Abstract
In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural protections of the criminal law. By conceptualising the rule of law as a structural coupling between the political and legal systems, and due process rights as necessary and self-imposed limitations upon systemic operations, this paper employs a systems-theoretical approach to critique this balancing act between expediency and principle, and queries the circumstances under which legislation contravening the rule of law can be said to lack legitimacy.
Highlights
There has been a marked increase in recent years in the quantity of legislation passed by the UK Parliament that provides for hybridised procedural approaches to specific legal issues
The reasons for this increasing procedural hybridisation are themselves context-specific and variable, but one common aspect across each of the illustrations listed above is a degree of normatively motivated political expediency
Even under the formal definition as outlined by Craig (1997), the rule of law comprises law’s creation, promulgation, and application, including certain procedural standards and limitations18; as such it can be understood systems-theoretically as establishing a contingent connection between the two function systems of politics and law in the form of mutually constituted procedural thresholds and requirements.19. This conception of the rule of law is further informed by the distinction that systems theory draws between ideas of legitimacy and validity, or, rather, the ease with which it distinguishes the latter compared to the difficulties it experiences with the former
Summary
There has been a marked increase in recent years in the quantity of legislation passed by the UK Parliament that provides for hybridised procedural approaches to specific legal issues. This paper submits that, in their effective bypassing of enhanced procedural protections, this hybrid measure is contrary to the rule of law and lacking in necessary legitimacy (on the point that the legislative remedy of civil recovery has gone too far in its attempt to remedy an existing inadequacy in the law, see Hendry and King 2015) This critique may appear prima facie to be a legal-theoretical one, it is important to note that this opens civil recovery up to challenge on the grounds that it violates due process rights that are inherent in the criminal process.
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