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What does it mean?
1. “Due process” refers to the principle that requires a decision-maker to follow a fair and just process when adjudicating someone’s rights or freedoms.
2. It requires that a person be given notice and an opportunity to be heard before being subjected to any official action that may negatively impact their rights or interests.
3. In the UK, this principle is enshrined in the Human Rights Act 1998, which incorporates the European Convention on Human Rights into UK law.
4. The word “due” in “due process” means “proper” or “lawful”. It refers to the idea that the process used to make a decision affecting an individual’s rights or interests must be proper and lawful, in accordance with established legal procedures and principles.
5. The word “process” refers to the procedures and steps that must be followed in order to make a decision. In the context of due process, it refers to the specific procedures and safeguards that must be followed in order to ensure that a person’s rights and interests are protected, such as the right to notice and a fair hearing, the right to representation, and the right to protection against unreliable or coerced evidence.
6. Taken together, “due process” means that a proper and lawful process must be followed in order to make decisions affecting an individual’s rights or interests and that this process must include specific protections and safeguards to ensure that the decision is fair and just.
Breach of due process
7. A breach of due process occurs when a decision maker fails to follow a fair and impartial process when taking action that affects a person’s rights or interests.
8. Some examples of a breach of due process include:
- denial of the right to notice,
- an opportunity to be heard before a decision is made,
- denial of the right to a fair and impartial hearing,
- use of unreliable or coerced evidence in a hearing,
- failure to provide access to representation, and
- bias or prejudice in the decision-making process.
9. Breaches of due process can result in the decision being declared invalid or unlawful and can lead to the possibility of compensation or other legal remedies for the affected individual.
Origins of the term
10. The term “due process” has its roots in English common law and the Magna Carta of 1215.
11. The Magna Carta established the principle that the king was subject to the law and limited his power over his subjects.
12. Clauses 39 and 40 are particularly relevant:1‘Magna Carta clauses’, accessed 30 January 2023
No free man shall be seized, imprisoned, dispossessed, outlawed, exiled or ruined in any way, nor in any way proceeded against, except by the lawful judgement of his peers and the law of the land.
“To no one will we sell, to no one will we deny or delay right or justice.”
13. These provisions established the principle that no one could be deprived of their liberties or property without the lawful judgment of their peers or the law of the land. This principle was later developed and expanded to include the specific procedures and safeguards that are now associated with the concept of “due process”.
14. Today, the concept of due process is considered a cornerstone of modern democracies and is incorporated into the constitutions and laws of many countries around the world.
Due process and the rule of law
15. While “due process” and “the rule of law” are related concepts, they are not the same.
The rule of law
16. The rule of law refers to the principle that all people, including those in positions of power, are subject to and governed by the law. It requires that laws be clear, impartial, and accessible and that they be applied consistently and without discrimination.
Due process
17. Due process, on the other hand, refers to the specific procedures and safeguards that must be followed in order to ensure that the rule of law is upheld in individual cases. It encompasses the procedures that must be followed in order to protect a person’s rights and interests, such as the right to notice and a fair hearing, the right to counsel, and the right to protection against unreliable or coerced evidence.
Due process – beyond the legal realm
18. The concept of due process has wider implications beyond just the legal realm.
19. Due process refers to the idea that people should be treated fairly and justly in all aspects of their lives, not just in legal proceedings.
20. This principle is often applied in various contexts, such as workplace procedures, educational institutions, and administrative proceedings.
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