3.5 The purposive approach
This approach has emerged in more recent times. Here the court is not just looking to see what the gap was in the old law, it is making a decision as to what they felt Parliament meant to achieve. Lord Denning in the Court of Appeal stated in Magor and St. Mellons Rural District Council v Newport Corporation  2 All ER 1226
… we sit here to find out the intention of Parliament and of ministers 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.
This attitude was criticised on appeal by the House of Lords (the highest civil appeal court for Scotland until the UK Supreme Court superseded it). Lord Simmons called this approach ‘a naked usurpation of the legislative function under the thin disguise of interpretation’. He went on to say that ‘if a gap is disclosed, the remedy lies in an amending Act’.
These comments highlight one issue with the purposive approach. How Parliament’s intentions can be determined and whether judges should really be refusing to follow the clear words of Parliament. The purposive approach is one used by most continental European countries who have a civil law jurisdiction. It is also the approach taken by the Court of Justice of the European Union in interpreting EU law.
When the UK became a member of the European Economic Community in 1973, the influence of the European preference for the purposive approach affected the approach of the courts in the UK in a number of ways. First, from 1973, the purposive approach had to be used when deciding on EU matters. Second, as they use the purposive approach was used for EU law it began to be used to interpret domestic law. It has clear links with the existing mischief rule.
Box 11 The purposive approach: Pickstone v Freemans plc  AC 66
Pickstone v Freemans plc  AC 66. Here, women warehouse operatives were paid the same as male warehouse operatives. However, Miss Pickstone claimed that the work of the warehouse operatives was of equal value to that done by male warehouse checkers who were paid £1.22 per week more than they were. The employers argued that a woman warehouse operative was employed on like work to the male warehouse operatives, so she could not bring a claim under the Equal Pay Act 1970 Section 1(2)(c) for work of equal value. This was a literal interpretation of the Equal Pay Act 1970. The House of Lords decided that the literal approach would have left the United Kingdom in breach of its Treaty obligations to give effect to an EU directive. It therefore used the purposive approach and stated that Miss Pickstone was entitled to claim on the basis of work of equal value even though there was a male employee doing the same work as her for the same pay.
When using one of the rules of statutory interpretation the courts may rely on a presumption (that Acts are not retrospective unless expressly stated) or secondary aids (such as notes of parliamentary proceedings) to assist them in making their decision. All legislation also has to be interpreted in such a way as to bring it within the ambit of the ECHR.
Activity 5 Putting it all into practice
This activity provides you with an opportunity to read an extract from a case and explore further what you have learnt about statutory interpretation. The case is from the late 1940s but a number of the observations reached are relevant today.
Read the facts from the case Galashiels Gas Co Ltd v O'Donnell (or Millar)  AC 275 and the law that follows the facts. Apply the law to the facts and consider what decision you would have reached.
Box 12 Galashiels Gas Co Ltd v O'Donnell (or Millar)  AC 275
On 1 October 1945, M., who was employed as a stoker in the appellants' gas works, was using an electrically operated lift to carry coke to a screening plant on the first floor. Having reached the first floor with a bogie full of coke, he switched off the power, opened the lift gates and ran the bogie out, leaving the gates open. He then emptied the bogie and ran it back into the lift shaft, but, owing to a failure of the brakes to operate, the lift cage had moved up in the shaft, with the result that both M. and the bogie fell to the bottom of the shaft and M. was killed. After the accident the mechanism was dismantled and examined by experts, but nothing was discovered to account for the failure and it was found that the appellants had taken every practical step to ensure that the lift mechanism worked properly and was safe to use. In an action by the respondent, M.'s widow, for damages in respect of his death the appellants contended that they were only bound to take such steps as would ensure that the lift was in efficient working order, and that, in the absence of proof of the nature of the defect which caused the accident, the respondent could not succeed.
Section 22(1) of the Factories Act, 1937: ‘Every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be properly maintained.’
Section 152(1) of the Factories Act, 1937: ‘ “maintained” means maintained in an efficient state, in efficient working order, and in good repair.’
The case was heard on appeal to the House of Lords. It was heard by Lord Normand, Lord Morton of Henryton, Lord MacDermott and Lord Reid on 6 and 7 December 1948 and on 20 January 1949. The decision of that court was as follows:
The words ‘shall be … properly maintained’ in s 22(1), read with the definition of ‘maintained’ in s 152(1), were imperative and imposed on the occupiers of a factory an absolute and continuing obligation, and there was nothing in the context or the general intention of the Act which could lead to the inference that there should be any qualification of that obligation; to succeed the respondent need only prove that the mechanism of the lift had failed to work efficiently and the failure had caused the accident; and that burden she had discharged.
The word ‘properly’ was discussed. Lord MacDermott noted ‘Why exactly “properly” was inserted is, perhaps, a matter of speculation as the Act does not appear to furnish any very obvious explanation. However this may be, the word is certainly not incompatible with the duty in question being absolute in character.’