Michael Taggart

The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation

Courts throughout the common law world have, for some time, given effect to international legal obligations (especially human rights norms) by way of administrative law doctrines and techniques. When the source of the international obligations constraining executive discretion is a convention ratified by the executive, but not incorporated by parliament into legislation, traditional alarm bells ring. Such ‘backdoor’ incorporation seems to amount to executive usurpation of the legislature’s monopoly of law-making authority, or to judicial usurpation of the same, or to a combination of both. But the charge of executive usurpation is misleading, not least because the executive usually argues to the reviewing court, and sometimes beyond, that ratification without incorporation has no legal consequences. At stake, it seems, is the age-old question of the legitimacy of judges’ divining values or principles that constrain executive authority from any source other than the statute which delegated that authority. The ‘dualism’ involved in considering the spheres of domestic law and international law to be sealed off from one another turns out to be no more than the dualism that the traditional approach postulates between, on the one hand, any set of principles or values that are claimed by judges to be inherent in the common law or the rule of law and, on the other, the authority of the legislature to stipulate expressly when particular principles or values will govern the decisions of its delegates. And, the traditionalist charges, if judges are permitted to chip away at the right of the legislature to declare when its   Oxford University Commonwealth Law Journal 5