Lord Burrows on Legislative Intention, Statutory Purpose, and the ‘Always Speaking’ Principle

Abstract

In his 2017 Hamlyn Lectures, Professor (now Lord) Burrows set out his opinions about statutory interpretation. Given his recent appointment to the UK Supreme Court, these opinions now have more practical importance than those of most academic theorists. One of his main theses is that the modern approach to statutory interpretation, which focuses on text, context and purpose, should not include any reference to legislative intention. He dismisses this as ‘an unhelpful fiction or mask that should be avoided altogether’. I show that this thesis is mistaken, internally inconsistent, and might in practice undermine sound interpretation based on fundamental constitutional principles.