More Than IndyRef2? The Referendums (Scotland) Act 2020

Demands for a second Scottish independence referendum have persisted since 2014. The Scottish government introduced the Referendums (Scotland) Bill at Holyrood in May 2019 to enable referendums within the competence of the Scottish parliament. The Scottish National Party (SNP) government presented this as a framework enabling a range of referendums. Opponents saw this as legislating for a second independence referendum. The act will form a large part of the legal framework and rules for any second independence referendum. Importantly, the legislation provides innovation in electoral law more generally. This article discusses the background to the bill, its initial contents, and debates around and amendments to the bill. It discusses its electoral law innovations, before considering its limitations and place as constitutional debates play out over a second independence referendum.     

VICTORIA

The Victorian Liberal Premier, Richard Hamer, in adjourning the 1980 parliamentary session with the traditional “Christmas felicitations”, made special reference to the record number of sitting days and the longer daily average of sitting hours achieved. Labor Opposition Leader Frank Wilkes in turn drew attention to the total of 126 bills introduced during the spring session, of which 101 had been instigated by the government and 25 by private members. Such an arduous and concentrated parliamentary schedule has obvious policy implications, but also prompts a query about its administrative consequences. To what extent was the mass of legislation dealt with by the last Victorian State parliament directed towards administrative ends as well as to the Liberal government's more obvious political goals?     

A Paradigm Shift? Employee Relations in the Victorian Public Service Since 1992

When Jeff Kennett was swept into office on 3 October 1992, one of his first priorities was to reform the Victorian public sector as one part of his broad strategy to get 'Victoria on the Move'. Without losing much time, and with very little community or parliamentary debate, both the Public Sector Management Act 1992 (Vic) and the Employee Relations Act 1992 (Vic) were passed. These pieces of legislation have been the main instruments to regulate terms and conditions of employment for employees in the Victorian public service. Changes to the legislation will be examined in this paper and discussed in the context of whether a paradigm shift has occurred in managing employee relations in the Victorian public service.     

Where Judicial Politics Are Legislative Politics: The French Constitutional Council

Judges on France's ordinary and administrative courts make law and policy by interpreting and applying statutes, but the Constitutional Council is overtly involved in policy‐making. The Council serves as a type of ‘third’ chamber of the French parliament, where it may annul unconstitutional legislation, ‘constitu‐tionalise’ various legal principles, and sometimes even prescribe the precise terms of legislation. This ‘court‐like’ body, thus, plays a significant and growing role in French policy‐making.     

Missing in action: practice,paralegality, and the nature of immigration enforcement

U.S. immigration control is typically understood in terms of enforcement practices undertaken by federal officers guided by legislation and court decisions. While legislation and court opinions are important components of the immigration control apparatus, they do not adequately account for immigration control ‘on the ground.’ To explore this problem, we advance the concept of paralegality, the practices and operations that constitute a dynamic system of actions and relationships that are not simply linear applications of legislation or judicial decisions but may in fact extend or counter these texts. We illustrate the importance of paralegality by reconstructing the evolution of the §287(g) and Secure Communities programs, both of which have shape-shifted dramatically since their inception. Our account of immigration control highlights the problem practice poses for law, proposes a theoretical alternative to textual-law-centric research on immigration and law enforcement, and contributes to scholarship on everyday citizenship.     

Freedom of Information and Parliamentary Departments

This article examines whether freedom of information (FOI) legislation should apply to those agencies working to support parliaments. In the past, FOI legislation was characterized as a mechanism to allow greater scrutiny of the executive branch by parliament and the community. On this analysis, there was no reason to extend the legislation to the agencies of the legislative branch. But the role of FOI legislation has developed so that it now forms part of a wider integrity framework of government. The need to ensure integrity is a concern for all three branches of government and this article asks whether there are any convincing reasons in principle or practice to exclude the parliamentary departments from the FOI regime.     

The Politics of Court Budgeting in the States: Is Judicial Independence Threatened by the Budgetary Process?

Judicial independence in American politics has been hailed as a means of preserving individual liberty and minority rights against the actions of the majoritarian branches of government. Recently, however, legal professionals and scholars of the courts have begun to question the magnitude of judicial independence, suggesting that budgeting and finance issues pose a threat to judicial independence. This article explores whether state judiciaries are being threatened on this front by soliciting the perceptions of key state officials. Using surveys of court administrators, executive budget officers, and legislative budget officers in the states, we examine three aspects of the politics of judicial budgeting: competing for scarce resources, interbranch competition, and pressure to raise revenues. The survey responses suggest that, in a substantial number of states, judicial independence has, at times, been threatened by interbranch competition and pressures to raise revenues.     

All Votes are Equal? Significant Legislation and Party Competition in the Danish Folketing

In nearly all studies on legislative party competition, all votes are treated equally. It is argued in this article that the cooperation between parties varies substantively depending on the type of legislation analysed. However, establishing a measure of the relative significance of votes has challenged legislative studies for decades. A novel measure for legislative significance is therefore proposed: length of debate. Using parliamentary votes from 23 legislative periods in the Danish parliament from 1953 to 2003 and debate length as measurement for bill significance, analyses are presented that focus on between‐party voting patterns on significant and non‐significant legislation and the presence, extent and features of legislative cartels is discussed. The results suggest that looking only at significant legislation reveals more clearly the legislative cartels within the legislature. These findings challenge the traditional assumption of treating parliamentary votes equally, and they allow for a better understanding of legislative cartels in the Folketing.     

The Review of Victoria's Guardianship Legislation: State Policy Development in an Age of Human Rights

This article considers the Victorian government's decision to review the state's guardianship legislation and notes the significant place international human rights developments are playing in that review. The article recognises the opportunities these developments present for reworking the guardianship legislation to increase the autonomy and decision-making power of people with disabilities, but also considers the challenge these developments present to ensuring that society continues to protect its most vulnerable citizens.     

Opportunism and MPs’ chances of re-election: an analysis of political transformism in the Italian parliament

Public Choice - We identify as political transformists the Italian members of parliament (MPs) who cross the aisle and vote for legislation opposed by their own political group—i.e., MPs who...     

The Impact of the European Union on Coalition Formation in a Minority System: The Case of Denmark

Does European Union membership influence coalition patterns in national parliaments? For governments in the Scandinavian countries – with their relatively high share of minority governments requiring external parliamentary support to form parliamentary majorities – the question of ‘coalition management’ is highly relevant. This article provides an empirical test of three central arguments in the Europeanisation literature on the impact of EU membership on national parliaments when political parties pass legislation in the Danish Folketing. The effect of EU content in a law on coalition patterns is compared across policy areas and four electoral periods from 1998 to 2011 encompassing 2,894 laws. The data provide support for the argument that the loss of national agenda‐setting over the legislative process has an impact on coalition patterns in the Danish parliament. It is shown that the coalition patterns on Europeanised legislation are both broader and more stable compared to national, non‐EU‐related legislation. The focus on Europeanisation of legislative coalitions goes beyond previous analysis with an institutional focus, and demonstrates an example of how the EU systematically has an effect on legislative coalition formation in a national parliamentary system.     

Output of the Spanish Cortes (1979–2000): A case of adaptation to party government

Abstract.  This article considers the activity of the Spanish Cortes in law production and the control of the executive during the six parliaments of the democratic government. It mainly examines the output of the lower chamber due to the asymmetrical bicameralism and weak status of the Senate. In Spain, the legislative output has been dependent on different situations of party government. In general terms, the Cortes have been always very active in controlling the executive and its participation in law-making was highly relevant when there was a minority government. Because parties are central actors in parliament and due to the strong party discipline in the Spanish case, the author mainly studied parliament output from the viewpoint of strategies of opposition parties. Sometimes parties behaved in parliament procedures in a competitive way, while in others they behave cooperatively. There was a great variety of patterns of strategic behaviour on account of the different situations of party government and the diverse opposition parties. Half of the parliaments had minority governments in which minority parties played a very important role by supporting the government in parliament; however, the main opposition party was never the same since there were two changes of government.     

Veto Players and Institutional Analysis

The veto players theory can be used to analyze all political systems regardless of regime (presidential or parliamentary), party system (one-, two-, or multiparty), and type of parliament (unicameral or multicameral). This paper develops the veto players theory to account for a series of important political phenomena: the difference between majoritarian and supermajoritarian institutions; the importance of absenteeism, or of political marginalization; the importance of agenda control and referendums; the reasons for government stability (parliamentary systems) and regime stability (presidential systems); the reasons for independence of bureaucracies, and judicial independence. All these phenomena are analyzed in a coherent way, on the basis of the same framework. Empirical evidence from existing literature corroborating the theory is provided.     

The European elections of 1994

Legislatures frequently enact primary legislation that delegates secondary law making powers to administrative agencies. Judicial review designed to ensure that this secondary legislation is in accord with the primary legislation necessarily involves judicial interpretation of the primary legislation and hence also some degree of judicial law making. Both the relative degree of judicial law making and its causes may vary from country to country. Judicial review of secondary legislation in three countries is examined. Judicial activism is great in the United States and probably related both to congressional inefficiency in passing amending statutes and judicial recruitment and career patterns. The level of judicial activism in the UK has been low but may be increasing. It is severely constrained by the capacity of parliament rapidly to 'correct' judicial interpretations but encouraged by judicial career patterns. The formal decisions of the French Council of State show little judicial intervention against administrators' secondary legislation but such intervention may occur extensively at the stage of agency regulation drafting rather than through formal review processes.     

Gender Equality as a Closed Case: A Survey among the Members of the 2015 Danish Parliament

Despite almost unanimous adherence to the principle of gender equality in contemporary Denmark, a society with a long historical record of gender equality policies and almost 40 percent women in parliament, are there still divergences to be found among the members of parliament concerning gender equality principles and policies? This article argues that in order to identify underlying cleavages it is necessary to pose fundamental questions that go beyond the day‐to‐day disagreements on policy issues. Based on a new survey of the members of the Danish parliament, this study finds that the support for gender equality is not just a matter of lip service insofar as few MPs hold traditionalist views on women. However, the study reveals conflicting perceptions, left‐right cleavages and gender gaps, sometimes also within the parties. A new discourse is identified, supported by a large minority that includes all of the male MPs from the four right‐wing parties; this minority considers gender equality to be a ‘closed case’ – that is, as having by and large been achieved. This may provide clues to the puzzle of the stagnation in gender equality reforms in spite of the general support for ‘gender equality’. The article discusses the possible connection between the ‘closed case’ discourse, present neoliberal trends in society and the recent construction of gender equality as an ‘intrinsic Danish value’ – an argument familiar in other countries with a harsh debate over immigration.     

Regulatory independence, public accountability and the Victorian prison system

One of the most frequently used arguments supporting the introduction of privatization into a prison system is that it will strengthen accountability. However, to meet this claim it is maintained that a number of preconditions are necessary—one being independence of the regulator. This article examines the claims made by the Victorian Minister for Corrections that the Seamless System model would provide more independent monitoring and review of Victoria's prisons. Changes to regulatory arrangements are probed to determine if there has been any loss of independence in Victoria's prison system since the introduction of the latest model. It is concluded that the latest restructuring in 2003 of Victoria's part-privatised prison poses a significant risk for public accountability and requires attention to ensure both the private and the public prisons are held to account.     

Sponsoring Private Member's Bills in Finland and Estonia: The Electoral Context of Legislative Behaviour

This article examines the degree to which sponsored private member's bills (PMBs) in parliament can be explained by electoral incentives. Such bills are a peculiar piece of draft legislation – technically simple, topically unimportant and with negligible passage rates. Yet members of parliament (MPs) sponsor them in large numbers. One possible explanation for this behaviour is the electoral context arising out of the variance in electoral district size and electoral list types, which makes a strong personal reputation comparatively more important for some MPs. Sponsoring bills that have no realistic chance of becoming actual regulations could be a form of personal reputation‐building and/or vote‐seeking behaviour. Evidence is examined on the sponsoring of such bills in Finland between 2003 and 2007 and in Estonia between 1999 and 2007 in order to determine if the electoral context explains why some MPs do this more frequently. The results suggest that the electoral system does have an effect. MPs who have been elected under rules where personal reputation is not central in getting elected are less likely to sponsor such bills the larger their electoral district becomes.     

The 2009 Victorian Bushfires Royal Commission: Lessons for the Conduct of Inquiries in Australia

Royal commissions with their wide powers, independence and uncertain outcomes are adopted sparingly by government. Hence, those charged with establishing such an inquiry are often left to begin anew. The 2009 Victorian Bushfires Royal Commission (VBRC) provides a means of exploring lessons for public administration in light of its inquiry approach and internal operation. Similarly, recent reports on the conduct of statutory inquiries provide the opportunity to examine good practice. This article explores the central issue of what mode of inquiry is suited for particular circumstances. It characterises three different types of inquiry and analyses their features. The author provides participant observer insights from the VBRC and reflects on lessons learned.     

The Liberal Democrat Dilemma in Historical Perspective

This article examines Liberal and later Liberal Democrat relationships with other parties, whether through pacts (either electoral or parliamentary) or pursuing realignment. It shows how dilemmas that the Liberal Democrats may face in the future over what to do in a hung parliament have been a constant theme in Liberal politics since the electoral cooperation with Labour in 1906 and the parliamentary arrangement with Irish nationalists in 1910. It then argues that since 1918 the Liberals have been divided between those who were sympathetic to pacts and arrangements with other parties and those who feared compromising their independence. However, it is argued that Liberals fearful of a loss of independence were never able to offer a really effective answer as to how they could succeed in exerting political influence without cooperation. This remains a live debate for the Liberal Democrats.