Pub Date : 2020-09-06DOI: 10.1080/20508840.2020.1814555
Ana Horvat Vuković
ABSTRACT EU and its member states utilise the paradigm of equality of results in the area of gender equality. In addition to preferences in standardised jobs, states have also been using quotas in corporate and political bodies. Those seem to be best testing grounds, as the arguments supporting their use of quotas are non-controversial. The nature of their work also allows for a laxer application of formal equality, originally tailored to highly competitive activities that necessarily hinge on merit. Regarding quotas in decision-making bodies generally, the argument from democracy stresses the lack of legitimacy for decisions reached by unbalanced representation of genders. This attenuates the normative strength of adopted policies and regulations and renders their acceptance and enforcement difficult. A supporting argument is one from diversity, positing a greater quality of decisions reached and better business performance due to greater responsiveness to the need of the voting/consumer base. The democracy and diversity arguments both are not grounded in distributive justice. However, their utilitarian logic appeals to a market democracy and makes them forerunners in terms of quota justifications. Arguments that, in turn, are based on distributive justice echo anti-subordination theory and stress the quotas’ impact on rebalancing of power. A critical mass of women in decision-making bodies should enhance female social capital. This should symbolically spill over into a newfound self-respect for the whole community, and lift women up through ancillary instruments such as female professional networking, mentoring and sponsorship. One of the main reasons for this that the bluntness of the quota system severs the informal social phenomenon of networking. The ‘gatekeeper’ phenomenon is based on the homophily principle that has traditionally hindered women from ‘rising through the ranks’. In this way, quotas also protect from unconscious bias, which influences social solidarity and disrupts reproduction of set centres of power.
{"title":"Gender quotas in corporate decision-making bodies – regulatory promotion of equality of results in the EU","authors":"Ana Horvat Vuković","doi":"10.1080/20508840.2020.1814555","DOIUrl":"https://doi.org/10.1080/20508840.2020.1814555","url":null,"abstract":"ABSTRACT EU and its member states utilise the paradigm of equality of results in the area of gender equality. In addition to preferences in standardised jobs, states have also been using quotas in corporate and political bodies. Those seem to be best testing grounds, as the arguments supporting their use of quotas are non-controversial. The nature of their work also allows for a laxer application of formal equality, originally tailored to highly competitive activities that necessarily hinge on merit. Regarding quotas in decision-making bodies generally, the argument from democracy stresses the lack of legitimacy for decisions reached by unbalanced representation of genders. This attenuates the normative strength of adopted policies and regulations and renders their acceptance and enforcement difficult. A supporting argument is one from diversity, positing a greater quality of decisions reached and better business performance due to greater responsiveness to the need of the voting/consumer base. The democracy and diversity arguments both are not grounded in distributive justice. However, their utilitarian logic appeals to a market democracy and makes them forerunners in terms of quota justifications. Arguments that, in turn, are based on distributive justice echo anti-subordination theory and stress the quotas’ impact on rebalancing of power. A critical mass of women in decision-making bodies should enhance female social capital. This should symbolically spill over into a newfound self-respect for the whole community, and lift women up through ancillary instruments such as female professional networking, mentoring and sponsorship. One of the main reasons for this that the bluntness of the quota system severs the informal social phenomenon of networking. The ‘gatekeeper’ phenomenon is based on the homophily principle that has traditionally hindered women from ‘rising through the ranks’. In this way, quotas also protect from unconscious bias, which influences social solidarity and disrupts reproduction of set centres of power.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1814555","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47644261","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-02DOI: 10.1080/20508840.2020.1820660
Antonios Kouroutakis
ABSTRACT Henry VIII powers, which are commonly found in legislation, until recently, were not an issue of major constitutional concern. However, their extensive use in the EUWA and the subsequent EUWAA attracted the attention of academics and politicians alike. This article aims to offer justifications for the use of Henry VIII powers in extraordinary situations such as Brexit, given that such powers would be subject to enhanced legal safeguards. In doing so, this article examines the challenge that the Brexit process poses to the law making institutions, and it elaborates on how the proper use of Henry VIII powers has the capacity to meet the Brexit ends. It also focuses on the particular Henry VIII powers in the EUWA and the EUWAA and it examines both the legal and the political safeguards. It evaluates both the legal and the political safeguards and it highlights their positive and negative aspects. Finally, this article concludes with a set of legal safeguards, procedural and material, that are necessary for the proper use of such powers in future legislation. In particular, it argues that the proper use of Henry VIII powers should include at least two safeguards; first a pre-legislative stage attracting public engagement and second a substantive limit according to which the executive should not be allowed to use Henry VIII powers to amend acts of constitutional value and most importantly the enabling act. Accordingly, it proposes that there is need for a constitutional statute to set uniform safeguards and standards for every use of Henry VIII powers.
{"title":"The Henry VIII powers in the Brexit process: justification subject to political and legal safeguards","authors":"Antonios Kouroutakis","doi":"10.1080/20508840.2020.1820660","DOIUrl":"https://doi.org/10.1080/20508840.2020.1820660","url":null,"abstract":"ABSTRACT Henry VIII powers, which are commonly found in legislation, until recently, were not an issue of major constitutional concern. However, their extensive use in the EUWA and the subsequent EUWAA attracted the attention of academics and politicians alike. This article aims to offer justifications for the use of Henry VIII powers in extraordinary situations such as Brexit, given that such powers would be subject to enhanced legal safeguards. In doing so, this article examines the challenge that the Brexit process poses to the law making institutions, and it elaborates on how the proper use of Henry VIII powers has the capacity to meet the Brexit ends. It also focuses on the particular Henry VIII powers in the EUWA and the EUWAA and it examines both the legal and the political safeguards. It evaluates both the legal and the political safeguards and it highlights their positive and negative aspects. Finally, this article concludes with a set of legal safeguards, procedural and material, that are necessary for the proper use of such powers in future legislation. In particular, it argues that the proper use of Henry VIII powers should include at least two safeguards; first a pre-legislative stage attracting public engagement and second a substantive limit according to which the executive should not be allowed to use Henry VIII powers to amend acts of constitutional value and most importantly the enabling act. Accordingly, it proposes that there is need for a constitutional statute to set uniform safeguards and standards for every use of Henry VIII powers.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1820660","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49314385","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-01DOI: 10.1080/20508840.2020.1838755
Csaba Győry, Nyasha Weinberg
ABSTRACT How should we understand the Hungarian government’s activities since the beginning of the Covid-19 crisis? This article reviews Hungary’s emergency law, and the decrees passed under the emergency authorisation to date, as well as the ending of the state of emergency and the subsequently introduced new statutory emergency regime to ask how Hungary’s actions in recent months should be understood. As the paper demonstrates, bringing in insights from political theory to inform constitutional law approaches to legislative practice can help shed some light on the enigma of Hungary’s apparent legislative ‘restraint’.
{"title":"Emergency powers in a hybrid regime: the case of Hungary","authors":"Csaba Győry, Nyasha Weinberg","doi":"10.1080/20508840.2020.1838755","DOIUrl":"https://doi.org/10.1080/20508840.2020.1838755","url":null,"abstract":"ABSTRACT How should we understand the Hungarian government’s activities since the beginning of the Covid-19 crisis? This article reviews Hungary’s emergency law, and the decrees passed under the emergency authorisation to date, as well as the ending of the state of emergency and the subsequently introduced new statutory emergency regime to ask how Hungary’s actions in recent months should be understood. As the paper demonstrates, bringing in insights from political theory to inform constitutional law approaches to legislative practice can help shed some light on the enigma of Hungary’s apparent legislative ‘restraint’.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1838755","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48711621","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-01DOI: 10.1080/20508840.2020.1818369
P. Norton
{"title":"Global legislative responses to coronavirus","authors":"P. Norton","doi":"10.1080/20508840.2020.1818369","DOIUrl":"https://doi.org/10.1080/20508840.2020.1818369","url":null,"abstract":"","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1818369","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44315270","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-09-01DOI: 10.1080/20508840.2020.1816261
Ronan Cormacain, I. Bar-Siman-Tov
ABSTRACT States around the world have struggled to come up with proper legislative responses to the 2019 novel coronavirus pandemic. This editorial introduces the special issue on ‘Global Legislative Responses to Coronavirus’ and offers an overview of its rich array of articles. It follows on from the previous special issue on legislatures in a time of Covid-19.
{"title":"Global legislative responses to coronavirus","authors":"Ronan Cormacain, I. Bar-Siman-Tov","doi":"10.1080/20508840.2020.1816261","DOIUrl":"https://doi.org/10.1080/20508840.2020.1816261","url":null,"abstract":"ABSTRACT States around the world have struggled to come up with proper legislative responses to the 2019 novel coronavirus pandemic. This editorial introduces the special issue on ‘Global Legislative Responses to Coronavirus’ and offers an overview of its rich array of articles. It follows on from the previous special issue on legislatures in a time of Covid-19.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1816261","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44818562","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-08-12DOI: 10.1080/20508840.2020.1804110
S. Platon
ABSTRACT In order to cope with the Covid-19 crisis, the French Parliament has adopted an Act creating a new emergency powers regime, dubbed state of health emergency, which is currently in force. The present paper aims at analysing and providing a critical appraisal of this regime. In particular, it will be demonstrated that this regime is rather imbalanced in that it confers important powers to the executive with limited checks and balances. It will also be contended that the creation of a new regime was not necessary, and that it would have been wiser to amend the existing state of emergency.
{"title":"Reinventing the wheel … and rolling over fundamental freedoms? The Covid-19 epidemic in France and the ‘State of Health Emergency'","authors":"S. Platon","doi":"10.1080/20508840.2020.1804110","DOIUrl":"https://doi.org/10.1080/20508840.2020.1804110","url":null,"abstract":"ABSTRACT In order to cope with the Covid-19 crisis, the French Parliament has adopted an Act creating a new emergency powers regime, dubbed state of health emergency, which is currently in force. The present paper aims at analysing and providing a critical appraisal of this regime. In particular, it will be demonstrated that this regime is rather imbalanced in that it confers important powers to the executive with limited checks and balances. It will also be contended that the creation of a new regime was not necessary, and that it would have been wiser to amend the existing state of emergency.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1804110","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44866148","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-07DOI: 10.1080/20508840.2020.1788810
Ross Carter
The book’s aims, contents, and conclusion can be seen clearly in this outline (emphasis added): What is effective legislation? Can lawmakers around the world improve the effectiveness of their laws...
{"title":"Designing effective legislation","authors":"Ross Carter","doi":"10.1080/20508840.2020.1788810","DOIUrl":"https://doi.org/10.1080/20508840.2020.1788810","url":null,"abstract":"The book’s aims, contents, and conclusion can be seen clearly in this outline (emphasis added): What is effective legislation? Can lawmakers around the world improve the effectiveness of their laws...","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1788810","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44329271","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-03DOI: 10.1080/20508840.2020.1786272
Ronan Cormacain
ABSTRACT Domestic and international jurisprudence indicate the principles for law making in a public health emergency. These are that emergency laws should be limited, time-bounded and proportionate to the nature of the emergency. One way to give effect to these principles is to socially distance emergency legislation from ordinary legislation. This makes emergency laws separate and distinct from ordinary laws, and reduces the chances of them being used for periods and purposes beyond their initial remit. Specific structural techniques to do this are: to use sunset clauses, to use a single legislative vehicle for emergency laws, to use non-textual amendments, to avoid the standard mosaic approach to making new laws, to expressly state their temporary nature, to specifically limit their use to the emergency and to give them a title which indicates their emergency nature.
{"title":"Keeping Covid-19 emergency legislation socially distant from ordinary legislation: principles for the structure of emergency legislation","authors":"Ronan Cormacain","doi":"10.1080/20508840.2020.1786272","DOIUrl":"https://doi.org/10.1080/20508840.2020.1786272","url":null,"abstract":"ABSTRACT Domestic and international jurisprudence indicate the principles for law making in a public health emergency. These are that emergency laws should be limited, time-bounded and proportionate to the nature of the emergency. One way to give effect to these principles is to socially distance emergency legislation from ordinary legislation. This makes emergency laws separate and distinct from ordinary laws, and reduces the chances of them being used for periods and purposes beyond their initial remit. Specific structural techniques to do this are: to use sunset clauses, to use a single legislative vehicle for emergency laws, to use non-textual amendments, to avoid the standard mosaic approach to making new laws, to expressly state their temporary nature, to specifically limit their use to the emergency and to give them a title which indicates their emergency nature.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1786272","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47908183","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-19DOI: 10.1080/20508840.2020.1783627
Klaus Meßerschmidt
ABSTRACT This paper examines in general terms the impact of the precautionary principle on COVID-19 legislation and management. In academic discussion the precautionary principle is usually referred to in the context of environmental policy. The principle can also be found, however, in health protection, which suggests its transfer to the pandemic situation. Contrary to the concern that the principle could serve as a blanket justification for extreme and arbitrary interventions in civil liberties, the paper demonstrates that, notwithstanding conflicts with the rule-of-law obligation to evidence-based legislation, the precautionary principle does not supplant the principle of proportionality. Thus, it sets limits to risk-related legislation even though it allows restrictions in the absence of scientific consensus. Reflecting on the scientific debate about the precautionary principle can help to maintain (or at least restore) rationality and prudent risk tradeoffs even in times of emergency legislation.
{"title":"COVID-19 legislation in the light of the precautionary principle","authors":"Klaus Meßerschmidt","doi":"10.1080/20508840.2020.1783627","DOIUrl":"https://doi.org/10.1080/20508840.2020.1783627","url":null,"abstract":"ABSTRACT This paper examines in general terms the impact of the precautionary principle on COVID-19 legislation and management. In academic discussion the precautionary principle is usually referred to in the context of environmental policy. The principle can also be found, however, in health protection, which suggests its transfer to the pandemic situation. Contrary to the concern that the principle could serve as a blanket justification for extreme and arbitrary interventions in civil liberties, the paper demonstrates that, notwithstanding conflicts with the rule-of-law obligation to evidence-based legislation, the precautionary principle does not supplant the principle of proportionality. Thus, it sets limits to risk-related legislation even though it allows restrictions in the absence of scientific consensus. Reflecting on the scientific debate about the precautionary principle can help to maintain (or at least restore) rationality and prudent risk tradeoffs even in times of emergency legislation.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1783627","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47966919","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-15DOI: 10.1080/20508840.2020.1777648
M. Addadzi-Koom
ABSTRACT On 15 March 2020, the President of the Republic of Ghana addressed the nation on anti-coronavirus measures which took effect immediately. He directed the Attorney-General to submit an emergency legislation to Parliament and the Minister for Health to issue an immediate Executive Instrument to regulate the relevant measures. Five days later, Parliament passed the Imposition of Restrictions Act, 2020 (IRA) after a voice count in its favour. A few days, thereafter, the President issued an Executive Instrument (E.I. 64) pursuant to the IRA. The minority members of Parliament, some legal scholars and interested Ghanaians expressed their disapproval of the procedures leading to the enactment of the IRA as well as its nature, form and content. The contentions cover multiple constitutional and legal grounds including the procedural propriety of using a voice vote in Parliament for emergency legislation, the necessity of a new emergency legislation and the time limit for the new emergency legislation. Essentially, these issues point to assessing the overall constitutionality of the law-making procedures and legislative provisions of the IRA. This is the focus of this paper. The paper argues that the IRA stands unconstitutional from the very beginning of its intended existence. The paper concludes that while the IRA is currently operational, its continued existence is challengeable under the 1992 Constitution of Ghana, thus, there is a window of opportunity to right the wrong.
{"title":"Quasi-state of emergency: assessing the constitutionality of Ghana’s legislative response to Covid-19","authors":"M. Addadzi-Koom","doi":"10.1080/20508840.2020.1777648","DOIUrl":"https://doi.org/10.1080/20508840.2020.1777648","url":null,"abstract":"ABSTRACT On 15 March 2020, the President of the Republic of Ghana addressed the nation on anti-coronavirus measures which took effect immediately. He directed the Attorney-General to submit an emergency legislation to Parliament and the Minister for Health to issue an immediate Executive Instrument to regulate the relevant measures. Five days later, Parliament passed the Imposition of Restrictions Act, 2020 (IRA) after a voice count in its favour. A few days, thereafter, the President issued an Executive Instrument (E.I. 64) pursuant to the IRA. The minority members of Parliament, some legal scholars and interested Ghanaians expressed their disapproval of the procedures leading to the enactment of the IRA as well as its nature, form and content. The contentions cover multiple constitutional and legal grounds including the procedural propriety of using a voice vote in Parliament for emergency legislation, the necessity of a new emergency legislation and the time limit for the new emergency legislation. Essentially, these issues point to assessing the overall constitutionality of the law-making procedures and legislative provisions of the IRA. This is the focus of this paper. The paper argues that the IRA stands unconstitutional from the very beginning of its intended existence. The paper concludes that while the IRA is currently operational, its continued existence is challengeable under the 1992 Constitution of Ghana, thus, there is a window of opportunity to right the wrong.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1777648","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44421044","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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