Statutory Interpretation The Technique of Statutory ... - Francis Bennion

Guides to Legislative Intention III: Presumptions
163 Counter-mischief
Clearly Parliament is unlikely to intend to abolish one mischief at the cost of establishing another
which is just as bad, or even worse. Avoiding such an anomaly is an important consideration in statutory
interpretation (see p 172-3 below).
Presumption that court to apply a purposive construction
A construction that promotes the remedy Parliament has provided to cure a particular mischief is
nowadays known as a purposive construction. Parliament is presumed to intend that in construing an
Act the court, by advancing the remedy which is indicated by the words of the Act and the
implications arising from those words, should aim to further every aspect of the legislative purpose. A
purposive construction is one which gives effect to the legislative purpose by either (a) following the
literal meaning where that is in accordance with that purpose, which may be called a purposive and
literal construction; or (b) applying a strained meaning where the literal meaning is not in accordance
with the purpose, which may be called a purposive and strained construction.
When present day judges speak of a purposive construction, they usually mean a purposive and strained
construction. Thus Staughton J referred to 'the power of the courts to disregard the literal meaning of an
Act and to give it a purposive construction' (A-G of New Zealand v Ortiz [1982] 3 All ER 432,
442). Lord Diplock spoke of 'competing approaches to the task of statutory construction— the
literal and the purposive approach' (Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd
[1971] AC 850, 879).
Novelty of the term
The term 'purposive construction' is new, though the concept is not. Viscount Dilhorne said that,
while it is now fashionable to talk of the purposive construction of a statute, the need for such a
construction has been recognised since the seventeenth century (Stock v Frank Jones (Tipton) Ltd
[1978] 1 WLR 231, 234). The term's entry into fashion betokens a swing by the appellate courts away
from literal construction. Lord Diplock said in 1975:
If one looks back to the actual decisions of [the House of Lords] on questions of statutory construction over the last
30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive
construction of statutory provisions. (Carter x Bradbeer [1975] 1 WLR 1204, 1206-7.)
Supervening factors
As always in statutory interpretation it is necessary, when considering