'During the last 30 years there has been a shift from the literalist approach to purposive methods of construction. When there is no obvious meaning of a statutory provision the modern emphasis is on a contextual approach designed to identify the purpose of a statute and to give effect to it. ' Lord Steyn. Discuss. [25 marks] Ans. When the parliament has enacted a statute questions inevitably arise as to the meanings of certain words or phrases. Despite how carefully the parliament counsel has drafted the original bill, some error may have been overlooked.
Also, English language is and imperfect means of communication-some words are designed to cover a number of possibilities and are therefore ambiguous and vague. With the development of new technology and changes in the meaning of words over time old acts of parliament may not apply to present situations. It is thus the responsibility of the court to interpret statutes and other legislations. Traditional English thinkers in the 19th and 20th century were in favor of the literalist approach. The literalist approach involves the courts maintaining a word's literal meaning regardless of the consequent absurd outcome.
This approach was preferred as it respects and upholds parliamentary supremacy. It also assumes that anyone who can read English can determine the law, which promotes certainty and therefore reduces litigation as lawyers can advise their clients on the probable outcome of the case. However, it fails to recognize that English language is ambiguous and has therefore resulted in many harsh decisions leaving many worthy claimants with injustice.
This can be illustrated in the case of London & North East Railway Co. V Berriman (1946) – A widow tried to claim compensation for her husband who had been killed while oiling points along a railway line as there was no lookout man provided for him. The Fatal Accidents Act stated that a lookout should be provided for the purpose of 'relaying or repairing'. As oiling points did not fall into either category Mrs. Berriman's case failed. In 1973 the U. K joined the European Union. European law with its roots firmly in 'civilian' law preferred a more purposive approach i. e. is to find out the purpose of the act or the parliaments intention. It is also the approach adopted by the European Court of Justice.
The U. K has to therefore interpret statutes in accordance with the European Union and the purposive approach is for that reason regarded as most appropriate. Lord Denning stated in Bulmer V Bollinger (1974) that an English court interpreting any treaty or other European legislation must follow the same principles of the European Court otherwise there would be differences in interpretations between the member countries and that would never do. Also, Section 3(1) of the Human Rights Act 1998 states that legislation must be read in a way which is compatible with the convention's rights 'so far as possible'.
It is for these reasons that there has been a shift from the literalist approach to purposive methods of constructions as even local English judges have grown accustomed to the purposive approach and have started applying it to English law. However, Lord Steyn has noted that when a statute is unclear a 'contextual approach' should be adopted. Although the purposive approach is by far the best approach to achieving this, to uncover the true intention of the parliament certain matters within the statute itself may help. These are known as intrinsic aids. The court may consider titles, preambles, headings and marginal notes.
However, as these are only helpful comments put in by the printer they may not be as helpful in discovering the parliaments intention as compared to extrinsic aids. These include aids found outside the statutes such as dictionaries and other explanatory notes. The most significant aid, highlighted by the quote is the use of 'Hansard', which records everything said in the parliament when the bill was being debated. Prior to 1993 judges were not allowed to use Hansard. However in Pepper V Hart 1993 the House of Lords relaxed the rule and accepted the use of Hansard in limited circumstances for instance when the words of the act are ambiguous.
Judges also make use of the rules of language – the ejusdem generis rule (Powell v Kempton Park Racecourse), the noscitur a sociis rule (Muir v Keay) and the expressio unius est exclusio alterius rule (Tempest v Kilner). The ejusdem generis rule states that general words which follow particular words should be limited to meanings similar to those particular words. Thus, in Powell, an outdoor place was held not to fall within the "house, room, office or other place" of the Betting Act 1833. Such rules assist the judge in discovering the intention of Parliament.
The attitude of English courts has changed over the 300 years. The choice of which method to be adopted is up to the individual judge. It is quite possible that the judge prefers the literalist approach, which constitutionally maintains the parliaments supremacy enabling it to enact any law it wish. However, there has been a considerable shift towards the purposive approach and today it is generally accepted that the judge's task is to determine and give effect to the parliament's intention.