Recent scholarship reveals a fascinating cross-national phenomenon: courts around the world are increasingly turning their attention to reviewing the legislature's enactment process. The emergence of this global procedural trend in the case law of national and international courts has sparked a budding and vibrant debate in legal scholarship, which has traditionally focused only on substantive judicial review. However, a crucial question in this debate has not been explored yet: how does judicial review of the legislative process impact legislative behavior?
This paper presents an empirical study that begins to fill this important gap. It reports findings from an extensive multi-method empirical study that explored whether, to what extent, and in what ways the introduction of judicial review of the legislative process influenced the Israeli Parliament’s behavior in enacting omnibus legislation.
Recent South African jurisprudence has pushed the boundaries of judicial review of legislative processes. Culminating in two 2017 cases, the Constitutional Court has engaged in increasingly robust oversight of various types of legislative procedures: not only the lawmaking process itself, but also internal National Assembly rules, especially those relating to its other key function in a parliamentary democracy of holding the executive politically accountable.
This paper explores the justification for these steps, in terms of the separation of powers and rule of law. Although there is a certain tension between these two, which underlies the traditional norm of judicial non-intervention, in the contexts in which these cases were decided, they increasingly came together. Special separation of powers and rule of law problems called for special remedies. Acknowledging the type of political process failure involved requires an extension of Ely's theory of judicial 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.
The European Court of Human Rights has developed a noticed practice of procedural rationality review. This implies that the Court considers the quality of the decision making procedure to assess the proportionality of government interference in human rights. In Hatton, the Court held that where it is for the national authorities to balance interests in complex topics, it can still examine the decision making process to ensure that they carried out a careful balancing exercise. In ADI, the Grand Chamber seems to take a new turn, raising urgent questions regarding the method and consequences of procedural rationality review. The ADI ruling was repeated in subsequent judgments, with Ognevenko v Russia being the most notable one. By contrasting ADI with Ognevenko, the presentation points out how the Court makes itself vulnerable for accusations of double standards. It identifies rules of thumb to serve as guidelines for a more consistent usage of procedural rationality review.