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Article

Democratic Scrutiny of COVID-19 Laws

Are Parliamentary Committees Up to the Job?

Journal European Journal of Law Reform, Issue 2 2021
Keywords parliament, scrutiny, committees, COVID-19, rights, legislation, Australia, New Zealand, United Kingdom
Authors Sarah Moulds
AbstractAuthor's information

    In response to the complex and potentially devastating threat posed by COVID-19, parliaments around the world have transferred unprecedented powers to executive governments and their agencies (Edgar, ‘Law-making in a Crisis’, 2020), often with the full support of the communities they represent. These laws were passed within days, sometimes hours, with limited safeguards and a heavy reliance on sunsetting provisions, some of which are dependent on the pandemic being officially called to an end. While parliaments themselves have suspended or reduced sitting days (Twomey, ‘A Virtual Australian Parliament is Possible’, 2020), parliamentary committees have emerged as the forum of choice when it comes to providing some form of parliamentary oversight of executive action.
    This article aims to evaluate the capacity of parliamentary committees established within the Australian, New Zealand (NZ) and United Kingdom (UK) parliaments to effectively scrutinize and review governments’ responses to COVID-19. It does this by comparing the legal framework underpinning the relevant committees in each jurisdiction and examining the work of these committees with a view to offering some preliminary views as to their impact on the shape of the laws made in response to COVID-19 in those jurisdictions. The article concludes by offering some preliminary observations about the scrutiny capacity of the parliamentary committee systems in Australia, NZ and the UK in the context of emergency lawmaking and flags areas for further research, evaluation and reform.


Sarah Moulds
Dr. Sarah Moulds, University of South Australia.
Article

Compensation for Victims of Disasters

A Comparative Law and Economic Perspective

Journal European Journal of Law Reform, Issue 2 2021
Keywords victim compensation, disaster risk reduction, government relief, insurance, moral hazard, public private partnership
Authors Qihao He and Michael Faure
AbstractAuthor's information

    This article provides a critical analysis of the compensation awarded for victims of disasters. First, general guiding principles of compensation are discussed. Next, various ways of government provided victim compensation, both during the disaster and ex post are critically reviewed. Then the article focuses on ex ante insurance mechanisms for victim compensation, arguing that insurance can play a role in disaster risk reduction. Finally, the article explains how the government can cooperate with insurers in a public-private partnership for victim compensation, thus facilitating the availability of disaster insurance.


Qihao He
Qihao He is Associate Professor of Law, China University of Political Science and Law, College of Comparative Law. Beijing, China. Qihao He acknowledges the financial support of China Ministry of Education Research Program on Climate Change and Insurance (No. 18YJC820024), and Comparative Private Law Innovation Project of CUPL (No. 18CXTD05).

Michael Faure
Michael Faure is Michael G. Faure, Professor of Comparative and International Environmental Law, Maastricht University, and Professor of Comparative Private Law and Economics, Erasmus University Rotterdam, The Netherlands. The authors thank the participants in the symposium of Regulating Disasters through Private and Public Law: Compensation and Policy held in University of Haifa, and the comments from Suha Ballan.
Article

Access_open Approach with Caution

Sunset Clauses as Safeguards of Democracy?

Journal European Journal of Law Reform, Issue 2 2021
Keywords emergency legislation, sunset clauses, post-legislative review, COVID-19
Authors Sean Molloy
AbstractAuthor's information

    In response to the COVID-19 pandemic, leaders across the globe scrambled to adopt emergency legislation. Amongst other things, these measures gave significant powers to governments in order to curb the spreading of a virus, which has shown itself to be both indiscriminate and deadly. Nevertheless, exceptional measures, however necessary in the short term, can have adverse consequences both on the enjoyment of human rights specifically and democracy more generally. Not only are liberties severely restricted and normal processes of democratic deliberation and accountability constrained but the duration of exceptional powers is also often unclear. One potentially ameliorating measure is the use of sunset clauses: dispositions that determine the expiry of a law or regulation within a predetermined period unless a review determines that there are reasons for extension. The article argues that without effective review processes, far from safeguarding rights and limiting state power, sunset clauses can be utilized to facilitate the transferring of emergency powers whilst failing to guarantee the very problems of normalized emergency they are included to prevent. Thus, sunset clauses and the review processes that attach to them should be approached with caution.


Sean Molloy
Dr Sean Molloy is a Lecturer in Law at Northumbria University.
Article

Reducing Ethnic Conflict in Guyana through Political Reform

Journal European Journal of Law Reform, Issue 1 2021
Keywords Guyana, race, ethnic conflict, political power, constitutional reform
Authors Nicola Pierre
AbstractAuthor's information

    This article discusses using constitutional reform to reduce ethnic conflict in Guyana. I start by exploring the determinants of ethnic conflict. I next examine Guyana’s ethnopolitical history to determine what factors led to political alignment on ethnic lines and then evaluate the effect of the existing political institutions on ethnic conflict. I close with a discussion on constitutional reform in which I consider a mix of consociationalist, integrative, and power-constraining mechanisms that may be effective in reducing ethnic conflict in Guyana’s ethnopolitical circumstances.


Nicola Pierre
Nicola Pierre is Commissioner of Title and Land Court Judge in Guyana.

    The Vaslui Tribunal has recently annulled an individual dismissal decision issued during the state of alert in Romania due to formalities which had not been observed by the employer. While the judge invested with determining the matter limited their analysis to the elements contained in the individual dismissal decision, the judicial assistant ascertained, within a competing opinion, that the dismissal decision should have been annulled for other reasons, namely for the fact that, in reality, the employer had implemented a collective redundancy process without observing the procedure and employees’ rights in the event of such dismissal. Relying on the provisions of Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, the judicial assistant has made an exhaustive analysis of the conditions required for the existence of a collective dismissal.
    While the competing opinion does not have the same effect as a court ruling, it is part of the judicial procedure and, from this perspective, the independence and impartiality of all the members of the court and their obedience solely to the law is maintained.


Andreea Suciu
Andreea Suciu is Managing Partner of Suciu I The Employment Law Firm.

Andreea Serban
Andreea Serban is an attorney-at-law at Suciu I The Employment Law Firm.
Case Law

Access_open 2021/1 EELC’s review of the year 2020

Journal European Employment Law Cases, Issue 1 2021
Authors Ruben Houweling, Daiva Petrylaitė, Marianne Hrdlicka e.a.
Abstract

    Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Daiva Petrylaitė

Marianne Hrdlicka

Attila Kun

Luca Calcaterra

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Andrej Poruban

Anthony Kerr

Filip Dorssemont

Lawrence Kershen
Lawrence Kershen QC is a mediator and restorative justice facilitator in London, United Kingdom. Contact author: kershen@europe.com.
Article

Access_open A future agenda for environmental restorative justice?

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords restorative justice, restorative practice, environmental justice, environmental regulation
Authors Miranda Forsyth, Deborah Cleland, Felicity Tepper e.a.
AbstractAuthor's information

    The challenges of developing meaningful environmental regulation to protect communities and the environment have never been greater. Environmental regulators are regularly criticised for failing to act hard and consistently, in turn leading to demands for harsher punishments and more rigorous enforcement. Whilst acknowledging the need for strong enforcement to address wantonly destructive practices threatening communities and ecosystems, we argue that restorative approaches have an important role. This article explores a future agenda for environmental restorative justice through (1) situating it within existing scholarly and practice-based environmental regulation traditions; (2) identifying key elements and (3) raising particular theoretical and practical challenges. Overall, our vision for environmental restorative justice is that its practices can permeate the entire regulatory spectrum, going far beyond restorative justice conferences within enforcement proceedings. We see it as a shared and inclusive vision that seeks to integrate, hybridise and build broader ownership for environmental restorative justice throughout existing regulatory practices and institutions, rather than creating parallel structures or paradigms.


Miranda Forsyth
Miranda Forsyth is Associate Professor at the School of Regulation and Governance in the College of Asia and Pacific in the Australian National University, Australia.

Deborah Cleland
Deborah Cleland is a Postdoctoral Fellow at the School of Regulation and Governance in the College of Asia and Pacific in the Australian National University, Australia.

Felicity Tepper
Felicity Tepper is a Senior Research Officer at the School of Regulation and Governance in the College of Asia and Pacific in the Australian National University, Australia.

Deborah Hollingworth
Deborah Hollingworth is a Principal Solicitor at the Environment Protection Authority Victoria, Australia.

Milena Soares
Milena Soares is a public servant at the Técnica de Desenvolvimento e Administração,Brazil.

Alistair Nairn
Alistair Nairn is Senior Engagement Advisor at the Environment Protection Authority Victoria, Australia.

Cathy Wilkinson
Cathy Wilkinson is Professor of Practice at Monash Sustainable Development, Australia. Contact author: miranda.forsyth@anu.edu.au.
Article

A maximalist approach of restorative justice to address environmental harms and crimes

Analysing the Brumadinho dam collapse in Brazil

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords environmental law, maximalist approach, restorative justice principles and concepts, decision-making process, sanctioning rules
Authors Carlos Frederico Da Silva
AbstractAuthor's information

    In this article, the author analyses court cases arising from the rupture of the mining tailings dam in the city of Brumadinho, Brazil, on 25 January 2019. In a civil lawsuit context, legal professionals recognised damage to people and the environment during hearings involving a judge, prosecutors, lawyers and corporate representatives. The centrality of the victims’ interests and the need for remedial measures prevailed in the agreements signed mainly to provide urgent relief and restore damage to the ecosystem. In the criminal lawsuit dealing with the same facts, there have not yet been acquittals, non-prosecution agreements or convictions. By employing a socio-legal approach to contrast different types of legal reasoning, this article explores the possibilities of restorative responses in civil proceedings and explains the lack of them in criminal justice. In highlighting some characteristics of punishment theories that hinder a possible restorative justice approach, the article offers a critique of a penal system mostly linked to argumentative competition rather than persuasive conflict resolution. The author argues that jurisprudence should address transdisciplinary concepts, such as responsive regulation, restorative efforts, proportionality and individualisation of punishment. The discussion can shed light on the decision-making process to allow environmental restorative justice responses to crimes.


Carlos Frederico Da Silva
Carlos Frederico Braga Da Silva is a PhD researcher associated to the Graduate School of Sociology at the Federal University of Minas Gerais, Brazil, and to the Canadian Chair of Legal Traditions and Penal Rationality, Faculty of Social Sciences, Department of Criminology, University of Ottawa, Canada. He also works as a state judge in Belo Horizonte, Minas Gerais, Brazil. Contact author: carlosfrebrasilva@gmail.com.
Article

Access_open Addressing Problems Instead of Diagnoses

Reimagining Liberalism Regarding Disability and Public Health

Journal Netherlands Journal of Legal Philosophy, Issue 1 2021
Keywords Vulerability Theory, Liberalism, Convention on the Rights of Persons with Disabilities (CRPD), Public Health, Capabilities Approach
Authors Erwin Dijkstra
AbstractAuthor's information

    The public health systems of liberal states systematically fail to meet the goals and obligations of the Convention on the Rights of Persons with Disabilities, which aims to facilitate full societal participation and independent life choices by all impaired persons, as well as the unburdening of their private caretakers. This failure does not stem from a lack of money or effort by governments and other societal institutions, but flaws in the anatomy of these systems. As these systems confine institutional assistance to the needs of persons with certain delineated disabilities, they neglect the needs of other persons, whose disabilities do not fit this mould. The responsibility for the latter group thus falls to their immediate social circle. These private caretakers are in turn seldom supported. To remedy this situation, I will present the alternative paradigm of vulnerability theory as the possible foundation for a more inclusive approach to public health.


Erwin Dijkstra
Erwin Dijkstra LLM MA is lecturer and researcher at the Department of Jurisprudence of the Leiden Law School of Leiden University.
Article

Access_open The Common Law Remedy of Habeas Corpus Through the Prism of a Twelve-Point Construct

Journal Erasmus Law Review, Issue 2 2021
Keywords Habeas corpus, common law, detainee, Consitution, liberty
Authors Chuks Okpaluba and Anthony Nwafor
AbstractAuthor's information

    Long before the coming of the Bill of Rights in written Constitutions, the common law has had the greatest regard for the personal liberty of the individual. In order to safeguard that liberty, the remedy of habeas corpus was always available to persons deprived of their liberty unlawfully. This ancient writ has been incorporated into the modern Constitution as a fundamental right and enforceable as other rights protected by virtue of their entrenchment in those Constitutions. This article aims to bring together the various understanding of habeas corpus at common law and the principles governing the writ in common law jurisdictions. The discussion is approached through a twelve-point construct thus providing a brief conspectus of the subject matter, such that one could have a better understanding of the subject as applied in most common law jurisdictions.


Chuks Okpaluba
Chuks Okpaluba, LLB LLM (London), PhD (West Indies), is a Research Fellow at the Free State Centre for Human Rights, University of the Free State, South Africa. Email: okpaluba@mweb.co.za.

Anthony Nwafor
Anthony O. Nwafor, LLB, LLM, (Nigeria), PhD (UniJos), BL, is Professor at the School of Law, University of Venda, South Africa. Email: Anthony.Nwafor@univen.ac.za.

    In a summary proceeding, the Court of Rotterdam has held that it is not clear whether the Non-Seafarers Work Clause, prohibiting lashing work on board of container ships being carried out by the crew, does indeed contribute to better employment and/or working conditions of seafarers. As a result of which the Clause – at this time – cannot be held to be outside the scope of competition law and the claim for compliance with the provision has been rejected. In the media, unions have stated that they will continue to enforce compliance with the Non-Seafarers Work Clause. It remains to be seen whether a court in main proceedings will reach a similar verdict.


Erick Hagendoorn
Erick Hagendoorn is an attorney-at-law at HerikVerhulst N.V., Rotterdam.
Human Rights Practice Review

Kosovo

Journal East European Yearbook on Human Rights, Issue 1 2020
Authors Sabiha Shala
Author's information

Sabiha Shala
Prof. Assoc. Dr. at Law Faculty, University of Haxhi Zeka, Kosovo.
Human Rights Practice Review

Poland

Journal East European Yearbook on Human Rights, Issue 1 2020
Authors Vita Czepek and Jakub Czepek
Author's information

Vita Czepek
Dr Vita Czepek, University of Warsaw, Faculty of Law and Administration, Department of International Public Law.

Jakub Czepek
Dr Jakub Czepek, Cardinal Stefan Wyszyński University in Warsaw, Faculty of Law and Administration, Department of Human Rights Protection and International Humanitarian Law.
Article

Access_open COVID-19-Related Sanitary Crisis and Derogations under Article 15 of the Convention

Considerations in Estonia

Journal East European Yearbook on Human Rights, Issue 1 2020
Keywords human rights, emergency situation, COVID-19 and sanitary crisis, Article 15 of the European Convention on Human Rights, European Court of Human Rights (the ECtHR), Estonia
Authors Maris Kuurberg
AbstractAuthor's information

    During the COVID-19 pandemic, Estonia was one of the states that decided to inform the Secretary General of the Council of Europe of the health-related emergency situation in Estonia and noted, with reference to Article 15 of the European Convention on Human Rights, that some emergency measures may involve a derogation from certain obligations under the Convention. The Government’s considerations proceeded from the unprecedented scale of the sanitary crisis and the scope of extraordinary measures taken to tackle it. Importance was attached to the fact that the Court has never before assessed health-related exceptions allowed in some of the articles of the Convention in a situation which affects the whole nation – not to mention the articles of the Convention which do not set out any exceptions at all. Article 15 of the Convention, on the other hand, is designed to be applicable in public emergency situations threatening the life of the nation.


Maris Kuurberg
Maris Kuurberg (mag.iur.) has been the Estonian Government Agent before the European Court of Human Rights since 2008 (the views expressed are solely those of the author). She works in the Ministry of Foreign Affairs. She is also a member of the Bureau of the Council of Europe’s Steering Committee for Human Rights, as well as a member of the same steering committee and a member of the Committee of Experts on the System of the European Convention on Human Rights. Since 1999, she has been a member of the Estonian Bar Association but her activity as an Attorney at Law is suspended since she joined the Ministry of Foreign Affairs.
Article

Digital Equals Public

Assembly Meetings Under a Lockdown Regime

Journal European Journal of Law Reform, Issue 4 2020
Keywords COVID-19 regulation, temporary legislation, sunset clauses, digitalization, digital democracy, local democracy, experimental legislation
Authors Lianne van Kalken and Evert Stamhuis
AbstractAuthor's information

    In this article we examine the Dutch emergency legislation for local democracy. In response to the COVID-19 pandemic in the Netherlands, the Temporary Act for digital meetings for local/regional government tiers was enacted. The legislature introduced a system of digital debate and decision-making for municipal and provincial councils, the democratically elected assemblies at the local and regional levels. At the same time the Ministry of the Interior and Kingdom Relations set up an evaluation committee to monitor and evaluate the working of the local and provincial governments with this temporary legislation.
    This article discusses the content and application of the temporary provisions for deliberation and decision-making on a digital platform. The purpose of the legislation is to create possibilities for the elected representatives to continue their work during the lockdown. We examine the design and structure of the legislation and disclose the evaluation results so far. The arrangements aim for secure, transparent and reliable democratic practices. Early evidence pertaining to the effects of the Act show that it works effectively only up to a certain level. We critically discuss the sunset clause in the Act and plead against function creep. Moreover, the expectations now and in the future from continuous digitalization of this part of the democratic process should be modest. On the basis of our analysis of the characteristics of the legislation and the effects on the political work of the representatives, we conclude that the current form of digitalization does not provide for the interaction between representatives and their constituencies and the communities at large.


Lianne van Kalken
Lianne van Kalken is lecturer and researcher constitutional law in Erasmus School of Law. She was a member of the evaluation committee, but contributes to this article in a personal capacity. For further affiliations see http://www.linkedin.com/in/liannevankalken/.

Evert Stamhuis
Evert F. Stamhuis is chair Law & Innovation at Erasmus School of Law and senior fellow of the Jean Monnet Centre of Excellence on Digital Governance. See for other affiliations https://www.linkedin.com/in/evertstamhuis/

Franklin De Vrieze
Franklin De Vrieze, Senior Governance Adviser, Westminster Foundation for Democracy

Constantin Stefanou
Dr Constantin Stefanou, Director, Sir William Dale Centre for Legislative Studies; Institute of Advanced Legal Studies, University of London.
Article

Access_open States of Emergency

Analysing Global Use of Emergency Powers in Response to COVID-19

Journal European Journal of Law Reform, Issue 4 2020
Keywords coronavirus, emergency law, emergency powers, autocratization, democratic deconsolidation, state of emergency, rule of law, transparency, accountability, legislative scrutiny
Authors Joelle Grogan
AbstractAuthor's information

    The measures taken in response to the coronavirus pandemic have been among the most restrictive in contemporary history, and have raised concerns from the perspective of democracy, human rights, and the rule of law. Building on a study of the legal measures taken in response to pandemic in 74 countries, this article considers the central question of the use of power during an emergency: is it better or worse for democracy and the rule of law to declare an emergency or, instead, to rely on ordinary powers and legislative frameworks? The article then considers whether the use of powers (ordinary or emergency) in response to the pandemic emergency has ultimately been a cause, or catalyst of, further democratic deconsolidation. It concludes on a note of optimism: an emerging best practice of governmental response reliant on public trust bolstered by rationalized and transparent decision-making and the capacity to adapt, change and reform measures and policies.


Joelle Grogan
Dr. Joelle Grogan is Senior Lecturer in Law, Middlesex University London.
Article

Emergency Measures in Response to the Coronavirus Crisis and Parliamentary Oversight in the EU Member States

Journal European Journal of Law Reform, Issue 4 2020
Keywords states of emergency, parliamentary oversight, health crisis, Covid-19, European Union Member States
Authors Maria Diaz Crego and Silvia Kotanidis
AbstractAuthor's information

    The Covid-19 pandemic has become a true stress test for the legal systems of the worst hit countries. Faced with a health crisis situation, many national governments have become the protagonists in the adoption of difficult measures severely restricting their citizens fundamental rights to the detriment of the powers usually entrusted to the national parliaments. This article examines the normative response of the 27 European Union Member States during the “first wave” of the Covid-19 pandemic, a period that runs from the declaration of a pandemic (March 2020) to mid-June 2020. The intention of the authors was to describe the legal and constitutional mechanisms activated in order to contain the pandemic, focusing on the role of national parliaments in the management of the crisis. This article explores also the degree to which national parliaments have been involved and could exercise parliamentary oversight over the normative measures used by the executive to contain the pandemic in the EU-27.


Maria Diaz Crego
Maria Diaza Crego is a Policy Analyst, European Parliament Research Service, European Parliament.

Silvia Kotanidis
Silvia Kotanidis is a Policy Analyst, European Parliament Research Service, European Parliament. The European Parliamentary Research Service (EPRS) is the internal research service and think tank of the European Parliament. This research paper derives from a paper originally published on 4 December 2020 by the EPRS as background material to assist Members and staff of the European Parliament in their parliamentary work. The content of the document is the sole responsibility of its authors and any opinions expressed therein should not be taken to represent an official position of the European Parliament.
Article

Governments as Covid-19 Lawmakers in France, Italy and Spain

Continuity or Discontinuity

Journal European Journal of Law Reform, Issue 4 2020
Keywords Covid-19, emergency legislation, executive lawmaking, parliaments, decree-laws and ordinances
Authors Elena Griglio
AbstractAuthor's information

    Executive dominance in Covid-19 lawmaking has been a major trend worldwide. Governments have leveraged emergency prerogatives to boost their legislative powers, often sidelining the role of parliaments. The impact of executive lawmaking on fundamental liberties has been unprecedented. However, government’s capacity to exercise full legislative powers is not absolutely new to many European countries.
    This trend is analysed in the article comparing practices in the pandemic and in normal times, not specifically related to a state of emergency. To this end, three countries have been selected because of their constitutional clauses allotting lawmaking powers to the government even outside of emergency situations. This refers to the decree-laws in Italy and Spain and the ordonnances in France. The question addressed is whether there are relevant differences in the use made of these mechanisms during the pandemic.
    The results of this comparative analysis demonstrate that there is much continuity in the executive’s reliance on these mechanisms. However, discontinuity may be detected on the ground of the exceptional impact produced on constitutional rights and on the substantive values that legislation should protect. Therefore, from the perspective of the rollback of the emergency legislation, the role of parliaments, based on the core difference in the democratic status between lawmaking and legislation, turns out to be crucial.


Elena Griglio
Elena Griglio is Senior Parliamentary Official of the Italian Senate and Adjunct Professor at LUISS University, Rome.
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