Chronicling National Assembly committees as markers of institutional change

This article examines changes to the National Assembly for Wales committees and how they act as markers that help explain the dynamics of a significant and contemporaneous constitutional journey. It uses as its backdrop recent constitutional and political change in the UK, particularly that initiated by devolution. Uniquely, we draw upon management theory as well as political science to explain why changes in the focus, identity and profile of Assembly committees represent significant markers or reflectors of constitutional shifts. We suggest that examining key components within the internal architecture of parliaments at different stages of development offers an additional and complementary level of institutional analysis. Our review of the Assembly committees reveals that they have reflected the pace and shape of change in Welsh devolution, and that shifts in their profile and operation offer another insight into devolution, whilst also reflecting wider institutional and political change.     

Human Rights: Changing the Culture

The Human Rights Act 1998 is likely to come into force early year next year. It unquestionably has the potential for being one of the most fundamental constitutional enactments since the Bill of Rights over 300 years ago. While so much constitutional change in the United Kingdom has been achieved without resort to legislation, this is a deliberate part of a programme of constitutional change by legislation. The legislation has to be seen in the context of the government's wider programme of constitutional reform: the reform of the House of Lords, the promised Freedom of Information Act, devolution to Scotland, Wales, and Northern Ireland, and elected mayors. Any evaluation of a change in the way in which the constitution is perceived and imagined in the United Kingdom cannot ignore the interrelationship of these reforms. The scope of this collection of essays is, however, narrower. It is to consider what changes have brought about this particular constitutional reform and its potential for creating a 'human rights culture'.     

The Public Legitimacy of the National Assembly for Wales

This article examines the public legitimacy of the National Assembly for Wales. Both the Assembly and the broader system of devolved government for Wales initially enjoyed very limited public support. It is shown that support for devolution in general has risen substantially, while some elements of public attitudes towards the Assembly itself now appear distinctly positive. However, it is also demonstrated that public legitimacy, defined as ‘diffuse support’ for the Assembly, remains limited. The article then examines what factors explain levels of diffuse support for the National Assembly. It is found that variation in such support is best accounted for by factors associated with ‘non-material consequentialism’: perceptions of the impact of the Assembly on the process of government. The conclusion assesses the implications of the findings for the National Assembly, as well as for the study of devolution and political institutions more generally.     

Rethinking UK Parliamentary Adaptation in EU Affairs: Devolution and Europeanisation

How national parliaments adapt to the European Union is an important debate. However, scholars often overlook the regional aspect. This is particularly so for the UK where, despite devolution since 1999, scholarship remains largely devolution-blind. It is assumed that evaluating UK parliamentary adaptation only requires assessing the work of Westminster committees. This article takes a first step towards rectifying this oversight through reconceptualising UK–EU parliamentary engagement as multi-territory, not state-centric. This is demonstrated by comparing the social construction of practices in Scotland, Wales and at Westminster since 1999. Acknowledging devolution, however, does not just require comparing practices. Additionally, the paper asks how the ideas of devolution have been taken up by actors, potentially transforming the meaning of UK engagement for them. This necessitates new approaches drawn from interpretivist and constructivist institutionalist theories. Ultimately, therefore, the paper goes further than arguing for devolution-aware research to promoting change more generally in how parliamentary adaptation is theorised.     

Riders on the Storm: Wales,the Union,and Territorial Constitutional Crisis

The United Kingdom continues to undergo a rapid process of constitutional change, with an ongoing redistribution of law‐making and governmental powers to different parts of the Union under an expanded rubric of ‘devolution'. This article illuminates a pervasive sense of territorial constitutional crisis and opportunity in the most recent period, familiarly associated with, but not confined to, Scotland. Constructive and flexible federal‐type responses inside a famously uncodified constitution are championed. Wales, commonly treated as a junior partner in the United Kingdom, presents special challenges for constitutional and legal analysis and distinctive perspectives on the Union which have not received the attention they deserve. In tackling this deficiency, the article elaborates a ‘new Union’ concept of a looser and less hierarchical set of constitutional arrangements in which several systems of parliamentary government are grounded in popular sovereignty and cooperate for mutual benefit.     

Devolution and its Jurisdictional Asymmetries

The devolution of legislative and executive powers to the different parts of the United Kingdom has meant that, because of the asymmetric arrangements made, there has been an increase in policy divergence from one part to another. Some of this has been intended, some unintended. With reference, in particular, to Scotland and Wales this article focuses on the asymmetric consequences of devolution which derive specifically from the jurisdictional or 'legal system' differences across the United Kingdom. These affect the conditions under which law-making powers may be devolved, the 'management' of devolution and the rights enjoyed by citizens. It is argued that the devolution of 'legal system' competence carries with it problems quite different from those associated with the devolution of other powers.     

Legislating for Wales ‐ local government (Wales) act 1994

This article addresses the means of creating legislation with specific application to Wales and examines the constitutional conventions, parliamentary procedures and political processes involved. The article employs as a case study The Local Government (Wales) Act 1994. Although there are parliamentary procedures available which would allow Welsh interests a privileged role in Welsh affairs, it is found that the national interests of the political parties ensure that government ministers and the majority party in the House of Commons ultimately retain control over Welsh affairs. Nevertheless it is found that there are active policy communities with specific concerns in Welsh affairs who are prominent actors and who do give the legislative process concerning Wales distinctively Welsh characteristics.     

Does devolution make a difference? Legislative output and policy divergence in Scotland

Devolution provides large scope for Scotland to make its own policy. Primary legislation is one measure of this. Scottish legislation before devolution tended to replicate measures for the rest of the United Kingdom, with differences of style. Scottish legislation in the first four-year term of the Parliament shows a big increase in output. There is an autonomous sphere, in which Scotland has gone its own way without reference to the rest of the UK. In other areas, there is evidence of joint or parallel policy-making, with Scottish legislation meeting the same goals by different means. Finally there is a sphere in which Scottish legislation is essentially the same as that in England and Wales. Sewel motions have not been used to impose policy uniformity on Scotland. There is evidence that devolution has shifted influence both vertically, between the UK and Scottish levels, and horizontally, within a Scottish legislative system that has been opened up.     

Politics and the police in Scotland: The impact of devolution

The creation of a Scottish Parliament and Scottish government in 1999, under the process of devolution within the UK, created a significantly different constitutional and political landscape from that which preceded it. The impact on domestic issues in Scotland, such as policing, has been considerable. This is partly because of new structural arrangements, including the creation of a Justice Minister and a Justice Committee of the Parliament, and partly because of the significance of the law and order agenda within Scottish politics. This paper discusses the impact of these developments on the Scottish police. Analysis focuses on the growing involvement of the Scottish Parliament and Scottish governments in key areas such as constabulary independence, police accountability and the management of police resources. Through this discussion, the paper seeks to make a contribution to the debate about the relationship between the police and politics, and the extent to which policing in Scotland is becoming increasingly politicised.     

Inching toward incrementalism: federalism, devolution, and health policy in the United States and the United Kingdom

In the United States, the recently enacted Patient Protection and Affordable Care Act of 2010 envisions a significant increase in federal oversight over the nation's health care system. At the same time, however, the legislation requires the states to play key roles in every aspect of the reform agenda (such as expanding Medicaid programs, creating insurance exchanges, and working with providers on delivery system reforms). The complicated intergovernmental partnerships that govern the nation's fragmented and decentralized system are likely to continue, albeit with greater federal oversight and control. But what about intergovernmental relations in the United Kingdom? What impact did the formal devolution of power in 1999 to Scotland, Wales, and Northern Ireland have on health policy in those nations, and in the United Kingdom more generally? Has devolution begun a political process in which health policy in the United Kingdom will, over time, become increasingly decentralized and fragmented, or will this "state of unions" retain its long-standing reputation as perhaps the most centralized of the European nations? In this article, we explore the federalist and intergovernmental implications of recent reforms in the United States and the United Kingdom, and we put forward the argument that political fragmentation (long-standing in the United States and just emerging in the United Kingdom) produces new intergovernmental partnerships that, in turn, produce incremental growth in overall government involvement in the health care arena. This is the impact of what can be called catalytic federalism.     

Implicit Consitutional Change-Changing the Meaning of the Constitution Without Changing the Text of the Document

Constitutional change is often thought of as explicit constitutional change, i.e., as change that implies a modified wording of the constitutional document. In this paper, the possibilities of implicit constitutional change, i.e., change that is not accompanied by formally changing the constitution, are analyzed. The separation of powers a la Montesquieu is taken as a starting point and it will be argued that constitutional change can be brought about by all government branches, i.e., by the executive, the legislature, and the judiciary. If this argument is accepted it follows that the judiciary-even when endowed with the competence of judicial review-is not the ultimate arbiter in supervising constitutional change. It is the main hypothesis of this paper that the judiciary in bringing about implicit constitutional change is subject to a number of constraints among which the original document plays a rather marginal role. Instead, it is claimed that the current preferences of the other government organs as well as those of the population are more relevant in ascertaining the meaning of the constitution at a given point in time.     

论宪法制度变迁的路径依赖

制度变迁的路径依赖是指在制度变迁中现有和未来的制度选择对过去的制度选择具有强烈的历史依赖性。遵循先例是宪法制度变迁中历史路径依赖性存在的主要表现。当代中国的宪法制度变迁,是对改革成果的确认,是对宪法制度的改良和完善。制度变迁客观存在的路径依赖规律,决定了当代中国的宪法制度变迁必须立足于国情,尊重中国的历史文化传统和宪法制度的初始选择,走一条渐进式的宪法制度改良之路而不是激进式的制度革命之路。     

Can young pups teach an old Dog new tricks? Lessons for British reformers from eastern Europe's new constitutional democracies

This article analyses the process of constitutional reforms in eastern Europe and draws lessons for similar reforms in British politics. It looks, first, at electoral engineering and shows how political actors, pursuing their particular interests, try to turn proportionality back into majoritarianism, and how and why such moves do not necessarily result in their projected outcomes. In a similar vein, it then goes on to analyse parliamentary formal rules, such as standing orders, and demonstrates how attempts to manipulate them can be offset, not just by counter‐manipulation, but by underlying informal rules and cultural norms. Overall, we argue that, because constitutional change is an ongoing and crucially political process, its results are neither wholly predictable nor always welcomed. On the basis of the eastern European experience, we also suggest that constitutional change does not necessarily lead to increased legitimacy of the system, thus undermining one of the major hopes of reformers in Britain.     

Governing after the Rights Revolution

In this paper I explore the relevance of neo-republican thinking for current debates in constitutional law. In particular, I am interested in how deliberative forms of law and democracy might be grounded in real-world institutional contexts. My thesis is that the neo-republican model, underpinned as it is by the values of equality, participation, and accountability, has both explanatory and critical potential when exploring the voices, spaces, and processes of constitutionalism. I test this argument with reference to constitutional change in Northern Ireland. It is evident that equality is the core value in the settlement reached but it is in the combination of values that the potential and tensions will arise in the future. The provisions of the Northern Ireland Act 1998 on equality are useful examples of how law might be shaped to include the voices of affected groups in the process of enforcing change in public administration. Law's role in this process is, however, more problematic than is often assumed. In this, and in other aspects of the settlement, there are lessons for others who are presently reflecting on the constitutional future in the new devolutionary contexts.     

Power rather than path dependency? The dynamics of institutional change under health care federalism

Proposals for government decentralization rank high on the political reform agenda of health systems worldwide. Their impact on welfare state performance and change, however, is still under theoretical scrutiny. This article examines the impact of devolution on the construction of the Spanish National Health Service (NHS) in an attempt to shed some light on this debate. Against widespread claims of path dependency, we argue that the specific nature of the devolution model developed in Spain, given the more egalitarian sociopolitical structure that resulted from democratization, fostered policy innovation and institutional change. Consolidation of an NHS system was compatible with some regional diversity and apparently prevented the rise of significant territorial inequalities. The Spanish case also suggests that policy change depends more on the distribution of social power than on institutions. It underlines the key role of financial and knowledge transfers vis-à-vis institutional reforms in effecting social change as well as the potential for state intervention in supporting the development of collective action resources by social groups.     

以宪法概念思维:规范是如何发现的?

以宪法概念思维 ,以发现问题和解决纠纷为取向 ,既是进行宪法学理论研究 ,也是实施宪法、解决宪法问题的客观需要。宪法概念就是宪法规范。宪法思维就是法官在宪法规范与宪法事实之间的规范涵摄过程 ,其目的是在宪法纠纷和疑难案件中确立价值 ,发现规范 ,在个案中实现正义 ,因而宪法思维也是一个新规范的证立过程。以宪法概念思维 ,可以增进法律人对各种宪法规范属性的认识 ,提高对宪法规范的诠释和理解能力 ,并在此基础上发展宪法 ,进而通往沟通与理解之路。     

Editorial: Evolving Norms of Constitutionalism

Constitutionalism offers an academically constructed framework that allows us to assess processes of constitutional change in their respective societal contexts. This article offers insights into different perspectives within the debate over 'European' constitutionalism and their potential consequences. It makes the point for a societal approach to assess the emergence and role of both, constitutional and sociocultural norms, pointing to the key role of social practices in this process. It proposes an approach to constitutionalism which elaborates on a shift of analytical focus from the 'type of polity' towards 'social practices' as key to evolving, interpreting, and implementing norms. It is argued that this choice of perspective matters. It has implications for subsequent moves including the selection of case studies and methodology. The distinct analytical choices are presented as four positions of constitutional choice.     

National Constitutional Courts in supranational litigation: A contextual analysis

The article examines the role of national constitutional courts in supranational litigation. It firstly illustrates their value and situates well‐known judicial doctrines affecting their jurisdiction in the context of the normative claims, policy agenda and institutional framework promoted by the European Union. Against this background, it gauges the potential of national constitutional courts in countering the process of intergovernmental and technocratic encroachment of national constitutional democracies characterising the most recent evolutionary stages of the European integration process. It is claimed that constitutional courts are in the position of reinforcing, resisting or correcting Union measures with a detrimental impact on national constitutional principles. After having identified in correction the approach more coherent with their constitutional mandate, the article highlights a disturbing paradox: in remaining faithful to their constitutional role, constitutional courts contribute to the sustainability of a comprehensive institutional setting corroding the idea of constitutional democracy on which they are premised.     

Mixed Messages in Bottles: the European Union,Devolution, and the Future of the Constitution

An unprecedented eleven‐member UK Supreme Court decided R (Miller) v Secretary of State for Exiting the European Union on 24 January 2017. The Government's argument, that it could start the process of withdrawing from the EU using a prerogative power instead of an Act of Parliament, was comprehensively defeated by an 8:3 majority. However, the Government also secured a unanimous verdict that it did not need the consent from the devolved legislatures in Scotland, Wales, and Northern Ireland before invoking Article 50 of the TEU. I explore the judicial argumentation in light of Philip Bobbitt's six modalities of constitutional argument, five of which feature, and one of which ought to have featured, in this seminal case.     

中国宪政建设三十年:成就与问题

现行宪法颁布实施以来,我国人民代表大会制度不断完善,选举制度日趋民主,法治建设成效卓著,宪政建设的进步是有目共睹的,但存在问题也是值得认真反思的.未来我国的宪政建设要致力于改善执政党的执政方式,强化权力机关的民意代表性和最高权威性,在选举中引入竞争机制,建立与人民代表大会制度相容的有效的违宪审查机制.要循序渐进推进宪政改革,在解决中国现实宪政问题的过程中创设具有中国特色的宪政理念和宪政模式.