The Five Constellations of Procedural Principle

Abstract

INTRODUCTION The main suggestion in this chapter (developed at 25.07) is that the fundamental and important principles of civil justice can be usefully arranged under these five headings (‘The Five Constellations of Procedural Principle’): (i) Advice and Access: Empowering the Parties; (ii) Conditions for Sound Decision-Making; (iii) An Efficient Process; (iv) A Fair Process; (v) Upholding Judgment. Constitutional procedural principles have become prominent, both at the level of national law (so-called ‘Common Law constitutional rights’) and at within the sphere of international convention. As for the latter, in matters of human rights, including fundamental procedural principles, Europe Convention States, including the United Kingdom, must comply with the jurisprudence of the Strasbourg court concerning on the guarantees contained in Article 6(1) of the European Convention on Human Rights (30.02 ff). The Human Rights Act 1998, which took effect in October 2000, rendered the European Convention on Human Rights directly applicable in English courts. Article 6(1) of the Convention states: Right to a Fair Trial : In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. That important codification of fundamental principle consists of the following elements: the rights to: (i) ‘ a fair hearing’ : this is a wide concept embracing: (a) the right to be present at an adversarial hearing; (b) the right to equality of arms; (c) the right to fair presentation of the evidence; (d) the right to cross-examine opponents’ witnesses; and (e) the right to a reasoned judgment (29.20 ff); (ii) ‘ a public hearing’ : including the right to a public pronouncement of judgment; (iii) ‘ a hearing within a reasonable time’ ; and (iv) ‘ a hearing before an independent and impartial tribunal established by law’ (on ‘judicial independence’, 26.01 ff ; on ‘judicial impartiality’, 26.19 ff). Besides these external influences, there is the internal task of arranging a set of fundamental procedural norms. Such a canon of principles seems indispensable if lawyers are to view procedural justice in a coherent and systematic way. International scholarly discussion thrives on fundamental principle. A stimulating examination of procedural principles is the American Law Institute/UNIDROIT Principles 9 although these principles are non-binding (25.129 ff).