Perspectives on Process: Common Law, Statutory and Political
Public Law, p. 275, 2010
24 Pages Posted: 2 Nov 2010
Date Written: August 1, 2009
This paper begins with analysis of the options available to legal systems for the determination of process rights, drawing on material from civil law as well as common law regimes, and including also the European Union. The focus then shifts to the UK where the common law is normally regarded, with justification, as the principal source of process rights, since it has historically determined the applicability and content of such rights. It is nonetheless important to be mindful of other important sources of process rights within the UK system. The remainder of the article explores the interplay between the common law, statute and political regulation of process rights in the UK system. There is discussion of the common law technique for determining process rights, with particular attention being given to the challenges posed by legislation enacted post 9/11. This is followed by consideration of the important new initiatives taken pursuant to the Tribunals, Courts and Enforcement Act 2007, which constitute a series of statutory sectoral procedural codes for different subject matter areas. The article concludes with discussion of political regulation of process, which is especially significant in relation to rule-making and broad policy initiatives.
Keywords: due process, natural justice, judicial review, codes
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