Advantages and Disadvantages of Different Rules

Excl Literal Rule Adv as came up 2023

Advantages to Golden Rule

1. Respects exact words of parliament

   •except in limited situations

   •narrow approach allows judge to choose most sensible meaning - R v Allen

2. Wider approach (modifying words despite having clear meaning) can provide sensible decisions in cases where literal rule would lead to repugnant situation - Re Sigsworth

Disadvantages of Golden Rule

1. Very limited in its use

   •only used on rare occasions and not always possible to predict when the court will use it over literal rule

2. Described as a “feeble parachute” by Michael Zander

   •means that it is an escape route but can’t actually do very much

Advantages of Mischief Rule

1. Promotes purpose of law

   •allows judges to look at gap Act was designed to cover

   •more likely to produce just result - Smith v Hughes, from view of public it wouldn’t have been seen as just to find prostitutes not guilty just because weren’t directly on street

2. Law Commission prefers it

   •recommended that it should be the only only rule used in SI

Disadvantages to Mischief Rule

1. risk of judicial law-making when this is used

   •like Lord Parkers interpretation in Smith v Hughes

2. Even senior judges don’t always agree on use of mischief rule

   •Seen in Royal College of Nursing v DHSS

3. Use can lead to uncertainty in law

   •makes legal advice difficult

4. Not as wide as purposive approach

   •limited to looking back at gap in old law

   •can’t be used for more general consideration of the purpose of the law

Advantages of the purposive approach

1. It can be seen that justice is achieved in various examples

   •EG Jones v Tower Boot Co

2. Judges can take into account new technology introduced after Act passed

   •like in RCN v DHSS

3. Judges can fill in any gaps in the law left by Parliament or dealing with new situations

Disadvantages of the purposive approach

1. Undemocratic

   •judges interpreting law in ways that they consider Parliament meant

   •judges not accountable for decisions they make in court

   •However can be said that Parliament should have made meaning of Act clear in order to avoid this

2. Can be time consuming

   •have to look through aids like hansard and government statements

3. Litigation is notoriously expensive and uncertain

   •legal advice difficult as lawyers don’t know whether judges are prepared to use this approach until the final judgement