Changing the meaning of ‘vulnerable’ under the homelessness legislation?

The Supreme Court judgement in Hotak v Southwark London Borough Council (Equality and Human Rights Commission and others intervening) [2015] UKSC 30; [2015] 2W.L.R. 1341 appears to have significantly altered prevailing understandings of the meaning of ‘vulnerability’ within the homelessness legislation’s concept of priority need. This paper analyses Hotak’s doctrinal effects, and questions both the adequacy of the court’s reasoning and the likelihood of those formal doctrinal changes leading to a concomitant alteration to the content of the decisions that local authorities reach.     

"TOO MANY LAWYERS, NOT ENOUGH PRACTICAL PEOPLE": The Policy-Making Discretion of the Federal Trade Commission

Contemporary legal theory recognizes three primary methods of controling administrative discretion: confining through substantive standards, structuring through procedural requirements, and checking through bureaucratic review. It is sometimes assumed that these techniques operate independently and that their effects are additive. This article reports on a study of Federal Trade Commission policy-making and concludes that in some instances there can be complex interactions among the legal techniques for controlling discretion, and between the legal techniques and political or bureaucratic forces shaping policy-making discretion.     

The reluctant activist: the Italian parliament and the scrutiny of EU affairs between institutional opportunities and political legacies

ABSTRACT

The article analyses the participation of the Italian Parliament in the scrutiny of EU affairs after the entry into force of the Treaty of Lisbon and its implementation through the national Law 234/2012. The empirical analysis highlights that notwithstanding the presence of favourable institutional and political conditions, the involvement of the Italian Parliament in EU affairs moderately increased. The Treaty of Lisbon and Italian legislation improved Parliament’s rights to participate in the ascending phase but without altering significantly the balance of powers between the European Commission and NPs, and between the Italian Parliament and the Government. Moreover, MPs perceive the EWS and the PD as not impactful on decision-making at the EU and the national level.     

Parental Alienation Syndrome in Spain: opposed by the Government but accepted in the Courts

ABSTRACT

For over fifteen years, Spain has seen the promulgation of feminist-inspired legal frameworks to combat male violence against women and, as a result, Spanish law contains a variety of mechanisms that target male violence. However, the parallel dissemination of the pseudo-scientific concept of Parental Alienation Syndrome (PAS), especially since 2004, has become a tool to stall the enforcement of gender equality legislation. Specifically, PAS is causing severe harm in legal procedures related to marital breakdown. Both the government and the General Council of the Judiciary have taken a stand against the deployment of PAS in the legal system, but the notion of parental alienation is still widely used in family courts. This article analyses the contemporary significance of PAS in Spain. It grounds itself in an examination of key government reports and legal cases, and draws on qualitative survey data from interviews with 20 women who have been either formally accused, or threatened with accusations of parental alienation.     

The United Kingdom Right to Request as a Model for Flexible Work in the European Union

Flexible work, the practice of giving employees some control over their working time, can transform the modern workplace. Once the province of scattered national legislation, the European Union is now considering the inclusion of flextime rights in the Working Time Directive (WTD), the leading EU legislation related to work time. In this article, we propose that the European Commission should adopt a right to request flexible work as part of the WTD. Adoption of the right to request flexible work would significantly alleviate the challenges employees face in maintaining work–life balance. The right to request flexible work can also provide benefits to employers by increasing employee loyalty and productivity. Finally, adoption of the right to request flexible work into the WTD would improve the overall effectiveness of the EU's employment law framework in an increasingly fast‐paced and competitive society.     

Open access to public documents – More secrecy,less transparency!

Prospects are grim for greater access to public documents. The recent initiatives of the Council of Europe to enact a new international convention on access to public documents and recent proposal by the European Commission to revise the law on public access would actually narrow the right of access. The proposed laws would allow governments and the EU Commission to increase its discretionary power to control the flow of information. The draft CoE Convention sets an overly-low standard and restricts information held in electronic databases if the information is not “easily retrievable” or does not “logically belong together”. Similarly, the proposed amendments to the EU Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents would exclude access to documents that do not appear on a register. This would give the EU Commission a wide discretion to share documents informally with a limited number of people, such as interest groups. The Commission's proposal would relieve the EU institutions of its current obligation to show concretely the harm that would occur as a result of disclosure when refusing access to documents. The new proposal has been criticised for subordinating transparency rules to data legislation. The proposals initiated under the Swedish leadership would be a step backwards for transparency.     

论行政立法裁量中利益沟通的法治价值——从亚里士多德的法治观说起

亚里士多德法治观的精髓在于立法者所制定的法律必须是良法并且应当被普遍遵守。秉承此意,行政立法裁量中利益沟通的法治价值有二：一是利益沟通有助于行政立法裁量所立之法为良法;二是利益沟通有助于行政立法裁量所立之法获得普遍服从。     

The nearest relative in the Mental Health Act 2007: still an illusionary and inconsistent safeguard?

Abstract

The role of nearest relative (NR) is intended as a safeguard in the Mental Health Act 1983 (as amended in 2007) to curb the excesses of professional discretion and protect patients from unwarranted compulsory hospitalisation. It is unique to the mental health compulsory detention process in England and Wales. There are, however, evident tensions in the role and a lack of clarity surrounding the precise functions of the NR. There is also some uncertainty and confusion among practitioners about the scope of the NR involvement, and government plans announced recently to review mental health legislation will include a focus on the role of family and carers in the care of detained patients. Despite long-standing concerns about the role, there is remarkably little published research available to date on its use and effectiveness, in so far as evaluating the extent to which it provides an adequate safeguard for patients, as intended by the legislation. This article will briefly explore the background to the role, highlight some of the difficulties and tensions within it and conclude with some observations about where further research and reform may be needed to provide greater protection and clarity for patients, relatives and health and social care practitioners.     

Non-governmental Organisation Participation in the EU Law-making Process: The Example of Social Non-governmental Organisations at the Commission, Parliament and Council

Abstract:  This article explores the avenues used by non-governmental organisations working in the sector of EU social policy to influence the law-making process at the EU. The Commission's current transparency initiative has focused attention on the rules (or lack of) governing access to the Commission as the initiator of legislation. This article examines more broadly, on the basis of interviews, both the formal and informal means of accessing not only the Commission, but also the European Parliament (in particular through intergroups) as well as the Council. By using specific examples of legislation it illustrates the routes by which 'social' non-governmental organisations currently interact with these institutions, offering examples of how their work may impact on the output of the Commission, Council and Parliament. The article avoids an overly legalistic analysis with an original glimpse at the 'hidden' workings of the EU law-making process which has hitherto received little attention among legal academics and practitioners.     

I — Legislation

In this paper, the various challenges to the prosecutorial discretion of the Director of Public Prosecutions (DPP) are identified. It deals with two distinct areas of prosecutorial discretion: first, the scope of judicial review relating to prosecutorial decision in the light of the Privy Council judgment of Mohit v The Director of Public Prosecutions [2006] UKPC 20; and secondly, the impact and implications of the decision of the Purdy case which imposes an obligation on the DPP to issue a policy statement as regards conduct which will not be the subject matter of a prosecution even though there may be sufficient evidence to prosecute such conduct under the relevant legislation.     

Wildlife management,the multilateral trade regime,morals and the welfare of animals 1

Abstract

Various states (and groups of states such as the European Community) have adopted legislation designed to raise standards of animal welfare in many areas including agriculture, companion animals, experimentation and testing, transport, and hunting and trapping methods. Much of this legislation has resulted from extensive lobbying and intense political wrangling. Where the legislation affects animals as products (or animal derivative products such as their pelts or their meat), legislators frequently resort to external facing trade measures to support the moral stance taken in the legislative instrument. At this point potential conflicts with the precepts of the multilateral trade regime operated by the World Trade Organisation arise. The extent to which the relevant provisions in the WTO portfolio of agreements (and the predecessor text of the GATT 1947) assist the cause of animal welfare is limited by both the texts themselves and the narrow interpretation of those texts by WTO/ GATT dispute panels. Non‐governmental organisations involved with animal welfare issues are concerned that the WTO regime will inhibit the development of animal welfare protection legislation and are also concerned that the net result may be a retardation of the development of animal welfare measures in the face of open market competition. This article explores the background to, and substance of, this contention particularly in the context of the European and International legislation designed to deal with the welfare of trapped wild animals and also with other animal welfare legislation having international trade implications. Moreover, the findings of such an examination have much broader implications in that they have relevance to any legislation based on public morality which seeks to enforce that morality through external facing trade measures.     

Electoral foundations of parliamentary questions: evidence from the European Parliament

Parliamentary questions (PQs) provide a useful tool for members of the European Parliament (MEPs) to control the executive at supranational level and to promote their reputation among relevant groups (party, interest groups and constituency). Previous works have just focused on macro-functions of questions, neglecting the opportunity for MEPs to use them as a re-election and re-selection strategy (micro-functions). In this article, it is argued that PQs are a relevant instrument in the hands of parliamentarians in order to increase their reputation and build up their political image. In particular, it is considered how variation in electoral systems might affect legislative behaviour and, especially, the number of questions asked. Using a new data set on oral and written questions to the European Commission and the Council, the article demonstrates how candidate-centred electoral systems incentivise MEPs to ask more questions than legislators elected under party-centred systems.     

Political biography and autobiography and the study of women in politics in Canada: The case of political ambition

This article examines the concept of women's political ambition by focusing on electoral politics in Canada. It begins with an overview of some of the key theories associated with political ambition among women and identifies several ways in which previous research indicates that patterns among women legislators may be different from those of their male counterparts. While recognising that there may be some limitations of auto/biographical works as reliable sources of information, the central idea of this article is that political auto/biography of Canadian women legislators may prove to be important resources in furthering our understanding of political ambition among women legislators. As part of this analysis, this research examines 16 auto/biographical works of women who have served in Canada's federal and provincial legislatures since the Second World War.     

Between discretion and control: Reflections on the institutional position of the Commission within the European citizens' initiative process

This article considers the institutional position of the Commission within the European citizens' initiative (ECI) process, with particular emphasis on its decision regarding the admissibility/registration of a proposed ECI, and its final decision on the outcome of an ECI which has met the necessary levels of support. The purpose of this contribution is to juxtapose the case‐law of the Court on the Commission's discretion and the relevant provisions of the Treaties with the evolution of European integration and, more specifically, the evolution of the Commission's role therein. Viewed under this prism, the Commission's powers at the registration stage (which in any event clearly fall under the scope of judicial review) are compatible with the constitutionalisation of the Union, whereas the Commission's width of discretion at the follow‐up stage, while compatible with the Commission's prerogatives, cannot easily be reconciled, nonetheless, with the Commission's limited legitimacy when compared to that of the co‐legislators, the fact that it may not always represent the Union interest, and the latter's pragmatic losses within the EU institutional balance.     

Delegation and Defensive Legislative Strategies in Brazil

In the course of the legislative process, legislators choose how much policy discretion to delegate to the executive branch. Uncertainty about policy outcomes and bureaucratic intentions weighs heavily in such decisions. In Brazil, executive control over the budget creates uncertainty about the availability of discretionary spending, which results in comparatively high levels of delegation in the legislature's direct‐spending decisions. I demonstrate that sidelining the legislature from the budget in order to insulate government spending from political pressures diminishes the value of legislative work in Brazil and reinforces historical patterns of policymaking centered on the federal executive.     

Constructing a New Scottish parliament for the ‘Europe of regions’: Can institutional engineering assure subsidiarity?

The creation of an elected parliament in Scotland raises questions for legislative scholars, among them how a parliamentary body representing a stateless nation within a member state of the European Union can influence and implement European legislation. One version of the ‘principle of subsidiarity’ states that decisions are taken as closely as possible to the citizen, encouraging assemblies throughout the EU to articulate and implement their own preferences in key policy areas. Reporting findings from a survey of the Scottish parliament's first cohort of legislators, this article identifies conflicting perceptions of subsidiarity, charts how best to pursue it, and evaluates the institutional norms, rules and procedures put in place to help secure it. Data demonstrate that preferences vary by level of MSP knowledge about European policy, by party membership and by method of election. Low levels of legislator knowledge combined with internal divisiveness constitute barriers to institutional strength in the pursuit of subsidiarity.     

“It Takes a Coalition”: Coalition Potential and Legislative Decision Making

This article empirically illustrates the value of coalition formation in legislative bargaining. I argue that legislators’ potential to form powerful coalitions, their coalition potential, is essential to their ability to obtain preferred policy outcomes. Using data on the European Union's legislative process, I show that coalition potential significantly increases legislators’ success. Moreover, the value of coalition potential depends on the voting rules used to pass legislation. For example, under the unanimity voting rule, the importance of coalition potential is insignificant because of the veto power held by each legislator.     

To block or not to block – European child porno law in question

The EU Commission has proposed a new Directive on combating sexual abuse, sexual exploitation of children and child pornography. The updated piece of legislation proposes to block access to child pornography websites. After months of negotiation, the Council, Parliament and Commission have agreed on a compromised text which generates more confusion and has been lambasted as meaningless. The compromised text is a result of powerful lobbying by Hollywood porno industry, Internet Service Providers and civil libertarians. The compromised text brings to highlight the tension between freedom of speech and protection of children.     

In Search of the Missing Link: Examining Contextual Variation in Federal Charge Bargains across U.S. District Courts

Abstract

Punishment scholars acknowledge the fundamental importance of both prosecutorial discretion and jurisdictional variation in punishment; yet, little is known about the extent to which charging practices vary across court contexts. This is especially true in the federal criminal justice system. This research investigates this issue by linking four years of charging data from the Administrative Office of the U.S. Courts (AOUSC) to corresponding data from the U.S. Sentencing Commission (USSC). It incorporates unique information on district court contexts from a variety of sources to investigate jurisdictional variation in charge reductions. Findings provide evidence that federal charging practices vary across district courts. In particular, several structural court characteristics are significantly related to the likelihood of charge reduction for similarly-situated defendants. Results from this study are interpreted through the lens of contemporary legal perspectives on court communities and suggest several fruitful directions for additional research on the social contexts of criminal prosecution.