Purposive Approach Flashcards
Advantages
Avoids absurd decisions
Promotes flexibility in the law
Achieves parliaments true intent
Allows judicial creativity
Avoids absurd decisions
Cause: judges can ignore the strict words in an act and choose sensible wording which puts parliaments true intention into effect
Example: Jones v TBC - would be absurd for D to not be liable for racism in his workplace due to technicality about being in the ‘course of employment’. Court ignored words of act and prevented discrimination which is what P wanted
Consequence: + as justice will be served in situations where the wording of the act would lead to a bad decision
Flexibility in the law
Cause :Judges can arrive at the decision parliament would make if it were considering the case in modern times rather that old wording
Example: RCN v DHSS - medicine and society had changed since abortion act and P purpose of making abortions safer could be fulfilled by allowing nurses to help with the procedure
Consequence: + allows judges to make sensible decisions about the law and update it with the times
Achieves parliaments true intent
Cause: judges can ignore strict words in an act and put parliaments true intention into effect
Example: Jones v TBC - P did not have to make a new statue to address racism, the court could recognise what parliament would want and so put that intention into effect
Consequence: + means the law works as intended
Allows for judicial creativity
Cause: judges can change the law to conform with the purpose of an act rather than taking the law exactly as it is written
Example: Jones v TBC - judges were able to accomplish the purpose of the act even though the wording of the act could have led to racial discrimination being unpunished
Consequence: + P don’t have to constantly update the wording of their acts because judges can ensure the purpose is still fulfilled
Disadvantages
Creates uncertainty
Erode parliamentary supremacy
Makes judge too powerful
Goes against separation of power
Creates uncertainty
Cause: judges may disagree on what the purpose of parliaments intention actually was
Example: in R v RG ex parte smith some judges may have felt P clear wordimh meant that they wanted D to get his birth certificate in all circumstances
Consequence: - as it leads to inconsistent decisions and lawyers and defendants will be unable to prepare properly for their cases
Erode parliamentary supremacy
Cause: judges can make up what they think parliament wanted and so ignore what the act actually says
Example: in R v RG ex parte smith the judge decided not to give the birth certificate despite the wording ‘shall supply’ being very clear that D should have it in all circumstances
Consequence: - as it is P job not a judges to make the law due to them being and elected and representing society
Makes judges too powerful
Cause: there are no guidelines on how/when to use it
Example: in R v Clinton judges ignored clear wording in an act which said sexual infidelity cannot reduced a murder charge to manslaughter. They dropped Clintons murder charge to a manslaughter
Consequence: risk of unelected judges deciding what is in the best interests of the public, when this should be the job of the parliament
Goes against the separation of powers
Cause: judges are able to change laws rather than just interpret it
Example: in Jones v TBC judges were not interpreting the meaning of ‘course of employment’ so much as deciding what the right thing to do was in the situation
Consequence: - as it is not a judges constitutional role to do this
