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.     

Traditional aboriginal values in a Westminster parliament: The legislative assembly of Nunavut

This article examines the interplay of structure and culture in the Legislative Assembly of the newly established territory of Nunavut in Canada's eastern Arctic. This institution combines the Westminster cabinet-parliamentary system with traditional Inuit culture, many features of which are antithetical to British-style ‘responsible government’. The distinctive ‘consensus government’ system which characterises the Nunavut Legislative Assembly has important features consistent with Inuit values and approaches, for example, the absence of political parties. Based primarily on personal interviews with Members of the Assembly, the article considers whether Inuit culture has significantly recast the structures and the political imperatives inherent in the Westminster system or if the powerful values and constraints of that system have effectively overridden Inuit values. Perceptions and reflections of members serving in the First Assembly (1999–2004) suggest that while substantial adaptations to the conventional Westminster system have been made, these are indeed adaptations rather than fundamental alterations to the system.     

The Legal and Social Construction of Value in Government Procurement Markets

The Public Services (Social Value) Act 2012 introduces a social value duty. It requires public authorities in England and Wales that are carrying out procurement activities to ‘consider’ how such activities might ‘improve … economic, social and environmental well-being’. This article analyses qualitative, empirical data on how the social value duty has been interpreted and applied across local government in England. Although only a weak legal duty, this law has made a notable impact on practice. The article explains the changes brought about in practice under the social value duty and seeks to understand why these changes have occurred. It does so by recognizing local government procurement markets, as well as local government organizations themselves, as strategic action fields. In these fields, there are competing visions for social value. It is through conversations between actors that a common meaning comes to be attached to the law.     

Administrative Justice in Wales

This article examines some of the synergies between Phil Thomas’ work and the authors’ research into administrative justice in Wales. Like him, they have examined the impact of new rights-based legislation on access to justice, and also share with him an interest in connections between politics, social policy, and access to justice. The article argues that Wales is not yet taken seriously as ‘a site in which [administrative] justice is done’, and that there remains an ‘implementation gap’ when it comes to putting innovative social policy into practice. The limited development of an administrative justice culture can hamper the achievement of social and economic justice in Wales; such a culture could be fostered with leadership from the Welsh Government and the Senedd, alongside improved training for administrators, and the potential addition of ‘a just Wales’ to the well-being goals contained in the Well-being of Future Generations (Wales) Act 2015.     

This Time,it's for Real: The Health and Social Care Act 2012

This article examines the Health and Social Care Act 2012 and associated reforms to the National Health Service in England. It focuses on the Act's policy of making the NHS market more ‘real’, by both encouraging and compelling NHS bodies to act as ‘market players’. The article considers whether the reforms are compatible with the constitutional requirements of accountability for the provision of a public service such as the NHS. It argues that the reforms threaten accountability for three reasons: they make the Secretary of State for Health's relationship with the NHS more complex, they create opaque networks of non‐statutory bodies which may influence NHS decision‐making, and (especially in relation to competition) they ‘juridify’ policy choices as matters of law. Taken together, these arguments suggest that there is force in the claim that the reforms will contribute to ‘creeping’ – and thus unaccountable – privatisation of the NHS.     

Government lawyers and the training of senior civil servants. Maintaining law at the heart of the French state

To assess the influence of law and jurists in the conduct of contemporary French state, this article examines the role of the Council of State at ENA (École Nationale d'Administration), the main school for top civil servants. Although the study reveals the decreasing part of law in the bureaucratic capital over the past fifty years, it also shows how government lawyers have resisted this downsizing process. The teaching of a subject called ‘legistics’ provides top officials with a different view of law. Dedicated to promoting the political utility of law, legistics complies with managerial values while it sticks to the Weberian model of bureaucracy. As a result of the introduction of legistics, new techniques of legal drafting have been spreading within French public administration. Legistics thus plays a role in the contemporary reshaping of public legal practices, as well as in the renewing of legal legitimacy in the reform of public affairs.     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

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.     

Disconnected relationship values and marriage policies in England

The article examines relationship values which influence the government’s marriage-related policies. It constructs a framework of core values as the ‘conception of the desirable’ to highlight a central problem for the government: there are many conflicting values that can be identified as potentially relevant. Traditional morality and equality highlight marriage as the ultimate goal for heterosexual and same-sex couples by emphasising responsibility, commitment and stability to encourage and strengthen couple relationships. The articulation of these values associated with celebrating marriage is evident in policies such as transferable tax allowances for married couples and couple relationship education. However, marriage is a public and a private institution which encompasses disconnected values. The article analyses the different values that policy-makers confront by examining evidence from interviews with stakeholders which suggests that marriage-related policies do not necessarily resonate with various actors’ understanding of relationship values. They compete with values such as individual autonomy, the desire for financial security and diverse relationships.     

Beyond Constitutionalism: The Search for a European Political Imagination

Two recent books, Joseph Weiler's The Constitution of Europe and Larry Siedentop's Democracy in Europe, seek to address one of the defining issues in contemporary European legal studies; the search for a European public philosophy. Both site their critiques within a particular jurisprudential tradition, the modernist; one that is bound up with anxieties about legitimacy and constitutionalism. This review article suggests that the ‘new’ Europe has been too easily distracted by the lures of constitutionalism, and more particularly by the temptations of Treaties. Public philosophies are not found in Treaty articles. Rather, a public philosophy is a state of mind, a product of the political imagination. And it is the absence of such an imagination which lies at the root of contemporary concerns regarding constitutionalism and legitimacy; the concerns which underpin Weiler's and Siedentop's books. A discussion of these books, in the first two parts of this article, is followed by a discussion of Godfried Wilhelm Leibniz's ‘universal’ jurisprudence. It is suggested that such a jurisprudence is better able to furnish a public philosophy for the ‘new’ Europe; just as, indeed, it was for the ‘old’ Europe. Moreover, such a jurisprudence is far more than a mere theory of laws and constitutions. Leibniz's jurisprudence requires that we think, not merely ‘beyond’ sovereignty, or even beyond democracy, but beyond constitutionalism.     

Wrong about Rights: Public Knowledge of Key Areas of Consumer,Housing and Employment Law in England and Wales

Over many decades, processes of juridification have brought about huge growth in legal rights, responsibilities and protections, yet citizens appear to poorly understand this ‘law thick’ world. This impacts citizens’ capacity to ‘name, blame and claim’ in the legal domain at a time of retreat from public funding of civil legal services. This article examines public knowledge of rights in key areas relating to consumer, housing and employment law. Drawing on data from the 2010–2012 English and Welsh Civil and Social Justice Survey, the article uses responses to a series of hypothetical scenarios to explore public knowledge of rights and characteristics associated with knowledge. Our findings highlight a substantial deficit in individuals’ understanding of legal rights and responsibilities – even among those for whom particular rights and responsibilities have specific bearing. We also consider what these findings mean for public legal education and the efficiency, efficacy and legitimacy of the law.     

Identifying the origins of welsh local government reform

Although those within Welsh local government circles were aware that the Welsh Office was considering restructuring local government as early as December 1990, the first the general population knew of the proposed changes was in June 1991. It was in that month that the Welsh Secretary produced a consultation paper entitled The Structure of Local Government in Wales. ¹ This advocated the introduction of unitary authorities throughout Wales. The publication of this consultation paper was at the same time as those for Scotland² and England.³ This gave the impression that Wales was merely following events in England and Scotland. Such an assumption remains widespread. In the first part of his article ‘Legislating for Wales ‐ Local Government (Wales) Act 1994’ Paul Griffiths indicated that the local government changes in Wales were unplanned and perhaps unintended and a reaction to changes occurring in England.⁴ This article aims to shed more light on the background behind Welsh local government reform. It indicates that the changes in Welsh local government were more a matter of coincidence than merely a mirror of those happening elsewhere. It also argues that the changes in Wales have their own unique Welsh origins, and that the changes may well have occurred, regardless of what happened in the rest of the United Kingdom.     

Parliamentary Consociationalism in Lebanon: Equal Citizenry vs. Quotated Confessionalism

This article sheds light on the governance dilemma in a deeply divided post-conflict Lebanese sectarian society undergoing democratic transition. It assesses consociational democracy as a working model institutionalised by Lebanon in light of the country's composition of multiple religious minorities. In particular, it focuses on the political forces shaping the current Lebanese National Assembly (parliament) within the confessional structure and analyses the prospect and impasses confronting the development of a stable and representative assembly. Analysis of the Lebanese parliament is made in light of five assessment areas identified as fundamental for the emergence of a stable democratic institution: political will and domestic support, representation, lawmaking, oversight, and management and infrastructure. After revealing the deep-rooted deficiency of quota-based confessional representation, the article provides institutional transitional reform recommendations that could increase the likelihood for the legislature to better fulfil the critical functions of representation, oversight, and lawmaking vital for democratic transition. The realisation of consociational democracy in Lebanon, the article argues, would require the eventual adoption of proportional representation as a means of moving the country from a ‘confessionally quotated’ to ‘equal citizenry’ based representation.     

Covenanting for Nature: A Comparative Study of the Utility and Potential of Conservation Covenants

Conservation covenants over private land are extensively used in some jurisdictions to secure a wide range of public benefits: in some cases primarily to promote nature conservation, while elsewhere to foster conservation alongside greater public access to ‘green’ space. This article considers the use of conservation covenants in New Zealand, Scotland, and England and Wales. It argues that they can play a unique role in balancing nature conservation, property rights and increased public access to private land. It reviews proposals for new legislation in England and Wales and argues that, if it is to be successful, the potential of conservation covenants to secure greater public access to private land should be more strongly emphasised. Their successful use in New Zealand shows that, while recognising the important balancing function that they can perform, this emphasis is critically important if covenants are to fulfil their potential to ‘reconnect’ people and nature.     

Free Vote Patterns in the New South Wales State Parliament

This research note examines patterns of MPs’ voting behaviour during ‘conscience’ or ‘free’ votes on three ‘morality politics’ issues in the lower house of the New South Wales state parliament in Australia: adoption rights for gay couples; scientists’ use of therapeutic cloning; and the status of the Sydney Medically Supervised Injection Centre. First, the research note reviews the literature on conscience voting and hypothesises that party will be the main predictor of voting patterns, but also establishes that previous studies have almost exclusively focused on national legislatures. Next the research note discusses methodological issues. Third, it presents the analysis of free vote patterns in the New South Wales parliament on the three ‘morality politics’ issues, along four key variables: party; sex; social ideology; and religion. The analysis of voting in the New South Wales parliament challenges existing explanations of free voting, where party is the key predictor of voting patterns. Intra-party unity figures show that party membership is a weaker predictor of voting behaviour in the two main political parties in New South Wales than in either the Australian parliament or in overseas parliaments. It is argued that at the subnational level other factors are more important in explanations of free vote patterns.     

The “quiet revolution” in criminal defence: how the zealous advocate slipped into the shadow

The criminal defence lawyer has been an integral component of adversarial criminal justice in England and Wales for nearly three centuries. However, over the last two decades this essential role has changed substantially, affected by a changing culture in the law and procedure governing criminal justice in this jurisdiction. This article argues that the criminal defence role has been pulled away from its traditional adversarial roots through a process of subtle and gradual change, pursued by the Government and the Judiciary. The article outlines a normative framework, entitled the ‘zealous advocate’ model, describing the ‘traditional’ role of the criminal defence lawyer; discusses ethical conflict and its growing significance; and examines how legislation, case law and funding have gradually moved the defence lawyer away from a ‘client-first’ style of representation. It concludes by considering the potentially significant implications of such a change in the role for both fair trial rights and adversarialism in England and Wales.     

Independent schools: charitable status,public benefit and UDI

In England and Wales ‘independent schools’ (‘private schools’ or, confusingly, ‘public schools’) almost always have ‘charitable status’. Hence, they are now subject to the new ‘public benefit’ test imposed in the Charities Act 2006. There is much discussion as to whether this test will be a significant hurdle as set by the Charity Commission in interpreting the legislation. Or will the test be in practice one easily met? This article assumes that the public benefit test will be serious, involving a significant cost of compliance for independent schools, and asks at what point for a typical independent school that cost might exceed the value of the tax advantages of charitable status so that the school may prefer to sacrifice charitable status and instead operate in the same way as any other commercial business.     

Gender ‘Hostility’, Rape,and the Hate Crime Paradigm

This article examines whether crimes motivated by, or which demonstrate, gender ‘hostility’ should be included within the current framework of hate crime legislation in England and Wales. The article uses the example of rape to explore the parallels (both conceptual and evidential) between gender‐motivated violence and other ‘archetypal’ forms of hate crime. It is asserted that where there is clear evidence of gender hostility during the commission of an offence, a defendant should be pursued in law additionally as a hate crime offender. In particular it is argued that by focusing on the hate‐motivation of many sexual violence offenders, the criminal justice system can begin to move away from its current focus on the ‘sexual’ motivations of offenders and begin to more effectively challenge the gendered prejudices that are frequently causal to such crimes.     

Positive obligations under the African Charter on Human and Peoples’ Rights: the duty of the Nigerian Government to enact a Freedom of Information Act

Beginning with the Independence Constitution of 1960, the right to freedom of information and other civil and political rights have been guaranteed by successive Nigerian Constitutions as fundamental human rights. The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, which incorporated the provisions of the African Charter on Human and People’s Right into Nigerian law in 1983 consolidated these and a plethora of other social, economic and cultural rights and imposed a positive duty on the government to adopt legislative and other measures to give them effect. This article develops this potentially revolutionary principle of positive obligations, which amazingly remains unsung and unused more than a quarter of a century after it became an integral part of Nigerian law. The first part of the article proposes the principle as the most effective basis to compel the enactment of a Freedom of Information legislation, which successive governments have refused to enact despite overwhelming public support and sustained lobbying for a Freedom of Information Bill first introduced in the National Assembly in 1997. The second part critically analyses the latest (2007) version of the Bill. It concludes that its provisions are inadequate to give effect to the right to freedom of information in view of the legal and bureaucratic environment under which it will operate, and suggests remedial measures.     

‘We are not asking you to hug each other,but we ask you to co-exist’:1 the Kosovo assembly and the politics of co-existence

This article examines the role of parliament in the promotion of co-existence in post-war Kosovo. The vast majority of Kosovans are ethnic Albanians who aspire to independence; Serbs constitute the largest minority and are opposed to independence so Kosovo's politics are deeply divided. It considers Kosovo's social divisions, the political consequences thereof and the institutional measures put in place by the United Nations to try and moderate the influence of the divisions in the legislative process. The principles and objectives underpinning the Assembly, including those derived from Yugoslav constitutional history, are explored via the problem of ‘constitutional nationalism’ and its consequences. The Assembly has a range of complex procedures that are designed to promote the protection of minority rights and encourage power-sharing between the various communities. The article examines their operation and effectiveness in a political context of deep mistrust and, as the events of March 2004 demonstrated, continued violence.