The Principle of Legality and Contemporanea Expositio Est Optima Et Fortissima in Lege

Abstract

If the principle of legality operates to obscure from Parliament the common law (rights) backdrop against which it legislates, the clarity or rights-sensitivity of that legislation cannot be improved. This undercuts, rather than promotes, the democratic and rule of law values that underpin the modern conception of the principle and its contemporary normative justification. So the courts must strive to give Parliament the clearest possible picture as to the content of the fundamental common law rights it seeks to protect and, depending on the right, freedom, or principle in legislative play, the strength with which the principle will be applied in order to do so. Parliament (and parliamentary counsel) can only ‘squarely confront’ those fundamental rights the existence and content of which was known at the time of legislating. The proposition which, necessarily, follows is that the rule of contemporanea exposition est optima et fortissimo in lege must be revived when judges apply the principle of legality to the construction of statutes. If the courts are to maintain and take seriously the normative justification for the principle then its application to the construction of statutes can only operate to protect from legislative encroachment those fundamental rights existing at the time the statute was enacted.