Whither the ‘new role’ in policy making? Conservative MPs in standing committees, 1979 to 1992

Examining the behaviour of Conservative MPs in 5,306 standing committee divisions between 1979 and 1992, this article determines whether the Commons’ ‘new role’ in policy making, identified by Schwarz in 1980, survived the Thatcher years and Major months. One hundred and forty five Conservative MPs cast 684 dissenting votes in 103 bills, inflicting 56 defeats spread over 29 bills. (A further 11 defeats occurred without Conservative dissent.) The extent and intensity of the dissent is explained, showing why so many dissenting votes did not result in more defeats. Partly this is due to the nature of the dissent (too many isolated rebellions, votes sometimes not cast with the opposition). But mainly it is due to the size of the majorities enjoyed by the Thatcher Government, particularly after 1983, and the Government's ability to control the size of committees. Because of this, in both absolute and relative terms the dissent from 1979 to 1992 is less effective than that identified by Schwarz.     

Checks and balances in a unicameral parliament: The case of the Danish minority referendum

Parliamentary students from James Madison onwards have argued that bi‐cameral legislatures provide more efficient checks on parliamentary majorities than unicameral legislatures. Yet there is a growing tendency to abolish second chambers or to establish unicameral parliaments. This note challenges the case for bicameralism through a study of Art. 42 of the Danish Constitution (which allows one‐third of the MPs to demand a referendum on bills enacted by the majority in the Folketinget). It is formally shown that the minority veto efficiently prevents the majority from enacting changes to the status quo without acknowledging the position of the minority party. The findings are contrasted with survey findings and interviews with MPs.     

Soft Post‐Legislative Rulemaking: A Time for More Stringent Control

The Commission's soft post‐legislative rulemaking by way of communications, notices, codes and similar instruments has become an increasingly important tool for the adequate functioning of the system of shared administration in the EU. However, the development of its legal framework has not kept pace with this, as the Treaty on the EU nor the Treaty on the Functioning of the EU (TFEU) recognise this regulatory phenomenon. As a result, its current procedural control is of a very ad hoc nature. Given the risks this rulemaking involves for the legitimacy of the EU, its practical and legal importance for legal practice and the way in which the Treaty of Lisbon has sought to condition and control the behaviour of the Union institutions, it is argued that the time is ripe for a more stringent and consistent procedural control of soft post‐legislative rulemaking. Some options to realise this are presented for further research.     

Responding to Severe Parent–Child Rejection Cases Without a Parentectomy: A Blended Sequential Intervention Model and the Role of the Courts

There have been significant developments over the past two decades that have expanded our understanding of the dynamics of parent–child contact problems post‐separation, which have resulted in some changes in judicial processes to respond to these cases. One significant advancement is a more sophisticated differentiation of the nature and severity of contact problems, which better assists legal and mental health professionals to provide more suitable legal and clinical interventions. However, the issue of innovative court processes has received limited attention. The authors describe a subgroup of families within the “severe” category, for whom an expanded intervention model, referred to as a Blended Sequential Intervention is proposed. This approach involves a reversal of care with court mandated therapeutic support for the rejected parent and child, but also involves the favored parent in the therapeutic plan from the outset, and is intended to avoid a permanent “parentectomy” of the child from either parent. The authors discuss how the courts should respond to these cases, and posit that until all therapeutic treatments are exhausted, interim orders should be preferred to final determinations, and judges should maintain oversight. The authors discuss the critical role of judicial leadership in working with lawyers and mental health professionals to manage and address the issues in these high conflict cases.     

Mobilizing the Law in China: "Informed Disenchantment" and the Development of Legal Consciousness

This article critically examines the development of legal consciousness among legal aid plaintiffs in Shanghai. It is based on 16 months of research at a large legal aid center and in‐depth interviews with 50 plaintiffs. Chinese legal aid plaintiffs come to the legal process with high expectations about the possibility of protecting their rights; however, they also have only a vague and imprecise knowledge of legal procedure and their actual codified rights. Through this process of legal mobilization, plaintiffs' legal consciousness changes in two separate dimensions: changes in one's feelings of efficacy and competency vis‐à‐vis the law, and changes in one's perception/evaluation of the legal system. Put another way, the first dimension is “How well can I work the law?” and the second is “How well does the law work?” In this study I observe positive changes in feelings of individual efficacy and competency that are combined with more negative evaluations/perceptions of the legal system in terms of its fairness and effectiveness. The positive feelings of efficacy and voice provided by the legal process encourage labor dispute plaintiffs in the post‐dispute period to plan new lawsuits and to help friends and relatives with their legal problems. Disenchantment with the promises of the legal system does not lead to despondency, but to more critical, informed action. This study provides new evidence on the nature of China's developing legal system with a focus on the social response to the state‐led “rule of law” project.     

Linchpin or bag carrier? A study of the importance of the role of the parliamentary private secretary to the prime minister

This study examines the pivotal role of the parliamentary private secretary to the prime minister. The PPS is a vital two‐way conduit between the Commons and Number Ten. As deference among MPs has declined and rebelliousness increased, the PPS who is not up to the job risks jeopardising the prime minister's leadership. The PPSs can be broadly categorised according to their age, experience, potential and designated role, but there has been no pattern of appointments. Every PPS is chosen for his individual qualities, reinterprets the role and fulfils a slightly different function. An examination of the ‘work’ of the prime minister's PPS shows the informal and personal nature of the role. The PPS enjoys unique access to the premier and occupies a position at the centre of government. The job has clearly grown in importance and become more demanding. The performance of Thatcher's five PPSs and Major's first PPS are evaluated using the findings of a questionnaire. The performance of each successive PPS to Thatcher was judged by MPs to be worse than the one before, culminating in the disastrous tenure of Morrison. Gow is shown to be a model PPS because he was respected, trusted and liked in the Commons and at Number Ten.     

Battered wives,lawyers, and district attorneys: An examination of law in action

The legal services received by 146 Milwaukee women who had been beaten by their husbands, but had been free of the violence for at least a year, are described and evaluated. Of these women 106 recieved legal help in connection with at least one battering incident. Some women saw more than one member of the legal profession, so the total number of legal contacts among the 106 women was 255. There is evidence that lawyers and district attorneys were most likely to be used by those battered women for whom the use of personal strategies and informal help sources (such as family and friends) were ineffective in combatting the violence. Contrary to the negative image of lawyers and district attorneys found in the literature on wife beating, most legal service contracts were rated as very or fairly successful by the battered women. The more difficult and severe the situation, the higher the success ratings given to lawyers and district attorneys by their clients. Despite the generally positive reactions that most beaten women had to lawyers and district attorneys, there were many negative incidents reported, including district attorneys who refused service or discouraged battered women from filing charges, and lawyers who sided with the aggressors or attempted to meet their personal and professional needs at the expense of their clients. These incidents remind us that it would be useful to educate legal professionals about the nature of family violence, the situation and needs of battered women, and the legal and ethical responsibilities that lawyers and district attorneys have when they are contacted by battered women.     

The electoral connection of ministerial selection in the UK

Many studies have examined the determinants of ministerial selection. However, the effect of electoral incentives on government post allocation has so far not been studied in the literature. Drawing on data from the United Kingdom over the period 1992–2015, this article investigates the relationship between the selection of ministers and the electoral interests of the actors in this selection process – party leaders and members of parliament (MPs). The findings demonstrate that the greater the electoral safety of constituencies, the more likely are MPs to have a higher office. The results reveal a broader conception of party strategy in government formation than previously documented. The paper thus suggests that electorates can affect the allocation of ministerial positions in the UK.     

财产权、税收和法治的实现

2007年5月30日财政部突然大幅提高印花税,导致股市遭受重创,也给人们带来了很多思索。财政部不恰当地使用税收手段调整股市,凸显了税收法定主义在当下中国阙失所造成的严重后果。毫无疑问,不符合税收法定主义的课税行为不但是对公民财产权的严重侵犯,而且可能会使实现法治的梦想最终落空。在此意义上,行政法学应当关注因税收而引发的种种法治问题并做出自己应有的贡献。     

THE EFFECT OF CRIMINAL BACKGROUND CHECKS ON HIRING EX‐OFFENDERS*

Research Summary The rapid increase in the nation's incarceration rate over the past decade has raised questions about how to reintegrate a growing number of ex‐offenders successfully. Employment has been shown to be an important factor in reintegration, especially for men over the age of 27 years who characterize most individuals released from prison. This article explores this question using unique establishment‐level data collected in Los Angeles in 2001. On average, we replicate the now‐common finding that employer‐initiated criminal background checks are negatively related to the hiring of ex‐offenders. However, this negative effect is less than complete. The effect is strongly negative for those employers that are legally required to perform background checks, which is not surprising because these legal requirements to perform checks are paired with legal prohibitions against hiring ex‐offenders. However, some employers seem to perform checks to gain additional information about ex‐offenders (and thus hire more ex‐offenders than other employers), and checking seems to have no effect on hiring ex‐offenders for those employers not legally required to perform checks. Policy Implications One public policy initiative that has received considerable attention is to deny employers access to criminal history record information, which includes movements to “ban the box” that inquires about criminal history information on job applications. The assumption underlying this movement is that knowledge of ex‐offender status leads directly to a refusal to hire. The results of this analysis show that policy initiatives aimed at restricting background checks, particularly for those firms not legally required to perform checks, may not have the desired consequences of increasing ex‐offender employment. This result is consistent with an alternative view that some employers care about the characteristics of the criminal history record and use information about criminal history in a more nuanced, nondiscrete way.     

On the Concept and the Nature of Law

Abstract. The central argument of this article turns on the dual‐nature thesis. This thesis sets out the claim that law necessarily comprises both a real or factual dimension and an ideal or critical dimension. The dual‐nature thesis is incompatible with both exclusive legal positivism and inclusive legal positivism. It is also incompatible with variants of non‐positivism according to which legal validity is lost in all cases of moral defect or demerit (exclusive legal non‐positivism) or, alternatively, is affected in no way at all by moral defects or demerits (super‐inclusive legal non‐positivism). The dual nature of law is expressed, on the one hand, by the Radbruch formula, which says that extreme injustice is not law, and, on the other, by the correctness argument, which says that law's claim to correctness necessarily includes a claim to moral correctness. Thus, what the law is depends not only on social facts, but also on what the law ought to be.     

The legal constitution: United Kingdom parliament and European court of justice

Membership of the EC has transformed the legal status of the UK parliament. Prior to British accession, Acts of Parliament were the supreme law of the land, unchallengeable in any court. This paper argues that EC membership raised the courts ‐ national as well as European ‐ above parliament and that at the time of accession parliamentarians were almost wholly unaware of this fundamental change. The author links MPs’ ignorance to the highly political, rather than legal, nature of the British constitution and traces the evolution of their constitutional understandings. Identifying a new dynamic interplay between British judiciary and parliament, the study argues that the creeping hegemony of law within constitutional politics merits continuing analysis by legislative scholars.     

Bonding in Pursuit of Policy Goals: How MPs Choose Political Parties in the Legislative State of Nature

How do MPs in nascent legislatures choose a political party? We argue that MPs self‐select into groups of like‐minded colleagues to achieve favored policy outputs. MPs identify colleagues with similar preferences based on observed behavior and informative signals such as socioeconomic status, cultural background, and previous political experience. We test this explanation in the first democratically elected German parliament, the Frankfurt Assembly of 1848, that developed a differentiated party system in the absence of electoral and career incentives. Our statistical analysis shows that MPs were significantly more likely to join parties that were similar to them with regard to ideology, age, regional provenance, confession, noble status, and previous parliamentary experience. Qualitative evidence suggests that major changes in the party system were driven by disputes over policy. Our findings are particularly important for countries with more turbulent paths towards parliamentarization than those witnessed by archetypical cases like Britain or the United States.     

MPs and electoral redistribution controversies in Canada, 1993–96

The political careers of members of the Canadian House of Commons are filled with uncertainties and are comparatively short. One of the sources of political uncertainty is that which results from the periodic readjustment of electoral boundaries. The constituency boundary readjustment process following the 1991 census led to a particularly acrimonious conflict. This paper analyses MPs’ reactions to both the process and the ridings established by the boundary commissioners. Two main data sets are employed: a survey of English Canada backbench MPs to inquire into MPs’ attitudes about electoral redistribution and the record of MPs appearing before the Commons sub‐committee charged with hearing objections to the electoral map in the autumn of 1995. The two different analyses both point to a conclusion that MPs’ self‐interest, rather than principle or constituency characteristics, appears to determine MPs’ satisfaction with the process and their propensity to take action by objecting to the proposed boundaries during the House committee stage of hearings.     

Do Rich and Poor Behave Similarly in Seeking Legal Advice? Lessons from Taiwan in Comparative Perspective

A central concern of access‐to‐justice studies is whether the socioeconomically disadvantaged individuals can obtain effective assistance in dealing with their legal problems. Using the newly collected data from the 2011 Taiwan Survey, this article examines Taiwanese people's advice‐seeking behavior in general and explores the effect of income in particular. This article finds that income had a significantly positive correlation with the likelihood of obtaining legal advice, but it has no impact on obtaining nonlegal advice. By contrast, education had little bearing on the decision to obtain legal advice, but it had a positive influence on seeking nonlegal advice. This article argues that although the gravity of problem was more influential than income on obtaining legal advice, the effect of income should not be easily dismissed. Moreover, the contrasting effect of education on obtaining nonlegal advice strongly suggests that its use was determined by people's knowledge of its existence and capability of accessing such service. To improve the disadvantaged's access to justice, care should be taken not only to increase publicly funded legal advice services but also to enhance the public's awareness of their availability.     

Effective interventions for acquisitive offenders: An investigation of cognitive skills programmes

Purpose. Previous research has suggested that cognitive skills programmes completed by offenders may be more effective in reducing reconviction with nonacquisitive than acquisitive offenders. This study investigates whether a similar pattern is present with offenders who have completed accredited cognitive skills programmes in prisons in England and Wales. Method. Questionnaires measuring the cognitive deficits targeted by the programmes were administered to 8,303 offenders participating in cognitive skills programmes while in custody. A checklist on the individuals' behaviour was also completed for each participant. The questionnaires and the behaviour checklist were completed before, after, and at 8 weeks after the end of the course. Participants were assigned to one of three groups dependent upon the number of convictions they had received for acquisitive offences; non‐acquisitive, medium acquisitive and high acquisitive. Results. Offenders in the high acquisitive group showed greater need in the cognitive deficits at the pre‐course stage than the other two groups, for both the self‐completion questionnaires and the behaviour checklist. A comparison of preand post‐course scores on the questionnaires and the behaviour checklist showed positive effect sizes for all three groups. Some of the variables showed a greater change from pre‐ to post‐course in the groups that had been convicted of more acquisitive offences. Conclusion. Cognitive skills programmes appear to be as effective with offenders convicted of acquisitive crime as non‐acquisitive crime, although highly acquisitive offenders may benefit from an additional intervention. Further studies are needed to investigate whether this same result is upheld when the outcome measure is reconviction.     

Role orientations of junior British MPs: A test of Searing's categories with emphasis on constituency activities

Based on interviews with 45 junior British MPs in 1995, a factor analysis is used to test the staying power of the role categories found by Donald Searing in his study Westminster's World, based on 1972–73 interviews. Searing's categories Policy Advocate and Ministerial Aspirant are clearly identified by the factor pattern, as are two sub‐types of his Constituency Member: Welfare Officer and Local Promoter. Two additional factors emerged, indicating orientation of some MPs toward Local Media and Local Party. Regression analysis testing behavioural consequences of the role types (identified as independent variables based on factor scores) produced more mixed results than Searing's original tests, including the unexpected finding that MPs who find the Local Party helpful spend more time in their constituencies and in their surgeries with constituents than do Welfare Officers.     

Tories in the Killing Fields? The Fate of Private Members' Bills in the 1997 Parliament

This article examines the Private Members' Bill process in the 1997-2001 Parliament when two Conservative MPs, Eric Forth and David Maclean, significantly affected Private Members' legislation. The article reaches a number of conclusions on the basis of a detailed study of the fate of all Private Members' Bills in the Parliament. First, few Bills introduced under the Private Members' procedure succeed because the procedure makes it so easy to oppose Bills. Second, most Private Members' Bills that succeed are minor and technical and often government 'handout Bills'. Third, it is very unlikely that any controversial legislation will succeed under the present procedure given recent governments' attitudes to the granting of extra time. Fourth, in studying opposition to Private Members' Bills one should not focus just on filibustering, as previous studies have tended to do, rather, the 'object' procedure is also crucial in preventing the passage of Bills. Fifth, the Government is the key actor in the process; it is particularly active in using the 'object' procedure. Sixth, the two Conservative MPs did play an increasingly important role in preventing the passage of Private Members' legislation during the 1997-2001 Parliament. Seventh, the success rate of Private Members' Bills is only likely to increase if either the procedural and structural constraints are lifted or the agents involved stop manipulating the procedure to their own ends. Neither of these changes is likely to happen. Government is unlikely to change the procedure because it does not want to cede any control of the legislative process. At the same time, there will always be backbench MPs who use the procedure to oppose, although given their elevation to the Conservative frontbench, Forth and Maclean will not be involved in the near future.     

Governing Condominiums and Renters with Legal Knowledge Flows and External Institutions

This article explores the intertwined roles of legal knowledge and external institutions in condominium governance using a sociology of governance framework. Condominium legislation spread in North America in the 1960s. By the 1970s, renters had become the condominium's primary “other.” The article elaborates legal governance and strategies of property management and private insurance that converge on renters in condominiums. Through this analysis, the renter category is shown to be one point of convergence of mutually reinforcing institutional processes of juridification, commodification, and risk avoidance. Condominium governance is revealed as more complex, heterogeneous, and dependent upon legal knowledge flows through channels and “excerpting” practices beyond the courts, and upon external institutions beyond statute‐mandated condominium boards, than previously acknowledged. Implications for critical legal studies and condominium governance policy are discussed.     

Party Legacies and Institutional Gravity: The Dynamic between Members of Parliament and Assembly Members in Wales

What does the creation of sub-national legislatures entail for the work of parliamentary representatives, and by what guidelines does the cross-level relationship evolve? This article considers the issue in the context of British devolution, relating the analysis of parliamentarians to the question of how parties adapt. The empirical analysis, drawing on a series of interviews with Assembly Members (AMs) and Members of Parliament (MPs) from Labour, the Conservative Party and the Liberal Democrats, shows that the infrastructure for communication between AMs and MPs differs considerably between the parties. Moreover, there are also key differences between parties with regard to how relations between individual representatives are resolved. Drawing upon insights from the institutionalist literature, the paper argues, first, that the creation of sub-national legislatures challenges party cohesiveness and, secondly, that how this challenge is met by the parties is guided by their distinct ideational and organisational legacies with regard to devolution.