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177 See, for example, R. v Secretary of State for the Home Department, ex parte Simms, [2000] 2 A.C. 115, 130B (Fusion of anxiety examination cases Wednesbury and legality); H. Woolf, J. Jowell, C. Donnelly and I. Hare, De Smith`s Judicial Review, 8th edition (London 2019), chap. 11 (blind examination of substantive and legality review cases in the chapter on substantive review). 112 Although the extended principle has not been applied, there have been a number of cases during this interregnum in which individual judges have concluded that PoL may have a proportionality dimension: HM Treasury v Ahmed [2010] UKSC 5, [2010] 2 A.C. 534, at [122] (Lord Phillips); Pham v Secretary of State for the Home Department [2015] UKSC 19, p. [113], [118]–[119] (Lord Reed).

3 See, for example, R. v. Secretary of State for the Home Department, ex parte Stafford [1999] 2 A.C. 38, 47–49; R. v. Lord Chancellor, ex parte Lightfoot [2000] Q.B. 597, 607–10, 623–24; R. (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UKSC 54, [2011] 2 A.C. 15, at [31]. Even if the PoL is not revived, for example because the common law norms at stake are not considered sufficiently normatively important to trigger the principle of legality, a weaker presumption may still apply in favour of preserving common law norms: Burrows, A., Thinking About Statutes (Cambridge 2018), 71-74CrossRefGoogle Scholar. 74 In this context, note Lord Sales` call for “prudence,” “stability,” and the “slow wave of constitutional principles” (P.

Sales, “Legalism in Constitutional Law: Judging in a Democracy” [2018] P.L. 687, 698). In criminal law, the principle of legality means that only the law can define a criminal offence and prescribe a penalty (nullum crimen, nulla poena sine lege). It also states that criminal law cannot be interpreted broadly to the detriment of an accused, for example by analogy. According to this principle, a criminal offence must be clearly defined in the law. The legal concept includes both written and unwritten law and implies qualitative requirements, particularly in terms of accessibility and predictability. The conditions are met if individuals can now determine from the wording of the relevant provision and, where appropriate, by judicial interpretation, which acts and omissions give rise to criminal liability. The principle of legality also includes the provision prohibiting the retroactive application of criminal law to the detriment of an accused. This principle is enshrined in the constitutions of many countries as well as in the most important international convention for the protection of human rights. This chapter deals with the principle of legality.

The version of legality defended here as an integral part of the convention system is that which requires that official action in a democratic state be positively authorized by law. The version of legality contained in the European Convention on Human Rights and human rights law is consistent with the democracy-oriented model outlined in this chapter. The first section examines legality and the “rule of law.” The second part deals with representative democracy, the European Convention and the principle of legality. The third section deals with the importance of legality in enforcement. The last section deals with the common law. Common law challenges to legality are raised without a legal status that raises questions of legitimacy. Oxford Academic is home to a variety of products. The institutional subscription may not cover the content you are trying to access. If you think you should have access to this content, please contact your librarian. 48 AXA General Insurance Company Ltd. v Lord Advocate [2011] UKSC 46, [2012] 1 A.C. 868, at [153]; R.

v. Secretary of State for the Home Department, ex parte Pierson [1998] A.C. 539, 573, 587. – No HTML tags allowed- Website URLs are displayed as text only- Lines and paragraphs wrap automatically- Attachments, images or tables are not allowed Your email address will be used to notify you when your comment has been reviewed by the moderator and if the author of the article or moderator needs to contact you directly. 47 R. (Miller) v Secretary of State for Exit the European Union [2017] UKSC 5, [2018] A.C. 61, at pages [136]–[151]. If you do not have a club account or have forgotten your username or password, please contact your club. 9 R. v. Secretary of State for the Home Department, ex parte Brind [1991] 1 A.C. 696, 748, 762.

20 For example, Shahid v Scottish Ministers [2015] UKSC 58, [2016] A.C. 429; R. (Johnson) v Secretary of State for the Home Department [2016] UKSC 56, [2017] A.C. 365; SXH v CPS [2017] UKSC 30, [2017] 1 W.L.R. 1401; SS (Congo) v Entry Clearance Officer, Nairobi [2017] UKSC 10, [2017] 1 W.L.R. 771; Application of the Northern Ireland Human Rights Commission for Judicial Review [2018] UKSC 27, [2019] 1 All E.R. 173; R. (Steinfeld) v Secretary of State for International Development [2018] UKSC 32, [2020] A.C. 1. 17 R. (Evans) v Attorney General [2015] UKSC 21, [2015] A.C. 1787, at [52].

58 R. v. Department of Defence, ex parte Smith [1996] Q.B. 517. Select this option to get remote access when you are away from your institution. Shibboleth/Open Athens technology is used to provide single sign-on between your institution`s website and Oxford Academic. 152 See, for example, Burrows, Thinking About Statutes, pp. 13-20; R. French, “Le principe de légalité et d`intention du legislator” (2019) 40 Stat.

L. Rev. 40; P. Sales, “Legislative Intention, Interpretation, and the Principle of Legality” (2019) 40 Stat. L. Rev. 53; J. Goldsworthy, “The Principle of Legality and Legislative Intent” in D.

Meagher and M. Groves (eds.), The Principle of Legality in Australia and New Zealand (Sydney 2017); R. Ekins, The Nature of Legislative Intent (Oxford 2012). I am particularly grateful to Rick Rawlings, with whom I have had a number of thought-provoking discussions on the issues raised here. I would also like to thank Mark Aronson, Andrew Burrows, Tom Hickman and Nick Petrie for their helpful discussions and/or comments on the drafts, as well as the two anonymous reviewers for their valuable feedback. The drafts of this article were presented at a seminar at the Centre for Public Law, University of Cambridge in November 2019, at a research seminar at the Bonavero Institute of Human Rights, University of Oxford in November 2019, and at a Public Law Group workshop at UCL in December 2019. I thank the participants at each event for their very useful discussions. Most of this article was written during Michaelma`s tenure in 2019, when I was Robert S. Campbell Visiting Fellow in Law at Magdalen College, Oxford, and a Research Fellow at the Bonavero Institute of Human Rights.

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