Literal Approach in UK Law

The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.

For my part, I am unable to accept that a literal approach is warranted, either to Killick or the Directive. As already observed, Killick says nothing as to the scope of the right to review and is not at all prescriptive in that regard; no argument as to the scope of the right to review was before the Court. So too, the Directive is expressed at a high level of generality and needs to be read as such.

Important cases of the House of Lords and Supreme Court recognising the modern approach, which marks a shift from an older more literal approach, include Investments Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, HL, especially at 912–913 ( per Lord Hoffmann giving the leading speech), and Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900.

The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.

As for the meaning and effect of the 2006 Regulations, I think that it would be wrong to apply a literal approach to the words and phrases used in it, such as in the definitions of "public contract" and "public service contract". Having regard to the background of EU law against which the Regulations were made, the definitions in the Regulations can be taken to express the same idea as those in the Directive.

Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, 'go with the grain of the legislation'.

Where the true meaning of a statute is in doubt, and in dispute between the parties, it is the court's function to decide that meaning. In modern theory, the court primarily finds the interpretation of a phrase by examining the words used by Parliament in their particular context. Courts have moved away from a purely literal approach to statutory interpretation. As Lord Steyn held in R (o/a Quintavalle) v Secretary of State for Health [2003] 2 AC 687 at 700:—