Israel has no one official document known as ‘the Constitution’ and for nearly half a century was based on the principle of parliamentary sovereignty. Still, since the ‘constitutional revolution’ of the 1990s, Israel’s supreme norms are expressed in its basic laws and laws are subject to judicial review. This situation is the result of the enactment of two basic laws dealing with human rights in 1992 – which included a limitation clause – and of a judicial decision of monumental significance in 1995, the Bank Hamizrahi case. In that decision, the Supreme Court stated that all basic laws – even if not entrenched – have constitutional status, and therefore the currently accepted approach is that the Knesset indeed dons two hats, functioning as both a legislature and a constituent authority. The novelty of the Bank Hamizrahi decision lies in its notion of a permanent, ongoing constituent authority. The Knesset actually holds the powers of a constitutional assembly, and legislation titled ‘Basic-Law’ is the product of constituent power. Though it is neither complete nor perfect, Israel’s constitution – that is, basic laws – addresses a substantial number of the issues covered by formal constitutions of other democratic states. Furthermore, though this formal constitution is weak and limited, it is nonetheless a constitution that defends the most important human rights through effective judicial review.
Still, given the ease with which changes can be made to basic laws, the special standing of basic laws differs from the standing generally conferred on a constitution. Most basic laws are not entrenched, which means that the Knesset can alter a basic law by a regular majority. Over the past few years, there has been a tendency towards ad casum amendments of basic laws. These amendments are usually adopted against a background of political events that demand an immediate response on the part of the Knesset. The latter then chooses the path of constitutional – not regular – legislation, which is governed by a relatively smooth legislative passage procedure. Even provisional constitutional amendments were passed with relative ease followed by petitions presented to the Supreme Court, arguing that the Knesset’s constituent power is actually being ‘abused’.
These petitions, as well as Israel’s peculiar constitutional development, presented the Supreme Court with several questions as to the power for judicial review of basic laws. Thus far, the Court’s endorsement of judicial review was based on the limitation clause found in both basic laws on human rights, but limitation clauses do not establish the criteria for a constitutional violation by constitution provisions. Does this mean that the Knesset’s constituent power is omnipotent?
This article examines the almost unique position of Israeli jurisprudence in relation to the doctrine of ‘unconstitutional constitutional amendments’. It focuses on the possibility of applying the doctrine in the Israeli case laws, the often-raised notion of ‘supra-constitutional’ values that would limit the Knesset’s constituent power, and a third – newly created – doctrine of abuse (or misuse) of constituent power. A central claim of this article is that in light of the unbearable ease with which basic laws can be amended in Israel, there is an increased justification for judicial review of basic laws.

With the exception of the Constitution of Norway, the Constitutions of Denmark, Finland, Iceland and Sweden are silent on any substantive limits to the power of constitutional amendment. Until now, the topic of constitutional unamendability has also attracted very little attention in Nordic constitutional scholarship.
However, some idiosyncrasies making up the identity of the Nordic constitutions, as well as constitutional limits to Nordic participation in European integration, may implicate the existence of some implicit limits to amendment powers. Similarly, international human rights obligations binding upon the Nordic countries, as well as European Union law and European Economic Area law, may impose some external, supra-constitutional limitations on the powers of Nordic constitutional amenders. However, the existence of any implicit or supra-constitutional unamendability is speculative in the current state of evolution of Nordic constitutionalism. This is even more so since the use of constitutional amendment powers are beyond judicial review by the Nordic courts.

This article deals with the judicial review of constitutional amendments, which has been a hotly debated constitutional and political issue in Turkey, particularly with regard to the unamendable provisions of the constitution. Since its creation by the Constitution of 1961, the Turkish Constitutional Court has followed a markedly activist and tutelarist approach regarding this issue and annulled several constitutional amendments arguing that they violated the unamendable provisions of the Constitution. Recently, however, the Court adopted a self-restraining approach. This shift can be explained as part of the political regime’s drift towards competitive authoritarianism and the governing party’s (AKP) capturing almost total control over the entire judiciary.

Alongside the state juvenile justice system, various forms of non-state justice providers are strongly prevalent in Palestine. Although the state juvenile justice has evolved into a modern system, it lacks adequate human, professional and infrastructural capacities to provide effective justice to all children. This field research has identified key non-state justice providers in Palestine and reveals that they are more accessible and speedy and also place more emphasis on peacemaking and reconciliation than the state justice system. It also reveals that in the processes of justice dispensation, occasional violation of children’s rights takes place within some of the male-dominated non-state justice providers. In order to minimise rights violation, while capitalising on the restorative capacities of non-state justice providers, a ‘hybrid model of juvenile justice in Palestine’ has been developed and is proposed. It is argued in this article that the ‘hybrid model’ not only promises to provide a coherent framework of links between Palestinian state juvenile justice and non-state justice providers, but also has the capacity to minimise rights violation through proposed internal and external oversight mechanisms. It is further maintained that translating the hybrid model into practice may result in the provision of more accessible, inclusive and restorative juvenile justice to all children in Palestine.

There is one indispensable contravention to the principle of separation of powers: parliaments must grant the executive the authority to make law in a delegated capacity. No modern state can be effectively governed without the executive making laws to supplement Acts of parliament. Delegating power does not mean that parliament loses its power. For parliament to retain its legislative authority what is required is a framework to support parliament to review the laws (and powers) that are being delegated, and that it has the capacity to monitor and regulate the use of that power by the Executive. At the start of South Africa’s new democracy in 1994, parliament had the opportunity to create a framework for effective delegated law-making. Yet the parliament took almost 10 years to develop its approach and a further 6 years to have this framework approved. Since then, the application of parliament’s scrutiny framework is challenged by a lack of political will that makes it difficult for this oversight to take place effectively, and a permanent, powerful mechanism to be agreed upon. A close look into how South Africa’s post-1994 delegated framework was developed offers insight into the challenges of developing parliamentary rules, practices and procedures in the context of a new representative democracy with significant developmental challenges. As parliament’s legislative supremacy is at stake, these insights are of vital importance to our consideration of how to strengthen the position, place and performance of parliaments as democracy assistance professionals, academics, MPs and parliamentary staff.

In 2011 Cabo Verde’s parliament approved the Law Against Gender-Based Violence (GBV). In 2014, 3 years later, the Women’s Caucus (WC) of this parliament agreed to trace the implementation of the law and its impact. This decision was taken without a clear perception of how to conduct post-legislative scrutiny (PLS) and without suspecting the eventual troubling findings. Post-legislative scrutiny has not previously been done in Cabo Verde, partly because of the inexperience of this democratic parliament, partly because PLS is a rather recent and still underdeveloped legislative activity anchored in oversight and legislation functions. In 2014 and 2015, Women’s Caucus conducted PLS of the GBV Law finding that the government had not enacted the necessary implementation rules to enforce this law, which hampered budget allocations and funding. According to the country’s legislative process this should have taken place within 10 months of the law’s approval. This study describes and discusses how the post-legislative scrutiny of the GBV Law was conducted and the lessons learned through this pioneering process in Cabo Verde’s parliament.

The European Parliament (EP) has become an active player in the evaluation of EU policy in recent years. In particular, the creation of a dedicated impact assessment capacity (both ex-ante and ex-post) within parliament’s administration, and the adoption of new rules for committees’ preparation of ‘implementation reports’ has led to an institutionalization of parliament’s evaluation activities. This article discusses the rationale for, and practice of, the European Parliament’s policy evaluation system in the context of the EU’s Better Regulation Agenda. It explains how, when and why the European Parliament performs retrospective evaluation. Moreover, it reflects on the complementary role of parliament’s evaluation work with regard to that of the European Commission and, finally, examines the value it adds in terms of accountability and agenda-setting.

This article analyses the manner in which the EU’s Better Regulation Agenda impacts pre-legislative and post-legislative scrutiny by national parliaments, as two important dimensions of their function of democratic control over EU decision making. To this end, the article critically assesses the institutional arrangements and procedures foreseen under the Commission’s 2015 Better Regulation package and examines the 2017 review of the Better Regulation Agenda, which is a fresh push towards its enhancement. The article is structured as follows. After an overview of the legal grounding and evolution of better regulation in EU law, the analysis surveys the implications for parliaments of the Juncker Commission’s package of reforms, which are laid out in a Communication and implemented through a set of guidelines, a refurbished toolbox for practitioners, a revised Regulatory Fitness and Performance Programme (REFIT), and an Interinstitutional Agreement on Better Lawmaking adopted in 2016. On this basis, the article discusses post-legislative scrutiny of EU legislation on its own merits as well as from the perspective of its relationship with pre-legislative scrutiny. The latter is important since it is the most efficient way for parliaments to influence the contents of EU policies. The article concludes that the Better Regulation Agenda maintains the status quo in domestic parliamentary participation in EU affairs and misses the opportunity to fortify the latter’s European embeddedness.

In New Zealand, a scheme for the political post-legislative scrutiny of delegated legislation has operated since 1989. The Regulations Review Committee of the House of Representatives systematically considers delegated legislation and may inquire into matters relating to it. By convention the Committee is chaired by a member of an opposition party and is supported by a dedicated secretariat. It may, on grounds that go beyond vires, draw the attention of the House to any provision of any regulation. If one of its members moves to disallow a statutory instrument, and if debate on the member’s motion is not brought on within a specified period, the instrument ceases to have legal effect. The note considers aspects of the Committee’s jurisdiction, and whether the successful operation of the Committee may have led to excess focus on the scrutiny of delegated legislation at the expense of the systemic post-enactment scrutiny of primary legislation.

This article explores the role of national human rights institutions (NHRIs) in post-legislative scrutiny (PLS), a topic that has been notably neglected in existing literature. The present research demonstrates that (1) legislative review is actually part of NHRIs’ mandate and (2) the applicable international standards (e.g. Belgrade and Paris Principles) provide for their actorness in all stages of legislative process. The main hypothesis is that NHRIs have already been conducting activities most relevant for PLS, even though they have not often been labelled as such by parliaments or scholars. In other words, we argue that their de facto role in PLS has already been well established through their practice, despite the lack of de jure recognition by parliamentary procedures. We support this thesis by providing empirical evidence from national practices to show NHRIs’ relevance for PLS of both primary and secondary legislation. The central part of this article concentrates on the potential of NHRIs to act as (1) triggers for PLS, and (2) stakeholders in PLS that has already been initiated. The article concludes with a summary of the results, lessons learned, their theoretical and practical implications and the avenues for further research.

Post-legislative scrutiny (PLS) has generated growing interest as a means both for strengthening the legislative process and for permitting parliament to more effectively integrate its legislative and oversight functions. Engagement throughout the cycle of legislative development, adoption and implementation enables parliament to assure laws are properly implemented and to rectify weaknesses either in original legislative conceptualization or in executive implementation. Carried out properly, PLS should improve governance and increase its democratic accountability. Recent attention to PLS has however focused mainly on its role and use in Westminster-type parliaments. This article explores PLS from the perspective of non-Westminster parliaments. It seeks to understand why PLS in non-Westminster parliaments has received comparatively less scholarly and parliamentary development practitioner attention. The article uses a case study of Ukraine to explore the context and challenges for effective PLS, a non-Westminster emerging democracy. It concludes by proposing rebalancing discussion of PLS to take better account of diverse parliamentary models and suggests approaches to supporting PLS development in parliaments where it has not previously been consistently used

In the last decade a more systematic approach to post-legislative scrutiny has been taken by both the UK Government and Parliament. Currently, owing to a lack of systematic analysis we do not know how both Houses of the UK Parliament are undertaking post-legislative scrutiny. The aim of the article is to determine the similarities and differences between the House of Commons and the House of Lords when undertaking post-legislative scrutiny. The article addresses this gap in knowledge through the use of four case studies, which address how legislation is selected for review, what recommendations are produced and how government responses are followed up. The article finds that there are a number of differences in the way legislation is selected by both Houses and also highlights the differences between them in terms of the output of their recommendations. Overall, this article contributes to our knowledge of the processes available to the UK Parliament for the undertaking of post-legislative scrutiny. This is important as post-legislative scrutiny, as a formalized activity, is relatively new, and there is a contribution to be made here in terms of how such procedures can be utilized in other legislatures.

Sierra Leone is among countries in Sub-Saharan Africa which have not institutionalized post-legislative scrutiny (PLS) in their national legislative processes. However, the inspiration to start the process of institutionalizing PLS is derived from the recent interest in ‘better regulation’ and the impetus in PLS of domestic legislation in Sierra Leone. This article tries to scrutinize the structure, procedures and emerging methodologies that are shaping the Parliament of Sierra Leone’s (PoSL) ability to conduct PLS, and its interaction with the Executive. The question that guides this research is whether there has been PLS in Sierra Leone; if so, what are the steps, and if not why? Essentially, PLS remains an indispensable component of the legislative process, especially when parliament engages in legislative scrutiny to determine government action or inaction in implementing public policies. The article concludes that the inclusivity of the Fifth Parliament has created a political space for engaging in PLS. Second, absence of clearly defined procedures for PLS in the parliament, through the 1991 Constitution and the Standing Orders of the House allows MPs to raise matters on public policy and its implementation, and third, the urgency on the need to recalibrate the legislative process will provide a congenial environment for the operationalization of the PLS, especially with the Committee system.

Parliaments’ engagement in post-legislative scrutiny can be considered either as an extension of the legislative function or within the framework of the oversight of the executive. This article makes use of the latter view to assess how parliaments in Europe approach post-legislative scrutiny and to which extent this function can be regarded as a form of executive oversight. Although rules and practices of parliaments in this realm are remarkably heterogeneous, the focus on some selected parliaments (Italy, France, Germany, Sweden, and the European Parliament) reveals three different conceptual categories. In the ‘basic’ approach (passive scrutinizers), parliaments limit their role solely to the assessment of the ex-post scrutiny performed by the government and external agencies. Differently, parliaments willing to engage in a more proactive approach might choose either to act on an informal basis, establishing ad hoc research/evaluation administrative units (informal scrutinizers) or to address post-legislative scrutiny in a formal and highly institutionalized manner (formal scrutinizers). As a matter of fact, the practise of parliaments often combines characters of different categories. While in all of these approaches post-legislative scrutiny shows potential for executive oversight, only the third can potentially lead to a kind of ‘hard’ oversight.

The Uganda Parliament Department of Research Services has, over the past 4 years, carried out a number of post-legislative scrutiny studies. This article, taking the case of a post-legislative scrutiny done on Uganda’s Prohibition of Female Genital Mutilation (FGM) Act 2010, explores the links between pre- and post-legislative scrutiny, and from a practical perspective, argues that although pre-legislative scrutiny can improve the quality of legislation, it is subject to the circumstances and nature of the legislation, and furthermore complexity could increase as legislation is delegated for implementation at local levels. It also argues that both pre- and pro-legislative scrutiny play a complimentary role and should pro-legislative scrutiny alone cannot address the complexity of implementing the law.

The Australian law reform arrangements comprise a ‘crowded field’ of law reformers. These include permanent, semi-permanent and ad hoc commissions, committees and inquiries charged with examining and recommending reform of Commonwealth/federal and state laws. These are supplemented by citizen-led deliberative forums on law reform. The author’s experience in her roles as a commissioner and deputy president of the Australian Law Reform Commission (ALRC) and also as counsel assigned to advise the Joint Standing Committee on Migration in the Australian Federal Parliament highlighted facets of Australian law reform – the particular role of a law commission working in a federal system and the co-option of legal expertise to scrutinize law reforms proposed within the parliamentary committee system.

This article discusses how the law has approached disparate socio-technological innovations over the centuries. Precisely, the primary concern of this paper is to investigate the timing of regulatory intervention. To do so, the article makes a selection of particular innovations connected with money, windmills and data storage devices, and analyses them from a historical perspective. The individual insights from the selected innovations should yield a more systematic view on regulation and technological innovations. The result is that technological changes may be less momentous, from a regulatory standpoint, than social changes.

This article provides an overview of the developments about the armed on-board protection of Dutch vessels under Dutch law. The Dutch position has changed over the years. In 2011, the starting point was that private security companies (PSCs) are not to be allowed. It was expected that adequate protection of Dutch vessels could be provided by vessel protection detachments (VPDs). Although not considered as an absolute statutory bar, the state monopoly on force was considered the main argument against PSCs. After optimising the use of VPDs and given the development in other countries, the approach changed into a ‘VPS, unless …’-approach. Under the new Protection of Merchant Shipping Act that is expected to come into force in the second half of 2019, PSCs can be employed only if no VPS is available. This article gives an overview of the argumentation in this change of view over the years. It also explores the headlines, criteria and procedures of the new law and some other topics, including the position of the master under the upcoming law. In line with the other country reports, it enables the comparative study in the last article of this special issue.