This article points out that the UK Human Rights Act, 1998 does not have a clear provision guaranteeing a person’s right to a nationality. Instead, this right is buried in the European Court of Human Rights decisions of Smirnova v Russia, 2003 and Alpeyeva and Dzhalagoniya v. Russia, 2018. In these cases, the Court stretched the scope of Article 8 of the European Convention on Human Rights, 1953 on non-interference with private life by public authorities to extend to nationality. The humanitarian crisis arising from the Windrush Scandal was caused by the UK Government’s decision to destroy the Windrush Generation’s landing cards in the full knowledge that for many these slips of paper were the only evidence of their legitimate arrival in Britain between 1948 and 1971. |
Search result: 201 articles
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Article |
The Windrush ScandalA Review of Citizenship, Belonging and Justice in the United Kingdom |
Journal | European Journal of Law Reform, Issue 3 2020 |
Keywords | Windrush generation, statelessness, right to nationality, genocide, apologetic UK Human Rights Act Preamble |
Authors | Namitasha Goring, Beverley Beckford and Simone Bowman |
AbstractAuthor's information |
Article |
Law Reform Bills in the Parliament of the United Kingdom |
Journal | European Journal of Law Reform, Issue 2 2020 |
Keywords | law reform, consolidation, statute law, parliament, Law Commission |
Authors | Andrew Makower and Liam Laurence Smyth |
AbstractAuthor's information |
The officials responsible for the procedures for scrutiny of proposed legislation in the UK Parliament and for the accuracy and integrity of legislative text describe how the UK Parliament scrutinizes consolidation and law reform bills and the government’s law reform programme, test the proposition that law reform is impeded by a shortage of parliamentary time, and survey ways in which Parliament could encourage and facilitate such legislation. |
Title |
Parliamentary Follow-up of Law Commission BillsAn Irish Perspective |
Journal | European Journal of Law Reform, Issue 2 2020 |
Keywords | law reform, legislation, Ireland, drafting, parliament |
Authors | Ciarán Burke |
AbstractAuthor's information |
This article seeks to present a brief outline of the various means through which the draft bills and recommendations drafted by the Law Reform Commission of Ireland and published in its reports are followed up by the Irish Parliament, the Oireachtas. The Commission’s position within the Irish legislative architecture is explained, as is the process through which bills become laws in Ireland. The Commission, it is noted, occupies an unusual role. Although there is no requirement for its publications to result in legislation, ultimately the lion’s share of its output is followed up on in the legislative process in one form or another, with its publications attracting the attention of both the government and opposition parties. The challenges and advantages presented by operating within a small jurisdiction are also outlined, while some thoughts are offered on the Commission’s future. |
Article |
Reflections on the Rule of Law and Law Reform in the Arab Region |
Journal | European Journal of Law Reform, Issue 2 2020 |
Keywords | rule of law, law reform, colonialism, authoritarianism, international development |
Authors | Dr Sara Razai |
AbstractAuthor's information |
This article offers some preliminary thoughts on the issue of international development actors in the promotion of law in the Arab region. Specifically, it reflects on the rule of law concept as a universalizing notion, touted by international organizations and governments alike as a panacea for social ills. The article discusses the act of intervention and the use and promotion of law to achieve a rule of law order in post-conflict or fragile states. It argues that the use and promotion of law by international development actors (and the donors that fund them) – a proxy for building the rule of law – is by no means new to the region. It has also been the central focus of authoritarian and colonial rulers alike. Although they are by no means similar, the three actors are strikingly similar in that they use and promote law under the aegis of building the rule of law, to the general detriment of the masses |
Article |
Gender and LanguageA Public Law Perspective |
Journal | European Journal of Law Reform, Issue 1 2020 |
Keywords | gender language, drafting, language, coercion, linguistic policies |
Authors | Maria De Benedetto |
AbstractAuthor's information |
The article adopts a public law perspective in order to focus on Gender-Fair Language (GFL) policies and drafting, by considering both language neutralization and language differentiation in some legal systems characterized by different languages. |
Article |
Gender-Neutral DraftingA View from Wales |
Journal | European Journal of Law Reform, Issue 1 2020 |
Keywords | gender, legislation, English, Welsh, LGBTQIA+ |
Authors | Thomas Glyn Watkin |
AbstractAuthor's information |
The gender classification of words in English is different from that in many other languages, including Welsh. The approach in Welsh is more closely aligned to that in languages such as French, Spanish or Italian, but there are also differences. The differences include the manner in which possessive pronouns and possessive adjectives are employed. These differences pose difficulties for bilingual drafting in English and Welsh. |
Article |
Gender Neutrality in EU Legislative Drafting |
Journal | European Journal of Law Reform, Issue 1 2020 |
Keywords | legislative drafting, EU legislation, EU treaties, multilingualism, gender neutrality |
Authors | William Robinson |
AbstractAuthor's information |
In the English-speaking world the issue of gender-neutral drafting in legislation has been a much discussed topic for many years, and there are few legislative drafting manuals in the English-speaking world that do not address the issue. |
Article |
Independence and ImplementationIn Harmony and in Tension |
Journal | European Journal of Law Reform, Issue 4 2019 |
Keywords | Law Commission, law reform, legislation, independence, implementation |
Authors | Matthew Jolley |
AbstractAuthor's information |
This article examines the factors that have influenced the independence of the Law Commission of England and Wales and the implementation of its recommendations. It discusses innovations in Parliamentary procedure for Law Commission Bills, the Protocol between Government and the Law Commission; and the requirement for the Lord Chancellor to report annually to Parliament on the implementation of the Law Commission’s proposals. It makes the case that the relationship between independence and implementation is complex: at times the two pull in opposite directions, and at times they support each other. |
Article |
Constitutional Resilience and UnamendabilityAmendment Powers as Mechanisms of Constitutional Resilience |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | constitutional change, constitutional resilience, unamendability, constitutional identity |
Authors | Xenophon Contiades and Alkmene Fotiadou |
AbstractAuthor's information |
This article aims to explore the relationship between unamendability and constitutional resilience. Inspired by Roznai’s theory on the limits of amendment powers, this article seeks to examine how such limits may function as a mechanism of constitutional resilience exploring how unamendability may impact the resilience of a constitution, allowing it to withstand crises while retaining its core functions. The key question is whether entrenchment enhances resilience through its protective shield or, by contrast, fetters resilience by foreclosing adaptability – what does not bend often breaks. The complex relationship between unamendability and constitutional resilience unfolds in the context of different amendment patterns. |
Article |
The Eternity ClauseLessons from the Czech Example |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | eternity clause, constitutional amendment, Czech Republic |
Authors | Ondřej Preuss |
AbstractAuthor's information |
This article presents lessons from the Czech example of the so-called Eternity Clause’ i.e. a legal standard declaring certain principles, values or specific constitutional provisions to be unalterable and irrevocable. The Eternity Clause is viewed and applied in the Czech Republic as a substantive legal ‘instrument’ that enables society to preserve its values. It is used to limit practical ‘power’ and to maintain desired values and the political system. |
Article |
From Supra-Constitutional Principles to the Misuse of Constituent Power in Israel |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | unconstitutional constitutional amendment, constitutional law, constitutional principles, constituent power, Israel, judicial review |
Authors | Suzie Navot and Yaniv Roznai |
AbstractAuthor's information |
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. |
Article |
Constitutional Narcissism on the Couch of PsychoanalysisConstitutional Unamendability in Portugal and Spain |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | unamendable/ eternity clauses, de jure and de facto constitutional change, constitutional narcissism, foundational design, helicopter founding fathers, constitutional alma mater |
Authors | Catarina Santos Botelho |
AbstractAuthor's information |
Comparing the Portuguese Constitution, which has the longest unamendable clause in the world, with the silence of the Spanish Constitution regarding the language of eternity is indeed a fascinating exercise. Each state’s quantum of constitutional change seems to be quite different. One can wonder how two neighbouring states that share a heavy history of right-wing dictatorships and transitioned to democracy forty years ago opted for such dissimilar constitutional designs. However, appearances are often misleading, and an effort should be done to unveil this curious mismatch. |
Editorial |
Introduction: Constitutional Unamendability in Europe |
Journal | European Journal of Law Reform, Issue 3 2019 |
Authors | Lech Garlicki and Yaniv Roznai |
Author's information |
Article |
A View on the Future of Judicial Review of Constitutional Amendments in TurkeyAn Invitation to Judicial Dialogue |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | basic structure doctrine, Constitutional Court of Turkey, constitutional identity, judicial dialogue, immunity amendment, unconstitutional constitutional amendments |
Authors | Ali Acar |
AbstractAuthor's information |
In this article, I discuss and analyse the Turkish case concerning judicial review of constitutional amendments in light of a recent decision by the Constitutional Court of Turkey (CCT). In the said decision, the CCT rejected carrying out judicial review over a controversial constitutional amendment, which lifted MPs’ parliamentary immunity. This decision urges to consider its implications for the possible future cases. I refer to comparative constitutional law with the hope to shed more light on the Turkish example and grasp it comprehensively. In this respect, I illustrate the most crucial arguments developed by the Supreme Court of India (SCI), the Bundesverfassungsgericht (BVG), and the Conseil Constitutionnel (FCC) in their case law. Based on the comparative account, I draw some lessons for the CCT and invite it to get into a judicial dialogue with other supreme/constitutional courts with regard to the issue. |
Article |
Judicial Review of Constitutional Amendments in TurkeyThe Question of Unamendability |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | judicial review of constitutional amendments, constitutional unamendability, judicial activism, competitive authoritarianism, abusive constitutionalism |
Authors | Ergun Özbudun |
AbstractAuthor's information |
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. |
Article |
Transitional Constitutional Unamendability? |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | transitional constitutionalism, constitutional unamendability, decline of constitutional democracy, constitution-making in Hungary, the Hungarian Constitutional Court |
Authors | Gábor Halmai |
AbstractAuthor's information |
This article discusses the pros and cons for a suggestion to use unamendable provisions in transitional constitutions to protect the integrity and identity of constitutions drafted after a democratic transition. The presumption for such a suggestion could be that most democratic constitution-making processes are elite-driven exercises in countries with no or very little constitutional culture. The article tries to answer the question, whether in such situations unamendable constitutional provisions can help to entrench basic principles and values of constitutionalism with the help of constitutional courts reviewing amendments aimed at violating the core of constitutionalism. The article investigates the experiences of some backsliding constitutional democracies, especially Hungary, and raises the question, whether unamendable constitutional provision could have prevented the decline of constitutionalism. |
Article |
Legislative Reform in Post-Conflict SettingsA 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. |
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. |
Article |
Law Reform in a Federal SystemThe 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. |
Article |
Plain LanguageA Promising Tool for Quality Legislation |
Journal | European Journal of Law Reform, Issue 4 2018 |
Keywords | plain language, clarity, precision, accessibility, interpretation |
Authors | Kally K.L. Lam LLB |
AbstractAuthor's information |
The hypothesis of this article is that plain language drafting with innovative drafting techniques can improve the quality of legislation. Further to this, the article tries to prove that quality legislation can also make the law more accessible to its general audience. With regard to quality, the article assesses plain language drafting with innovative drafting techniques using Helen Xanthaki’s criteria of quality in legislation, i.e. that it should be clear, precise and unambiguous. With regard to accessibility, it is defined broadly as to include readability. I will first assess whether plain language drafting with innovative drafting techniques can meet the expectations of its general audience and second discuss whether legislation drafted in plain language with innovative techniques passes the usability tests. |