Principle of Legality Pdf
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  UKSC 5,  2 A.C. 534, at  (Lord Phillips); Pham v Secretary of State for the Home Department  UKSC 19, p. , – (Lord Reed). 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. The objective of this chapter was to present two fundamental legal concepts of Swiss law, both crucial for public administration: the law and the principle of legality. From the concept of law, it has emerged that law consists not only of written laws adopted by parliament (formal law), but also includes norms adopted by the executive and public authorities (substantive law). The two aspects (“rule of law” and “legal basis requirement”) of the principle of legality are equally lawful. Their description clearly showed that formal and substantive law are part of Swiss law. In the Federal Council`s dispatch on the total revision of the Constitution, the term law was defined as a reference to the Constitution, the law and ordinances (Bundesrat 1997: 134). More specifically, in the field of legal law, more and more legal norms are generated by the executive. The democratic legitimacy of the law is also called into question when international rules are the basis of public action.
Private bodies adopt standards that are sometimes later incorporated into law (Uhlmann 2013). This development highlights a shift in the centre of power, which is no longer located in the democratic (representative) body. Less formalized normative instruments such as soft law are becoming a new category in the typology of (formal) sources of law. Finally, the infallibility of the law has been called into question with the development of constitutional competence. From a jurisprudential perspective, some identify the beginnings of global administrative law (Kingsbury et al. 2005). Others argue that the principle of legality must be reconsidered (Popelier 2012: 48-54). While it is generally accepted that formal law is losing ground to a substantive conception of law, Swiss public law has mechanisms and practices that strengthen the procedural dimension of legislation. From this point of view, these mechanisms and practices reflect a link with the law as the first formal source of law, which is also reflected in the principle of the immunity clause in the context of constitutional review (see Mahon`s chapter). These mechanisms and practices illustrate a trend towards an increasing “proceduralization” of legislation.
This can be interpreted as strengthening the democratic legitimacy of the law. It emphasizes the symbolic value of law, even at the risk of favouring a purely formal and non-substantive approach to law. Two elements are part of such a trend. On the one hand, there is the dissemination of a true “legislative culture” by the federal administration and, on the other hand, the instruments of direct democracy. The definition of the legal form is an important element in the Swiss public administration, because every public act includes the definition of an instrument of action. However, the distinction between formal and substantive law also exists in Swiss law (Auer et al. 2006: 88 ff.). In fact, several constitutional provisions require the enactment of legislation. This varies depending on the subject, but also according to the degree of limitation of an individual`s autonomy. The general requirement of a law is formulated, for example, in the context of a possible restriction of fundamental rights. It is referred to in Article 36(1) of the Const.
The legal requirement is also set out in Article 164 Const. for federal legislation in general. In both cases, the idea of the law is a one-way street. Depending on the circumstances, it is either an act adopted by the Parliament or an act adopted by a decision-making authority. In the areas of taxation – in accordance with the principle of “no taxation without representation” – (Art. 127, para. 1 Cst.), access to justice (Art. 29a and 30 of the Constitution) and deprivation of liberty (Art. 31 para. 1, rue Saint), the requirement of a law is understood within the meaning of formal law. The extent to which individual autonomy, the cornerstone of the liberal state, is undermined or threatened justifies the public action of a democratically elected body.
In addition, Swiss law provides for an exception to the legal obligation: the general policy clause. This clause allows the government to act without a legal basis and to restrict fundamental rights when it comes to preventing or putting an end to a serious and imminent breach of public order (Aubert and Mahon 2003:325). Prior to its revision in 1999, this principle of legality was not explicitly mentioned in the constitutional text. However, it already guided the State`s action by taking the form of an “unwritten constitutional principle” unanimously recognized by doctrine and case law (Bundesrat 1997: 133) and having binding value recognized by all. This is not the only unwritten constitutional principle: not all laws or legal principles are contained in written acts. Once the form and author of the law have been determined and the content has been determined in accordance with legislative procedures, the act produces legal effects as long as it is known to all. This requirement presupposes a condition of publication and directly shapes the democratic and liberal state (Hangartner 2008). In Swiss law, legislation – both national and international treaties – is published in the Official Collection of Federal Law. At the same time, it is collected thematically in a systematic collection (Recueil signalétique), which facilitates access to legislation and allows everyone to see the current state of the law. The obligation to publish allows everyone to anticipate the consequences of their activity and to comply with the law.
To this end, the entry into force does not, in principle, coincide with the date of publication, with the exception of constitutional provisions (Art. 195 of the Constitution). In principle, publication must take place at least five days before the entry into force of the Act (Article 7 of the Publications Act). As a rule, the decision on entry into force rests with the Federal Council, but may also be included in the legislative act itself. For international treaties, the treaty itself contains its own rules for entry into force (Mader 2013: 258-259). In Swiss law, the principle of legality has two aspects (Federal Council 1997: 133). The first aspect is called the “rule of law” (section 4.3.1); The second is the “reservation of the law” (section 4.3.2). These two aspects mean that the principle of legality embodies the formal dimension of the rule of law (Epiney 2015:93).
177 See, for example, R. v Secretary of State for the Home Department, ex parte Simms,  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). The other figure of law is embodied in the principle of legality. This principle is enshrined in article 5, paragraph 1, of the Federal Constitution and provides that: “All activities of the State shall be based on the law and limited by law”. The other paragraphs of this article oblige the Confederation and the cantons to act or to respect the principles of public interest and proportionality (2), the principle of good faith (3) and international law (4). All these elements are called the rule of law.
3 See, for example, R. v. Secretary of State for the Home Department, ex parte Stafford  2 A.C. 38, 47–49; R. v. Lord Chancellor, ex parte Lightfoot  Q.B. 597, 607–10, 623–24; R. (Child Poverty Action Group) v Secretary of State for Work and Pensions  UKSC 54,  2 A.C. 15, at . 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.