1. Introduction
In the seminal case of Oppenheimer v Cattermole,Footnote 1 the House of Lords considered whether the English courts should recognise a Nazi nationality law depriving Jews of their German citizenship.Footnote 2 The Law Lords had already heard the argument and were preparing to give judgment when they learnt that Francis Mann had published an article on the case.Footnote 3 The article criticised the lower courts for failing to acknowledge that the post-war Federal Constitutional Court had consistently held Nazi nationality laws as void—indeed, as not law at all—due to their being arbitrary and lacking the necessary qualities of law.Footnote 4 The House of Lords convened a new hearing to consider the article and it changed the course of the appeal, with the majority relying heavily on Mann’s analysis.Footnote 5
The difficult moral and legal problems posed by the laws of Nazi Germany also preoccupied Lon Fuller, upon whose work I will draw. In the famous 1958 ‘Hart-Fuller’ debate, Fuller argued against HLA Hart that Nazi laws were not law at all. Fuller’s argument was based on his view of the purposive nature of law. It is the importance of purpose, in law and in interpretation, that is the topic of this article.
The concept of ‘purpose’ is frequently used in many different areas of the law. In administrative law, public authorities must exercise their powers for a proper purpose.Footnote 6 In contract law, the courts seek to identify the purpose of the contracting parties.Footnote 7 Most familiar of all is the central role of purpose in statutory interpretation, where, as Lord Bingham has noted, the court’s task ‘is to give effect to Parliament’s purpose’.Footnote 8 I will argue that this ubiquitous recourse to the idea of purpose in different legal areas derives from the fundamentally purposive nature of law and the legal system as a whole.
Law is a human institution comprising a set of normative propositions. A legal rule lays down a particular state of affairs which should exist, which may be different from a state of affairs which does exist, and requires action to be taken to change things to conform to the rule. The rule is a principle requiring human intervention in the world. That intervention is oriented to achieving some purpose, which is to be derived from the rule itself and the system of which it forms part. I therefore take Fuller’s philosophy of law as my starting point for this article. Laws reflect, and are designed to advance, human purposes.
This perspective has implications for how we interpret laws across the whole spectrum. As examples, I will examine the role that purpose plays in the common law of contract, in treaty interpretation, in the common law of tort and equivalent areas in European law, in statutory interpretation—both domestic and European—and in the law of human rights under the European Convention on Human Rights (ECHR, Convention). Some idea of purpose is inevitable in interpreting law in all these areas. But it also gives rise to puzzles.
In modern societies laws are given expression in language. It is often perceived that there is a tension between the natural meaning of the words used and the purpose underlying the particular law. On this view, recourse to purpose in the interpretive exercise involves changing what would otherwise be the meaning of the words to arrive at the true meaning of the law. If purpose is going to have this powerful and potentially determinative effect when there is a dispute about that meaning, we need to try to understand how to identify that purpose and to specify what its effect should be.
However, I will also argue that this picture of a conflict between natural meaning and purpose is itself exaggerated and rather distorted. The use of language is a practice which is itself based on human purposes, and its meaning can only be understood in light of the purposes which the language user has, or is taken to have, in the particular context in which it is used. So, recourse to purpose to derive meaning is inevitable for this reason as well. The fact that meaning is purpose-driven in language runs in tandem with the fact that law serves, or is taken to serve, the purposes of the lawgiver and of the legal system as a whole. The purpose of a law informs the understanding to be given to—that is, the meaning of—the language used to express that law. But this modification of the slightly crude purpose versus natural meaning picture which is often invoked serves to emphasise still more the need to identify the purpose of the law, as expressed through the medium of language, and to understand what its effects might be in understanding the language used in order to derive its meaning as it falls to be applied in a particular case. This perspective suggests that disputes about meaning tend to resolve into disputes about purpose.
But language generally, and laws in particular, are not usually accompanied by declarations of purpose and, even when they are, such a declaration itself requires interpretation and may not be complete. The person to whom the language or the law is addressed has to interpret it by inferring the purpose or purposes which they take the person using the words to have had in choosing them in the particular context. Recourse to the concept of purpose in order to understand meaning is both inevitable and helpful, but it is also problematic.
This is compounded by another distinction which can be drawn, between the purpose of individual rules or laws, reflecting the specific reasons for their adoption, and the general purpose or purposes of the legal system as a whole, reflecting the general background reasons for maintaining such a system in place as part of the mode of governance of a society. Such general purposes may be expressed as values and principles requiring respect for individual persons, since they are subject to the coercion implicit in the legal system, protection against arbitrary government and so on. As with natural meaning and purpose, conflicts between these different types or levels of purpose may arise, which can be given greater or less prominence and significance.
In some legal systems, in particular those with a powerful written constitution which gives legal expression to those general purposes enforceable by the courts, the conflict may be of critical importance in determining what the law is. An ordinary statute pursuing a specific purpose which is in conflict with the general purposes of the legal system may be struck down. But in other legal systems, which give priority to choices made by legal actors in the present, the significance of the tension between these different conceptions of legal purpose tends to be far more muted. International law in relation to treaties falls into this category, since under Articles 31 and 32 of the Vienna Convention on the Law of Treaties emphasis is given to the ordinary meaning of the words used in a treaty ‘in their context and in the light of its object and purpose’Footnote 9 (i.e. the object and purpose of the specific treaty) and to specific indications of the intentions of the parties appearing in the travaux préparatoires. Save in exceptional cases it is the purpose underlying the individual, specifically chosen rule which is given effect. The general purposes of the legal system operate as a background setting and a guide to the rule’s interpretation in cases of doubt. The relationship between them may be conceptualised more in terms of the background purposes informing how one should conceive of and infer the specific purpose of the rule itself, sometimes by way of presumption and sometimes by them functioning as a tie-breaker resource when other guides to meaning fail to yield a clear result. By these means, an attempt can be made to integrate them. This inevitably leads to some form of balancing of the two levels of purpose to arrive at the legal meaning to be given to the rule itself, which poses another set of problems about what purposive interpretation actually means. There is no simple model or metric which can be applied to answer such questions. It requires an exercise of judgment by persons who are trained in a legal or constitutional tradition who are sensitive to the different dimensions of purpose which are in play. Ultimately, since there is often no single result which ordinary rationality compels one to adopt, and there is room for a range of possible legitimate views, a legal system will usually have to depend on a system of authority which specifies whose interpretive view should be binding.
In this article, I am interested to explore the role of purpose in interpretation in this latter type of legal system. The United Kingdom’s (UK) constitutional system, based on the sovereignty of Parliament rather than a written constitution, gives legal priority to the purpose underlying the adoption of a specific rule in a statute. The general purposes served by the legal system are respected through interpretive techniques applied in relation to such a rule (in particular, the principle of legality, as discussed in Section 5.2), but in the case of a clear conflict will be taken to be overridden (in the view of some, this may be subject to some rare exceptions, but such a view is highly contested). Contract law similarly gives priority to the choices made by the contracting parties. Generally, subject to certain general norms of special force (ius cogens), the same is true of the international law of treaties.
This brings me to a final preliminary point. Law is expressed in language because it involves an act of communication. A law tells a person subject to that law how they should behave. That is true even for laws in the form of custom which has not been written down. A person wishing to know how they should behave in order to conform with the law, so as to allow the law to operate as a guide for their action, has to infer the relevant normative proposition from observation of how others behave in conformity with the custom. It has to be possible to formulate the customary rule in language, and in doing that one gives expression to its purpose. Sometimes the purpose or telos of the customary rule has been identified by the heuristic of positing an ancient lawgiver, such as Solon in Athens, and conceiving of the purpose of the law, which is really the purpose of the legal system itself, in personalised terms which make it easier to understand that purpose.Footnote 10
Something similar happens in modern societies which depend on positive laws promulgated by multimember legislatures, both domestic and supranational, rather than pronounced by a single person such as a king, who acts for simple human purposes like any individual and whose use of language is to be understood in that way. When a legislature legislates it speaks to the persons who are subject to its laws, and it is appreciated that they will have to make sense of them in order to understand how their actions should be guided by them. The legislature is an artificial person which speaks by means of a process involving voting to adopt legislative texts. It exercises its own agency in the political system in this way and is understood by those subject to the law to be exercising agency as a person speaking to them. Therefore, I maintain that it is legitimate when interpreting legislation to do so by reference to the purposes to be ascribed to the legislature as a speaker using particular language in a particular context. It is correct to use the concept of legislative intention as much for the legislature as for an individual lawgiver. I hope to answer criticisms of the notion of Parliamentary or legislative intention in statutory interpretation by showing how the concepts of intent and purpose are indispensable throughout the law.
2. Philosophy: the purposive nature of law
2.1. Purpose in law
The purposive nature of law was central to the legal philosophy of Lon Fuller. For Fuller, the legal system is the product of a ‘sustained purposive effort’.Footnote 11 In his work The Morality of Law, Fuller described the purpose of law as ‘the enterprise of subjecting human conduct to the governance of rules’.Footnote 12 From this view of law’s purpose, Fuller derived eight principles that he argued were constitutive of a legal system.Footnote 13 There must be general rules, rather than ad hoc decisions or commands. The rules must be publicised and available to those who are expected to observe them. They must be of prospective, rather than retrospective, effect. The rules must be clear and intelligible. They must not be contradictory. They must not require the impossible. The rules must be relatively stable across time. And finally, the implementation of the rules by officials must accord with the rules as they have been published.
Fuller saw these principles as the foundation of a reciprocal relationship between the creator of the laws (the lawgiver) and the responsible agents subject to them (the legal subjects). A lawgiver must follow these principles if they are successfully to guide the conduct of those subject to their laws. If a legal system departs too drastically from any of one of these principles, then it will fail to guide human conduct and therefore fail in the purpose for which it exists; it will fail to be law at all.Footnote 14
Fuller was at pains to emphasise that, unlike some natural law theories, his eight principles are not derived from an external source, such as a divine creator.Footnote 15 Instead, the principles are what is required of the law if it is to achieve its purpose.Footnote 16 Fuller emphasised that the eight principles are neutral between a variety of substantive aims of the law. He called the eight principles the ‘inner morality of law’ in order to contrast them with the ‘external’ moral aims that the law may pursue.Footnote 17 For example, the internal morality of law tells us nothing about whether the lawgiver should raise income tax or legalise assisted dying.Footnote 18 This explains why, when Fuller argued that Nazi laws were not law at all, this was not due to their substantive content. Rather, it was because Nazi ‘laws’ violated the inner morality of law: they were passed in secret, retroactively approved wholesale murder and Nazi judges paid no attention to the laws when deciding cases.Footnote 19
There is a deep connection between Fuller’s conception of law and the value of human agency.Footnote 20 As Fuller put it:
To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable understanding and following rules, and answerable for his defaults. Every departure from the principles of the law’s inner morality is an affront to man’s dignity as a responsible agent.Footnote 21
2.2. Purpose in interpretation
I turn to consider the role that purpose plays in legal interpretation generally, due to the close relationship between purpose, words and meaning.Footnote 22 Whether it is in statutes, contracts or principles articulated in judicial decisions, the law is expressed in words. Courts interpret these words to ascertain their proper meaning. But words are not simple building blocks constituted of fixed and unalterable datums of sense which are put together like Lego bricks to reveal a clear and perspicuous meaning of composite sentences. Words have shades of meaning, which become determinate when used in specific contexts for specific purposes.
This picture of how meaning is conveyed by language was explained in the later work of Ludwig Wittgenstein.Footnote 23 Wittgenstein argued that language is not representational, and words do not have a simple correspondence with objects in the world. Instead, sense or meaning is given by the use to which a word is put in a particular context and as part of a public, rule-governed activity carried on by a linguistic community.Footnote 24 Communication is therefore enabled by the objective nature of language, in that the meaning is independent of the subjective intention of the individual speaker. It is only through the speaker’s participation in the wider linguistic community that they are able to achieve meaning at all.Footnote 25 They are tools which are put to use by the speaker.Footnote 26
This view of language explains why courts find it necessary to refer to context in order to explain the meaning of words used in legal rules. A word derives its meaning not just from the specific purpose for which a speaker uses it, but from its use in the context of the wider set of linguistic practices informed by the purposes of the community as a whole.Footnote 27 This helps to explain the modern approach to statutory and contractual interpretation, where a particular provision is construed not just by reference to the specific object at which the statute or contract is aimed, but also by reference to the wider purposes served by the general common law. I will consider this idea first in the context of contract law.
3. Contract law: identifying the purpose of the parties
By forming a contract, parties create a shared legal world. That shared world comprises a set of legal rights and obligations which frame the way in which they are entitled to behave towards each other.Footnote 28 This logic may also be extended to treaties between sovereign States in public international law.Footnote 29 In creating this world, the parties act as lawgivers by legislating for themselves and, in the words of Fuller, engage in the enterprise of subjecting their conduct to the governance of rules. Fuller’s emphasis on law’s respect for human agency finds expression in the related principle that the court will not readily interfere with the bargain consensually entered into by the parties.Footnote 30
This principle reflects the value that the law places on predictability and a party’s ability to plan their affairs with a reasonable appreciation of the boundaries of what is permissible. However, the specific purpose of the parties does not completely displace the wider purposes of the legal system as a whole. Just as ‘Parliament does not legislate in a vacuum’,Footnote 31 nor do contracting parties. Their actions are situated in the wider legal system.
Similarly, the parties’ subjective consent does not control the meaning of contractual terms. Instead, the courts ask what a reasonable person, placed in the position of the parties, would understand the contract to mean.Footnote 32 This serves a dual function. The concept of a reasonable person reflects the objective nature of meaning: the words of a contract only derive their meaning from their use in the wider linguistic community of which the parties are part. Also, the need to place the reasonable person in the position of the parties derives from the fact that an understanding of the specific purposes of the parties is necessary to determine what meaning, out of the range of meanings it might convey, a word is intended to have.
This observation may also be extended to treaty law. For example, in European Union (EU) law ‘teleological interpretation’ is the fundamental approach of the Court of Justice of the European Union (CJEU, Court).Footnote 33 The determination of telos (or purpose) does not focus solely on the intention of the High Contracting Parties. Instead, the Court also draws upon the ‘wider purposes of the legal system’, including objectives such as the promotion of ‘ever closer union’ among the peoples of EuropeFootnote 34 and the values found in Article 2 of the Treaty on European Union, which the Court has recently claimed constitute the ‘very identity of the European Union as a common legal order’.Footnote 35
4. Purpose in tort
Regarding the role of purpose in tort, I will mention two main categories of domestic law cases. Regarding international law, numerous treaties have been concluded to regulate conduct that falls under the English common law of torts.Footnote 36 Within the supranational legal order of the EU, legislation on the topic has also been passed—most recently, a new Directive on product liability.Footnote 37 Insofar as international and supranational courts are called upon to determine issues such as the duty of care in litigation concerning these international instruments, the determination of the purpose of the parties again gains salience.Footnote 38
The first type of case in domestic law is where tort regulates the relationship of two parties who voluntarily engage with one another. This can be seen in the development of assumption of responsibility as a basis for a duty of care for pure economic loss in the tort of negligence. The general rule is that pure economic loss—loss that is purely monetary in nature without any physical damage—is not recoverable in negligence.
The most common rationale offered for this principle, as explained by Lord Denning in the Spartan Steel case,Footnote 39 is that imposing a duty of care for pure economic loss would expose parties to a disproportionate liability. To impose liability for pure economic loss suffered in such circumstances would mean that the ambit of liability would pull apart from the forms of relationship which might justify imposing liability in the first place. The contractor in Spartan Steel who dug up the public highway and cut a power cable supplying power to the claimant’s factory could not meaningfully incorporate the indeterminate risk associated with the harm caused to everyone taking power from that cable into the price charged for its services, nor realistically could it obtain insurance to protect itself. It was not in a position to be able to bargain around the risk it took on, so that without a rule against the recovery for pure economic loss it would in fact bear all the risk. By contrast, where the defendant carries out a task given to it by the claimant and through dealing with them has an opportunity to negotiate over the extent of the obligations it takes on, the law is justified in imposing a duty. The ambit of the duty is informed by the purpose of the arrangement they make.
An example of this is the decision of the UK Supreme Court in Manchester Building Society v Grant Thornton. Footnote 40 In that case, the defendant accountancy firm had negligently advised the society that its accounts could be prepared using a particular accounting principle in relation to interest rate swap contracts, which led the society to think that the regulatory regime to which it was subject allowed it to enter into long-term swap contracts as a hedge against the cost of borrowing money to fund its mortgage lending. The 2008 financial crisis led to an unexpected fall in interest rates, with the result that the value of the swaps became severely negative. The society also belatedly realised that hedge accounting could not in fact be used in stating its financial position. The society had to restate its accounts with the result that to comply with its regulatory obligations it had to close out the swaps early at a substantial loss. The accountants admitted negligence but argued that the losses were not within the scope of their duty of care. Reversing the lower courts, the Supreme Court held that they were. The scope of the duty of care assumed by a professional adviser was governed by the purpose of the duty, judged on an objective basis by reference to the purpose for which the advice was given.Footnote 41 As the accountants knew that their advice was sought in order to be used by the society to decide whether to enter into the swap transactions, it was liable for the losses arising from action in accordance with that advice.
The second category of case in tort involves situations where the parties do not deal with each other and therefore have no opportunity to bargain about the scope of their engagement. Here, the duty is imposed by law independently of the will of the claimant and the defendant. It cannot be said that the duty of care owed by one road user to another is based on a purpose jointly chosen by them. Instead, the duty is imposed to give effect to the wider purposes of the general law, such as providing just compensation and a fair distribution of risk.Footnote 42
5. Statutory interpretation: the indispensability of Parliamentary intent
Turning to interpretation of statutes, purpose has a role analogous to that in contract. Whereas the parties to a contract act as joint lawgivers in relation to their own relationship, the UK Parliament acts as a lawgiver for the UK legal system as a whole. In international law, the EU represents a special case: it has a sophisticated system of secondary law creation that relies upon a dual-constituted legislature consisting of the Council of the EU and the European Parliament, with the European Commission operating analogously to the executive in a domestic parliamentary system.Footnote 43 As discussed in Section 3, the CJEU draws upon the wider purposes of the legal system through teleological interpretation utilising the values and objectives of European integration. Scholars have argued that such an approach may not be sufficiently sensitive to the legislative intention of the members of the European Parliament and the ministers within the Council of the EU who have created secondary EU legislation.Footnote 44
Legislation is central to the enterprise of subjecting human conduct generally to the governance of rules. However, whilst the breadth of the UK Parliament’s lawmaking powers may be wider than those of the EU institutions, the interpretive task for the courts is the same: that is, to identify the meaning that Parliament intended to convey to those subject to a new law by its purpose in introducing that law expressed in the words it has chosen to use. This approach is settled law and has been reaffirmed by the Supreme Court on multiple occasions.Footnote 45 Back in 1877, Lord Blackburn said in the River Wear Commissioners caseFootnote 46 that the principles applicable to construing a statute were the same as those for construing any other instrument in writing: namely, to identify the intention of the author in using the words chosen.Footnote 47
Despite the acceptance of this approach in case law, the use of Parliamentary purpose and intention in statutory interpretation has been subjected to criticism. Some judges and jurists deny that the concept of Parliament’s intention should play any role in interpretation. In a lecture in 2017, Sir John Laws argued that we should abandon the concept and instead employ the idea of statutory purpose as something inherent in and to be discerned from the statute itself. In the US, John Manning argues that the courts should engage in legislative interpretation ‘without the pretense of legislative intent’.Footnote 48
The main reason for this scepticism about the concept is that Parliament is a multimember legislative body, and the intentions of individual members when passing legislation are likely to be various and will not correspond with each other. Members voting for the legislation may have completely different purposes in mind. Therefore, it is argued that it is a fiction to refer to Parliament’s intention: there is no such thing, just a multitude of intentions of individual human agents.
One response to this criticism is offered by John Gardner.Footnote 49 Gardner draws an analogy between a legislator and an orchestra. In an orchestra, members achieve coordination by following the conductor, with each playing their own instrument; but only the orchestra, as a group agent, plays the symphony. The individual musician intends to play their instrument, but they also intend that, by all together playing their parts, the orchestra as a whole will play the symphony. Gardner argues that, in the same way, every member of the legislator will have the shared intention of legislating to change the law. Even those who vote against a certain piece of legislation intend for it to become law if a majority supports it. Parliament is therefore a group agent in the same way as an orchestra.Footnote 50 However, Timothy Endicott makes a persuasive critique of this view.Footnote 51 A legislature is not structured by cooperation in the way an orchestra is, but by party competition. There is no overarching teamwork and, when a member votes against a Bill, they intend and hope that it falls and is not passed into law. Instead, Parliament acts on the basis of a rule which sets out conditions for the valid exercise of legislative power. The rule is a device to enable a legislature to exercise agency by choosing whether to approve a proposal. Parliament is therefore an artificial person or agent that acts by means of this procedure.
However, I contend that whilst Parliament may best be conceptualised as an artificial person who acts by means of such a power-conferring rule, it does not follow that there is no role in interpretation of a statute for Parliamentary intention or purpose, taking those words to mean the same thing. In promulgating a law Parliament is a speaker, who acts by using the tools of language in a deliberated and deliberative manner in order to convey meaning, and so has to be understood as such by its audience. It speaks in a general context in which it exercises a legal power given to it in order to further the purposes of a particular political community. If it is to convey meaning, then for reasons to do with the nature of language it has to be understood as an agent seeking to pursue particular purposes by choosing those words. And to understand what sort of agent it is, and hence what particular purposes it should be understood to be promoting, its audience has to take account of the range of meanings of the words it uses, the particular purposes that appear from the use of those words in the context of the legislative measure of which they form part and, more generally, the nature and role of the legislature itself in the political community.
Our political community takes the form of a Western liberal democracy subject to the rule of law. Parliament is constituted to serve the ends of such a community. It exercises its legislative power by means of the power-conferring rule, which in turn depends upon the exercise of agency by the members who constitute it, who deploy the votes given to them by that rule. In order to be able to exercise that agency, they have to be able to understand the meaning of the legislative text that they vote upon just as much as the subjects of the law.Footnote 52 In fact, they too are subjects of the law and for that reason also should be taken to understand it in the same way as a subject of the law will do: they are legislating for themselves, as well as everyone else. They must be taken to intend to do so reasonably, and not randomly or capriciously.
To use the well-known formulation of Henry Hart and Albert Sacks, judges and others subject to the laws passed by Parliament should understand it by presuming that legislators are ‘reasonable men pursuing reasonable purposes reasonably’.Footnote 53 It is readily possible to posit the legislature as a single unified person exercising its own agency, and to look for clues in the properly available evidence as to how that person would have been likely to have intended to resolve the particular case in which a dispute arises. Similarly, the court constructs the recipient of the legal rules promulgated by the legislature and asks what a reasonable legal subject would understand those rules to mean.
I find it difficult to conceive of a sensible alternative approach. The legislation has to convey meaning as chosen by the legislature, since that is what the legislature exists to do. And the legislation could not be understood if the words used were a random assemblage, rather than understood as being employed by a person engaging in rational action.Footnote 54 But it may be objected that it is not straightforward for the court to posit a reasonable legislature or legal subject in the way that I propose. Three points can be made in response.
First, Wittgenstein’s analysis of the nature of language means that resort to a conception of Parliament’s purpose in using it is not just viable, but necessary. The idea that legislation requires meaning to be conveyed by a speech act by an agent, and since Parliament is an artificial person who is the relevant agent which speaks, seems to me to commit us to determining that meaning by inferring the intention of the legislature in the same way we would infer the intention of a natural person. Moreover, words are ‘irreducibly open-textured’, meaning that they can be used in multiple different situations.Footnote 55 The open-textured nature of language means that law and legal rules also have an open texture, and Parliament’s purpose is necessary to give an open-textured word a specific meaning.Footnote 56
This view is supported by the second and third points.Footnote 57 The second is that we regularly derive meaning from speech acts by natural persons. The notion of a simple will of an individual is itself contested, yet we have no difficulty in using the language and concept of intention in relation to what can be seen as the complex construction of an individual’s will.Footnote 58 Third, judges, lawyers and others do in fact happily and coherently employ the concept of legislative intention and purpose, assessed in an objective way, when addressing the interpretation of statutes. As mentioned, intention is used in an analogous way in contract law with far less criticism.Footnote 59 From a Wittgensteinian perspective, there is nothing in this use of language which is erroneous or requires to be fixed.
In addition to these reasons, there are constitutional reasons why Parliament’s purpose should be the focus of a court’s interpretive exercise.Footnote 60 Democracy is rule of the demos (people), which expresses its collective will through Parliament’s legislative processes. Legislation is a deliberate collective act by a legislature authorised to issue new law, chosen and voted upon by individual parliamentarians in light of their views about what the public in fact want or what parliamentarians take to be their collective interests. The legislative will is the will of the people, in refined and concretised form. To deny that Parliament can be imputed with an intention or a purpose is to deny the possibility of democratic lawmaking. It also potentially opens the door too wide for judicial lawmaking, by removing the focus from where it should be, on the will of Parliament, reflecting the will of the people. If Parliament’s intention is not taken to be the object of inquiry where disputed issues of statutory interpretation arise, the exercise of interpretation becomes unmoored and the way appears clear for the courts to import normative content of which they approve, even if it is not plausible to think that the legislating Parliament would have accepted it.
Sometimes a move is made to replace talk of Parliament’s intention or purpose with the purpose of a statute.Footnote 61 In my opinion, this move fails to sidestep the issue of legislative purpose. To refer to the purpose of a document is to refer to the purpose of the agent or agents who brought it into existence (or, sometimes, to the purpose of the agent or agents who put an existing text to a new use of their own; but in the UK’s system, which emphasises the political authority of Parliament, the focus is on the purpose of those who brought it into existence). Documents do not have agency and do not have purposes of their own. So, the concept of legislative purpose is a fiction in the same way as legislative intention is a fiction—and, indeed, means much the same thing on the Wittgensteinian conception that language is a tool and meaning arises from its use.
In my view, these arguments show that the concepts of Parliamentary purpose and intent are both viable and indispensable in statutory interpretation. However, establishing Parliamentary purpose as a legitimate concept raises further problems as to how it should be applied in practice. I will refer to four of these: Problem (1)—what evidence as to purpose is properly admissible?; Problem (2)—to what extent can courts inject normative content by an assumption that Parliament has legislated to accommodate particular background constitutional or human rights objectives (‘the principle of legality’)?; Problem (3)—how should the courts react where there are multiple (and potentially conflicting) purposes?; and Problem (4)—what should courts do where there is a compromise involving a deliberate obfuscation, limitation or non-implementation of conflicting purposes?
One of the reasons that these problems arise in relation to statutes is because they have authoritative effect across time and in relation to situations potentially far removed from those to which the legislature directed its attention. Legislation from the 1800s continues to apply today regulating modern forms of life that were unimaginable then. Similarly, a statute can never anticipate all of the novel circumstances in which it may be applied. In these circumstances, there is no simple mechanism for recourse back to the legislature: you cannot call it up and ask, ‘what did you really mean?’. This uncertainty is reduced by the fact that legislators will frame a statute by focusing on what is most directly important to them, using precise language. This provides a paradigm case as a point of reference. The potential extent of legitimate disagreement about linguistic meaning can also be reduced further by the specification of an accepted methodology by the courts to resolve cases of uncertainty at the margins of linguistic meaning. These include the linguistic canons of construction such as the expressio unius principle (expressing one thing indicates an intention to exclude another). However, such a methodology cannot wholly eliminate the uncertainty which might arise and, in the ultimate analysis, difficult cases can only be resolved by an exercise of judgment.
As I will explain in relation to each of the four problems, the court is called upon to make such a judgment, and the process of statutory interpretation becomes analogous to the common law method, whereby competing considerations are weighed and balanced to determine the precise content of the rule to be applied.Footnote 62 The legislature’s reasons for action constitute its purpose, and there may be a combination of reasons, some in tension with each other, which should be ascribed to it as a presumed rational agent in choosing the particular text it does. The formulation of a particular rule may, for example, represent a compromise between ends and means. Formulation as a more or less bright line, for clarity of message and ease of application, may be in tension with the rule’s underlying rationale in more marginal cases.Footnote 63 The interpreter may have to make a judgment regarding where the legislature intended to strike that balance.
In statutory interpretation, the exercise of weighing reasons to identify the precise form of the rule to be applied in the particular case is subject to the discipline of having to be accommodated within the linguistic constraints of what the text is capable of meaning. Reasoning in the common law is not subject to that discipline, but it is subject to the slightly looser, but similar, discipline of having to accommodate the precise rule which is identified to address the case at hand within existing common law principles as formulated in or derived from case law. By contrast, within the debate on the special case of EU legislation, arguments have been advanced that in carrying out the interpretive exercise the CJEU may be insufficiently sensitive to the text of secondary EU law as something arrived at by a compromise between lawmakers sitting within international institutions: arguably this feature of the lawmaking environment should be taken to undermine to some degree recourse to a strong substantive notion of legislative purpose in the interpretive exercise.Footnote 64
5.1. What evidence as to purpose is properly admissible?
Taking the first problem of what evidence is admissible to determine a statute’s purpose in the UK context, as Lord Hodge stated in R (O) v Secretary of State for the Home Department Footnote 65 the primary starting point for statutory interpretation is the language that Parliament has chosen to enact as an expression of the purpose of the legislation. This evidence internal to the statute itself takes three forms: first, the language of the particular section to be construed; second, its place in the scheme of the particular part of the statute in which it appears; and, third, its place in the scheme of the statute as a whole.
There may also be evidence of purpose which is extrinsic to the statute: first, background reports, white papers and Law Commission reports which operate as the spur for the particular legislative activity (as explored, in particular, in the leading Black-Clawson decisionFootnote 66); second, statements made in Parliament by the promoter of a Bill; and, third, explanatory notes published in relation to the Bill.
It was only in Pepper v Hart Footnote 67 that the House of Lords accepted that statements in Parliament could be treated as admissible evidence of Parliament’s intention. Three conditions were laid down: first, the legislation is ambiguous or obscure or leads to an absurdity; second, the material relied upon consists of statements by a minister or promoter of the Bill; and, third, the statements relied upon clearly show the meaning.
The relevance of explanatory notes has been addressed in several cases. In the recent PACCAR caseFootnote 68 the legislature created a problem by adopting concepts which were the subject of specific definitions in one statutory context as the building block concepts in a different statutory context. It was common ground that the definitions used were so specific that the inference was that Parliament intended them to have the meaning they had in the earlier legislation. After referring to authority I said: ‘The purpose and scheme of an Act of Parliament provide the basic frame of orientation for the use of the language employed in it’,Footnote 69 and continued:
It is legitimate to refer to explanatory notes which accompanied a Bill in its passage through Parliament and which, under current practice, are reproduced for ease of reference when the Act is promulgated; but external aids to interpretation such as these play a secondary role, as it is the words of the provision itself read in the context of the section as a whole and in the wider context of a group of sections of which it forms part and of the statute as a whole which are the primary means by which Parliament’s meaning is to be ascertained: R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255, paras 29–30 (Lord Hodge). Reference to the explanatory notes may inform the assessment of the overall purpose of the legislation and may also provide assistance to resolve any specific ambiguity in the words used in a provision in that legislation. Whether and to what extent they do so very much depends on the circumstances and the nature of the issue of interpretation which has arisen.Footnote 70
This illustrates the common law method in statutory interpretation, as the Court must weigh the different sources of a statute’s purpose to determine which should take precedence in an individual case.
5.2. Modification of content under ‘the principle of legality’
The nature of language helps to shed light on the extent to which courts can inject normative content into a statute. Just as the meaning of a word is dependent on the wider set of linguistic practices of the community as a whole, so too is the meaning of a statute dependent on certain well-recognised understandings inherent in the rules of the common law system into which Parliament introduces its legislation. Also, to understand legislation, one has to posit Parliament as the speaking agent and that requires an understanding of its nature as a person. This in turn requires an appreciation of its constitutional position, its role within the legal system and the general purposes of the legal system which it exists to serve and implement. Wittgenstein’s picture of language and Fuller’s picture of the purposive nature of law run in tandem.
Statutes are legal instructions transmitted into an existing, highly developed framework of legal values and expectations. The existing law, modes of reasoning and established localised value systems provide the interpretive context in which a statute is read. Within the international law context, this observation may be regarded as holding true for the EU legal order, with its aspiration to ‘autonomy’,Footnote 71 and the ‘ordinary legislative procedure’ provided for under its foundational treaties. This system may be regarded as closer to the paradigm of a State legislature than the creation of international law via treaty.
Upon receipt of a statutory text, lawyers and the judiciary seek to knit it into the fabric of the law. The statute may represent a radical departure from what has gone before, in which case the existing law still provides the context for assessing how radical Parliament intended the change to be. On the other hand, the values inherent in the existing law—as recognised by judges and lawyers—may be assessed to be so strong as to exert a gravitational force on the text, pulling its meaning in their direction.Footnote 72
Turning to Fuller’s picture of law, Parliament exists and is given its powers for the purpose of promoting a legal, political and social system characterised as a liberal democracy subject to the rule of law. That is the basic disposition to be ascribed to Parliament as a fictional person, in the light of which its use of language is to be understood. With due adjustment for the UK’s specific constitutional traditions and principles, this indicates that an assessment of Parliament’s intentions in enacting legislation should be informed by what Adrian Vermeule calls ‘common good constitutionalism’ in the mode of the classical legal tradition.Footnote 73
This calls for a union of well-ordered reason, directed to certain objectives, with public authority. Vermeule explains that:
law is ordered to the common good … it is law’s nature to be so ordered … and … the positive law based on the will of the civil lawmaker, while worthy of great respect in its sphere, is contained within a larger objective order of legal principles and can only be interpreted in accordance with those principles.Footnote 74
This provides a view of the purpose of legislation at a higher level than that given by consideration of the more localised purposes to be inferred from legislative text and its immediate legislative context. As Vermeule explains, the specific expectations embodied in a legal text may provide no criterion for resolving new cases over time that differ from the paradigm case, in terms of identifying which features of the expected application of the statute are legally relevant: ‘The moment that one begins to generalize, one needs a theory, and that theory will inevitably be normative, a theory about the point of creating the category in the first place’.Footnote 75 ‘Those who apply the law must inevitably, in some domain of cases, have recourse to general background principles of law and to the natural law in order to decide how texts should best be read.’Footnote 76
Against this background, we can understand the legitimacy of what lawyers in the UK call ‘the principle of legality’. This is an approach to legislative interpretation which proceeds from a background assumption that Parliament intends by its legislation to respect certain existing rights and principles and to further certain general social objectives as part of the legislative package: ‘a principled presumptive commitment by the legislators to certain basic principles which can be viewed as underpinning a liberal democracy committed to the rule of law’.Footnote 77
The principle of legality is concerned to ensure that legislation that overrides fundamental common law principles or rights can clearly be appreciated as such at the time of its passage, so that Parliament’s intention to achieve that result is properly established.Footnote 78 A paradigm example is the presumption against retrospective effect of laws, in particular in relation to imposition of criminal liability. The role for the principle of legality is not to inject normative content into legislative texts purely on the authority of the judges, but to exercise a checking or editorial function to see that the legislature and the executive, which have the prime role in promoting legislation, have sufficiently held in mind the longer term principles, rights and freedoms, which support the moral claims of democratic rule, when legislating to adopt a particular statutory text.Footnote 79
The principle of legality thus functions as a third order form of purposive reasoning, sitting behind the text of the statute itself and the specific types of evidence of statutory purpose, but capable of providing guidance in relation to the meaning of both of those. Again, there is no simple test which determines which form of evidence should predominate as guidance as to meaning. Judgment is called for to assess the relative weight of text, explanatory materials and background constitutional principles.
In the Spath Holme case,Footnote 80 the exercise of an open-ended statutory power enabling a Minister to make an order restricting rents chargeable for residential property was challenged by property owners, who argued that it could only be exercised for the purpose of countering inflation and not (as it had been) for the purpose of achieving greater fairness between landlords and tenants. The argument succeeded in the Court of Appeal but failed in the House of Lords. In support of their argument, the property owners sought to rely on a presumption that Parliament does not legislate to take away property rights without compensation. However, in the House of Lords this was treated as a factor which was outweighed by other circumstantial evidence regarding the context in which the relevant legislation had been enacted. Lord Nicholls also pointed out that a Pepper v Hart statement in Parliament might conflict with background constitutional principles, the respective weights of which would have to be assessed.Footnote 81 This illustrates how modern statutory interpretation has become closer to the common law method, albeit constrained in important ways by the statutory text. This is the familiar process of extrapolation of underlying principles, values and reasons for action from disparate sources, with a view to weighing each of these against others in order to identify the particular rule to apply to the case at hand.Footnote 82
5.3. How should the courts react where there are multiple (and potentially conflicting) purposes?
There are circumstances where the courts recognise that Parliament had multiple and, in some cases, competing purposes in passing legislation.
In Medical Board of Australia v Kemp,Footnote 83 the Court of Appeal of Victoria considered a statute with multiple competing purposes. The case concerned the extent to which medical confidence could be overridden in order to obtain evidence for use in civil proceedings. The court explained the conflict of interests:
[The statutory provision] operates at the intersection of various interests but in a specific context. First, there is the interest of the patient in protecting medical confidence. Second, there are the interests of the parties to the suit, action or proceeding who will be denied access to the material that, it must be assumed, would otherwise be obtainable and probative of some issue in dispute. Third, there is the public interest that the administration of justice shall not be frustrated by the withholding of documents or evidence which must be produced if justice is to be done.Footnote 84
The Court observed that ‘having identified the various interests in play, it is apparent from its terms that [the provision] does not operate to favour only a single interest’.Footnote 85 In such cases, the interpretive task involves assessing how the statute or provision balances those purposes. It held that:
there is a balance between competing private interests in the context of the broader public interest in ensuring that the court has access to all relevant material. However, the essential balance that is struck is between competing private interests. [The provision] is intended to provide a rule of evidence or procedure that is limited in scope and mediates between those competing private interests.Footnote 86
This is another illustration of the common law method in statutory interpretation whereby competing interests are weighed up and balanced to determine the precise content of the rule to be applied.
5.4. What should courts do where there is difficulty identifying the purpose of a statutory provision?
In certain situations, evidence regarding the purpose pursued by the legislature may be lacking or obscure. This may be due to legislative oversight, but may also reflect that legislation is the result of negotiation between members in Parliament. What might appear as unprincipled compromise in legislative drafting may reflect a deeper principle, the desirability of seeking compromise as a way of balancing competing views in a viable modus vivendi, which seeks to optimise the practical realisation of competing values.Footnote 87
Where the evidence regarding purpose is thin, the courts do not abandon the search but have to do the best they can to reconstruct it, bearing in mind that the legislative text might simply have been a compromise. More exiguous indicators assume more importance, as they did in Spath Holme. The courts also tend to be driven back to the simple grammatical meaning of the text, because there is an absence of evidence of more specific purpose to qualify or limit this—as again occurred in Spath Holme. They also tend to be driven back to reliance on general indicators of meaning, under the principle of legality.
If a legislative text is regarded as a form of compromise, a court may recognise that the legislature enacted it with several purposes in view, but which are not clearly ranked. This makes the situation into a variant of that addressed under Problem (3). The court then has to infer how the identified purposes are to be balanced. Here again, the reasoning is similar to that involved in the common law method.
6. ECHR rights and the Human Rights Act 1998: legitimate aims
Finally, I want to consider the distinct role for purpose-oriented reasoning which is required in the application of the rights under the ECHR, implemented in domestic law by the Human Rights Act. The ECHR establishes a template external to statute and the common law against which they can be measured and assessed. Purpose is important at two levels here.
First, the Convention is framed for the purpose of protecting individual human rights within a democratic framework, and that general purpose informs the interpretation of the rights it sets out in the same way as legislative purpose informs the interpretation of rights set out in domestic legislation.
Second, the formulation of the Convention rights imposes a normative requirement that domestic law should be structured to pursue particular purposes which are identified as legitimate. This is an important feature of the justification required to be given for laws which interfere with the primary rights set out in the Convention. I will take Article 8 as an example. Any interference with the right to respect for private and family life has to be justified under Article 8(2) as being:
in accordance with the law and … necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.Footnote 88
The other qualified rights have a similar structure, although there is variation as to the aims which may provide justification for interference with them.
The case law of the European Court of Human Rights has interpreted the concept of ‘law’ here to impose substantive requirements which reflect Fuller’s inner morality of law. The law relied upon to justify the interference must be accessible and formulated with sufficient precision to enable an individual to regulate their conduct and protect against arbitrariness. The law has to serve the purpose of protecting certain human interests.
The measure interfering with the right also has to be necessary to achieve one of the legitimate aims referred to. This is the basis for the now familiar proportionality assessment which forms the core of review pursuant to ECHR rights. It involves a four-stage inquiry:
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(i) Is the objective of the measure sufficiently important to justify the limitation of a fundamental right?
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(ii) Is it rationally connected to the objective?
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(iii) Could a less intrusive measure have been used without unacceptably compromising the objective?
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(iv) Having regard to these matters and to the severity of the consequences, has a fair balance has been struck between the rights of the individual and the interests of the community?Footnote 89
It can be seen that identification of the purpose of the measure is central to this analysis. The purpose has to pass muster as legitimate in itself.Footnote 90 Also, the framing of the purpose is critical to the application of the other parts of the assessment. If the legitimate purpose is broad, a wider range of interfering measures will be proportionate to achieving it. If the aim pursued is to promote a weighty public interest, it will be easier for the State to show that the interfering measure strikes a fair balance.Footnote 91
Despite the centrality of the legitimate aim in this analysis, the methodology for identifying it has received little attention in case law and academic commentary.Footnote 92
The material bearing on the aim pursued by the legislature may be diffuse, as it was in R (Countryside Alliance) v Attorney General,Footnote 93 concerning the Hunting Act 2004 to restrict fox hunting. To assess the compatibility of the Hunting Act with the ECHR, the Divisional Court reviewed a comparatively wide range of materials in order to infer that the objective of the Hunting Act was to prevent or reduce unnecessary suffering to wild animals, rather than to disparage a section of society. The interference with the rights of the hunting community to respect for private life was proportionate to that aim. The House of Lords accepted that analysis. Lord Bingham noted:
The evidential derivation for this legitimate aim comprises the terms of the legislation and the admissible contextual background. This background includes the Burns Report, the Portcullis House hearings, the ministerial basis for and the terms of the original Michael Bill, the obvious inference that the majority of the House of Commons considered the original Michael Bill inadequate, and the well-known opposing points of view in the prolonged and much publicised hunting controversy.Footnote 94
Two observations may be made. First, as with the interpretation of a statute the identification of a legitimate aim also involves reference to Parliament’s purpose, but in this case assessed at a higher level of generality from a viewpoint external to the statute itself and the specific meaning to be given to it. For example, in the SC decisionFootnote 95 the purpose of the legislation in question, according to ordinary statutory interpretation, was to restrict child tax credits so that they were only payable for two children in a family. However, for the purposes of ECHR rights assessment, the general aim of the legislation was identified as the economic well-being of the country.Footnote 96
Second, the identification of Parliament’s purpose can give rise to evidential issues associated with the prohibition on questioning proceedings in Parliament set out in Article IX of the Bill of Rights.Footnote 97 This was discussed in Wilson v First County Trust Ltd,Footnote 98 where it was said that recourse to Hansard in proportionality assessments should be limited to where the court required enlightenment on the nature and extent of the social problem (the mischief) at which the legislation was aimed. Assessment of the adequacy of reasoning in Parliamentary debates would be illegitimate.Footnote 99
7. Conclusion
The common law tradition has always been sceptical of philosophy, prioritising the importance of practical experience in real world cases over abstract general ideas.Footnote 100 However, I hope that in this article I have showed how the ideas of two philosophers—Fuller and Wittgenstein—help to explain the widespread use of the notion of purpose in real world case law. The lecture on which this article is based focused primarily on my experience of the UK’s legal system, with its two tracks of the common law and parliamentary legislation. But, in this article, I have taken the opportunity to extend the argument to examples drawn from forms of supranational law to demonstrate that the analysis is capable of being generalised beyond the UK’s legal system.
Fuller’s conception of law as the enterprise of subjecting human conduct to the governance of rules illuminates the common law’s respect for the agency of legal subjects, whether that be respecting parties’ purposes in making a contractual bargain or using purpose as a basis for limiting liability in tort. Similarly, Wittgenstein’s conception of language demonstrates the necessity of resort to purpose in interpretation, as the open-textured nature of words means that legal rules only become determinate when used in specific contexts for specific purposes.
Acknowledgments
This article is based on and expands upon the 45th FA Mann Lecture, delivered at Lincoln’s Inn on 19 November 2024. I am grateful to Oliver Garner for further discussion about the themes in the lecture and for his help in developing the current text to cover the supranational dimension, to the journal’s anonymous reviewer for their thoughtful comments and to my Judicial Assistant, Monty Fynn, for his excellent assistance in the preparation of the lecture. The responsibility for all errors is my own.
