079D - Legislation and Statutory Interpretation - SG

Legislation
and statutory
interpretation
Module D: Tests for quality of

legislation
2015
H. Xanthaki
M. Ilahi
R. Cormacain
C. Stefanou
This Study Guide was prepared for the University of London International
Programmes by:
̆̆ H. Xanthaki, LLB, M Jur, PhD, Professor in Law and Legislative Studies, Institute
of Advanced Legal Studies, School of Advanced Study, University of London
̆̆ M. Ilahi, LLB, LLM, PhD, Associate Research Fellow, Director Sir William Dale
Legislative Drafting Clinic, Institute of Advanced Legal Studies, School of
Advanced Study, University of London
̆̆ R. Cormacain, LLB, LLM (Queen’s University Belfast), LLM (Institute of Advanced

Legal Studies), BL, Director Sir William Dale Legislative Drafting Clinic
̆̆ C. Stefanou, BA, MA, M Phil, PhD, Director of Taught Programmes, Institute of

Advanced Legal Studies, School of Advanced Study, University of London
This is one of a series of Study Guides published by the University. We regret that
the authors are unable to enter into any correspondence relating to, or arising
from, the Guide.
If you have any comments on this Study Guide, favourable or unfavourable,

please use the form at the back of this Guide.
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Contents
Contents
Chapter 1: Introduction ........................................................................................ 1

1.1 Legislation and statutory interpretation..................................................................... 1
1.1.1 The structure of the course.................................................................................... 1
1.1.2 Study sequence.......................................................................................................... 2
1.2 Introduction to Module D................................................................................................. 2
1.3 How to use this Study Guide........................................................................................... 3
1.3.1 Reading......................................................................................................................... 4
1.3.2 A suggested study method................................................................................... 4
1.4 Keeping up to date.............................................................................................................. 5
1.5 Allocating your time........................................................................................................... 5
1.6 The examination.................................................................................................................. 6
1.6.1 Preparing for the examination............................................................................. 6
1.6.2 Taking the examination........................................................................................... 7
Chapter 2: The rule of law..................................................................................... 9
Introduction ................................................................................................................................. 9
2.1 What is the rule of law? ...................................................................................................10
2.2 Lon Fuller..............................................................................................................................11
2.2.1 Desiderata 1: Generality of law...........................................................................11
2.2.2 Desiderata 2: Promulgation.................................................................................12
2.2.3 Desiderata 3: Retroactive laws............................................................................12
2.2.4 Desiderata 4: Clarity of laws.................................................................................12
2.2.5 Desiderata 5: Contradiction in laws..................................................................13
2.2.6 Desiderata 6: Laws requiring the impossible................................................13
2.2.7 Desiderata 7: Constancy of law through time...............................................13
2.2.8 Desiderata 8: Congruence between official action and declared rule.14
2.3 Joseph Raz ...........................................................................................................................14
2.3.1 Laws should be open, prospective and clear................................................14
2.3.2 Laws should be relatively stable........................................................................14
2.3.3 The making of laws should be guided by open, stable, clear
and general rules...............................................................................................................15
2.3.4 Independence of the judiciary...........................................................................15
2.3.5 Application of the rules of natural justice......................................................15
2.3.6 Court power to review implementation of other principles...................15
2.3.7 Courts should be accessible................................................................................16
2.3.8 Discretion of crime-preventing agencies should not pervert the law.16
2.4 Tom Bingham .....................................................................................................................16
2.4.1 Law should be accessible, intelligible, clear and predictable..................16
2.4.2 Law not discretion...................................................................................................17
2.4.3 Equality before the law..........................................................................................17
2.4.4 Power must be exercised fairly ..........................................................................17
2.4.5 Human rights............................................................................................................18
2.4.6 Access to courts.......................................................................................................18
2.4.7 A fair trial....................................................................................................................18
2.4.8 Rule of law in the international legal order....................................................19
2.5 Why must legislation comply with the rule of law?...............................................19
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Legislation and statutory interpretation: Module D
Chapter 3: Constitutional and human rights restrictions on legislation........ 23

Introduction................................................................................................................................23
3.1 Constitutional restrictions upon legislation............................................................24
3.2 Limited grant of legislative powers.............................................................................26
3.3 Legislative competence: allocation of legislative power between different
legislative assemblies..............................................................................................................27
3.3.1 Devolution.................................................................................................................28
3.3.2 Federal structures....................................................................................................30
3.4 Legislative restrictions imposed by international law..........................................31
3.4.1 Restrictions imposed by the European Union on the legislation of
member states....................................................................................................................32
3.5 Human rights restrictions...............................................................................................34
3.5.1 Canadian Charter of Rights and Freedoms....................................................35
3.5.2 The Human Rights Act 1998 (UK).......................................................................35
3.5.3 Examples of human rights restrictions on legislation: jurisprudence
developed under the European Convention on Human Rights.......................36
3.6 Procedures to be followed in enacting legislation................................................37
Chapter 4: Good law test .................................................................................... 41
Introduction ...............................................................................................................................41
4.1 Good Law: the vision........................................................................................................41
4.2 The Good Law test ............................................................................................................41
4.3 UK initiatives........................................................................................................................42
4.4 Other countries and organisations.............................................................................42
4.5 Why is legislation so complex?.....................................................................................42
4.6 To whom is legislation addressed?..............................................................................43
4.7 Good law...............................................................................................................................44
4.8 Summary...............................................................................................................................45
Chapter 5: The functionality test: effectiveness................................................ 47
Introduction................................................................................................................................47
5.1 Efficacy...................................................................................................................................47
5.2 Effectiveness .......................................................................................................................48
5.3 Cost efficiency.....................................................................................................................49
5.4 Clarity, precision, unambiguity.....................................................................................50
5.5 Plain language....................................................................................................................51
5.6 Gender-neutral language...............................................................................................53
5.7 The Good Law project......................................................................................................54
5.8 Summary...............................................................................................................................54
ii
Chapter 1: Introduction
1.1 Legislation and statutory interpretation

Welcome to this course in Legislation and statutory interpretation,
part of the Postgraduate Laws Programme of the University of London
International Programmes.
The topic of the four modules that make up this course is legislation
in the sense of statutory law: in other words, written texts of binding
legal value that dictate the current state of regulation imposed by
government.
Legislation used to be a prerogative of civil law jurisdictions. However,
it is now at the forefront of sources of law in civil and common
law jurisdictions. Its increasing popularity as a source of law has
created issues with the extensive volume of legislation, and with the
interrelation between legislative texts not only within the national
jurisdiction but also within the regional and international jurisdiction
to which the country belongs.
This complexity of levels of legislation, combined with the volume of
legislation in each of those three levels, has strengthened the beast of
legislative complexity that existed from the beginnings of legislation.
There is a realisation worldwide that legislation cannot be trusted
to inform citizens what they need to do: it is simply too complex a
method to speak to citizens.
This is unfortunate. In our era of direct information, when citizens are
used to searching the internet for direct information rather than relying
on professionals as before, citizens are searching for answers from
within legislative texts. Legislation.gov.uk reports that 65 per cent of
the users of legislation on its website are lay persons, namely citizens
without any legal awareness who are looking for answers to their
individual questions and problems. And so legislation needs to become
the focus of governments, the focus of lawyers and ultimately the focus
of legal education. It is imperative that current and future practitioners
become aware of what legislation is, what its role and aims are, and
how best to pursue them.
1.1.1 The structure of the course

The course is divided into four modules prepared by a team of
experts at the Institute of Advanced Legal Studies of the School of
Advanced Study of the University of London, whose expertise lies
within legislative studies. Our aim is to educate, inform and share our
enthusiasm for legislative studies as a new sub-discipline of law, one
that deserves recognition, study and cross-fertilisation within and
outside the legal profession.
•• Module A introduces the reader to legislation as a product. It
defines legislation, explores its different types, and sets the main
presumptions of geographical and temporal extent.
•• Module B explores legislation as a process. It introduces the
concept of the drafting process as part of the legislative process,
1
which in turn is a part of the policy process, and it assesses

legislation by means of Regulatory Impact Assessments.
•• Module C explores statutory interpretation. After its production
legislation is used and applied.
•• Module D explores the topical issue of legislative quality by
introducing the tests that are currently used to assess whether a
piece of legislation, produced and used, has been successful.
1.1.2 Study sequence

You must study Module A first.
Learning outcomes for the course

Having studied the course, you should be able to:
•• demonstrate a systematic understanding of the field of legislative studies in its
wide interdisciplinary concept at national, regional and international levels
•• show a critical awareness of current political, legal and legislative problems
in the conceptualisation, formulation and passing of legislation and legally
binding texts
•• demonstrate a critical understanding of current and innovative techniques of
modern legislative studies
•• show originality in the application of knowledge
•• apply your readings to your own jurisdiction.
1.2 Introduction to Module D

In previous modules we have looked at the nature of legislation, how
it is made and how it is interpreted. In this final module, we look at
different ways of assessing whether legislation is of good quality.
There is no single, universally agreed test to determine whether a piece
of legislation is of good quality. Rather there are different criteria which
can be applied in different circumstances. The four tests considered in
this module cover different aspects of quality. In Chapter 2 we examine
the rule of law test. This test is a theoretical one that is rooted in a
jurisprudential examination of the nature of law and legislation. If a
statute complies with the values of the rule of law, it is more likely to be
of good quality. If it breaches the rule of law, then not only may it be of
bad quality, but in some jurisdictions it may not even be a valid piece
of law. Although a particularly egregious breach of the rule of law may
be easy to spot, there is no simple test to determine compliance; rather
it is a matter of subjective judgement.
In Chapter 3 we look at the constitutional and human rights legitimacy
of legislation. If a piece of legislation breaches constitutional or
human rights norms, it will be of poor quality and most likely invalid.
This criterion depends upon the nature of the constitution in each
individual state – what the constitution permits or prohibits in each
state. As with the rule of law, this is a theoretical test that depends
upon a legal analysis of constitutional and human rights jurisprudence.
Chapter 4 takes a different approach to legislative quality and looks
at the Good Law test, developed in the UK. The focus of the previous
two chapters is more on what things make legislation invalid, or of
2
poor quality. Chapter 4 is different in that it focuses more on what

makes legislation of good quality. The Good Law test is more about
practicalities than academic theories.
Chapter 5 sets out the final test for quality of legislation – the
functional test of whether legislation is effective. This test combines
the theoretical with the practical. The theoretical aspect examines
the point of legislation and concludes that its function is to regulate
human activity. The practical aspect examines the factors that make it
more likely that the legislation will have that effect. So legislation will
be of good quality if people can understand it, if it is precise and if it is
unambiguous.
All these tests of quality are valid in their own way. The functionality/
effectiveness test is probably the best overarching test of quality
because the other tests are implicit within it – if legislation breaches
the rule of law, the constitution, human rights or Good Law then it is
unlikely to be effective.
Learning outcomes
By the end of this Study Guide and the relevant readings you should be able to:
•• define the rule of law and identify when legislation is in accordance with the
rule of law
•• identify the different ways in which the constitution may limit what may be
done by legislation
•• identify how human rights norms may restrict the content of legislation
•• explain how the Good Law initiative sets criteria for quality in legislation
•• recognise effectiveness as a criterion for quality in legislation
•• split effectiveness into its different components.
1.3 How to use this Study Guide

Each module of this course has a separate Study Guide, and a version
of this introductory chapter is found in each Guide. The Guide provides
a starting-point for your study of the course. It introduces and explains
the core syllabus topics. It is not intended to replace independent
study of primary legal materials, the set textbooks and other academic
literature, but rather to help you use those other materials effectively.
In order to fulfil this function, the Guide is designed to be easy to read
and use. At times it includes quite detailed discussion of certain issues,
but in general it avoids duplicating material which you may find in the
set textbooks and other readings. It also contains several features to aid
your study:
•• learning outcomes for the course as a whole and for each module
and each chapter, so you know what you are expected to achieve at
each stage of your study
•• learning activities to encourage you to think critically about the
material – please think about how you would answer each question
before you look at the feedback provided
•• sample examination questions plus guidance on how each
3
question might be approached, to help you prepare for the

examination for each module
•• guidance on Essential reading and Useful further reading.
1.3.1 Reading
The Study Guide refers you to various reading resources. These are
divided into Essential reading and Useful further reading.
Essential reading
Much of the Essential reading is drawn from the supplied textbooks for the 1
These are the supplied textbooks at
course:1 the time of writing in January 2015.
•• Xanthaki, H. Drafting legislation: art and technology of rules for regulation. In due course, we may start using
different editions, or different textbooks
(Oxford: Hart Publishers, 2014) [ISBN 9781849464284]. (Hereafter referred to as
altogether. Details of any change in
Xanthaki.) supplied textbooks will be provided on
•• Xanthaki, H. Thornton’s legislative drafting. (Haywards Heath: Bloomsbury the eCampus and in the annual update
Professional, 2013) [ISBN 9781780432090]. (Hereafter referred to as Thornton.) supplement, Recent developments.
You should have been sent both of these books (or more recent
replacements) when you registered on the course. If you have not
received them, please contact the university by filling out an online
enquiry form at: http://enquiries.londoninternational.ac.uk/aspx_
shared/newuser.aspx
Both books are Essential reading for all four modules, and should be
read in conjunction with each chapter. In the Essential reading lists
you will find that references to these books may omit certain parts of a
chapter, but this does not mean you should not read those parts. You
still need to read the whole chapter focusing on the points raised in the
Guide.
Thornton has served as the definitive book for legislative drafters for
many years. It has been recently edited to reflect modern drafting
techniques and to refer to current examples of existing legislation from
the Commonwealth and beyond. Thornton is a professional book; it
does not focus on theory, but it is invaluable on application and on
legislative techniques.
Xanthaki is a monograph on legislative studies that preaches phronetic
legislative studies as a doctrinal basis for the understanding and
betterment of legislative techniques. It is an innovative book that
explains in much detail most of the topics in this Guide.
1.3.2 A suggested study method

It is up to you to find the study method that suits you best for each
module that you study, but the following approach seems to work well
for many students:
•• Start with the Study Guide. Read through it all to try to gain a
general understanding of the main syllabus topics and how they fit
together.
•• When you have finished the first reading, go back and study each
chapter separately. Begin with the Study Guide itself, then read
the Essential reading and try to do the activities and the Self-
assessment questions. Then read the Useful further reading and
4
attempt the Sample examination questions. Repeat this process for

each chapter of the module.
•• Please do not disregard any part of the Study Guide or the Essential
reading. The examination questions will require an understanding
of all the material in the Study Guide.
•• When preparing for your examinations please keep in mind that
we are not seeking to test your factual knowledge; we are seeking
to invite you to consider and comment on general issues of
legislation, such as what is legislative quality. You need to show that
you have read all the material, and that you have understood the
issues on the basis of the whole Study Guide, not just one chapter.
•• Finally, do apply what you read to your own jurisdiction. We expect
you to know what is happening in your country, and to assess if and
how the material in the Study Guide can be applied there.
1.4 Keeping up to date

The legislative process is dynamic. This Study Guide was prepared in
2015 and there may have been significant developments in the field by
the time you read it.
If you are studying the course more than a year after this Guide was
published, be sure to look out for the latest edition of the annual
update supplement, Recent developments. This will usually be published
on the eCampus in March each year. It will outline any major changes
in relevant law and direct you to related readings.
You should also track developments in the field through your own
research, for example by regularly checking websites of governments
and courts.
Technically, unless you are advised otherwise then examinations for
the course will be based on the relevant law and related scholarship
as at 1 January in the year of examination, so you will be expected to
be familiar with the law up to that date. You will not be required to be
familiar with developments after that date (unless advised otherwise),
so you do not need to study them; but equally you are unlikely to be
disadvantaged if you do make intelligent reference to more recent
changes in the law.
1.5 Allocating your time

It is impossible to say with great precision how much time
you should set aside for studying Legislation and statutory
interpretation because your individual learning rate will depend
on your circumstances, fluency in English and any prior study of law.
Furthermore some topics of the syllabus require considerably more
time than others.
However, as a full-time Postgraduate Laws student you are expected to
spend approximately 120 hours studying and preparing for the exam
for each module of this course. Some topics of the syllabus will require
considerably more time than others. Our best advice is that you should
allocate a specific amount of time for the study of each module of the
5
course each week with a view to completing your study of all topics in
the syllabus so as to leave ample time for revision before the exam.
1.6 The examination

Important: The information and advice given here is based on
the examination structure used at the time this Guide was written.
However, the University can alter the format, style or requirements
of an examination paper without notice. Because of this, we strongly
advise you to check the instructions on the paper you actually sit.
Your understanding of the material covered by the syllabus for this
module will be assessed by an unseen written examination of 45
minutes’ length, with reading time. To the extent that there are any
prerequisites for this module, knowledge of the materials covered in
those prerequisites may be necessary to answer the questions in the
examination for this module.
1.6.1 Preparing for the examination

Make sure you study the full range of syllabus topics for each module
The University of London International Programmes uses unseen
examination as its main form of assessment because it is both rigorous
and fair. By ‘unseen’, we mean that you will not know what examination
question(s) you have to answer until you are allowed to read the
question paper at the start of the exam. It is therefore very important
that you get a good, broad understanding of the syllabus for each
module that you study. The question may test any topic within the
syllabus, or may require you to draw on your knowledge of several
topics. Don’t limit your study to a couple of topics.
Study actively – take notes
Successful examination preparation starts the moment you start
studying. Make sure you take notes on the material you read,
summarising the main points and putting them into your own words.
This will help you to understand and remember key issues, see
relationships between different sources, and develop your own ideas
and lines of argument. Undertaking the learning activities in the Guide
will also help you to do this. And make sure you allow time later on to go
back through your notes and refresh your memory closer to the exam.
Practise your exam technique
In order to do well in the examination, knowledge and understanding
of the subject is not enough – you also need effective exam technique.
Answering questions successfully under exam conditions requires a
particular set of skills which you can develop through practice. This
Guide offers several sample examination questions, and if you are
studying the course from 2015 onwards, have a look at any past papers
which are available to download from the eCampus. Bear in mind that
the law may have changed since the older papers were written.
It is sensible to try to answer some questions under examination
conditions – that is, writing an answer in 45 minutes without looking 2
These are the examination
at your notes or books.2 Time is very short in the examination, and the conditions in force at the time of
best way to make the most of it is to be prepared and practise. writing, but as noted above the
University may change them.
6
This module lends itself to a combination of test specific questions and

comparative questions. Prepare yourselves for a question on each of
the quality tests discussed in this module: questions that compare the
tests; and critical questions asking you to select the test that is most
appropriate for the purposes of your jurisdiction.
1.6.2 Taking the examination

The golden rule for examination success is to answer the question
asked; don’t just reel off a pre-prepared answer on a particular topic.
Start by reading the question carefully – it sounds obvious, but it is
essential. Under the examination rules in force at the time of writing
this Guide, you are given five minutes to read the paper before you
start writing your answer. Use that time wisely. Then, spend a few
minutes planning your answer before you start writing it. It is tempting
to start writing straightaway when you have so little time, but planning
your answer should help ensure that it has a clear and coherent
structure. Whether you are writing an essay or tackling a problem
question, your answer should begin with a clear introduction. This need
not be long – two or three short sentences should do. In introducing an
essay, you should generally identify:
•• what you think the question is asking of you
•• the approach that you will be adopting in your answer.
In answering a problem question, start by identifying the main legal
issues that the fact scenario raises. Whichever type of question you
answer, you will not have time to explore all relevant issues in depth.
With only 45 minutes, you need to be selective and concentrate on
what you see as the most important issues – though ideally you will
briefly note, in your answer, other issues that may be relevant and
explain why those you are focusing on are particularly important.
In writing the body of your answer, you will need to be succinct.
Avoid vague generalisations; use clear language in straightforward,
short sentences. Use a structure which is logical and shows that you
are moving from one issue to another in a way that makes thematic
sense. Substantiate your arguments by identifying relevant law. When
referring to cases, you do not need to give a full citation – a short name
(e.g. ‘R v Field’, ‘Heydon’s Case’ or ‘Factortame (No.2)’) will usually suffice,
though it may also be useful to identify the relevant court and perhaps
the year of judgment. Do not waste time describing irrelevant facts;
just mention the key point(s) of the case in relation to your argument.
If you do all the above – provide a clearly structured answer which
clearly addresses the question and is supported by reference to
relevant legal authority – you should at the very least achieve a pass.
Better answers generally also do one or both of two things:
•• Analyse the question carefully, identifying any underlying
assumptions or points of ambiguity which can then be exposed
and discussed.
•• Discuss relevant academic commentary. If you can demonstrate
that you have read beyond the Essential texts by making intelligent
reference to other works, so much the better.
7
We wish you all the very best with this subject. It is innovative, dynamic
and is being developed as we write! It is a great privilege to share it
with you.
8
Chapter 2: The rule of law
Introduction
Compliance with the rule of law is one way of assessing the quality of a
piece of legislation. If a statute complies with the rule of law, it is more
likely to be of good quality (and vice versa). In fact, compliance with
the rule of law may not only be a benchmark of quality, it may be a pre-
condition for the legitimacy of a statute.
This chapter examines the different conceptions of the rule of law. It
looks at the rule of law as the principle that we are all subject to law, as
well as the rule of law being the ideal set of values of a legal system. It
focuses on the approach to the rule of law of three key writers – Lon
Fuller, Joseph Raz and Tom Bingham.
Learning outcomes
By the end of this chapter, and having completed the Essential readings and
activities, you should be able to:
•• state why legislation must be in accordance with the rule of law
•• critically discuss Fuller’s definition of the rule of law
•• critically discuss Raz’s definition of the rule of law
•• critically discuss Bingham’s definition of the rule of law.
Essential reading
•• Bingham, T. The rule of law. (Penguin UK, 2011) [ISBN 9780141034539] Chapter
3. Available on the VLE.
•• Cormacain, R. ‘Have the Renton Committee’s recommendations on electronic
access to legislation been fulfilled?’ (2013) 19(3) Web Journal of Current Legal
Issues. Available in the Online Library.
•• Fuller, L. The morality of law. (Yale University Press, 1969) revised edition [ISBN
9780300010701] Chapter 2, pp.33–94. Available on the VLE.
•• Raz, J. ‘The rule of law and its virtue’, (1977) 93 LQ Rev 195, republished in Raz,
J. The authority of law: essays on law and morality (Oxford: Oxford University
Press, 2009) 2nd edition [ISBN 9780199573578] See: http://nw18.american.
edu/~dfagel/Philosophers/Raz/Rule%20of%20Law%20and%20its%20
Virtue_%20%20Joseph%20Raz.pdf
•• Sampford, C. Retrospectivity and the rule of law. (Oxford: Oxford University Press,
2006) [ISBN 9780198252986] Chapter 2. Available on the VLE.
•• Venice Commission, ‘Report on the rule of law’ (2011). Available at: www.
venice.coe.int/webforms/documents/CDL-AD(2011)003rev-e.aspx
Useful further reading

•• Bingham, T. The rule of law. (Penguin UK, 2011) [ISBN 9780141034539] all other
chapters.
•• Buckoke v Greater London Council [1971] 2 All ER 254.
•• Locke, J. Locke: two treatises of government. Laslett, P. (ed) (Cambridge:
Cambridge University Press, 1988) 3rd edition [ISBN 9780521357302].
9
2.1 What is the rule of law?

There is no clear agreement on the definition of the rule of law. The
definitions normally comprise one or two elements:
•• The first element of the rule of law is the basic principle that
everyone is subject to the law.
•• The second element of the rule of law is that it represents the ideal
of a legal system.
The first element can be very simply expressed – everyone is subject to
the law and no-one is above the law. This means that the state is run in
accordance with the law, not in accordance with the particular whims
of its current leader. Legislation is the instrument of rule, the way in
which the rules are made that govern society. This principle has very
deep roots. Plato stated that:
…if the law is the master of government and the government its
slave, then the situation is full of promise and men enjoy all the 1
Plato, Laws, Book IV, 715d.
blessings all the gods shower on a state.1
This principle is the bedrock justification for a system of legislation.
Legislation sets out the laws by which society is run. This legislation
ought to be of general application – it applies to the lowest and to the
highest in the land. Bingham gives a fanciful example to illustrate this –
if you maltreat a penguin in London Zoo, it doesn’t matter if you are the
Archbishop of Canterbury, you will still be prosecuted for it (Bingham,
2011, p.4). More specifically, the rule of law means that the leaders
of a state, and the state itself, ought not to be exempt from the law,
or above the law. Friedrich Hayek stated this principle by saying that
‘government in all its actions is bound by rules fixed and announced
beforehand’.2 Hayek, F. The road to serfdom.
2
(Routledge, 1944), p.72 of the

The second element of the rule of law is more amorphous. This 1974 edition.
approach treats the rule of law not as a simple principle, but as a set of
values that an ideal legal system should contain. The difficulty is that
not everyone agrees on what those values should be. Some writers try
to limit these values to purely ‘legal’ values; others include values that
aren’t purely legal values, but values which could be of general benefit
to society. The Declaration of Delhi is a good example of this broader
approach.
Example: The Declaration of Delhi (1959)

This International Congress of Jurists, consisting of 185 judges, practicing lawyers
and teachers of law from 53 countries, assembled in New Delhi in January 1959
under the aegis of the International Commission of Jurists, having discussed freely
and frankly the Rule of Law and the administration of justice throughout the
world, and having reached conclusions regarding the legislative, the executive,
the criminal process, the judiciary and the legal profession, (which conclusions are
annexed to this Declaration),
Now solemnly
Reaffirms the principles expressed in the Act of Athens adopted by the
International Congress of Jurists in 1955, particularly that independent judiciary
and legal profession are essential to the maintenance of the Rule of Law and to
the proper administration of justice;
10
Recognizes that the Rule of Law is a dynamic concept for the expansion and
fulfilment of which jurists are primarily responsible and which should be
employed not only to safeguard and advance the civil and political rights of the
individual in a free society, but also to establish social, economic, educational and
cultural conditions under which his legitimate aspirations and dignity may be
realized;
…
Within this second element, there is a distinction between ‘thick’ and

‘thin’ conceptions of the rule of law. Under the thick conception, the
rule of law contains substantive rights and values: for example, equality,
justice, fairness, democracy, human rights. The thin conception looks
only at the procedural aspects of the legal system: for example, the
structure of legislation, how law is made, the accessibility of law, etc.
Sampford (2006) describes this thick/thin distinction in more detail.
So many authors have written about the rule of law that it is difficult
to select which authors to focus upon. The most noteworthy modern
authors are Lon Fuller, Joseph Raz and Tom Bingham, and the works
of these authors are explored more fully in the rest of this chapter.
However, other authors are arguably as important. John Locke, in Book
3, Chapter 11 of his Second Treatise, examines the nature of legislative
power and this chapter prefigures many modern ideas about the
rule of law. Albert Venn Dicey in his 1885 book, An introduction to the
study of the law of the constitution, set out the classic exposition of the
sovereignty of parliament and the rule of law. Brian Tamanaha has
recently explored the notion of the rule of law in On the rule of law
(Cambridge University Press, 2004).
2.2 Lon Fuller

Fuller set out eight characteristics of a good legal system (he refers to
them as eight desiderata). He also set out the reverse, eight ways in
which a legal system could fail. Or as he put it: ‘a total failure in any of
these eight directions does not simply result in a bad system of law;
it results in something that is not properly called a legal system at all’
(Fuller, 1977, p.39). He didn’t use the phrase ‘rule of law’ to describe this,
using instead the phrase the ‘morality of law’. However, Fuller’s eight
desiderata are a perfect example of the concept of the rule of law as
the set of values that an ideal legal system ought to possess.
In order to illustrate the eight ways in which a legal system may fail,
Fuller creates the hapless king called Rex. Rex strives to do what is best
for his people and attempts to create a system of laws that will govern
them fairly. However, each time he creates a system, it is fundamentally
flawed. The great benefit of using Rex as an example is that the reader
can clearly see what Rex is doing and clearly see why it isn’t working.
What follows below is a summary of Fuller’s eight desiderata.
2.2.1 Desiderata 1: Generality of law

There must be a system of rules. These rules must be coherent and
consistent with each other. It is not enough to simply make ad hoc
decisions in response to individual cases in order to get a result that
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seems fair in that particular case. What Fuller is criticising here is what
is sometimes called ‘palm tree justice’. The term ‘palm tree justice’ has
perhaps Biblical roots: ‘And she dwelt under the palm tree of Deborah
between Ramah and Bethel in mount Ephraim: and the children of
Israel came up to her for judgment’ (Judges 4:5). Palm tree justice
means that cases are decided without reference to precedents or rules
and are decided on the ‘whim’ of the individual judge. It is generally
regarded as a criticism.
However, Lord Denning spoke in favour of this approach to law:
My root belief is that the proper role of a judge is to do justice
between the parties before him. If there is any rule of law which
impairs the doing of justice then it is the province of the judge to do
all he legitimately can do to avoid that rule – or even to change it –
so as to do justice in the instant case before him.3
3
Lord Denning, The family story.
(Butterworths, 1981) p.174.
Although this course does not examine Islamic jurisprudence, there is a
sense in Islamic law that the most important thing is doing justice in a
case, despite what rulings other Islamic courts have given.
2.2.2 Desiderata 2: Promulgation

Legislation must be adequately promulgated. This means that it must
be published, disseminated and brought to the attention of citizens.
One rationale behind this is that a law can’t be obeyed if it hasn’t been
published. In this context, the law in the UK that an Act of Parliament is
valid even if it hasn’t been published (see ZL and VL v Secretary of State
[2003] EWCA Civ 25 discussed in Module A, at 5.4.2) seems bizarre. In
most countries, publication is a prerequisite to the legitimacy of law.
Fuller accepts that it is unlikely that most citizens will actually read
legislation; however, he argues that this does not diminish the
obligation to promulgate legislation.
It is becoming increasingly apparent in the modern world that proper
publication of legislation includes making it freely available online.
Cormacain (2013) sets out what accessibility of legislation means in the
electronic age.
2.2.3 Desiderata 3: Retroactive laws

The classification of backwards facing laws is set out in Module A,
Chapter 5. Fuller avoids a blanket condemnation of what he calls
retroactive laws and argues for a more nuanced approach. He states
that retroactive laws can be useful in some circumstances, for example
where they have a curative effect. However, he regards retroactive tax
and criminal laws as nearly always bad, stating that ‘it is the retroactive
criminal statute that calls most directly to mind the brutal absurdity
of commanding a man today to do something yesterday’ (Fuller, 1977,
p.59).
2.2.4 Desiderata 4: Clarity of laws

Fuller argues that ‘obscure and incoherent legislation can make legality
unobtainable by anyone’ (Fuller, 1977, p.63). He also argues that vague
statutes aren’t capable of being applied and ought not to have effect.
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2.2.5 Desiderata 5: Contradiction in laws

Laws should not be repugnant to each other. Within a law, there ought
not to be any contradictions. So a statute shouldn’t tell a citizen to do
one thing and at the same time to do a different thing. The validity of
law is undermined if it contains contradictory provisions – which one is
a person to follow? There is less of a problem if there is a contradiction
between two different statutes, as generally the latest statute will
prevail.
2.2.6 Desiderata 6: Laws requiring the impossible

Legislation should not require the citizen to do the impossible. If a
citizen can’t possibly comply with a law then the law is unfair. Since
legislation is partially a tool to regulate human behaviour, it will fail if
the behaviour required is impossible.
However, this rule is not absolute. If a criminal ‘just can’t help himself’
from committing a crime, the crime is still valid in legislation. Equally,
some criminal offences may be of strict liability, i.e. even if there is no
fault, the citizen can still be convicted of a crime. This may be
appropriate in order to put the cost of a particular activity upon those
who are doing the activity, not those who suffer from the activity.
Example: Criminal Code Act 1995 (Australia)
6.1 Strict liability
(1) If a law that creates an offence provides that the offence is an offence of strict
liability:
(a) there are no fault elements for any of the physical elements of the offence;
and
(b) the defence of mistake of fact under section 9.2 is available.
6.2 Absolute liability
(1) If a law that creates an offence provides that the offence is an offence of
absolute liability:
(a) there are no fault elements for any of the physical elements of the offence;
and
(b) the defence of mistake of fact under section 9.2 is unavailable.
2.2.7 Desiderata 7: Constancy of law through time

Legislation shouldn’t change continually. If it does, then citizens have
no chance of knowing what the current status of the law is before it
changes again. However, this isn’t an absolute rule. Legislation is not
required to remain static forever. There can often be a pressing social
need for the law to change regularly in response to changing social
conditions.
It is often difficult to know where to draw this line between constancy
versus ossification of law. In certain fields of legislation, technological
changes require that the law be regularly updated. This can sometimes
lead to a game of ‘cat and mouse’ between legislators and citizens
– each time the law is changed, the citizens tweak what they are
currently doing in order to comply with the new law. For example,
legislation may ban certain harmful drugs, pharmacists may invent new
13
ones that aren’t banned, the legislation may then ban these new drugs,
and the cycle continues.
2.2.8 Desiderata 8: Congruence between official action and declared rule

The law as it is declared ought to be the same as the law as it is
administered. So if the legislation bans citizens driving without
a seatbelt, then people who drive without a seatbelt should be
prosecuted and convicted for this crime.
Fuller considers one aspect of this desiderata to be proper statutory
interpretation. By this he means that the judges should interpret the
law as set out in legislation in accordance with its plain meaning and
not in accordance with a fanciful construct. So if a notice says ‘do not
walk on the grass’ it should not be interpreted as meaning ‘you may run
on the grass’.
Self-assessment questions
•• What are Fuller’s eight desiderata of a good legal system?
•• What are the reverse – Fuller’s eight routes to a bad legal system?
2.3 Joseph Raz

Joseph Raz wrote an article entitled ‘The rule of law and its virtue’ in
1977 which has been republished (Raz, 2009).
Raz starts off with the broad principle of what the rule of law is: ‘people
should obey the law and be ruled by it’ and that ‘government shall be
ruled by the law and subject to it’ (Raz, 2009, p.212). Underlying this is a
positive view of human beings as rational creatures who are capable of
making rational decisions. They make these rational decisions based on
a set of rules to which they are subject. From this flows various criteria
that a legal system must possess in order for citizens to be able to obey
the law.
This is the strength of Raz’s analysis: he starts from the basic principle
that citizens ought to be able to obey the law and derives certain
consequences from this about that legal system. Fuller’s desiderata
are practical and could nearly be described as ad hoc because there is
no single rationale behind them. Raz’s principles are grounded in the
logic of what the system ought to be like in order for people to follow
the rules. Having said this, Raz does acknowledge the validity of some
of Fuller’s desiderata, and some of his principles are the same. Some of
these principles relate specifically to legislation, while others relate to
the legal system generally.
2.3.1 Laws should be open, prospective and clear

Citizens can only obey laws if they know what they are, if they are
easily understandable and if they take effect in the future. If any of
these conditions are not met, the citizen can’t follow the law and it is
unreasonable for the citizen to be subject to it.
2.3.2 Laws should be relatively stable

Citizens should be able to make long term plans, but they can
only do so on a reasonable expectation that the law will remain
relatively stable. This is particularly important for long term or
14
expensive decisions. For example, consider if a power company is

deciding whether to build a nuclear power plant. It will need to have
a reasonably justified expectation that nuclear power will remain
legal over the coming decades, otherwise the investment will be
too speculative. If this sort of long term planning isn’t feasible, then
society will lose out. Raz does not, however, expect complete stasis
in legislation, as this unreasonably ties the hand of government and
prevents it from reacting to events.
2.3.3 The making of laws should be guided by open, stable, clear and general
rules
For Raz, although democratic legislation may have more legitimacy
than non-democratic legislation, this has nothing to do with the rule
of law. It doesn’t matter if the procedure for making laws is democratic
or dictatorial in origin. What matters is that there is a proper procedure
which is respected for the making of laws. So, even if there is an
amount of discretion on how laws are actually enforced in practice,
that discretion is itself controlled by limits set out by law. For example,
legislation shouldn’t authorise a minister to do whatever they think fit.
It should authorise a minister to do a particular thing set out in a list of
authorised things, in order to achieve a particular purpose, after having
consulted with certain people, and after having considered certain
criteria.
2.3.4 Independence of the judiciary

Legislation is only truly effective if it is given effect by an appropriate
order of a court. So, if legislation states that fathers have a right of
access to their estranged children, but the courts consistently refuse
that access, then the rule of law is breaking down.
One guarantee of the legislation being correctly applied is if the
judiciary are free to apply it without external pressures. This is
particularly so where one of the parties to a case is the government
itself.
2.3.5 Application of the rules of natural justice

Raz doesn’t list all of what may be termed the rules of natural justice,
but he regards them as a precondition for the rule of law. The law is
only applied if it is fairly applied. There is no official list of the rules of
natural justice, but they include things like:
•• judges shouldn’t rule in their own interest
•• you should be able to hear the evidence against you
•• you should be able to test that evidence
•• both parties to a case should have similar opportunities to put their
case
•• hearings should be open and fair.
2.3.6 Court power to review implementation of other principles

The rule of law is only effective if there is a means for its enforcement.
Raz sees the courts as performing this role. It is all very well saying that
the rule of law means that the government is subject to the law, but if
15
there is no way of guaranteeing this, then the rule of law is illusory. For
Raz, the courts should be able to check official action (and legislation)
to ensure that it is in conformity with the rule of law. The courts should
also be able to strike down action and legislation that breaches these
principles.
2.3.7 Courts should be accessible

These rights and principles can only be vindicated if citizens can easily
bring cases to court. The state is only subject to the rule of law if a
citizen can bring the state to court to enforce that law.
2.3.8 Discretion of crime-preventing agencies should not pervert the law

Legislation can also be avoided if the police and prosecutors decide
not to allocate resources to it. If a law sits on the statute book but the
police don’t like it and never enforce it, then it can’t truly be said that
we are all subject to the law.
However, the case of Buckoke v Greater London Council [1971] 2 All ER
254 challenges this reasoning. If the legislation contains an absolute
prohibition on vehicles driving through red lights, is it right to
prosecute fire engine drivers on their way to a fire if they drive through
a red light after checking it was safe to do so? In this case the judge
said that ‘we have grafted an exception on to the strictness of the law
so as to mitigate the rigour of it’. However, he went on to say that really
this exception should have been included in the legislation itself, rather
than it being left to the judges.
Self-assessment question
•• What are Raz’s eight attributes that a legal system ought to possess?
2.4 Tom Bingham

Tom Bingham was a leading British judge, who after retirement wrote a
book on the rule of law. His basic definition of the rule of law is as
follows:
All persons and authorities within the state, whether public or
private, should be bound by and entitled to the benefit of laws
publicly made, taking effect (generally) in the future and publicly
administered in the courts.4 4
Bingham, 2011, p.8.
As with Fuller and Raz, Bingham too came up with eight elements to
the rule of law. His eight elements do not flow logically from his basic
principle; rather they are a collection of disparate elements culled from
history, statute law, case-law and the works of academics. He has an
excellent potted history of key moments in the rule of law, mainly from
the perspective of the UK constitution.
2.4.1 Law should be accessible, intelligible, clear and predictable

The root of this is the basic point made by Fuller and Raz – if you are
going to follow the law, you need to know what the law is. In order
to know it, you must be able to get access to it, the law must make
sense, it must be clear and you must be able to know in advance if your
actions are within the law or outside it.
16
Bingham advances three arguments in favour of this.

•• If you want to keep on the right side of the law, you need to know
what that law is.
•• If you want to take advantage of your rights under the law, again
you need to know what that law is.
•• From a business perspective, there needs to be certainty of
commercial rights and obligations. It doesn’t matter so much that
legislation chooses one particular policy or another, what matters
is that it chooses a policy and sticks with it. For example, there is
no particular moral reason that makes driving on the left hand side
of the road any better than driving on the right hand side. What
matters is that the law designates a side of the road as the side to
drive on and that everyone sticks to that law.
Bingham had some particular comments on how this relates to
legislation. He thought that the volume of legislation was a problem –
with so much law, it is nearly impossible for a citizen to know what the
law is. And with legislation being amended too much, and being so
horribly complicated, it is hard to know what the law is at any particular
point in time.
2.4.2 Law not discretion

For Bingham, the key factor in determining rights and obligations
should be what the law says, not the view of an official. If officials
(which could mean a civil servant, right up to the prime minister) could
simply decide according to their own personal preference, then this is
not a proper rule of law system. However, Bingham recognised that in a
modern state there is a need for a certain amount of discretion on the
part of officials, but considered that this discretion ought to have limits.
Legislation which gives discretionary powers ought to have boundaries
to the exercise of those discretionary powers.
2.4.3 Equality before the law

Bingham stated that the law should apply equally to all citizens,
save to the extent that there was an objectively justifiable reason for
permitting differential treatment. For example, there is no reason why
a man and a woman aren’t both equally capable of being doctors,
so legislation ought not to prohibit women from being doctors.
Although the principle of equality is professed in many jurisdictions,
unfortunately it is not always implemented. For example, in the
UK women were only given equal rights to vote in 1928 under the
Representation of the People (Equal Franchise) Act 1928. It wasn’t until
1994 that the Constitution of South Africa recognised that there should
be no discrimination on the basis of racial origin or skin colour.
2.4.4 Power must be exercised fairly

The rule of law requires the presence of proper principles of
administrative law. Determining what these principles are opens up a
new field of enquiry. Bingham didn’t go into detail about how these
principles developed; he simply extracted them from the current body
of administrative law. He argued that powers:
17
•• must be exercised in good faith

•• must be exercised for the purposes for which they were given
•• must not exceed the limits placed upon them
•• must be exercised reasonably.
One means of enforcing this is what can be termed judicial review. An
application for judicial review is an application to a court for the court
to determine the lawfulness of administrative action. Judicial review is
the court’s way of determining not whether a particular government
action is correct, but whether the decision has been taken in a fair way.
2.4.5 Human rights

Bingham argued that the rule of law required that the law protect
fundamental human rights. Including this within the definition of the
rule of law places Bingham towards the ‘thick’ end of the spectrum of
the conception of the rule of law. Human rights as a measure of the
quality of legislation is discussed in the next chapter.
2.4.6 Access to courts

Bingham stated that ‘an unenforceable right or claim is a thing of little
value to anyone’. 5 If ultimately your rights cannot be vindicated by a 5
Bingham, 2011, p.85.
judge ordering in your favour (and that order being enforced) then
you do not live under the rule of law. Bingham did see the validity of
alternative methods of dispute resolution (he called them ‘additional’
methods). So mediation and arbitration both allowed for the effective
resolution of disputes, although this may not be appropriate if an order
was sought against the state itself, or if there was a need for a general
pronouncement on a legal point.
Bingham pointed to two factors that reduced the viability of access
to courts: time delay and cost. If the courts are out of the reach of
ordinary citizens because they are too expensive, or if cases take years
to resolve, then this system is not in compliance with the rule of law.
Bingham argued that this meant there ought to be an official system
of legal aid, where citizens with insufficient resources would have their
legal representation paid for by the state.
2.4.7 A fair trial

Bingham said that ‘the right to a fair trial is a cardinal requirement of
the rule of law’.6 This applies in both criminal and civil matters. It is 6
Bingham, 2011, p.90.
easy to call for a fair trial, but less easy to define it. Bingham points
to things like an ‘equality of arms’ between both sides to a case. This
means that they must have a similar quality of legal resources at their
disposal and they must both have equal rights. For example, if the
prosecution is free to call any witness, the defence must also be free to
call any witness. Judges must judge neutrally, not in accordance with
any preference they may have for one side or the other. This issue is
particularly contentious in cases of ‘secret trials’ where material is kept
from one side for reasons of national security.
18
2.4.8 Rule of law in the international legal order

Bingham stated that the rule of law doesn’t just have effect
domestically, but it also has international implications. He argued that
the state must also comply with international law. Including this as an
element of the rule of law goes further than most other commentators
have gone. Bingham was very critical of states taking a decision to
‘disapply’ international law. He speaks of the ‘cynical lack of concern for
international legality’ (Bingham, 2011, p.127) shown by some lawyers in
the administration of US President George W. Bush when it came to
finding reasons why the US was not bound by international laws
prohibiting torture.
•• What is Bingham’s definition of the rule of law?
•• What are his eight elements of the rule of law?
2.5 Why must legislation comply with the rule of law?

Fuller, Raz and Bingham all make compelling arguments about the
morality and logical imperative that a state comply with the rule of law.
But is there any legal obligation to do so?
In domestic terms, it depends on a country’s constitution. Article 1 of
the Constitution of South Africa states that it is founded upon (among
other things) the ‘supremacy of the constitution and the rule of law’. In
the UK, s.1 of the Constitutional Reform Act 2005 states that it does not
adversely affect ‘the existing constitutional principle of the rule of law’.
In international terms, many international treaties and documents
demand that countries respect the rule of law. The following
documents all refer to the importance of the rule of law:
•• Universal Declaration of Human Rights
•• European Convention on Human Rights
•• Consolidated Treaty of the European Union.
In addition, the following organisations have supported it:
•• Organisation for Economic Co-operation and Development
•• General Assembly of the United Nations
•• Organisation for Security and Co-operation in Europe
•• World Bank.
Reminder of learning outcomes

Having completed this chapter, and the Essential readings and activities, you
should be able to:
•• state why legislation must be in accordance with the rule of law
•• critically discuss Fuller’s definition of the rule of law
•• critically discuss Raz’s definition of the rule of law
•• critically discuss Bingham’s definition of the rule of law.
19
Sample examination questions

Question 1
What common elements are shared by different definitions of the rule of law?
Question 2
Does the rule of law require that legislation ought to be strictly enforced in every
single situation to which it applies?
Question 3
Is it more important to have rules that are consistently followed from case to case,
or to have a flexible system so that justice can be done in each individual case?
Feedback: p22.
20
Notes
Notes
21
Feedback to the sample examination questions

Question 1
Read through the different elements put forward by the different writers in this chapter
as constituting the rule of law. Try to include them in one overarching definition of
the rule of law. You will find that some elements are synonymous with each other, but
others aren’t. Relate this to different thick and thin conceptions of the rule of law.
Question 2
Identify the core element of the rule of law that everyone is subject to the law and
no-one is above the law. Identify any moral or pragmatic justifications for it and state
where this comes from. Debate the harm if the law bends on certain occasions in
order to give justice to an individual. Analyse the meaning of ‘palm tree justice’ and the
rationale behind the decision in Buckoke.
Question 3
Consistency means certainty and stability. Identify why they are important, for
example predictability allows people to plan their activities. It also means fairness as
everyone knows in advance what the rules are. However, it can also mean inflexibility –
the rules cannot be adjusted to take into account individual circumstances. A blanket
rule that applies to everyone can also be unfair. A harsh rule cannot be mitigated by a
judge exercising some discretion in particular cases.
22
Chapter 3: Constitutional and human rights restrictions on legislation
Chapter 3: Constitutional and human rights

restrictions on legislation
Introduction
Legislation that breaches the constitution or infringes human rights is
not of good quality. In fact, it arguably isn’t even valid legislation. This
chapter examines the different types of constitutional restrictions and
the different ways that these restrictions are enforced. Each jurisdiction
has its own way of dealing with the issue.
In broad terms we can divide constitutional limitations on legislation
into four classes:
•• There may be a constitutional restriction on what legislation can
do. This restriction can be express or implied.
•• A legislature may only have a limited grant of legislative power – it
may only be authorised to legislate in a certain way.
•• The power to legislate may be divided or shared between different
legislative assemblies within a jurisdiction.
•• International law, or membership of an international organisation,
may restrict what legislation may be enacted domestically.
Human rights restrictions may be constitutionally rooted or they may
derive from other sources. This chapter also looks at how these
restrictions are imposed and how they interact with legislation that
affects them.
Learning outcomes
•• identify constitutional restrictions upon legislation
•• analyse the concept of sovereignty of parliament and contrast this with a
limited grant of legislative authority
•• analyse how the establishment of more than one legislature in a state affects
the power of those legislatures to legislate
•• evaluate various international restrictions on a legislature’s ability to legislate.
Essential reading
•• Caird, J.S., R. Hazell and D. Oliver The constitutional standards of the House of
Lords Select Committee on the Constitution. (London: University College London,
2014) pdf available at www.ucl.ac.uk/constitution-unit/publications/tabs/unit-
publications/159
•• Dorsey, T.A. Legislative drafter’s deskbook: a practical guide. (Alexandria, V.A.: The
Capitol.Net, 2006) [ISBN 9781587330155] pp.142–47. Available on the VLE.
•• Horne, A. and L. Maer ‘From the Human Rights Act to a Bill of Rights?’ in
Horne, A., G. Drewry and D. Oliver (eds) Parliament and the law. (Oxford: Hart
Publishing, 2013) [ISBN 9781849462952]. Available on the VLE.
23
•• Killey, I. ‘“Peace, order and good government”: a limitation on legislative

competence’ (1989) 17(1) Melbourne University Law Review 24, available online
at: www.austlii.edu.au/cgi-bin/sinodisp/au/journals/MelbULawRw/1989/2.
html
•• Oliver, D. ‘Fishing on the incoming tide’ (1991) 54 Modern Law Review 442.
Available in the Online library.
•• Union Steamship co of Australia v King [1988] HCA 55; (1988) 166 CLR 1.
Available online at: www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/
HCA/1988/55.html
Useful further reading

•• Bancoult v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL
61.
•• R v Secretary of State for Transport ex parte Factortame Ltd (No.2) [1991] 1 AC 603
available at BAILII at: www.bailii.org/uk/cases/UKHL/1990/13.html
•• The Sewel Convention (Commons Library Note: SN/PC/2084) (25 November
2005) available online at: http://researchbriefings.files.parliament.uk/
documents/SN02084/SN02084.pdf
•• US v Lopez 514 US 549 (1995) pdf at: http://supreme.justia.com/cases/federal/
us/514/549/case.html
3.1 Constitutional restrictions upon legislation

Written constitutions will set out limitations on the power of the
government and legislature generally. The constitution is the founding
(or constitutive) document establishing the power of the legislature.
Therefore the legislature cannot exceed the legislative powers granted
to it by the constitution.
These express constitutional restrictions can be general in the sense
that they apply to all aspects of the state (the executive, the legislature,
the judiciary). For example, if the constitution gives every citizen the
right to vote, the legislature cannot pass legislation restricting the right
to vote. These express constitutional restrictions can also specifically
mention legislative power (see the Nigerian example below).
Constitutional restrictions can be of many different sorts. For example,
in South Africa and Nigeria retroactive criminal law cannot be passed.
In Germany judges are required by the constitution to be independent,
and therefore any legislation that infringed judicial independence
would be invalid. In the US a president can only be appointed for a
maximum of two terms, so any legislation passed seeking to overturn
this would be unconstitutional. (Contrast the specific rules on how this
applies to persons in the post of president at the time this amendment
was made with the Bolivian case, cited in Module A, Chapter 5.)
The previous chapter discussed rule of law restrictions on legislation.
The source of that restriction may be a constitutional requirement that
the state act in accordance with the rule of law.
Constitutions themselves can’t be amended by ordinary legislation. It
will require a special kind of legislative procedure (for example, more
than a simple majority in parliament) or a referendum to amend the
constitution.
24
Example: Constitution of South Africa

44. (4) When exercising its legislative authority, Parliament is bound only by the
Constitution, and must act in accordance with, and within the limits of, the
Constitution.
35. (3) Every accused person has the right to a fair trial, which includes the right:
(I) not to be convicted for an act or omission that was not an offence under
either national or international law at the time it was committed or
omitted.
Example: Constitution of Nigeria

4. (9) Notwithstanding the foregoing provisions of this section, the National
Assembly or a House of Assembly shall not, in relation to any criminal
offence whatsoever, have power to make any law which shall have
retrospective effect.
Example: Basic Law of the Federal Republic of Germany

97. (1) Judges shall be independent and subject only to the law.
Example: Twenty-Second Amendment to the US Constitution

3. No person shall be elected to the office of the President more than twice, and
no person who has held the office of President, or acted as President, for more
than two years of a term to which some other person was elected President
shall be elected to the office of the President more than once. But this article
shall not apply to any person holding the office of President when this article
was proposed by the Congress, and shall not prevent any person who may be
holding the office of President, or acting as President, during the term within
which this article becomes operative from holding the office of President or
acting as President during the remainder of such term.
It is usually easy to identify these restrictions as they are express

constitutional restrictions on legislative power. However, in countries
which have an unwritten constitution (or more accurately an
uncodified constitution) it can be more difficult to identify implied
constitutional restrictions on legislation. Perhaps the best example
of this is the UK. With no single document identified as being ‘the
constitution’ there is a mishmash of constitutional ideas spread
through different statutes, different cases, the conventions of the state
and the views of academics and parliamentarians.
Simson Caird has examined the various reports of the House of Lords
Select Committee on the Constitution (part of the UK Parliament). By
analysing its comments on the constitutionality of various Bills before
Parliament, he has been able to distil implied constitutional restrictions
on legislation. This is not an absolute list of legislative prohibitions, but
it does give criteria for assessing whether legislation can be said to be
of good quality in terms of its constitutionality. A sample of these
criteria are set out below (Caird et al, 2014).
Example: Constitutional Restrictions on Government (UK)

3.2.1 Parliamentary debate and legislative authorisation should precede, not
follow, the establishment of a public body.
3.2.2 Public authorities established by Act of Parliament ought to derive their
principal powers from express legal provisions.
25
3.2.3 Government should not be granted legal authority in excess of the powers
properly needed to implement a proposed policy.
3.2.4 An independent system of regulation should be underpinned by laws that
make provision to ensure its political neutrality.
3.2 Limited grant of legislative powers

What is the nature and extent of the power of a legislative assembly
to legislate? The answer is different in each jurisdiction as it depends
upon the source of legislative power, or the way in which legislative
power is given to (or acquired by) the legislative assembly. There is a
distinction to be drawn between two approaches:
•• the absolutist approach encapsulated in the principle of
sovereignty of parliament
•• the limited grant of legislative powers approach.
In practice, these two approaches move towards each other as it is
increasingly untenable to say that a sovereign parliament is free to
legislate in any way that it chooses.
Dicey is generally credited with identifying and explaining the concept
of sovereignty of parliament. In theory, a sovereign parliament is free
to pass any legislation it wants. Dicey puts it this way: ‘Parliament
thus defined has, under the English constitution, the right to make
or unmake any law whatsoever’.1 Taken to extremes this means it can 1
Dicey, A.V. An Introduction to the
study of the law of the constitution
pass retroactive, extraterritorial legislation that breaches fundamental
(1885).
legal principles. So, creating an absurd example, the English parliament
could legislate that if a Frenchman walked his dog yesterday in Paris,
his wife could be hung. Dicey’s own absurd example is of a valid piece
of legislation that all blue-eyed babies were to be strangled, although
he goes on to say that no-one would recognise or enforce such a law.
Very few parliaments could be said to conform to this absolutist notion
that there were no constitutional or legal restrictions on their freedom
to legislate.
Much more common is the limited grant of legislative power – power
to pass legislation on certain subjects in a certain territory for certain
purposes. The classic formulation of this comes from a time when the
British Empire ruled a quarter of the globe. The British Settlements Act
1887 was ‘to enable Her Majesty to provide for the Government of her
Possessions acquired by Settlement’.2 The nature of this legislative 2
Long title of this Act.
power is to pass legislation for the peace, order and good governance
of those settlements.
Example: British Settlements Act 1887

Power of the Queen in Council to make laws and establish courts
2. It shall be lawful for Her Majesty the Queen in Council from time to time to
establish all such laws and institutions, and constitute such courts and officers,
and make such provisions and regulations for the proceedings in the said
courts and for the administration of justice, as may appear to Her Majesty in
Council to be necessary for the peace, order, and good government of Her
Majesty’s subjects and others within any British settlement.
26
This grant of power to legislate for peace, order and good governance
(or sometimes peace, welfare and good governance) is a common
theme in many Commonwealth countries (countries which are or were
ruled by Britain). So the original power to legislate in Canada under s.91
of the British North America Act 1867 was to legislate for this purpose.
See also the Commonwealth of Australia Constitution Act 1900 and
s.4 of the Government of Ireland Act 1920. As recently as 2004, the
UK government passed a law allowing it to make legislation for the
Overseas Territory of the Chagos Islands.
Example: British Indian Ocean Territory (Constitution) Order 2004

15. (1) There is hereby reserved to Her Majesty full power to make laws for the
peace, order and good governance of the Territory.
The question is: is this a limited or a full grant of legislative power?

Killey (1989) argues that it is a limited grant. However, the Australian
case of Union Steamship rejected this approach, holding that these
were not words of limitation but signified a plenary (i.e. a full) power
to legislate – though the court held that there must be some territorial
connection, i.e. that legislation must relate to the territory in some way.
The case of R (Bancoult) v Secretary of State for Foreign and
Commonwealth Affairs [2001] QB 1067 concerned the power of the UK
to pass legislation for an overseas territory, removing all the citizens
from that territory. At one point (at [57]) the court ruled that:
The ‘peace, order and good government’ of any territory means

nothing, surely, save by reference to the territory’s population. They
are to be governed not removed ...I cannot see how the wholesale
removal of a people from the land where they belong can be said to
conduce to the territory’s peace, order and good government.
Ultimately, though, the House of Lords ruled that legislation removing

the inhabitants of the island was valid. This case R (Bancoult) v Secretary
of State for Foreign and Commonwealth Affairs [2008] UKHL 61) contains
a useful discussion of the nature of the power to legislate and
constitutional restrictions placed upon that power.
Activities
•• What is the source of legislative authority in your jurisdiction?
•• Are there any words granting that power to your legislative assembly?
•• Are there any words attached to that grant?
•• Are these words intended to act as a limitation on the power to legislate?
No feedback is provided for these activities.
3.3 Legislative competence: allocation of legislative power

between different legislative assemblies
There is a particular subset of cases where there is a limited grant of
legislative powers – where there is a division of legislative powers
between two or more legislative assemblies.
27
If a nation has one legislative assembly then that assembly will have
full powers to legislate (or as full as the constitution allows). However, if
there is more than one assembly, there will generally be some division
or allocation of legislative powers between them. The division may be
based on territory or function:
•• If it is based on territory, then an assembly will have jurisdiction
for a certain geographical area. For example, in the USA the North
Carolina General Assembly can pass laws for the State of North
Carolina.
•• If it is based upon function, then an assembly will have power to
legislate on a particular subject matter. For example, the General
Synod of the Church of England considers and approves legislation
affecting the Church of England.
Authority to legislate may be exclusive or overlapping. If it is exclusive
then each assembly can legislate only in its own area and cannot
intrude into an area that is within the jurisdiction of another assembly.
If it is shared, then the fact that one assembly can legislate in an area is
not a bar to another assembly legislating in that area. The normal case
will be that an ‘inferior’ assembly only has jurisdiction to legislate in its
particular area, but that the ‘superior’ assembly can legislate in all areas
if certain conditions are met.
Two examples of this are considered in this chapter; countries with
devolution and countries with federal structures.
3.3.1 Devolution
A state may devolve some of its powers to a particular region in that
state. The national authorities remain in ultimate control, but certain
functions (including the function of making legislation for the region)
can be exercised by the regional authorities. There are a range of
political and legal issues around devolution, but for the purposes of
this chapter the focus is on the allocation of legislative power between
national and regional assemblies.
The law establishing devolution (which may be contained in a
constitution or in a constitutionally significant piece of legislation)
will normally set out the legislative power of the regional assembly.
The example used here is devolution in the UK, although many other
countries have devolution, autonomous regions (for example Spain,
Azerbaijan) or special administrative regions (for example China).
In the UK, the Houses of Parliament in Westminster remain sovereign
and can pass legislation for any part of the UK. However, there are three
devolved jurisdictions with their own legislative assemblies with a
limited power to legislate on certain matters within those jurisdictions:
•• The Scottish Parliament, under the Scotland Act 1998.
•• The Northern Ireland Assembly, under the Northern Ireland Act
1998.
•• The National Assembly for Wales under the Government of Wales
Acts of 1998 and 2006.
The devolved assemblies can pass legislation if they have legislative
competence to do so. The exact test for legislative competence is
28
different in each jurisdiction, but there are several common points. A

particular provision will be outside legislative competence if:
•• it would have extraterritorial effect (that is, it would take effect
outside the region)
•• it would breach the law of the European Union
•• it would breach the European Convention on Human Rights
•• it relates to matters which haven’t been transferred to that
assembly.
An additional restriction that isn’t contained within the legislation
but which is implied by case-law (see AXA General Insurance v Lord
Advocate [2011] UKSC 46) is that a provision will be outside legislative
competence if it breaches the rule of law.
Within the legislation establishing devolution, there is a mechanism
for determining which matters have been transferred to the devolved
assemblies and which haven’t. In Scotland and Northern Ireland,
everything is a transferred matter unless it is specifically listed as not
being transferred. In Wales, a matter is only transferred if it is specifically
listed as being transferred. For example, the regulation of agriculture
is transferred, but not international relations, nuclear weapons or the
rules of succession to the Crown. If there is an underlying rationale as
to why certain matters are transferred and certain aren’t, it is that if it
is appropriate to deal with something at a regional level then it will be
transferred, but if it is of particular importance, relates to the UK as a
whole, or affects relations with other countries, it will not be transferred.
There are also mechanisms whereby legislation can be enacted by
regional assemblies on non-transferred matters if it is ancillary to a
transferred matter and the national government assents to it.
The UK Parliament has not given up any of its legislative powers as part
of these devolution arrangements. It can still pass legislation for any
part of the UK without restriction. However, in practice it respects the
autonomy and jurisdiction of the regional assemblies. Under the Sewel
Convention it will only legislate on a transferred matter when the
regional assembly consents to that. The Sewel Convention is not a
piece of legislation; it represents custom or common practice. It is
named after Lord Sewel who explained the policy when the Scotland
Act 1998 was being enacted. In the course of the debate he stated that:
…we would expect a convention to be established that Westminster

would not normally legislate with regard to devolved matters in
Scotland without the consent of the Scottish parliament.3 3
Hansard debates on the Bill,
see HL Deb 21 Jul 1998 Vol
It is normally more difficult to draft and enact legislation for a devolved 592 c 791.
assembly as there are an additional range of restrictions placed on

what the legislature can do. Even apparently mundane things such as
consequential amendments and repeals can become problematic if
they impinge upon a non-transferred matter. For example, consider
if the national legislation refers to a particular body in a region
and then the region changes the name of that particular body. It is
relatively uncontentious to say that the name in the national legislation
ought then to be amended, but this may be beyond the legislative
29
competence of the regional assembly as it touches upon the work of

the national assembly.
Example: Scotland Act 1998

29. Legislative competence
(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is
outside the legislative competence of the Parliament.
(2) A provision is outside that competence so far as any of the following
paragraphs apply—
(a) it would form part of the law of a country or territory other than Scotland,
or confer or remove functions exercisable otherwise than in or as regards
Scotland,
(b) it relates to reserved matters,
(c) it is in breach of the restrictions in Schedule 4,
(d) it is incompatible with any of the Convention rights or with EU law,
(e) it would remove the Lord Advocate from his position as head of the
systems of criminal prosecution and investigation of deaths in Scotland.
(3) For the purposes of this section, the question whether a provision of an Act
of the Scottish Parliament relates to a reserved matter is to be determined,
subject to subsection (4), by reference to the purpose of the provision, having
regard (among other things) to its effect in all the circumstances.
(4) A provision which—
(a) would otherwise not relate to reserved matters, but
(b) makes modifications of Scots private law, or Scots criminal law, as it applies
to reserved matters,
is to be treated as relating to reserved matters unless the purpose of the provision
is to make the law in question apply consistently to reserved matters and
otherwise.
3.3.2 Federal structures

If a country has a federal structure then legislative power is divided
between the federal legislatures and the state legislatures. The exact
division of power will be set out in the constitution.
The example used to illustrate federal legislation is the USA, although
federal nations are common around the world. In the US, Congress (the
federal legislature) has power to legislate only in relation to matters set
out in the Constitution. For example, it can legislate on the military and
on interstate commerce. Any legislation that is outside these matters is
unconstitutional.
For the individual states, the starting point is that they possess
sovereign state legislatures who can legislate on any matter they wish,
provided that it does not conflict with either their state constitution or
the US Constitution. So rather than a list of matters they can legislate
on, there is a list of matters they cannot legislate on. Article VI (2) of the
US Constitution also provides that, in the case of a conflict, federal laws
take priority over state constitutions and state laws.
30
Example: US Constitution
VI. (2) This Constitution, and the Laws of the United States which shall be made
in Pursuance thereof; and all Treaties made, or which shall be made under
the Authority of the United States, shall be the supreme Law of the Land; and
Judges in every State shall be bound thereby, any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding.
The case of United States v Lopez examined the test for determining
whether Congress had power to legislate. The legislation in question
was the Gun-Free School Zones Act of 1990 which made it an offence
to possess a gun in a school. The question was whether Congress had
the authority to pass this statute under its power to legislate in matters
of interstate commerce. The Supreme Court held that it did not, per
Chief Justice Rehnquist at 567:
The possession of a gun in a local school zone is in no sense an economic
activity that might, through repetition elsewhere, substantially affect any
sort of interstate commerce. Respondent was a local student at a local
school; there is no indication that he had recently moved in interstate
commerce, and there is no requirement that his possession of the
firearms have any concrete tie to interstate commerce.
As with devolved legislation, great care must be taken to ensure that
legislation is enacted in accordance with the constitutional restrictions
placed upon it. Dorsey (2006, p.147) gives the following advice on
constitutional limitations:
They are traps for the unwary, and your job as a drafter is to keep the
client from being trapped unaware. Keep a copy of the Constitution
close at hand, be familiar with it and consult it often.
3.4 Legislative restrictions imposed by international law

International law may impose weak or strong restrictions on
domestic legislation. The weak restriction is the principle of statutory
interpretation that domestic legislation is presumed to be in
accordance with a state’s international obligations. This is a weak
restriction as it is only a presumption and (depending upon the nature
of a state’s constitution), the domestic legislature is free to legislate in
contravention of international treaties that the state has signed up to.
Another aspect of this interpretative principle is that if a statute is
ambiguous, international law can be used as an aid to interpretation.
Bennion expresses this principle as follows:
…the treaty may be left simply as an international obligation, being
referred to in the construction of a relevant enactment only so far
as called for by the presumption that Parliament intends to comply
with public international law.4 4
Jones, O. Bennion on
statutory interpretation.
A strong restriction exists if a treaty is incorporated or enacted into (London: LexisNexis, 2013)
domestic law. This can happen in one of two ways: 6th edition, p.682.
•• an international treaty can be transposed or ‘domesticated’ if it is

converted into a piece of domestic legislation (following all the
usual forms and precedents for domestic law)
31
•• it can be given effect in domestic law as it stands, i.e. without

modifying the words of the treaty but directly copying it into
domestic law.
3.4.1 Restrictions imposed by the European Union on the legislation of

member states
There is a very specific example of international obligations creating
a strong restriction on domestic legislation – the European Union.
The EU is a supranational organisation that many European nations
have joined. It has its own parliament and can pass laws applying
throughout its member states. By joining the EU, member states
voluntarily give up some of their sovereignty to EU bodies. In legislative
terms, this has two effects:
•• EU institutions may enact legislation that has direct effect in
national law (or that states are obliged to transpose into national
law).
•• Domestic legislation must not be enacted that is in breach of EU
law.
The first effect is a matter of EU constitutional law and is not dealt with
here. The second effect is on the restriction of legislative power and
this illustrates the principle of the supremacy of EU law – that national
legislation must be ignored if it is in breach of EU law.
In Ireland, the constitution was amended to recognise the supremacy
of EU law. The key provision in Article 29 (below) is that the
Constitution doesn’t invalidate EU law (the references to the Coal and
Steel Community and the European Economic Community are the
former names of the European Union).
Example: Constitution of Ireland
29. The State may become a member of the European Coal and Steel
Community (established by Treaty signed at Paris on the 18th day of April,
1951), the European Economic Community (established by Treaty signed
at Rome on the 25th day of March, 1957) and the European Atomic Energy
Community (established by Treaty signed at Rome on the 25th day of
March, 1957). The State may ratify the Single European Act (signed on
behalf of the Member States of the Communities at Luxembourg on the
17th day of February, 1986, and at The Hague on the 28th day of February,
1986). No provision of this Constitution invalidates laws enacted, acts
done or measures adopted by the State necessitated by the obligations of
membership of the Communities, or prevents laws enacted, acts done or
measures adopted by the Communities, or institutions thereof, from having
the force of law in the State.
Bennion has distilled the following principles on the effect of

Community (EU) law on UK enactments.
(2) Where in any case the Community law provision has direct effect, the
relevant UK enactment applies subject to that provision or, if it is wholly
inconsistent with that provision, does not apply at all.
(3) Where in any case the Community law provision does not have direct effect,
and has not been transposed into the governing UK law, then subsection (4)
or (5) applies.
32
(4) If the relevant UK enactment can be construed in accordance with

the Community law provision without distorting the meaning of that
enactment, it is to be so construed.
…
(6) If the Community law provision does not deal comprehensively with the
matter in question, but leaves space for certain details to be laid down by a
UK enactment, the latter is to be given a purposive construction which so far
as possible gives effect to the Community law provision.5 5
Ibid., p.1293.
The principle of ‘direct effect’ means that a provision of EU law

automatically applies in a member state without the need for any
domestic legislation. If EU law doesn’t have direct effect it needs to be
transposed into domestic law, i.e. by the domestic legislature passing
legislation on it.
The European Court of Justice in C-106/77 Simmenthal (No. 2) [1978]
ECR 629 gave guidance on what would happen if a provision of EU law
conflicted with a provision of national law. The court held that EU law
would prevail over national law, even if that national law was passed
after the EU law. EU law was supreme, and national and international
courts must ignore any provision of national law that was incompatible
with EU law.
Different countries in the EU implemented this principle in different
ways. For example, Ireland amended its Constitution to reflect the
supremacy of EU law (see the example above). In the UK, the court in
R v Secretary of State for Transport ex parte Factortame Ltd (No.2) [1991]
1 AC 603 wrestled with this problem and in particular the conflict
between the principle of supremacy of EU law and sovereignty of
parliament.
Factortame (No. 2) established the important constitutional principle
that EU law takes priority over domestic legislation – even to the extent
that an Act of Parliament would be invalid if it contravened EU law.
One of the key points about Factortame (No. 2) is that if you want to be
in a club (the EU) then you have to follow its rules. The court held that
supremacy was not imposed but was voluntary and part of the process
of joining the EU. When the UK joined, it did so voluntarily and in full
knowledge of the fact that being a member state would restrict its
ability to legislate.
This has had a radical impact upon the concept of sovereignty of
parliament. A parliament can’t be said to be sovereign if the courts can
set aside its legislation. There are two responses to this:
•• a sovereign parliament can ultimately exercise its sovereignty by
leaving the EU and it would not then be subject to any of its laws.
Voluntarily ceding power to the EU is consistent with retaining
ultimate parliamentary sovereignty
•• even Dicey, the father of the principle of sovereignty of parliament,
recognised that some laws could not be enforced. Subservience to
EU laws is merely the latest pragmatic restriction on sovereignty.
Factortame (No. 2) was just one case in the long running Factortame
litigation. The case concerned fish quotas (the amount of fish each
member state of the EU could catch) and an attempt by Spanish
fishermen to register as UK companies in order to take advantage
33
of the UK quota. Factortame (No. 2) contains many interesting and

important legal points, but you should focus upon the limitations it
imposes upon legislative powers of national legislatures.
3.5 Human rights restrictions

Many jurisdictions include protection for fundamental human rights
within their legal system. This can be by way of a Bill of Rights, a Human
Rights Act, a Charter of Rights, etc. It can be part of the constitution or
separate from it. In addition, many states are subject to international
human rights norms, for example the International Covenant on
Civil and Political Rights, the African Charter on Human and People’s
Rights, the European Convention on Human rights, etc. Each of these
international treaties has some kind of enforcement mechanism
attached to it. The relevant question for the purposes of this section
is: to what extent do human rights norms restrict the making of
legislation?
Broadly speaking there are five types of restriction:
•• Morally and politically, legislators will generally find it difficult to
enact legislation that breaches human rights because human rights
are generally regarded as a good thing and human rights violations
as a bad thing. In practical terms, passing a law that breaches a
human right will normally be unpopular (although sadly, breaching
the human rights of a minority or a despised section of the
community may have a certain populist appeal).
•• There is the likelihood that the judiciary will interpret legislation in
a way that conforms with human rights law. Judges will normally
have an obligation to interpret legislation in accordance with the
constitution, human rights and the rule of law. If they are truly
independent of the legislature and the executive, they will normally
strive to protect the individual from the state and give full effect
to human rights norms. This may even lead them to adopting a
strained interpretation of legislation in order to protect human
rights.
•• There may be a constitutional mechanism whereby the
constitutional and human rights validity of a statute can be
challenged. For example, a Bill may be referred to a constitutional
court before (or after) enactment in order to determine if it is
compliant with human rights.
•• There may be some express constitutional prohibition on
legislation being passed that breaches human rights. The Law
Officers, Attorney General, Speaker, legislative drafter or some
other public office holder may have a function of determining
compliance and preventing a Bill from being enacted if it is not
compliant.
•• The courts may have the authority to declare non-compliant
legislation void. In states where sovereignty of parliament would
prevent this, they may have the power to declare that legislation is
incompatible with human rights and, although not being able to
void it, to refer it back to the parliament.
34
3.5.1 Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms provides a good
example of these issues. The Charter is contained in Part 1 of the
Constitution Act 1982. It sets out a relatively standard list of rights:
democratic, political, personal, religious, minority, linguistic, aboriginal,
etc. It then provides that the Charter applies to the Parliament and
government of Canada and also to the legislatures and governments
of each of the Canadian provinces. This means that legislation must
comply with the rights set out in the Charter. If it doesn’t, it will be
unconstitutional.
However, s.33 provides an exception. If Parliament expressly declares
that a statutory provision takes effect notwithstanding that it is in
breach of the Charter, then that provision takes effect as if the Charter
had no effect. This protects sovereignty of parliament as rights can be
overridden if this is expressly done in the legislation – although this
would presumably have a high political cost.
Example: Canadian Charter of Rights and Freedoms

Exception where express declaration
33. (1) Parliament or the legislature of a province may expressly declare in an Act
of Parliament or of the legislature, as the case may be, that the Act or a
provision thereof shall operate notwithstanding a provision included in
section 2 or sections 7 to 15 of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration made
under this section is in effect shall have such operation as it would have
but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five
years after it comes into force or on such earlier date as may be specified in
the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration
made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under
subsection (4).
3.5.2 The Human Rights Act 1998 (UK)

Horne and Maer (2013) discuss the UK equivalent, the Human Rights
Act 1998. They also examine the political debate around human rights
and hostility to the concept of human rights. Surprisingly, hostility to
human rights encompasses the retrograde and rather barbaric notion
that a state could withdraw from human rights norms and declare
themselves no longer bound by them.
Under the terms of the Human Rights Act 1998, the courts can strike
down subordinate legislation that contravenes human rights. However,
the courts cannot strike down primary legislation breaching these
rights; they can merely make a declaration of incompatibility about
that primary legislation and send that declaration back to Parliament.
35
Example: Human Rights Act 1998 (United Kingdom)

4. Declaration of incompatibility
(1) Subsection (2) applies in any proceedings in which a court determines
whether a provision of primary legislation is compatible with a Convention
right.
(2) If the court is satisfied that the provision is incompatible with a Convention
right, it may make a declaration of that incompatibility.
(3) Subsection (4) applies in any proceedings in which a court determines
whether a provision of subordinate legislation, made in the exercise of a
power conferred by primary legislation, is compatible with a Convention right.
(4) If the court is satisfied—
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation
concerned prevents removal of the incompatibility,
it may make a declaration of that incompatibility.
...
(6) A declaration under this section (‘a declaration of incompatibility’)—
(a) does not affect the validity, continuing operation or enforcement of the
provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made.
3.5.3 Examples of human rights restrictions on legislation: jurisprudence

developed under the European Convention on Human Rights
There are myriad ways in which human rights norms can restrict or
impinge upon legislation. What follows is a selection of cases under
the European Convention on Human Rights (ECHR) that set out specific
examples of this. Although the cases are each important in their own
right, they are used here only to show different ways in which human
rights can restrict or impinge upon what measures may be contained in
legislation.
•• The state of Lithuania passed legislation that prohibited former
members of state security agencies from the Communist era from
working in the public sector (and also in parts of the private sector).
The European Court of Human Rights (ECtHR) held in Sidabras
and Džiautas v Lithuania 27 July 2004, Application numbers
55380/00 and 59330/00 that this legislation violated Article 8 of the
Convention (right to private and family life).
•• In R v Field [2003] 3 All ER 769 the UK courts considered if legislation
that disqualified a person from working with children constituted a
criminal penalty within the meaning of Article 7 of the Convention.
•• Another UK case considered UK legislation that required serious
sex offenders to notify the authorities of their address and travel
arrangements. In R and Thompson v Secretary of State for the Home
Department [2010] UKSC 17 the Supreme Court held that this
breached the right to private and family life under Article 8 of the
Convention. This was because this requirement was permanent and
not subject to any review.
36
•• The Greek civil service code prohibited certain criminals from

being civil servants. Mr Thlimmenos was prohibited from being
a chartered accountant because of this. His crime was to refuse
to wear a military uniform (he was a Jehovah’s Witness and had
refused to wear the uniform on religious grounds). In Thlimmenos
v Greece 6 April 2000 Application number 34369/97 the ECtHR
held that this general rule was legitimate but that it should have
made provision for exceptions in individual cases. Accordingly Mr
Thlimmenos’s freedom of religion under Article 9 was violated by
the legislation.
•• Zielinski v France (2001) 31 EHRR 19 concerned a dispute between
employees and the French government acting as their employer.
The employees had brought the matter to court and had been
awarded compensation by the court. The French state then enacted
legislation which retrospectively changed the entitlement that
the employees had to compensation. The ECtHR held that this
infringed the right of the employees to a fair trial under Article 6
of the European Convention because the legislation took away the
rights that had been granted by the court.
3.6 Procedures to be followed in enacting legislation

Finally, constitutions may set out the procedure that must be followed
for the making of legislation. These are the formalities that must be
observed before legislation is made. For example, a quorum must be
present, a majority of parliament must vote in favour of it, the speaker
must be present, a Bill must pass through certain stages, etc.
In many jurisdictions, procedures are a political matter that can only
be regulated by parliament itself. Once an Act is made, then it is not
for the courts to go back and investigate how it was made to ensure it
was made correctly. It is for parliament, not the courts, to regulate its
procedure.
However, the Constitutional Court in Uganda declared a statute null
and void in 2014 because the proper procedures had not been
followed when the statute was being enacted. Judge Kavuma stated
that the necessary quorum was not present in Parliament when the
statute was made and that this invalidated the law. The legislation itself
further criminalised homosexuality in Uganda and was particularly
controversial, both domestically and internationally. (The case report is
not available online, but news summaries can be found at www.
aljazeera.com/news/africa/2014/08/uganda-court-overturns-anti-gay-
law-2014811844898239.html)
•• What is the nature of human rights protection in your jurisdiction?
•• Can a court overturn a statute if it is in breach of human rights?
•• Is there a specific mechanism whereby human rights compliance can be
challenged either before or after legislation is enacted?
37

should be able to:
•• identify constitutional restrictions upon legislation
•• analyse the concept of sovereignty of parliament and contrast this with a
limited grant of legislative authority
•• analyse how the establishment of more than one legislature in a state affects
the power of those legislatures to legislate
•• evaluate various international restrictions on a legislature’s ability to legislate.
Sample examination questions

Question 1
Is the concept of sovereignty of parliament dead?
Question 2
Is the power to legislate for peace, order and good governance a plenary power
to legislate?
Feedback: p.40.
38
Notes
Notes
39
Feedback to the sample examination questions

Question 1
Identify the source of the concept and its meaning. Consider the various restrictions
placed on the ability of a legislature to legislate. Assess the strength of those
restrictions: are they substantial or illusory? Give examples of those restrictions.
Consider if sovereignty is only meaningful if it is absolute, or relative. Draw your own
conclusion.
Question 2
Consider the facts of Union Steamship and Bancoult and the Killey article. Explain the
historical source of this power and give examples of where it is currently used. Are the
words simply a formula that is recited to indicate that full legislative power is granted?
Or are they used or intended as words of limitation? Do they imply an extraterritorial
limit?
40
Chapter 4: Good law test
Introduction
A radically innovative project aiming to define and improve legislative
quality is the Good Law project, initiated by the Office of Parliamentary
Counsel in the UK. This chapter presents Good Law as a test of
legislative quality.
Learning outcomes
•• define Good Law
•• describe the rationale behind the Good Law initiative
•• assess its use as a test for legislative quality.
Essential reading
•• www.gov.uk/good-law
4.1 Good Law: the vision

The Office of the Parliamentary Counsel (OPC) would like citizens to
experience good law – law that is:
•• necessary
•• clear
•• coherent
•• effective
•• accessible.
4.2 The Good Law test

Does it duplicate, or conflict
with, another law?
Is this law necessary? How much detail?

Content
Do we know
what the likely
readership is? What should determine
the hierarchy and
structure of statute law?
Architecture
Language Good law of the statute
and style
book
Is the language What should go
easy to into Acts and Regulations?
understand?
Publication
How will law Should we draft
appear to the law to be machine-
online user? readable?
What can be done
to improve navigation?
Figure 4.1: The Good Law test.
(Source: www.gov.uk/good-law) 41
4.3 UK initiatives
Improving Parliamentary and public scrutiny of legislation is a
government objective in the UK. This is undertaken via a number of
initiatives:
•• Red Tape Challenge, an initiative trying to remove unnecessary
administrative burdens for citizens and businesses
•• ‘One in, two out’ approach: each government department that
suggests a new law must first remove two existing laws within its
competence from the statute book
•• assessing the impact of each regulation
•• reviewing the effectiveness of regulatory measures
•• reducing regulation for small businesses
•• improving enforcement of regulatory measures
•• promoting the use of alternatives to regulation
•• reducing the cost of EU regulation on UK business.
4.4 Other countries and organisations

Other countries and organisations have also made efforts to simplify
and systematically reshape their statute book:
•• The Australian government has adopted new standards for clearer
and simpler legislation.
•• In the United States deregulation has been a priority for virtually
every administration since the Nixon presidency.
•• Most European countries have set up processes to simplify national
legislation and established departments dedicated entirely to
better regulation and reform of the law.
•• The Organisation for Economic Co-operation and Development
(OECD) has been championing better regulation practices and has
launched a number of initiatives to harmonise legislative codes of
practice.
•• The 2005 Guiding Principles for Regulatory Quality and
Performance, endorsed by all OECD member countries, advised
governments to ‘minimise the aggregate regulatory burden on
those affected as an explicit objective, to lessen administrative
costs for citizens and businesses’, and to ‘measure the aggregate
burdens while also taking account of the benefits of regulation’.
•• The 2005 Integrated Checklist on Regulatory Reform promotes
regulation that ‘avoids unnecessary burdens on economic actors’.
•• Other innovative initiatives include the collaborative lawmaking
project Zakon in Russia, and the e-Democracia initiative in Brazil.
4.5 Why is legislation so complex?

The main causes of the complexity of legislation are:
•• volume
•• quality
42
•• perception of disproportionate complexity

•• complicated procedures
•• imperfect interactions between the stakeholders involved
•• unpredictability of external factors.
4.6 To whom is legislation addressed?

The likely audience for a specific law depends on the context. It
is therefore important to identify the likely audiences and their
expectations in order to understand the causes of unsatisfactory
legislation.
The audience of legislation has steadily increased over the past 20
years. In the past, users of legislation tended to be legally qualified;
but today’s users are a far wider group of people thanks to the internet
(legislation.gov.uk has over two million unique visitors per month).
Government and Parliament, as well as their constitutional roles,
are also users of legislation; and their specific requirements have a
dramatic impact on laws throughout their life cycle.
Evidence recently collected by Parliamentary Counsel and legislation.
gov.uk suggests that these new users could be, for example:
•• human resources staff from a mid-size company who need to
understand what impact the Pensions Act 2011 can have on the
company
•• policy advisers from a local authority, keen to keep up to date with
environmental regulation
•• landlords who are in dispute with their tenants and may want to
represent themselves in court
•• Law Centre volunteers who want to better understand the Welfare
Reform Act 2012.
The comprehension level of legislative texts by both legally qualified
and non-legally qualified users was generally quite low, and all
users found it challenging to read legislation and demonstrate their
understanding of it:
•• Most users interviewed said that they expect legislation to be hard
to read – even barristers. They found that legislation is ‘convoluted
and involves a lot of going back and forward’.
•• Navigating a legislative text was problematic – several users did not
know what sections or schedules were.
•• Users’ understanding of what happens to legislation after it
has been enacted is poor – many participants assumed that all
legislation on legislation.gov.uk is necessarily in force.
Predictably a lack of familiarity with legislative texts seems to
exacerbate problems with usability and perpetuate misconceptions
associated with the law.
Table 4.1 summarises the key concerns, expectations and priorities for
four of the audience groups for legislation.
43
Government Parliamentarians Judiciary Public users

Concerns Concerned about Concerned about Concerned about Concerned about
public response ‘principle legislation’ possible difficulties the burdens that
to legislation, and if uncertain how the in interpreting new legislation can
about the inherent government will legislation and cause them
intricacy of the implement it the unexpected
legislative process consequences that
(and resulting implementation
potential obstacles may produce
to enactment)
Expectations Expects legislation Concerned about Expect objectives Nervous about
that achieves bills including of legislation overlooking
policy (or political) obscure and (and intentions changes and their
objectives unsubstantiated of legislators) implications
May require either technical details to be clear and Expect legislation

considerable detail Expect legislation unambiguous with obvious
to control delivery, that is fit for Expect provisions objectives and
or ‘principle’ purpose, e.g. that allow clearly defined
or enabling properly prepared, for flexible implications
legislation to allow with clear policy interpretation for them/their
flexibility in policy objectives organisation or
Expect definitive
implementation at community
Expect legislation and coherent
a later stage that is drafted commencement
in a way that orders
is intelligible
and supported
by explanatory
material which
substantiates more
technical details
Priorities Bills that get Bills structured in Legislation ‘drafted Legislation that is
approved in a a way that reflects for posterity’ that simple, accessible,
short time, with (and facilitates) does not limit and easy to
few amendments, the intricate their ability to comply with – and
and that guarantee parliamentary apply the law to not unnecessarily
immediate scrutiny and circumstances that burdensome
certainty of result amendment were unforeseeable
and a positive procedures by legislators
response from the
public.
Table 4.1: Four audience groups for legislation: concerns, expectations and
priorities
(Source: www.gov.uk/good-law)
4.7 Good law

The aims of the OPC under Good Law are:
•• to build a shared understanding of the importance of good law
•• to ensure that legislation is as accessible as possible, and consider
what more can be done to improve readability
•• to reduce the causes and perception of unnecessary complexity
•• to talk to the judges who authoritatively interpret the law and to
44
the universities that teach it, to avoid confusion and facilitate

interpretation.
•• List the elements of Good Law.
•• What is the UK Office for Parliamentary Counsel?
•• What are the questions posed by the Good Law test?
All these are factual questions. In order to answer them you need to explore the
Good Law website and the additional documents there.
4.8 Summary
The Good Law initiative comes from the UK Office of Parliamentary
Counsel. It is a user based approach to legislating, and has piloted a
great number of innovations in legislative drafting.

should be able to:
•• define Good Law
•• describe the rationale behind the Good Law initiative
•• assess its use as a test for legislative quality.
Sample examination question

Describe Good law as a test for legislative quality.
Feedback: p.46.
45
Feedback to sample examination question

In order to answer this question you need to describe the Good Law initiative, list the
elements of Good Law, and juxtapose them with the effectiveness test in Chapter 5.
46
Chapter 5: The functionality test: effectiveness
Introduction
The ultimate test of legislative quality is that of effectiveness. This last
chapter encapsulates the teachings of the whole of this Study Guide by
focusing on effectiveness as synonymous with legislative quality.
Learning outcomes
•• define efficacy
•• define effectiveness
•• define cost efficiency
•• define clarity, precision and unambiguity
•• define plain language
•• define gender-neutral language
•• list these notions in hierarchical order
•• describe what happens if they clash
•• recognise effectiveness as the ultimate criterion of legislative quality
•• describe why effectiveness is synonymous with legislative quality
•• describe if and how this hierarchy of values applies to your jurisdiction.
Essential reading
•• Xanthaki, H. Drafting legislation: art and technology of rules for regulation
(Oxford: Hart Publishers, 2014) [ISBN 9781849464284] Chapter 1: Legislation as
a means of regulation: effectiveness in legislative drafting.
•• Stringham, E. ‘Kaldor-Hicks efficiency and the problem of central planning’ 4
(2) (2001) Quarterly Journal of Austrian Economics 41. Available via the Online
library.
In the search for the higher functionality concept in legislative drafting,

one cannot avoid exploring the higher values and virtues promoted in
the field:
•• efficacy
•• effectiveness
•• efficiency
•• clarity, precision, unambiguity
•• plain language
•• gender-neutral language.
5.1 Efficacy Mader, L. ‘Evaluating the

1
effect: a contribution to
Efficacy is defined as the ability to produce a desired or intended result. the quality of legislation’
22 (2001) Statute Law
Mader defines efficacy as the extent to which legislators achieve their Review pp. 119–31
goal.1 Delnoy states that efficacy is achieved when the statute does at 126.
47
not conflict with any other norm of the same or higher hierarchical
level and when the statute has no deficiencies.2 Jones distinguishes 2
Delnoy, P, The role of legislative
drafters in determining the content
between five types of inefficacy:3
of norms (Ottawa: The International
•• failures of communication of the law’s message Cooperation Group, Department of
Justice of Canada, 2005) at 7.
•• failures to enlist supportive action to the law 3
Jones, H.W., The efficacy of the law
•• failures to forestall avoidance of the action required by the law (Evanston: Northwestern University
Press, 1969) pp.18, 20, 32 and 34.
•• failures of enforcement
•• failures of the law’s moral obligations.
The achievement of a policy objective or purpose is not the sole task
of the drafter. It is the task of a multi-level effort of policy makers,
drafters, interpreters, applicators and enforcers of legislation. This
common effort is reflected in the many aspects of the policy process,
of which the legislative process is a mere stage. It requires quality in
the performance of the duties of all factors in the policy process. A
drafter cannot possibly control the efficacy of the policy decided by the
Cabinet Office and pushed forward by the client department, or the
efficacy of the implementation of the legislation by the executive, or
indeed the efficacy of its enforcement by the police.
If one accepts the multiplicity of actors in the policy process, clearly
recognised in the prevailing vision of a drafting team, efficacy cannot
be a goal set for the drafter alone. As a result, despite acknowledging
efficacy as the highest virtue in the policy process, efficacy cannot be
viewed as the connecting function of drafters. A goal concrete to the
work of the drafter, and consequently achievable by the drafter, must
be sought.
5.2 Effectiveness
Effectiveness can be viewed as the drafter’s contribution to the efficacy
of the drafted legislation. It is widely accepted that drafters aim to be
effective and efficient:
•• ‘effective’ meaning that the norm produces effects, that it does not
become a dead letter, and
•• ‘efficient’ in the sense that the norm should produce the desired
effects, should not have perverse effects and should so guide
conduct as to achieve the desired objective.
Parkinson describes effective legislation as reasonable legislation.4
4
Parkinson, ‘Functions of
administration in labour legislation’
Mader defines effectiveness as the extent to which the observable 20 (1930) Am. Labor Legislation
attitudes and behaviours of the target population correspond to Review pp.143.
the attitudes and behaviours prescribed by the legislator.5 Thus 5
Mader, L (2001) at 126.
effectiveness can be described as the drafter’s efficacy. Effectiveness 6
Jacobson, H. ‘After word:
includes, but is not limited to, implementation, enforcement, impact conceptual, methodological and
and compliance. substantive issues entwined in
studying compliance’ 19 (1998)
There are two prevailing models of effectiveness, often described as Michigan Journal of International
the positivist and the socio-legal models. In his positivist approach, Law pp.569–80 at 573.
Jacobson links effectiveness to implementation and compliance.6 In 7

Jenkins, I. Social Order and the
Limits of the Law: a Theoretical
his socio-legal model of effectiveness, Jenkins relates the statute to the
Essay (Princeton: Princeton
social reform attained.7 University Press, 1981) at 180.
48
Activity 5.1
What is the prevalent concept of legislative quality?
Feedback: p.55.
Activity 5.2
Is effectiveness of legislation a concern in your own jurisdiction?
Feedback: p.55.
5.3 Cost efficiency

Efficiency is defined as working productively with minimum wasted
effort or expense. It is the balancing of the costs and benefits of
legislation. It is an economic analysis of what and how much input
is required for an optimal output. Evaluating the efficiency of
legislation means considering its costs (the direct financial costs of
implementation and compliance with legal norms; non-material
factors; and all negative effects of the legislation) and the extent to
which its goals have been achieved.
The criteria for efficiency in legislation are borrowed from the theory
of efficiency in economics, and include the notions of productive
efficiency, Pareto optimality, Pareto superiority, Kaldor-Hicks efficiency
and Posner’s wealth maximisation:8 8
Coleman, J. ‘Efficiency,
utilisation and wealth
•• Productive efficiency occurs when the economy is operating at its maximalisation’ 8 (1979–80)
production possibility frontier: thus productive efficiency in relation Hofstra Law Review at 512.
to legislation occurs when a legislative choice achieves the lowest
cost possible in comparison with the costs incurred by all other
legislative choices.
•• Pareto superiority, as applied in legislative drafting, compares two
legislative choices and puts forward as preferred the legislative
choice that improves the welfare of at least one person while not
diminishing the welfare of another.
•• Pareto optimality compares all possible legislative choices and
promotes the choice that is superior among all others.
•• In the Kaldor-Hicks scenario a legislative solution is efficient if those
benefiting from it can fully compensate those whose welfare is
diminished as a result of its application.
•• Posner’s wealth maximisation signifies the choice of rule that
maximises total wealth, irrespective of who benefits.
Leaving aside the common ethical concerns arising from the actual
choice between benefits for some and costs for others, one cannot
depart from the realism of efficiency in legislative choices. When
selecting a legislative choice, or indeed when supporting a policy
choice, the drafter takes into account the financial and non-monetary
costs of this choice to interest groups and to the state itself. In fact, the
essence of consultation is to identify such costs and interest groups as
a means of completing the picture of conflicting benefits and damages
incurring as a result of a legislative choice. Fairness and equity are
49
driving forces behind this choice, either unconsciously or as formally

recognised non-monetary criteria for making the choice.
Calculation of the true cost of such factors is a hurdle that few policy
makers, and far fewer drafters, are equipped to handle, especially in the
case of substantive rather than procedural efficiency. But at the end of
the day, efficiency is a desired value that must be taken into account
in legislative drafting. It is a tool that the drafter can use to achieve
effectiveness: relatively cheap results are better than just results.
However, efficiency – in the process or in the law – does not guarantee
effectiveness: negotiating the less costly means for producing the
objectives of legislation does not secure attainment of the law’s
objectives. In fact, one could support the view that efficiency, in the
sense of extreme economy, may be adverse to effectiveness and may
jeopardise results in the name of cost minimisation. This need not be
the case. In the hierarchy of values set for the drafter, efficiency is one
of the considerations that must be taken into account in the search for
effectiveness as part of efficacy. The question is then: is efficiency the
only tool that the drafter can utilise to achieve effectiveness?
Activity 5.3
How can your own legal system receive efficacy, effectiveness and cost efficiency?
Feedback: p.55.
5.4 Clarity, precision, unambiguity

Butt and Castle recommend that legal documents should be written
in modern, standard English, namely in English as it is currently used
and understood.9 Clarity is defined as the state or quality of being clear
9
Butt, P. and R. Castle, Modern
legal drafting (Cambridge: CUP,
and easily perceived or understood. Clarity depends on the proper 2001), at p.129.
selection of words and on the arrangement and the construction of
sentences.
Ambiguity is defined as uncertain or inexact meaning. Ambiguity exists
when words can be interpreted in more than one way: for example, is a
‘light truck’ light in weight or light in colour? Thus, semantic ambiguity
occurs when a single word has more than one meaning, and this is
cured by defining any term that people might disagree about. Syntactic
ambiguity is the result of unclear sentence structure or poor placement
of phrases or clauses.
Vagueness exists when there is doubt about where a word’s boundaries
are: if a law applies to the blind, what exactly is blind, and what degree
of impairment counts? Legislatures sometimes choose to be vague or
general and to let administrative agencies supply the specifics.
But legislatures rarely choose to be ambiguous. If legislation is drafted
in terms that are wide and general, this is likely to give rise to different
interpretations and inevitable challenge. Thus, clarity, in the sense of
intelligibility and unambiguity, signifies that a document is not only
easy to understand but also that it conveys the same message to those
who read it.
Why do we need clarity and precision?
50
•• Without clarity, precision and consistency the law lacks

predictability.
•• Democratic governments seeking to induce transformation require
that the law is understood and followed by the people.
•• Democracy requires clarity and precision: the rule of law requires
that officers of the law understand and apply the law.
•• There are high costs to inaccessible law related to enforcement,
application and interpretation of texts whose meaning is in doubt.
However, clarity and precision may not be needed when:
•• the policy makers utilise ambiguity to cover political disagreements
•• a problem cannot be resolved by departmental legal officers and
the drafters (in which case there might be scope for an intransitive
bill that leads to ministerial regulation by delegation)
•• the drafter wishes to introduce a degree of discretion for officials.
Having established the definitions of clarity, precision and
unambiguity, and having proved that these are requirements for
quality in legislation that need to be pursued by the drafter, it is time to
identify if one of these three notions is prevalent.
There is no generally applicable response to the question of the
hierarchy between clarity, precision and unambiguity. It is true that
certain types of legislation require greater clarity, such as criminal laws,
whereas others require more precision, such as rules of evidence. But
the prism under which the choice is to be made rests in abstracto and
relates to effectiveness.
Effectiveness is the virtue sought by the drafter and effectiveness
must serve as the qualifier for a negotiation between clarity, precision
and ambiguity. What matters is that the audience of the particular
statute or legal text receives the message that the drafter attempts to
communicate:
•• If the audience of the particular text consists of mainly lay persons,
then clarity – and unambiguity as part of clarity – must be put
forward.
•• If the audience consists of trained legal professionals, precision
can prevail: a trained audience has a better chance to deal with
implication in order to receive the message communicated by the
drafter.
If effectiveness is accepted as the qualifier for any choice made by
the drafter, then the relationship between clarity, precision and
unambiguity is a non-hierarchical one and these three virtues must
be viewed as tools of effectiveness bearing equal gravitas and power.
Vagueness is simply a tool for clarity and precision, provided that it is
used consciously and as a legal rather than a political tool.
5.5 Plain language

Another tool for clarity, precision and unambiguity is plain language.
The plain language movement evolved as a reaction to the
incomprehensibility, remoteness and complexity of traditional legal
language.
51
Plain language as a concept encapsulates a qualifier of language that is

subjective to each user, so the essence of the movement is not easy to
identify. Plain language is clear, straightforward expression, using only
as many words as are necessary. It is language that avoids obscurity,
inflated vocabulary and convoluted sentence structure.
Thus, a plain language text is a passage that the intended audience
can read, understand and act upon. Plain language takes into account
design and layout, as well as language, and means analysing and
deciding what information readers need to make informed decisions,
before words, sentences or paragraphs are considered.
A plain language document uses words economically and at a level
that the audience of the particular text can understand. Sentence
structure is tight. The tone is welcoming and direct. The design is
visually appealing. Common problems identified by the plain language
movement are long sentences; passive voice; weak verbs; superfluous
words; legal and financial jargon; abstract words; and unreadable
design and layout.
The use of plain language in legal texts presents considerable
advantages:
•• Using plain language can expose errors in drafting: in attempting
to simplify the text, drafters identify errors of syntax or errors in the
choice of words.
•• Using plain language serves efficiency in that it ensures that legal
texts are easier and faster to read. Queries are therefore reduced.
•• Plain language contributes to clarity and therefore serves
effectiveness in drafting.
•• Plain language therefore serves democracy and the rule of law.
However, a number of authors have expressed concerns:
•• Plain language may lower the standards of good writing. This
concern stems from the view that plain language consists of
monosyllabic words, very short sentences and a complete rejection
of complex words or sentence construction. If this were true of
plain language then the criticism would be valid. It would certainly
not be useful to draft statutes and legal documents in simplistic
monosyllabic words. However, as other commentators have
pointed out, this is to misunderstand plain language. As the Law
Reform Commission of Victoria noted, plain language ‘involves the
use of plain, straightforward language, which avoids defects and
conveys its meaning as clearly and as simply as possible, without
unnecessary pretension or embellishment. It is to be contrasted
with convoluted, repetitive and prolix language. The adoption of a
plain English style demands simply that a document be written in a
style which readily conveys its message to its audience’.10 10
Law Reform Commission of
Victoria, Plain English and the
•• Plain language has given rise to a concern of intelligibility. Bennion law (1987), p.39.
believes that ‘it may be positively dangerous to encourage non- 11
Bennion, F. ‘Don’t put the law
lawyers to think they can understand legal texts unaided by into public hands’ The Times,
expert advice: it takes a lawyer to know whether simple words in 24 January, 1995.
what should be a technical text really carry their apparent simple

meaning’.11
52
•• The plain language movement has been criticised for its

alleged sacrifice of certainty and an inevitable loss of precision.
Gowers feels that legislation must be unambiguous, precise,
comprehensive and largely conventional: intelligibility is an
advantage but it cannot justify the sacrifice of accuracy and clarity
12
Gowers, The complete
in the first reading.12
plain words. (London:
•• Plain language has given rise to concerns related to the loss of HMSO, 1986) at p.7.
established meaning of words. But plain language advocates
delimit the circle of such words to very few and attribute most of
the words used as examples for such a concern to meaningless
jargon.
Ultimately, the choice between plain language and other goals set
for the drafter is a choice of simplicity against clarity, precision and
unambiguity. Simplicity is indeed a commendable goal for drafters as it
promotes clarity, which in turn leads to effectiveness and efficacy. Thus,
simplicity and the plain language movement serves as a tool for clarity
and in the hierarchy of goals to be set for the drafter the plain language
movement can only be placed below clarity.
However, plain language is not necessarily clear language, so when in
clash with plain language, clarity prevails. This does not by any means
signify that plain language and simplicity is to be viewed as competing
with clarity: simplicity assists clarity and in most circumstances works in
parallel with it.
Since unambiguity is part of clarity, simplicity also works in parallel
with it and is hierarchically inferior to it. However, one can envisage
clashes between simplicity and precision. As precision is equal in
standing with clarity and unambiguity, it is evident that precision
prevails when in clash with simplicity. Simplicity is a tool for precision,
and is hierarchically inferior to it if both cannot be achieved in parallel.
5.6 Gender-neutral language

Gender-neutral language can be seen as a tool for accuracy, since it
aims to promote gender specificity in the pronoun used in legislation.
Gender-neutral language has gained momentum worldwide. It is
standard practice in the UK.
In our hierarchy of goals or virtues, the placement of gender-neutral
language is clear. It serves in parallel with plain language as an
additional tool for the promotion of precision, clarity and unambiguity.
Thus, it does not clash with these three concepts. However, if there is
a choice to be made, clarity, precision and unambiguity prevail. After
all, these three concepts serve effectiveness, which in turn – along with
efficiency – promotes efficacy in the legislative process.
Activity 5.4
Is gender neutrality prevalent in your jurisdiction?
Feedback: p.55.
Activity 5.5
Describe the advantages and disadvantages of gender-neutral drafting.
Feedback: p.55.
53
5.7 The Good Law project

The Good Law project has gathered invaluable empirical data in the
analysis of effectiveness as a test of legislative quality, and as a result
has an answer to the open ended question: who is the audience of
legislation?
Having identified mainly three audiences, lay persons, regulators and
legal professionals, the project has established three main profiles of
users that the drafter addresses when drafting legislation. We now
know whom we are speaking to, and this data gives us unprecedented
insight into the legal awareness of our users, on the level of language
that should be used when we speak to these profiles, and also on the
ability of users to make the links between provisions within an Act or
across the board in the statute book.
With this type of detailed information available, effectiveness can
be viewed in a real context. Challenging new ideas have emerged,
for example the layered approach to legislation by which the text is
divided into parts according to the information relevant and useful to
each of the three main profiles of users.
Effectiveness as a synonym for quality has gained significant kudos
from the Good Law project, which has strengthened the idea of
precision in identifying the user of each specific law, and fine-tuning
the communication of the regulatory and legislative messages to the
pitch appropriate for each user profile.
5.8 Summary
•• The effectiveness of legislation signifies good legislation.
•• Effectiveness contributes to efficacy, namely to the production of
the desired regulatory results.
•• Effectiveness is promoted via clarity, precision and unambiguity.
•• Clarity is fed by plain language and gender-neutral language.

should be able to:
•• define efficacy
•• define effectiveness
•• define cost efficiency
•• define clarity, precision and unambiguity
•• define plain language
•• define gender-neutral language
•• list these notions in hierarchical order
•• describe what happens if they clash
•• recognise effectiveness as the ultimate criterion of legislative quality
•• describe why effectiveness is synonymous with legislative quality
•• describe if and how this hierarchy of values applies to your jurisdiction.
54
Feedback to activities
Activity 5.1
Here you need to discuss the definition and application of effectiveness.
Activity 5.2
Here you need to consider your national legislative texts, identify how they are
successful, and if they adopt effectiveness as a concept: is all legislation necessary? Is
it clear, precise and unambiguous? Is plain language and gender-neutral language
prevalent? You can give examples of laws in your jurisdiction.
Activity 5.3
Looking at your own legislation, do you see a link between policy and legislation? Is
legislation effective? Cost efficient? If not, how can things change?
Activity 5.4
Although this seems to be a factual question, here you need to identify the elements
of gender neutrality in your constitution, in your legislative practices and in your
Interpretation Act (if you have one). You need to show how the constitutional provision
of gender equality applies; is mentioning – in the Interpretation Act or individual Acts
– that the male includes the female adequate? Do users read the Interpretation Act
anyway?
Activity 5.5
Here you need to discuss issues of clarity, unambiguity and effectiveness against
concerns of grammatical correctness. Is it necessary for the drafter to adhere strictly
to grammar, or is a departure from it possible when clarity is at stake? Is grammar
included in the hierarchy of drafting values? Are drafters chained by a blind adherence
to grammar when effectiveness requires gender neutrality?
Sample examination question

Do you agree that legislative quality is synonymous with effectiveness?
Feedback: p.56.
55
Feedback to sample examination question

You need to combine the readings of this chapter with those of Module A, Chapter 2 on
regulatory quality, and identify the link between regulation and legislation.
56
Notes
Notes
57
Notes
58

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Legislation

Module D: Tests for quality of

̆̆ R. Cormacain, LLB, LLM (Queen’s University Belfast), LLM (Institute of Advanced

̆̆ C. Stefanou, BA, MA, M Phil, PhD, Director of Taught Programmes, Institute of

If you have any comments on this Study Guide, favourable or unfavourable,

University of London International Programmes

Published by: University of London

© University of London 2015

Chapter 1: Introduction ........................................................................................ 1

Chapter 3: Constitutional and human rights restrictions on legislation........ 23

1.1 Legislation and statutory interpretation

1.1.1 The structure of the course

which in turn is a part of the policy process, and it assesses

1.1.2 Study sequence

Learning outcomes for the course

1.2 Introduction to Module D

poor quality. Chapter 4 is different in that it focuses more on what

1.3 How to use this Study Guide

question might be approached, to help you prepare for the

1.3.2 A suggested study method

attempt the Sample examination questions. Repeat this process for

1.4 Keeping up to date

1.5 Allocating your time

1.6 The examination

1.6.1 Preparing for the examination

This module lends itself to a combination of test specific questions and

1.6.2 Taking the examination

Chapter 2: The rule of law

Useful further reading

2.1 What is the rule of law?

(Routledge, 1944), p.72 of the

Example: The Declaration of Delhi (1959)

Within this second element, there is a distinction between ‘thick’ and

2.2 Lon Fuller

2.2.1 Desiderata 1: Generality of law

2.2.2 Desiderata 2: Promulgation

2.2.3 Desiderata 3: Retroactive laws

2.2.4 Desiderata 4: Clarity of laws

2.2.5 Desiderata 5: Contradiction in laws

2.2.6 Desiderata 6: Laws requiring the impossible

2.2.7 Desiderata 7: Constancy of law through time

2.2.8 Desiderata 8: Congruence between official action and declared rule

2.3 Joseph Raz

2.3.1 Laws should be open, prospective and clear

2.3.2 Laws should be relatively stable

expensive decisions. For example, consider if a power company is

2.3.4 Independence of the judiciary

2.3.5 Application of the rules of natural justice

2.3.6 Court power to review implementation of other principles

2.3.7 Courts should be accessible

2.3.8 Discretion of crime-preventing agencies should not pervert the law

2.4 Tom Bingham

2.4.1 Law should be accessible, intelligible, clear and predictable

Bingham advances three arguments in favour of this.

2.4.2 Law not discretion

2.4.3 Equality before the law

2.4.4 Power must be exercised fairly

•• must be exercised in good faith

2.4.5 Human rights

2.4.6 Access to courts

2.4.7 A fair trial

2.4.8 Rule of law in the international legal order

2.5 Why must legislation comply with the rule of law?