Cecily Zamora
The principle of legality is a common law presumption that safeguards citizens from arbitrary power. It assumes that Parliament does not intend to interfere with fundamental common law rights, immunities, and freedoms. The judiciary uses this principle to protect these rights when ambiguity arises in statutory interpretation. However, common law does not always recognize certain rights, and it can be malleable, allowing for reinterpretation and revision without legislative intervention. This raises the question of how common law can violate the principle of legality. For instance, in the context of the right to privacy, common law has not recognized any tort of protecting invasion of privacy, potentially conflicting with the principle of legality.
| Characteristics | Values |
|---|---|
| Common law does not recognise the right to privacy as a tort | Violates the principle of legality |
| Common law does not recognise the right to silence as a fundamental right | Violates the principle of legality |
| Common law does not recognise privilege against self-incrimination | Violates the principle of legality |
| Common law can reinterpret and revise the law without legislative intervention | Violates the principle of legality |
| Common law can be overridden by statutes | Violates the principle of legality |
| Common law does not require a clear indication of intent to abrogate a fundamental right | Violates the principle of legality |
| Common law does not require "unmistakably clear" intent to abrogate a fundamental freedom | Violates the principle of legality |
| Common law does not require clear and unambiguous words for authority | Violates the principle of legality |
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What You'll Learn
Common law wrongs
The principle of legality is a common law presumption that seeks to protect citizens from arbitrary power. It presumes that Parliament does not intend to interfere with fundamental common law rights, immunities, and freedoms. The judiciary uses the principle of legality to safeguard such rights when an ambiguity emerges in statutory interpretation.
In the context of the principle of legality, a "common law wrong" can be understood as an exercise of power that would amount to a violation of common law rights in the absence of statutory authority. In other words, it refers to situations where the government or other authorities take actions that infringe upon the fundamental rights, freedoms, or immunities of citizens, as protected by the common law.
For example, in the United States, the Fifth Amendment of the Constitution contains the concept of due process, and Article I, Section 10, Paragraph 1 of the Constitution forbids retroactive criminal laws. Any laws or actions that violate these protections would be considered common law wrongs.
Similarly, in Canada, the principle of legality in penal law is found in Article 9 of the Canadian Criminal Code, which declares that criminal infractions must fall under Canadian law and that no one may be found guilty of a criminal infraction under common law. Article 11g of the Canadian Criminal Code also states that every defendant has the right not to be found guilty of an action or omission that was not considered an infraction at the time it took place, with exceptions for crimes unanimously considered genocide or crimes against humanity under international law.
In England, the common law has not recognized any tort of protecting invasion of privacy, and therefore, a violation of privacy may be considered a common law wrong.
To address and rectify common law wrongs, the principle of legality requires clear and unambiguous statutory authority for any actions or decisions that might infringe upon common law rights. Courts interpret statutes in a way that avoids or mitigates the abrogation or curtailment of rights. When there is ambiguity or multiple possible interpretations, courts generally favor the interpretation that upholds fundamental common law rights.
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Common law rights
The principle of legality is a common-law presumption that seeks to protect citizens from arbitrary power. It presumes that Parliament does not intend to interfere with fundamental common-law rights, immunities, and freedoms. The judiciary uses the principle of legality to safeguard such rights when an ambiguity emerges in statutory interpretation.
The principle of legality operates as a check on Parliament's power. It is rooted in common law, and the scope of 'fundamental rights' remains open to judicial discretion. The principle of legality governs the relationship between Parliament, the executive, and the courts. It is associated with the presumption that Parliament does not intend to interfere with the fundamental common-law rights, freedoms, and liberties of its citizens.
The principle of legality was developed in the 18th century by the Italian criminal lawyer Cesare Beccaria. It holds that no one can be convicted of a crime without a previously published legal text that clearly describes the crime (nulla poena sine lege, or 'no punishment without law'). This principle is accepted and codified in modern democratic states as a basic requirement of the rule of law.
In some cases, common-law rights are invoked in general and abstract terms. In such cases, the proper scope of protection must be determined before the principle of legality can be applied. Courts determine whether the challenged limits are reasonable or proportionate. If the limits are reasonable, they do not violate the right and do not engage the principle of legality.
In the United States, the Fifth Amendment of the Constitution contains the concept of due process. Retroactive criminal laws are forbidden in Article I, Section 10, Paragraph 1. In Canada, the principle of legality in penal law is found in Article 9 of the Canadian Criminal Code, which declares that criminal infractions must fall under Canadian law and that no one may be found guilty of a criminal infraction under common law. The principle of legality is also mentioned in Article 11g, which states that every defendant has the right not to be found guilty of an action or omission that was not considered an infraction at the time it took place.
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Fundamental rights
The principle of legality is a common law presumption that seeks to protect citizens from arbitrary power. It presumes that Parliament does not intend to interfere with fundamental common law rights, immunities, and freedoms. The judiciary uses the Principle of Legality to safeguard such rights when an ambiguity emerges in statutory interpretation. This presumption stems from the principle of parliamentary sovereignty and the understanding that Parliament creates legislation with common law principles in mind.
The scope of 'fundamental rights' remains open to judicial discretion. For instance, in the case of R v Secretary of State for the Home Department, ex p Simms, the court determined whether the challenged limits were reasonable or proportionate. The right to privacy, for example, is not recognised as a tort under common law and, therefore, does not engage the Principle of Legality. Similarly, the right to silence is only considered a fundamental right when understood in the context of the right to refuse to answer questions from law enforcement or judicial officials.
The principle of legality operates within narrow parameters, and powerful constitutional reasons underpin it. It is applied when there is an established, well-recognised, and fundamental principle or right that can be clearly identified at the time the legislation is passed. This ensures that Parliament is held accountable for its actions and must confront the political cost of its decisions.
In some countries, the principle of legality is enshrined in criminal law, declaring that no one may be found guilty of a criminal infraction under common law. For example, in Canada, Article 9 of the Criminal Code states that criminal infractions must fall under Canadian law, and Article 11g protects individuals from being found guilty of an action or omission that was not considered an infraction at the time it took place. Similarly, in France, the principle of legality in the Penal Code of 1791, adopted during the French Revolution, limits the conditions under which citizens may be punished for infractions.
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Parliamentary sovereignty
In the UK, this means that Parliament has, under the English constitution, the right to make or unmake any law, and no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. This principle of Parliamentary sovereignty means that Parliament is the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation, and no Parliament can pass laws that future Parliaments cannot change.
In Australia, the idea of Parliamentary sovereignty must be understood in the context of the rigid limits and boundaries imposed by the federal Constitution and, to some extent, by the State Constitutions. The Commonwealth Parliament is created by the federal constitution and only has enumerated powers. Each state's legislative power is inherent but restrained by the federal constitution, the relevant state constitution, and Commonwealth powers. In this context, "parliamentary supremacy" is used contextually and has two meanings: one is that parliament can make and unmake any law; another meaning is that as long as a parliament has the power to make laws regarding a subject matter, the exercise of that power cannot be challenged or reviewed by the judiciary.
In New Zealand, the concept of Parliamentary sovereignty is derived from that in the United Kingdom. The parliament exercises sovereignty and is considered supreme. The function of the courts is to interpret the law as laid down by Parliament, and they do not have the power to consider the validity of properly enacted laws.
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Statutory interpretation
The principle of legality is a common law presumption that seeks to protect citizens from arbitrary power. It presumes that Parliament does not intend to interfere with fundamental common law rights, immunities, and freedoms. The judiciary uses the Principle of Legality to safeguard such rights when an ambiguity emerges in statutory interpretation. This presumption stems from the principle of parliamentary sovereignty and the understanding that Parliament is taken to create legislation with common law principles in mind.
The principle of legality operates as a check on Parliament's power. It is often associated with the presumption that Parliament does not intend to interfere with the fundamental common law rights, freedoms, and liberties of its citizens. The principle of legality, therefore, acts as a safeguard for citizens' rights, freedoms, and liberties.
In the context of statutory interpretation, the principle of legality is applied by the courts to resolve ambiguities in favour of protecting fundamental common law rights, freedoms, and immunities. The courts seek to ascertain the ordinary and literal meaning of the words in a statute. If no ambiguity is found in the meaning of the words, or there is only one clear meaning, then the courts will consider that meaning to be representative of the true legislative intent.
However, where there is ambiguity in the meaning of the words of a statute, or there is more than one possible interpretation, the Principle of Legality will be applied. The courts will generally choose the interpretation that avoids or mitigates any abrogation or curtailment of rights. This means that fundamental rights cannot be overridden by general or ambiguous words contained in a statute.
In some cases, the principle of legality may also require clear and unambiguous words to be used when an exercise of power would amount to a common law wrong without statutory authority. For example, in R v Secretary of State for the Home Department, ex p Simms, the court determined whether the challenged limits were reasonable or proportionate.
The principle of legality is not confined to the protection of long-standing rights, freedoms, or immunities. It also extends to the protection of fundamental principles and systemic values. For instance, in the United States, the Fifth Amendment of the Constitution contains the concept of due process, and retroactive criminal laws are forbidden in Article I, Section 10, Paragraph 1. Similarly, in Germany, Article 103, paragraph 2 of the Basic Law bans retroactive criminality.
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Frequently asked questions
The principle of legality is a common-law presumption that seeks to protect citizens from arbitrary power. It presumes that Parliament does not intend to interfere with fundamental common-law rights, immunities, and freedoms.
Common law can violate the principle of legality when it fails to protect citizens from arbitrary power. For example, common law has not recognised any tort of protecting invasion of privacy, and therefore it cannot be suggested that the asserted 'right' is of such a character or quality as to engage the Principle of Legality.
Courts interpret the principle of legality by ascertaining the ordinary and literal meaning of the words in a statute. If there is no ambiguity in the meaning of the words, or there is only one clear meaning, then the courts will consider that meaning to be representative of the true legislative intent. However, if there is ambiguity, then the Principle of Legality will be applied, and courts will generally choose the interpretation that avoids abrogating rights.
