Search Results

Assesses the degree to which parties still structure the legislative process. Party cohesion and party dominance within legislatures has usually been grounded in one of two explanations. One explanation sees legislative party discipline as a feature of the importance of party organization in fighting elections, which carries through to the legislative chamber itself, while a second explanation sees party discipline as a product of incentives facing individual legislators inside the legislative arena. The first argument would predict that party discipline inside the legislature should begin to falter because of the changes described in the previous chapters of this book. The second argument would predict that very little change should be seen and, further, that formal rules inside legislatures should underpin the importance of parties. In examining a range of behavioural data, such as roll‐call voting and internal Rules of Procedure, there is little evidence to support the view that party discipline has weakened or that parties are less important today in determining legislative outcomes. Changes in electoral behaviour, then, are not reflected in changes in the importance of parties inside legislatures where parties remain dominant actors.

The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of Rome rules and secondary legislation that constitute the domain of sex equality, while the second examines how Art. 141 (which provides that male and female workers shall receive equal pay for equal work) evolved once it had been constitutionalized by the European Court of Justice. Section III, ‘Judicialization: The Court and the Legislator’, focuses on the relationship between the Court, its case law on sex equality, and the production of directives by the EC legislator; the impact is also briefly discussed of the Court's rulemaking on national judicial and legislative processes; topics included are indirect discrimination, occupational pensions, pregnancy and maternity rights. In the fourth section, ‘Adjudicating Sex Equality Law’, an analysis is made of the aggregate data on litigation and adjudication in the field, focusing on how precedent‐based lawmaking has organized the development of this area. The conclusion addresses a range of theoretical issues.

This chapter focuses on the process by which laws have been made. It takes a deliberately wide view of the legislative process, looking at what happens before a Bill is introduced, when the conventional wisdom asserts ‘all executive policy and most legislation is conceived, drafted and all but enacted’, as well as at what happens once it embarks on the parliamentary stages of the process. It begins by looking at the expectations that were held of the process.

The relationship between law and policy is a multi-faceted and complex one. This chapter is concerned with one aspect of that relationship, namely the extent to which the policy-making process — which culminates in the enactment of primary and secondary legislation — is and ought to be regulated by law. The goal is to lay a normative foundation for thinking about constitutional and legal regulation of policy-making in the pre-legislative process. The underlying assumption is that we need to develop a constitutional theory of policy-making in the pre-legislative process in order to be able to approach the question of legal regulation of that process in a principled way. It is argued that the government is (or ought to be) under a constitutional obligation to advertise legislative proposals widely and to allow all interested groups to express their views on those proposals in an open, non-secretive environment. Constitutionally, the chapter focuses on the United Kingdom; institutionally, on central government; and legally, on England. The theoretical discussion, therefore, deals primarily with Westminster-style systems of government characterized by a high degree of integration of the legislature and the executive.

This chapter is concerned with access. It is the natural starting point for consideration of administrative law doctrine. Any system of administrative law will have access points or gateways, which determine who can get into the system. There are two crucial access points in any legal regime. There will be procedural rules determining who is entitled to be heard or intervene before the initial decision is made, or who is entitled to be consulted before a legislative-type norm is enacted. There will also be rules of standing that determine who should be able to complain to the court that the initial decision-maker overstepped its powers. The discussion begins with the jurisprudence of the European Court of Justice and Court of First Instance/General Court concerning the right to take part in the initial determination. It shows that the courts have distinguished sharply between the right to be heard in relation to individualized decisions and consultation and participation in relation to norms of a legislative nature. This is followed by consideration of political initiatives to foster consultation in the EU legislative process. The remainder of the chapter is concerned with the other main access point, standing to seek judicial review. There is a critical evaluation of the case law, discussion of the possible impact of the Charter of Rights, and consideration of the reforms made by the Lisbon Treaty.

This chapter examines powers that routinely call for interactions between the President and Congress. These include the legislative process, appointments, independent counsels, delegation of authority, and independent commissions.

This chapter expresses a sceptical stance about the extent to which bills of rights can be crafted in such a way as to avoid the damaging consequences of strong judicial review. Research on how bills of rights affect bureaucratic and political behaviour when developing and evaluating legislation in Canada, New Zealand, and the United Kingdom, shows that even ‘weak’ bills of rights lead to cautious executives who refrain from bringing forward legislation that might be considered inconsistent with judicial decisions. In this way, they may be said to ‘govern like judges’ producing legalistic legislation which distorts policy and political judgments regarding human rights concerns. It is as if judges were in the corridors of power at the time legislation is being developed. Moreover, the capacity of parliamentarians to oppose government legislation is reduced if the legislation is thought to be potentially inconsistent with relevant judicial rulings. The chapter therefore believes that weak form systems are unstable and will either revert to parliamentary supremacy of merge into strong court systems. It concludes that, however bills of rights are designed, and allowing for significant differences between Canada, New Zealand, and the UK, the idea of developing robust and effective systems of rights-based parliamentary scrutiny is unrealistic.

The Labour Party government elected in 1997 was committed to an expansive legislative programme after almost twenty years in opposition, and was keen to ensure that the most efficient mechanisms were in place to secure that programme. To achieve this, the government established a Modernisation Committee to implement the necessary changes in parliament. A significant proportion of this Committee's time has been spent on efficiency matters similar to those explored previously by the Procedure Committee. The notion of modernisation has been utilised by the government to update and redesign procedures primarily (although not exclusively) for its own benefit. These changes have included alterations to the legislative process, adjustments to House sitting hours, and the creation of Westminster Hall as a parallel chamber. The Labour government's constitutional reform programme included a commitment to establish a select committee for the specific purpose of modernising the House of Commons.

What opponents feared most—a detrimental impact on the business of legislating—and the consequences of term limits on the lawmaking process is explored in chapter six. The power of leaders in the Legislature is paramount. But this has come at a price, with a major loss of institutional memory and lack of procedural knowledge among top leaders and committee chairs. This has advantaged the majority party further, particularly in those years where the majority Republican Party held more than a 2:1 advantage. The Senate has become the repository of institutional memory and process knowledge mainly because most of the Senate members came from the House with longer tenure and a collective memory lacking in the much younger and greener House.

This chapter examines the legislative process, paying particular attention to the role of congressional leaders and the changing impact of party and partisanship. It argues that a “new order” has evolved in Congress. The new order reduces the power of the congressional committees and undermines deliberation, but it can still produce legislation, especially when Congress and the president are of the same party. The new order consists of three key elements, which are discussed in this chapter: “follow-the-leader” lawmaking, “do-it-yourself” (DIY) legislating, and “catching-the-omnibus” budgeting. The chapter also looks in detail at one very important part of the legislative process—the budget and appropriations process through which Congress exercises its constitutional “power of the purse.”

This chapter assesses the oft-made argument that congressional majority parties bypass traditional legislative processes (the "regular order") as a strategy for, and means of, enacting their partisan agendas. To do so, the chapter first assesses the relationship between violations of “regular order” (the use of unorthodox processes) and the levels of partisan disagreement on the passage of 621 important laws passed by Congress from 1987-2016. Second, interviews with Washington insiders seek insight to legislative leaders’ motivations for employing unorthodox processes. Altogether, little evidence is found that the use of unorthodox legislative processes is a leading indicator of partisan lawmaking. Congressional leaders turn to unorthodox processes not to pass partisan programs, but to resolve impasses in enacting bipartisan legislation. The flexibility and secrecy permitted by these more streamlined, centralized processes can be necessary to legislate successfully in the contemporary political environment, even with highly bipartisan legislation. Rather than tools of party power used to enact partisan laws, unorthodox processes are largely just different means to achieving legislative ends.

This chapter discusses how governments use law to regulate the behavior of citizens. Powerful actors with the ability to influence government policy making can rule by law, using the legislative process and government support to promote their priorities. For individuals and groups who do not find government doors wide open, litigation can be a political means to overturn the decisions of governments. Individuals living in authoritarian countries and in countries with weak rule of law institutions generally invoke international law to circumvent blockages created by domestic institutions that are captured by governments. International law is an attractive political resource because governments do not control it. And while international courts are surely political actors, they are legal institutions comprised of judges from multiple countries with a formal mandate to apply the law.

This chapter aims to explore the function of policy analysis in the Legislative Yuan and examine how the results of policy analysis affect law-making processes. Since the congress reform in 1999, the Organic Law and Statute Bureau and the Budget Center, were officially established in the Legislative Yuan to provide objective and neutral policy suggestions to legislators. Through an examination of the law-making process of the first and only pollution remediation law in Taiwan, the Soil and Groundwater Pollution Remediation Act of 2000, this chapter will address the extent to which policy analysis, in the Legislative Yuan, affects the law-making process and factors that influence the comparative significance among policy analysis units in the Legislative Yuan? This study finds that the advice offered by analysts in the Legislative Yuan was not taken seriously in the law-making process and, consequently, not adopted into law. This chapter concludes by summarizing that a lack of supporting conditions has made policy analysis less functional in the Legislative Yuan.

This chapter shows that even in private litigation cases, the federal judiciary is not always comfortable getting involved. There is a voluntary component to Congress's delegation of power and related changes in the legislative process that makes this area of litigation more complex than war powers. Here one sees there is no ideological or institutional rhythm to delegation of power and legislative process cases. Indeed, the federal courts are inconsistent in their interest in legislative process cases (the last delegation of legislative power cases were decided during the New Deal) and when they do enter these debates, such as the debate over the “legislative veto,” they get roundly criticized for it. The most obvious conclusion from the chapter is that judges appear to want some kind of toehold in the area of legislative processes and delegation of power without taking the full plunge regularly.

This chapter introduces the main constitutional institutions and mechanism governing France, taking into account the major overhaul of the 1958 Constitution in 2008. It also shows that legislation is the primary source of law in France, that there are different types of legislation, and that legislative sources are organised hierarchically. Moreover, the chapter also considers, within the constitutional framework, the legislative process and examines the way in which bills are drafted. It also seeks to familiarise readers with the layout of a French statute. In addition, this chapter shows that much of French law though not all of it is codified. Codification is a particular legislative technique common to most civil law systems.

This chapter traces the copyright legislative process in Palestine. A first piece of legislation was the little-known Ottoman Authors’ Rights Act 1910. When the British replaced the Ottomans, one of their first enactments was the Copyright Ordinance 1920. The chapter queries their motivation in enacting copyright law at such an early stage, and provides several possible answers: it was a British imperial interest, intertwined with the international agenda; it fit the colonial mission of developing the country, and lastly, a personal motivation of the Attorney General, Norman Bentwich. The list does not include local demand: none existed at the time. The next legislative step was the British extension of the Imperial Copyright Act in 1924 and the local enactment of the Copyright Ordinance 1924. The chapter also discusses the late official publication of the 1911 Act, and the establishment of copyright relationship between Palestine and the United States

Chapter 5 makes the case in favor of greater legislative involvement in EMU, and argues that making the “Community method” central to the governance of EMU affairs could be a way to reduce the trend of judicialization. The chapter discusses the challenges that restoring the EU legislative process faces and the options available for dealing with them. First, greater legislative involvement in EMU can be assured only if convincing constitutional arguments can be advanced to constrain the states from acting outside EU law, and simultaneously to empower the EU institutions to legislate in EMU. Second, a greater role by the European Parliament in EMU governance requires a re-thinking of the mechanisms through which its members are elected. Third, the working of the Council must be critically reconsidered, since the fragmentation and the imbalances between its various compositions hampers its ability to act as the upper EU legislative house.