Through Which Glass Darkly? Constitutional Principle in Legality and Constitutionality Review

(2020) 49 Common Law World Review 131

20 Pages Posted: 10 Jun 2020 Last revised: 18 Aug 2020

Date Written: April 27, 2020

Abstract

This article seeks to draw lessons from a comparison between the ways in which the Rule of Law is discussed in cases decided by the supreme courts of Canada and the United Kingdom on the issue of allegedly excessive fees levied on litigants seeking to access adjudication. After reviewing the factually quite similar cases of Trial Lawyers Association of British Columbia v British Columbia (Attorney General) and R (Unison) v Lord-Chancellor and it detailing these decisions’ respective constitutional settings, the article argues that, in contrast to the cursory treatment of the Rule of Law by the Supreme Court of Canada, the UK Supreme Court's discussion is sophisticated and instructive. This suggests that legality review based on common law rights, which is not focused, and does not try to establish a connection, however tenuous, to an entrench constitutional text, may well allow for a more forthright and enlightening discussion of the principles at stake. Thus it follows that, in constitutional systems that feature strong-form judicial review based on entrenched texts, when regulations and administrative decisions are at issue, legality review should not be neglected. In those systems where strong-form judicial review is not available, legality review should not be regarded as an anomalous ersatz.

Keywords: Canada, United Kingdom, access to justice, common law rights, Rule of Law, legality review

Suggested Citation

Sirota, Leonid, Through Which Glass Darkly? Constitutional Principle in Legality and Constitutionality Review (April 27, 2020). (2020) 49 Common Law World Review 131, Available at SSRN: https://ssrn.com/abstract=3587114

Leonid Sirota (Contact Author)

AUT Law School ( email )

AUT City Campus
Private Bag 92006
Auckland, 1142
New Zealand
+64 9 921 9999 ext 5531 (Phone)

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