The principle of legality and fundamental rights

Joining the political constitutionalists, Adam Tomkins objects to the idea that government should be subject to general principles of legality, which he denounces as a dubious tenet of legal constitutionalism.⁸⁴ He has no objection to the courts enforcing specific statutory rules, such as one requiring a public authority to consider a person's representations before withdrawing a welfare benefit; but he complains that general principles of legality such as the Wednesbury principle are too vague, displacing executive discretion with ‘untrammelled judicial discretion'.⁸⁵

provisions for the administration of justice adequately protect the rule of law and, by judicial review, to supplement these should it be necessary’: R (Cart) v Upper Tribunal [2011] UKSC 28, para.

⁸¹ [2009] EWHC 3052, para.36. ⁸² [2009] EWHC 3052, para.38.

⁸³ Compare Pushpanathan v Cuniidii (Minister of Citizenship and Immigration) [1998] 1 SCR 982, 1003-12.

⁸⁴ Tomkins, Our Republican Constitution, 10-25. ⁸⁵ Tomkins, Our Republican Consutunon,22. If, however, an unreasonable action is the result of a decision-making process that frustrates the statutory scheme, ignoring relevant considerations or introducing irrelevant ones, or annexing the delegated powers to an improper or extraneous purpose, the courts' intervention is justified in defence of the rule of law. In identifying the specific legal errors involved, moreover, the court is engaged in a deliberative process whose integrity is open to public inspection and criticism. The legal constitutionalism Tomkins deplores is only a commitment to eradicate arbitrary power, from whatever source it derives. In the context of judicial review, it demands elaboration of the arguments that underlie judgments of irrationality, or illegality, exposing to public scrutiny what might otherwise remain doubtful intuitions, hidden from view.^[346]

Tomkins assumes the truth of legal positivism, identifying law with whatever has been imposed by officials, regardless of content or mode of application.

The common law constraints on exercise of discretionary power reflect those conditions implicit in the basic idea of a self-governing community of equal citizens. The enforcement of law means, above all, the preservation of the conditions of liberty as independence; and it is the judicial function to interpret the law, so far as possible, as a consistent scheme of regulation that meets those conditions. Courts must be guided, accordingly, in their application of enacted rules and review of administra­tive discretion, by a vision of the rule of law as an ideal to which English law (or Scottish or European law) inherently aspires.

It follows that the ‘principle of legality' applied by English courts to statutory powers is aptly named, acknowledging that basic constitutional principles impose inherent limits on any grant of discretionary power. No plausible interpretation of the Home Secretary's powers regarding the management of prisons and discipline of prisoners, arising from the general terms of the Prison Act 1952, could ignore the consequences of his actions for the right of access to a court and the associated right to obtain confidential legal advice. The maintenance of a proper balance between such rights, on the one hand, and the requirements of administrative efficiency, on the other, is not only a feature of English legal tradition but a conceptual commit­ment of the rule of law. The right of recourse to legal process for the vindication of rights is a necessary implication of recognizing legal limits to the exercise of power. Its elimination, or unnecessary limitation, would strike at the prisoner's status as a member of the community, making him in effect an outlaw. It is part of the constitutional bedrock: ‘Even in our unwritten constitution it must rank as a constitutional right.'^[350]

Admittedly, the court in Leech assumed that such a constitutional right might be curtailed, whether by express provision or necessary implication; but the impor­tance of the right justified a strong presumption against such curtailment: ‘it can fairly be said that the more fundamental the right interfered with, and the more drastic the interference, the more difficult becomes the implication'.^[351] Since it makes little sense to suppose that a fundamental right, central to the rule of law, might be swept away by ill-considered legislation, we should interpret the principle of legality here as a requirement of rationality or proportionality: any interference must be justified by recourse to legitimate public ends, compatible with respect for basic constitutional values. The court required the Home Secretary to prove a ‘demonstrable need' for the power claimed (under prison rules) to examine and, if thought appropriate, to terminate a prisoner's legal correspondence: ‘The ques­tion is whether there is a self-evident and pressing need for an unrestricted power to read letters between a prisoner and a solicitor and a power to stop such letters on the ground of prolixity and objectionability.'^[352] Since no such need was established, the power did not exist: it would create too grave an impediment to exercise of the prisoner's right of access to the court.

The proportionality requirement of the rule of law is also demonstrated by the House of Lords' decision in Simms, in which the ‘principle of legality' was explicitly applied to a further question relating to the Home Secretary's powers under the Prison Act. Fundamental rights could not be curtailed by general or ambiguous words: ‘In the absence of express language or necessary implication to the contrary, the courts... presume that even the most general words were intended to be subject to the basic rights of the individual.'^[354] On their correct construction, not­withstanding their apparently sweeping and draconian terms, the prison rules did not permit a prison governor to prohibit interviews of a prisoner by a journalist, or prevent information obtained by the journalist being used for his professional purposes. The evidence established that such interviews were often necessary to enable a journalist to become fully informed about the case of a prisoner who claimed to be the victim of a miscarriage of justice. Where the prisoner's sole purpose was to gain access to the investigative resources of the media in order to publicize an alleged injustice, with a view to having his case referred back to the Court of Appeal, considerations of prison management and discipline should give way so far as necessary. The minister's evidence did not establish ‘a case of pressing need' which could prevail over the prisoner's attempt to gain access to justice.^[355]

In these circumstances, the right of access to the media can be understood as both implicit in the concept of legality—part of any effective and reliable system of law that protects freedom as independence—and intrinsic to the British instantia­tion of legality, as an aspect of freedom of speech, or fair trial, that finds a natural home in a liberal democracy rooted in the common law tradition.

We must, however, resist the notion that the principle of legality is defeated by express provision or necessary implication to the contrary. Our adherence to the rule of law defines our allegiance to constitutionalism; we could imply an intention to override it only by supposing an affirmation of resort to arbitrary rule, displac­ing law by the uncontrolled will of officials. We should therefore challenge Lord Hoffmann’s view that Parliament can ‘legislate contrary to fundamental principles of human rights’ provided that it is willing ‘to accept the political cost’.^[357] The political cost of interference with prisoners’ basic rights may be very small indeed; and the notion that the constraints on legislative power are ‘ultimately political, not legal’, is an affront to constitutionalism.^[358] A ‘constitutional right’ that can be ‘overridden’ by majority vote in the legislature is a contradiction in terms; and so is a ‘principle of legality’ that surrenders to action infringing the rule of law. A wholly disproportionate interference is a form of irrationality that cannot be attributed to legislation without showing disrespect for its parliamentary provenance.

Tomkins complains that the right of unimpeded access to the court was ‘invented’ in Leech, as if there could be a rule of law (whether for prisoners or anyone else) without such access.^[360] And his objection to Simms is that, ‘in the hands of the lawyers’, a ‘big question’ about prisoners’ freedom of expression was reduced to a ‘far narrower’ one concerning the legality of restrictions imposed by a prison governor on the conduct of an interview.¹⁰¹ It is, however, precisely the specific, contextual focus of the legal issue that makes judicial resolution both necessary and legitimate. The more wide-ranging questions of penal policy, about which people can rea­sonably disagree, must be reserved for political debate and decision. The narrow question, concerning the legality of an exercise of governmental discretion, must be settled by reflection on the true content of the rule of law. The issue of legality was related to the basic principle that miscarriages of justice should be corrected, and the related idea that public interest in such (alleged) miscarriages should be fostered rather than suppressed. Since the court must tread a delicate path between resolving issues of legality and intruding, illegitimately, into political or administrative policy-making, it should base its decision on the narrowest grounds available.^[361]

E.