The Promise and Perils of Process Review

When courts evaluate whether legislation complies with constitutional rights, they sometimes engage in ‘process review’, namely, an evaluation of whether the legislature confronted rights-implications during the legislative process and, if so, to what extent. The promise of ‘process review’ is that it gives legislatures room to deliberate about rights in a democratic forum, whilst ensuring that the courts pay this deliberation due respect. But the perils are manifold. Judges may be ill-equipped to evaluate the sufficiency of the legislative process. And canny legislators may manipulate a practice of judicial respect by simply going through the motions of talking about rights in proportionate terms, whilst reneging on them in practice. Viewed through the lens of recent UK cases concerning rights, this paper navigates the tensions between the promise and perils of process review.