1861 Act did include the prevention of the implantation of a fertilised egg. He pointed out that other medical contraceptives also work to prevent implantation. Justice Munby said that it would be wrong for judges to be forced, because of a one hundred and forty one year old law, to be forced to criminalise an activity that had become part of modern living. By looking beyond the narrow literal-based argument, judgment was returned that reflected a purposive interpretation, whose construction brought transparency to the law relating to both the Abortion and the NHS Family Planning Act. This will protect the health professionals who supply contraception and the many women who access it, reflecting what the Abortion Act and Family Planning Act were meant to achieve.
Conclusion
If statutes could be written to cover every eventuality, and if everyone agreed on the ‘plain meaning of the words’, inflexibility in interpretation would suffice, as there would be transparency of meaning. When meaning can’t be agreed upon, restriction to a literal rule interpretation would force many statutes to have to be amended, or opacity in the meaning of the law to be accepted. Amending laws is often time consuming or impractical. Legislators would be forced to play perennial catch up with changing circumstances. This is why the purposive rule bests the literal rule. Where the meaning of the words or the sentence is unclear, where the circumstances don’t fit the rules and because of the impossibility of drafting legislation to cover every possible eventuality, the purposive approach at least attempts to shine a light on the legislator’s intention, making the meaning of the law more transparent and leaving the law less open to return patent injustices and absurdities.
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