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Article

Establishing a Legislative Scrutiny Framework

The Case of Delegated Legislation in the Parliament of South Africa

Journal European Journal of Law Reform, Issue 2 2019
Keywords parliamentary process, post-legislative scrutiny, procedural framework, delegated legislation
Authors Victoria Hasson
AbstractAuthor's information

    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.


Victoria Hasson
Victoria Hasson is Senior Parliamentary Adviser, Westminster Foundation for Democracy.
Article

Post-Legislative Scrutiny of the Law against Gender-Based Violence

The Successful Story of the Cabo Verde Parliament

Journal European Journal of Law Reform, Issue 2 2019
Keywords oversight, post-legislative scrutiny, Cabo Verde, parliament
Authors Elisabete Azevedo-Harman and Ricardo Godinho Gomes
AbstractAuthor's information

    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.


Elisabete Azevedo-Harman
Elisabete Azevedo-Harman is Professor on legislative and political institutions in Angolan and Mozambican universities, political advisor, international expert on parliamentary and institutional development. Currently is a senior consultant of the National Assembly of Angola.

Ricardo Godinho Gomes
Ricardo Godinho Gomes is a political scientist in the field of democratic governance since 2006 for UNDP, more specifically in electoral assistance, parliamentary strengthening and public finance management. He is a UNDP programme manager and he was the head of the management units of the project in support of electoral cycles in PALOP and Timor-Leste (2010-2013) and the Pro PALOP-TL SAI (2014-2017).
Article

Retrospective Policy Evaluation at the European Parliament

Journal European Journal of Law Reform, Issue 2 2019
Keywords European parliament, EU legislation, post-legislative scrutiny, scrutiny of the executive, Better Regulation
Authors José Luis Rufas Quintana and Irmgard Anglmayer
AbstractAuthor's information

    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.


José Luis Rufas Quintana
José Luis Rufas Quintana is Head of the Ex-post Evaluation Unit within the European Parliamentary Research Service.

Irmgard Anglmayer
Irmgard Anglmayer works as a policy analyst in the Ex-post Evaluation Unit within the European Parliamentary Research Service. The content of this article is the sole responsibility of the authors and any opinions expressed herein should not be taken to represent an official position of the European Parliament.
Article

Better Regulation and Post-Legislative Scrutiny in the European Union

Journal European Journal of Law Reform, Issue 2 2019
Keywords parliaments, post-legislative scrutiny, better regulation, European Union, legislation, regulation, democracy
Authors Davor Jancic
AbstractAuthor's information

    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.


Davor Jancic
Dr Davor Jancic is Lecturer in Law, Director of the English & European Law LLB programme, Department of Law, Queen Mary University of London.
Article

Post-Legislative Scrutiny in New Zealand

A Focus on Delegated Legislation

Journal European Journal of Law Reform, Issue 2 2019
Keywords post-legislative scrutiny, regulations review, parliamentary oversight, New Zealand, law reform proposals, comparative law
Authors Charles Chauvel
AbstractAuthor's information

    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.


Charles Chauvel
Charles Chauvel is a Former Member of Parliament, New Zealand and Official of the United Nations.
Article

The Role of National Human Rights Institutions in Post-Legislative Scrutiny

Journal European Journal of Law Reform, Issue 2 2019
Keywords National Human Rights Institution, parliament, legislation, reporting, post-legislative scrutiny
Authors Luka Glušac
AbstractAuthor's information

    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.


Luka Glušac
Luka Glušac received his PhD in Political Science from the University of Belgrade; Faculty of Political Sciences. His PhD thesis explored the evolution of national human rights institutions (NHRIs) and their relations with the United Nations. He is adviser in the Secretariat of the Ombudsman of Serbia, since 2011. In 2018, he served as a National Institutions Fellow at The Office of the United Nations High Commissioner for Human Rights (OHCHR) in Geneva. He can be contacted at lukaglusac@gmail.com.
Article

Post-Legislative Scrutiny in a Non-Westminster Parliament

Opportunities, Challenges and Considerations

Journal European Journal of Law Reform, Issue 2 2019
Keywords post-legislative scrutiny, parliamentary oversight, legislative process, Verkhovna Rada of Ukraine, French Senate, Belgian federal parliament
Authors Jonathan Murphy and Svitlana Mishura
AbstractAuthor's information

    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


Jonathan Murphy
Jonathan Murphy is Docent, University of Jyvaskyla, Finland and parliamentary development consultant.

Svitlana Mishura
Svitlana Mishura is Deputy Head of the Main Legal Department of the Administration of the Parliament of Ukraine. The authors would like to thank UNDP Ukraine and the Verkhovna Rada of Ukraine for their support to the development of this article, and Anastasia Petrova for her invaluable research assistance in collecting data on PLS in the Verkhovna Rada.
Article

Access_open A Tale of Two Houses?

Post-Legislative Scrutiny in the UK Parliament

Journal European Journal of Law Reform, Issue 2 2019
Keywords post-legislative scrutiny, committees, recommendations, UK Parliament
Authors Tom Caygill
AbstractAuthor's information

    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.


Tom Caygill
Tom Caygill is a Doctoral candidate, School of Geography, Politics and Sociology, Newcastle University (UK). Funding: This work was supported by the Economic and Social Research Council [Grant number ES/J500082/1].
Article

An Assessment of Post-Legislative Scrutiny in the Parliament of Sierra Leone

Journal European Journal of Law Reform, Issue 2 2019
Keywords legislative process, parliament, Sierra Leone, post-legislative scrutiny
Authors Yirah Mansaray
AbstractAuthor's information

    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.


Yirah Mansaray
Yirah Mansaray is a Parliamentary Research Coordinator at the Parliament of Sierra Leone.
Article

Post-Legislative Scrutiny in a Decentralized Setting

Opportunities from Alcoholic Drinks Regulation in Kenya

Journal European Journal of Law Reform, Issue 2 2019
Keywords affordability, alcohol, availability, enforcement, licensing, marketing, post-legislative scrutiny, regulation, regulatory impact, taxation
Authors Francis A. Aywa and Gabriel K. Ndung’u
AbstractAuthor's information

    Irresponsible alcohol consumption is a complicated regulatory issue globally. Governments’ regulatory regimes for the alcoholic drinks sector are primarily concerned with issues such as control of the production, sale, and use of alcoholic drinks for purposes of safeguarding the health of the individual in view of the dangers of excessive consumption of alcoholic drinks. This article is intended to offer insights on post-legislative scrutiny by drawing on lessons from alcoholic drinks regulation in Kenya. Post-legislative scrutiny as a methodology largely reviews government action or inaction and consequently proposes measures to be undertaken for purposes of managing the effective implementation of its policies and abiding by legal obligations in relation to regulatory frameworks and actions. The intention is to highlight the failures and insufficiencies of the different approaches on alcohol regulation and the manner in which they have been utilized to regulate and control abuse of alcoholic drinks. By comparing regulatory outcomes with the intended policy outcomes and design of regulatory regimes the authors make the case for the primacy of post-regulatory scrutiny and to provide suggestions on how it can be improved in settings such as Kenya’s.


Francis A. Aywa
Francis A. Aywa is Team Leader of DAI’s Deepening Democracy Programme and former Chief of Party of SUNY’s Kenya Parliamentary Strengthening Programme.

Gabriel K. Ndung’u
Gabriel K. Ndung’u is a Legislative Development Specialist and former Deputy Chief of Party of SUNY’s Kenya Parliamentary Programme.
Article

Post-Legislative Scrutiny as a Form of Executive Oversight

Tools and Practices in Europe

Journal European Journal of Law Reform, Issue 2 2019
Keywords scrutiny of law enforcement, ex-post impact assessment, parliamentary oversight of the executive, post-legislative scrutiny
Authors Elena Griglio
AbstractAuthor's information

    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.


Elena Griglio
Dr Elena Griglio is a Senior Parliamentary Official, Italian Senate and Adjunct Professor, Luiss Guido Carli University.
Article

Post-Legislative Scrutiny and Its Impact on Legislative Oversight in Uganda Parliament

Experiences from an Emerging Democracy

Journal European Journal of Law Reform, Issue 2 2019
Keywords consultation, deeply rooted traditions and customs, ‘Positive Deviant’ approach, post-legislative scrutiny
Authors Gitta Zacharia
AbstractAuthor's information

    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.


Gitta Zacharia
Gitta Zacharia is Legal Research Officer, Department of Research Services, Parliament of Uganda. The author would like to acknowledge and thank the Department of Research Services and the leadership of the Uganda Parliament for their contribution and support towards this article.

Franklin De Vrieze
Franklin De Vrieze is Senior Governance Adviser, Westminster Foundation for Democracy Editor of the Special Issue of EJLR on Post-Legislative Scrutiny.
Editorial

Editorial

Journal European Journal of Law Reform, Issue 1 2019
Authors Dr Constantin Stefanou
Author's information

Dr Constantin Stefanou
Dr Constantin Stefanou is Managing Editor of EJLR and Director of the Sir William Dale Centre for Legislative Studies at the Institute of Advanced Legal Studies (University of London).
Article

Legislative Reform in Post-Conflict Settings

A Practitioner’s View

Journal European Journal of Law Reform, Issue 1 2019
Keywords post-conflict, rule of law, law reform, legislative reform
Authors Nathalia Berkowitz
AbstractAuthor's information

    Following conflict, considerable effort is often dedicated to legislative reform. This effort includes not only domestic actors but also international actors frequently acting with the aim of establishing the rule of law. This article seeks, first, to provide some context for legislative reform in post-conflict settings and outline some of the criticisms that have been made. Drawing on the work of legislative experts, the article then identifies some of the simple questions that those involved in legislative reform ask and discusses some of the key challenges in answering them. The article suggests that establishing the rule of law is more than putting laws ‘on the books’ and that the way in which legislation is created may itself contribute to developing the rule of law. It suggests that as the rule-of-law community develops new approaches, it might find it useful to draw on the approach of legislative experts and their concern with how effective legislation is created.


Nathalia Berkowitz
Nathalia Berkowitz is a former Barrister and legislative drafter working as an independent consultant focusing on rule of law reform. Nathalia has over 10 years’ experience supporting legislative reform and judicial process in countries around the world. She is a UK [Government] deployable civilian expert and faculty member of the University of Salamanca’s Global and International Studies Program. She can be contacted at nathaliapendo@gmail.com.
Article

Judging Reformers and Reforming Judges

Journal European Journal of Law Reform, Issue 1 2019
Keywords law reform, common law, judges, United Kingdom Supreme Court, legal reasoning
Authors James Lee
AbstractAuthor's information

    This article examines the practice and limits of judicial law reform. In particular, I consider the question of when initiation of a reform is appropriate for the judiciary as opposed to the legislature, an issue which has been a matter of controversy amongst the Justices of the United Kingdom Supreme Court. This question is assessed in the light of the institutional and constitutional competences of the courts, particularly with respect to the structure of common law reasoning. It is also argued that it is important to have regard to perspectives of the relevant judges, in understanding the individual and collective approaches to the judicial development of the law.


James Lee
James Lee is Reader in English Law and PC Woo Research Fellow 2016-2017 at The Dickson Poon School of Law, King’s College London, and Associate Academic Fellow of the Honourable Society of the Inner Temple; Senior Visiting Fellow, Gilbert + Tobin Centre of Public Law, University of New South Wales; and Visiting Professor, Hong Kong University. I am grateful to Enrico Albanesi, Mark Lunney, Jonathan Teasdale and all those who attended the Law Reform Workshop at the Institute of Advanced Legal Studies in November 2017 and a Kirby Seminar at the School of Law at the University of New England at which drafts of this article were presented. I thank both PC Woo & Co and the Faculty of Law at UNSW for the generous support for the project of which this article forms part. All views, and any errors, are my own.
Article

Law Reform in a Federal System

The Australian Example

Journal European Journal of Law Reform, Issue 1 2019
Keywords customary law, federal system, Australia
Authors Kathryn Cronin
AbstractAuthor's information

    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.


Kathryn Cronin
Kathryn Cronin is former Deputy President Australian Law Reform Commissioner and now barrister at Garden Court Chambers.
Article

Is There a Law Commission in France?

About the Commission Supérieure de Codification

Journal European Journal of Law Reform, Issue 1 2019
Keywords High Commission on Codification, France, Law Commission, codification, law reform
Authors Bertrand-Léo Combrade
AbstractAuthor's information

    The ‘Commission Supérieure de Codification (‘High Commission on Codification’) is a body that was created with the aim of providing support for the process of codifying the texts of positive law. Analysis of both its place in France’s institutional architecture and its working methods highlights certain particularities in the body’s functioning and raises questions as to its degree of proximity to the Law Commissions.


Bertrand-Léo Combrade
Lecturer in public law, Researcher at CURAPP-ESS (University of Picardy-Jules Verne), Associate researcher at ISJPS (Sorbonne Law School).
Article

Lessons from a Single Jurisdiction with Two Governments

Governments and the Initiation of Law Reform in England and Wales

Journal European Journal of Law Reform, Issue 1 2019
Keywords law reform, UK devolution, law reform agencies, relations with governments, reform proposals
Authors Richard Percival
AbstractAuthor's information

    This article sets out the centrality of government to the initiation of law reform in respect of the (England and Wales) Law Commission and the Scottish Law Commission (and by extension, those law reform agencies based on the British model), and then considers in the light of recent experience how the existing approach works in the unique context of a single jurisdiction – England and Wales – which now has two governments – the UK Government for England, and the devolved Welsh Government. Having identified shortcomings, the article makes suggestions for improved institutional arrangements to meet the particular law reform needs of Wales.


Richard Percival
Richard Percival is Professor of Criminal Law and Practice (law reform) at Sheffield University, UK. An earlier form of this paper was presented at the third IALS Law Reform Project workshop on 1 November 2017.
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