Government under the Law/The Principle of Legality

The principle of government under the law, sometimes called the principle of legality is fundamental to the UK constitution. It has developed over the centuries in a combination of statutes and cases It is linked to, but not the same as, the rule of law, which will be discussed towards the end of this term. The rule of law is more theoretical than the principle of government under the law/legality, which is based in cases and statutes. Here we are concerned mainly with the historical development of the principle and its role as a foundation stone of the constitution. This topic will also illustrate what the sources of constitutional law are – mostly caes and statutes, but also as we shall see later, ‘the law and practice of Parliament’, constitutional conventions and European Community Law

Since the Magna Carta in 1215, there has been a constant process of removing the central power from the government and placing it under legal constraints. From a starting point where power lay almost exclusively with the monarch, it now lies almost exclusively with the government. This is part of the principle of legality and the idea of the government being under the law that has developed.

Magna Carta, Prohibitions Del Roy, Case of Proclamations, Bill of Rights, Act of Settlement s3, Entick v Carrington, Bowles v Bank of England, Congreve v Home Office, Malone v MPC, CCSU v Minister for the Civil Service, xp Bennett, M v Home Office, xp Fewings, xp Witham, xp Pierson, HRA 98 (came into force in 2000), xp Simms, R(Anufrijeva)

Statutes CasesMagna Carta, 1215

Prohibitions del Roy, 1607Case of Proclamations, 1611

Bill of rights, 1689Act of Settlement. 1700, section 3 (now SCA 1981)

Entick v. Carrington, 1765Bowles v Bank of England 1913Congreve v Home Office 1976Cf Malone v MPC 1979Council for Civil Service Unions v Minister for the Civil Service 1985Ex Parte Bennett 1994M. v. Home Office 1994Ex parte Fewings 1995R v Lord Chancellor, ex parte Witham 1997R v SSHD, ex parte Pierson 1988

Human Rights Act 1998 (effective 2000)R v SSHD, ex parte Simms 2000R (Anufrijeva) v SSHD 2003

Magna Carta, 1215

The deal done with King John and the barons after considerable unrest Included the provision that to none shall justice be denied implying that if someone

complained of an injustice, there would be a machinery to uphold justice. In those days it referred primarily to private and criminal law though not public law.

It also proclaimed certain rights for freemen, and an acceptance that the will of the king could potentially be bound by the law

It also explicitly protected certain rights of the king’s subjects whether free or fettered and implicitly supported what became the writ of habeas corpus, allowing appeal against unlawful imprisonment.

Prohibitions del Roy, 1607

In 1607, the King demanded that he sit as a judge in a case he had a vested interest in. Chief Justice Coke said that the king had not been legally trained and therefore, it would be

inappropriate for him to sit as a judge This is the first real separation of personnel between the judiciary and the executive

Case of Proclamations, 1611

Here, the king issued a proclamation (formal document with the kings seal at the bottom which sought to change the law) prohibiting the manufacture of wheat starch in London

It was decided that the law could only be changed by or with the consent of parliament. In a sense, an open public procedure was now needed to change the law.

Bill of Rights, 1689

Articles 1 & 2 abolished the King’s right to suspend or dispense laws Article 4 provided that there should be no taxation without the consent of the parliament and

that it should be expressed in an Act of parliament. Article 6 provided that there should be no standing army without the consent of parliament Article 8 provides that elections of members of parliament were to be free Article 9 allowed the freedom of speech and debate in parliament

Act of Settlement 1700, s3 (now the Supreme Court Act 1981, s11)

Prior to this, the King appointed judges and could dismiss them. Section 3 provided that judges should hold office during good behaviour.

Further separation of power. Allowed for a more independent judiciary as they need not fear wrongful dismissal from the monarch

Updated into the Supreme Court Act 1981 s11

Entick v Carrington, 1765

Entick was a dissident in possession of seditious materials. Acting on a warrant issued by the secretary of state, Carrington broke in, seized the materials and arrested Entick.

Entick sued for trespass and Carrington justified the legality of the warrant on the basis that the power of seizure was essential to government, they had been doing it for ages and in this case, it was in public interest. There was no statutory authority and public interest was not accepted as a valid argument.

Government bodies cannot interfere with liberties unless they point to an authorized source that lets them do so.

Bowles v Bank of England, 1913

There was a resolution to increased the tax rate passed by the HC Bowles brought a claim alleging he was charged the wrong rate. It was held that only a valid

Act of parliament could authorise changes in taxation. (not resolutions)

Congreve v Home Office, 1976

After the Home Secretary announced that he would be increasing the price of a TV licence, a large number of people decided to renew theirs early.

The Home Secretary responded by using the Telecommunications Act which gave him the power to cancel TV licences.

The court ruled that the TV licence was in effect a tax and thus per article 4 of the Bill of Rights 1689 needed the consent of parliament.

They also held that there was no such thing as unfettered discretion (in relation to the Home Sec. using a broad power conferred on him in the manner he did)

Example of protection of individual rights by the judiciary against the executive

CF Malone v Metropolitan Police Commissioner, 1979

In this case, we see the treatment of ‘the crown’ as a private citizen. It was a narrowing of the principle of legality which would later be overturned in ex parte Fewings

The plaintiff’s telephone lines had been tapped for the purposes of criminal investigations, done on the authority of a warrant granted by the Home Secretary.

Plaintiff’s argument was that there this was illegal as there had been no authorisation through statue or the common law.

However here, the courts held that there is no specific right to privacy and unlike Entick, there was no tort committed.

They also held that every natural person could do whatever they wished unless specifically prohibited from doing so. They treated the executive like a private person.

This was overturned in R v Somerset County Council, ex parte Fewings (do note the ruling in Malone v UK, 1984:said that UK allowing the phone tapping is in breach of its obligations under the ECHR, because there was no law that did 'indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities)

Council for Civil Service Unions v Minister for Civil Service, 1983

Here, the civil service unions wanted higher pay and better working conditions for their members. Their plan was for members of the civil service unions who worked at GCHQ to go on strike.

Using RP powers, the PM in her role as Minister for Civil Service decided to ban workers of the GCHQ intelligence service from belonging to trade unions in the interest of national security.

The CCSU argued that it was the practice for the government to consult civil service unions before such changes were made. Thus alleging the change was unlawful and should be judicially reviewed

The courts decided that the use of RP powers here was non-justiciable as it concerned a matter of national security.

However, the HL went on to say that they might be able to review statutes or RP powers affecting individuals as long as they were justiciable

R. v Horseferry Road Magistrates’ Court, ex parte Bennett, 1994

Bennett a New Zealander was wanted for crimes committed in the UK and was currently residing in South Africa. The UK police wanted the SA police to seize him and send him over for trial. He was in fact seized and was told he was being deported to New Zealand from South Africa via the UK when in fact he was being transferred to the UK to be tried for his crimes without the usual extradition process.

At first instance, it was held that courts should not be involved in how he was brought to the court, but only to ensure he was entitled to a fair trial.

However, the HL ruled that ‘the judiciary should accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action’. Thus they ruled that the whole trial was unlawful.

Reinforcement of the rule of law and Principle of Legality, and extension to the actions of the Government abroad.

M v Home Office, 1994

Here we see an increase of the power of the courts, enforcement of their power against members of ‘the crown’

A foreign national was place under a deportation oder, but an appeal for judicial review (on the grounds that he would get murdered if he went back) was successful. In the mean time, the court ordered that he should not be deported.

However, the Home Secretary sent him anyway. M’s solicitors applied for the Home Sec. to be found in contempt of court.

The court decided that ministers were under a legal obligation (rather than mere convention) to obey interim injunctions and thus could be found in contempt of court. It was ruled the courts do have the power to make coercive orders against ministers of the crown.

R V Somersey County Council, ex parte Fewings

Overturns Malone. Differentiates the crown from private citizens and thus their actions must be justified by law.

Here it was held that any action taken by a public body must be justified by statutory (or case) law

This differentiated the Crown from a private citizen, and was used to protect people from arbitrary interference.• Overturns the judgement in the Malone case.• Reinforces the Rule of Law and Principle of Legality within the Common Law.

R v Lord Chancellor, ex parte Witham, 1997

The Lord Chancellor had fixed new court fees and had not made provisions for those who could nto afford them.

On behalf of Witham, there was an action for judicial review on the grounds that the lack of provisions would lead to the exclusion of impecunious citizens which was unlawful.

Courts ruled that there was a ‘constitutional right’ of access to the courts which could only be overridden by specific provisions.

Strict interpretation of the Principle of Legality

R v Secretary of State for the Home Department, ex parte Pierson, 1998

The Home secretary increased the tariff (minimum servable term) for all life prisoners. However, he did this retrospectively so all those who had already been convicted also had their tariffs increased. Lord Steyn held that there had been too wide a reading of the provisions made within the Criminal Justice Act, that the provision was not specific enough.

‘Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law’.

More reinforcement of the Principle of Legality, restrictions on the discretionary power conferred by an Act or Parliament.

Human Rights Act 1998 (Came into force in 2000)

Incorporates the normal civil and political rights in the ECHR into English law. Section 6 says that it shall be unlawful for a public authority to act in compatibly with convention rights unless that is clearly and unambiguously authorised by an act of parliament.

R v Secretary of State for the Home Department, ex parte Simms, 2002

Journalists reporting on the cases of two men serving life sentences were allowed only oral interviews and refused the right to publish the interviews.

The prisoners were seeking the investigative powers of the journalists as a way to gaining access to justice; the Home Secretary argued that they should not be allowed to maintain order and discipline in the prisons.

Parliamentary Sovereignty means that Parliament can, IF IT CHOOSES TO LEGISLATE override fundamental principles of Human Rights.

However, Principle of Legality means that this cannot be done with general or ambiguous words. 

In the absence of express language, even the most general provisions are subject to the basic rights of the individual.

Can be overruled by ‘irresistible inference from the statue read as a whole’ R v Lord Chancellor, ex p Lightfoot 2000.

However, courts still do not have the power to strike down cases which contravene the Human Rights Act. They can only declare it incompatible and it is up to Parliament to amend it.

R (Anufrijeva) v Secretary of State for the Home Department, 2003

Anufrijeva was an illegal immigrant in the UK claiming welfare benefits and asylum from the secretary of state. The home office decided that she was illegal and thus not entitled to asylum. Under the social security law, an illegal immigrant is not entitled to social security benefits. Thus upon the home office decision, they stopped paying her benefits. Despite the decision being made, she was not informed of it which deprived her of the right to go to court to challenge these decisions.

The court held that it was unlawful for the home office to change anybody’s legal position without giving her information about the decision and consequently, the decision to withdraw benefits from her had been unlawfully made.