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.     

论宪政约束下的电子政府模式

随着数字技术、信息技术和网络技术的发展,电子政府正在成为一场政府改革运动.本文认为,电子政府建设使信息控制权成为影响宪政结构的权力因素,同时对公民也提出了更高的素质要求,影响了公民权利平等;要使电子政府服务于宪政,服从于宪政对国家权力的安排和公民平等的基本原则,就需要对信息控制权进行宪政规划,对政府的边界进行改造,这在我国电子政府建设初期,尤其重要.     

Do Constitutional Rights Make a Difference?

Although the question of whether constitutional rights matter is of great theoretical and practical importance, little is known about whether constitutional rights impact government behavior. In this article, we test the effectiveness of six political rights. We hypothesize that a difference exists between organizational rights—most notably, the rights to unionize and form political parties—and individual rights. Specifically, we suggest that organizational rights increase de facto rights protection because they create organizations with the incentives and means to protect the underlying right, which renders these rights self‐enforcing. Such organizations are not necessarily present to protect individual rights, which could make individual rights less effective. We test our theory using a variety of statistical methods on a data set of constitutional rights for 186 countries. The results support our theory: Organizational rights are associated with increased de facto rights protection, while individual rights are not.     

Toward Making a Proper Space for the Individual in the Ethiopian Constitution

A symbolic, normative, and institutional investigation of the 1995 Ethiopian Constitution reveals that the individual is displaced and locked in the periphery as much of the socio-economic and political ecology of the state is occupied by Nations, Nationalities and Peoples (NNPs). The Constitution presents and makes NNPs authors, sovereigns and constitutional adjudicators by adopting a corporate conception of group rights. As this corporate conception of group rights permeate and structure the organization of the Ethiopian state and government, the individual is relegated in the constitutional order. In order to make the transition to constitutional democracy sustainable, it is argued that the Constitution should accommodate and ensure individual autonomy by adopting a collective conception of group rights. This offers both the normative basis and institutional safeguards to strike a proper equilibrium between group rights and individual rights.     

Retrofitting the Administrative State to the Constitution: Congress and the Judiciary's Twentieth-Century Progress

One of the twentieth century's "big questions" for United States government has been how best to retrofit, or integrate, the full-fledged federal administrative state into the constitutional scheme. The public administration orthodoxy initially advocated placing the executive branch almost entirely under presidential control; Congress and the federal judiciary responded otherwise. Congress decided to treat the agencies as its extensions for legislative functions and to supervise them more closely. The courts developed an elaborate framework for imposing constitutional rights, values, and reasoning on public administration practice. As the challenge of retrofitting continues into the twenty-first century, public administrators might profitably play a larger role in the constitutional discourse regarding the administrative state's place in constitutional government.     

Does constitutionalizing economic and social rights promote their fulfillment?

This article explores whether constitutional provisions promote fulfillment of economic and social rights. This is accomplished by combining unique data on both enforceable law and directive principles with the Social and Economic Rights Fulfillment Index (SERF Index), which measures government fulfillment of such rights. The results indicate that there is a positive and significant correlation between enforceable law provisions and the right to health and education components of the SERF Index. The strongest relationship appears to be for the right to health component where the inclusion of an enforceable law provision on economic and social rights in the constitution is correlated with an increase in the health component by 9.55, or 13.0%, on average. These results support the idea that constitutional provisions may be one way to improve economic and social rights outcomes.     

The Options for Devolution Finance: The Choices for the New Government

The debate about the financing of devolved government in Scotland, Wales and Northern Ireland has acquired a new vigour since 2007, with commissions and reviews taking place in Scotland, Wales and at Westminster. Although of considerable constitutional as well as political importance, the technical detail has obscured many of the wider issues involved. This paper surveys the options now open to the UK government, as it prepares its response to the Welsh Holtham Commission, a bill implementing the Calman Commission's recommendations for Scotland, and looks at ways of altering corporation tax in Northern Ireland. It examines six options that in principle are open to the UK government, and argues that the range of options open to the UK government are narrower than they often appear, and that pressure for it to act is such that it will no longer be possible to avoid far‐reaching action.     

Constitutional and Human Rights Disturbances: Australia’s Privative Clauses Created Both in an Immigration Context

With the arrival of another wave of “boat people” to Australian waters in late 2009, issues of human rights of asylum seekers and refugees once again became a major feature of the political landscape. Claims of “queue jumping” were made, particularly by some sections of the media, and they may seem populist, but they are also ironic, given the protracted efforts on the part of the federal government to stymie any orderly appeals process, largely through resort to “privative clauses”. Such clauses demonstrate the many ways in which human rights of those seeking asylum in far-off lands and are potential future immigrants, who often lack much-touted needed papers, yet who are for the most part genuine refugees, are subject to the slings and arrows of political fortune (and misfortune). Approaching the courts if treated unfairly or seeking a further decision as to your fate would seem one of the fundamental premises of human rights. Yet privative clauses—or attempts to ouster the jurisdiction of the courts and to insulate decisions from appeal—have become an increasingly frequent feature of the Australian migration legislation. With a seemingly watertight federal constitutional power set in stone since 1901, to deal with migration and aliens, and without the tempered contemporary update of a federal Bill of Rights, the Australian federal government has been able to narrow the grounds of judicial review in those contexts. We argue that the concerted efforts to deny such fundamental rights of appeal to those most in need of the full armoury of the protection of the law in a modern, affluent democracy, constitutes both a breach of their human rights and a breach of core constitutional principles such as separation of powers. Those principles may not be formally articulated in the text of the Australian Constitution, but in our view they are implicit in the constitutional arrangements, and hence we can conclude with the arguments of former Justice of the High Court of Australia, Michael Kirby, who asked—to whom does sovereignty truly belong?     

Restraining the Governors: The Nordic Experience with Limiting the Strong State

The combination of a tradition of arbitrary royal government and popular intolerance, with the existence of extensive, unitary and highly centralized institutions of government, and with the dominance of government by a single, reformist party for more than a half century would seem a potent recipe for governmental abuse of individual and minority group rights. That is especially true in the absence of the formal constitutional safeguards used to preserve rights elsewhere Yet the Nordic democracies have in fact proved exemplary in protecting civil liberties Why? This article challenges the view that Nordic political societies are consensual historically or by nature, and it describes the limited traditional institutional checks on abuse of individual and minority rights by government Instead it finds the basis for the Nordic democracies' excellent record in civil liberties in the combination of (1) the development of new, non-traditional institutional checks on government. (2) the use of direct democracy as a check on parliamentary majorities. (3) the pervasive use of corporatist channels encompassing the major oppositional interest groups to draft and implement legislation, and (4) the effective constraints placed on decisions by parliamentary majorities by the pattern of fierce partisanship in the finely balanced parliamentary party constellation These protections for individual and minority liberties arise primarily from the assumption that basic conflicts of interest are a fact of political life and that they should be institutionalized.     

THE INTER-STATE COMMISSION*

Abstract: The Inter-State Commission (ISC), although required by Australia's Constitution, has been in existence from 1913 to 1920 only. In 1975 the Labor government introduced a bill to set up the Commission. The bill was passed in a heavily amended form, but the legislation was not proclaimed by the incoming coalition government. A brief history of the "first" ISC raises the question of whether the High Court would ever have accepted the regulatory powers that the Labor government wished to invest in the late Commission. The ISC envisaged by the Labor government's bill would have had strong powers of regulation, arbitration and investigation over interstate and overseas transport. The Senate left it with weakened investigative powers only. Our Federal system encourages many government practices which are not in the interests of the community as a whole. However, while the ISC's role in curbing these practices would have been beneficial, the States have shown themselves too powerful politically to accept such policing, even if the High Court had allowed the ISC to do so. The ISC as conceived by Labor's bill would not have been politically viable, but the ISC as provided for in the Act would be worth setting up, as it would have several advantages over existing investigative mechanisms. It would have more experience and competence than ad hoc inquiries, and its continued existence would make it difficult to shelve its reports. Its statutory basis, broader terms of reference and its ability to force organizations to divulge information would all serve to make it a better investigative body than the Bureau of Transport Economics.     

Federalism and Decentralization: Ownership Rights and the Superiority of Federalism

The benefits and costs usually ascribed to federalism are benefitsand costs of decentralization; they are, therefore, presentin unitary states that are in fact all decentralized. The benefitsand costs specific to federalism pertain to ownership rightsin constitutional powers. Federalism is superior to confederalismand unitarianism because the ownership rights peculiar to thatsystem of government are such that they ensure the perduranceof competition when one or more competitors are unsuccessful.They do so because under federalism, powers cannot be repossessedunilaterally. Ownership rights have to be enforced; as a consequence,there are also costs that are specific to federalism.     

Constitutional Amendment and Revision Revisited

State constitutional amendment and revision procedures differsubstantially from formal procedures for amending the US Constitution.Popular participation and frequent change in state constitutionscontribute to significant differences between state and nationalconstitutional politics. State constitutions are widely perceivedto be "political’ documents, whose amendment is not muchdifferent from ordinary legislative and electoral politics.The U.S. Constitution is regarded as relatively permanent and"above politics." Neither perception is wholly accurate. Differencesbetween state and national procedures and politics are at issuein the recent revival of state constitutions as sources of civilrights and liberties. An analysis of constitutional amendmentssuggests that use of the ballot proposition, which is uniqueto the states, tends to restrict civil rights somewhat in criminaljustice while somewhat expanding support for new rights in otherareas, including those not fully protected by the national government.     

Garcia: Of Federalism and Constitutional Values

In Garcia v. San Antonio Metropolitan Transit Authority (1985),a majority of the U.S. Supreme Court's justices did violenceto the principles of the U.S. Constitution by leaving the statesto take their Tenth Amendment complaints to the Congress. Inabdicating their proper constitutional role, the majority ofjustices ignored history, political realities, and constitutionalprinciple. The Constitution's institutional arrangements, ofwhich federalism is a key component, are an intrinsic part ofthe constitutional scheme by which government power is limitedand individual rights are protected.     

Greening Constitutions with Environmental Rights: Testing the Isomorphism Thesis

Why do some countries have constitutional environmental rights while others do not? In this paper, I conduct statistical analyses to respond to this inquiry. Through studying the impact of intraregional constitutional design, I aim to understand why states adopt environmental rights. I argue that regional isomorphism—i.e., the tendency among states within a region to converge on certain policies—may explain the trend toward constitutionalization of environmental rights. In this paper I (1) define and provide historical background on environmental rights, (2) describe theories which support regional isomorphism as a means of explaining the adoption of constitutional environmental rights, and (3) conduct statistical tests to determine the validity of the regional isomorphism thesis. I find that the enactment of constitutional environmental rights within a region does not increase the likelihood that another state within the same region will include environmental rights within its constitution.     

Budgeting Rights: The Case of Jail Litigation

Judicial decisions are one element in the erosion of local government budgetary discretion. For example, litigation concerning constitutional rights forces local government officials to allocate resources toward the rights-based population. While rights-based allocation decisions may narrow the budgetary discretion of public officials, some managers may, paradoxically, be "better-off"—defined as the ability to protect and defend their budgets — when discretion is reduced. This thesis is tested through a case study of jail overcrowding litigation in a county government.     

Do government sponsored marriage promotion policies place undue pressure on individual rights?

The dominance of social science research in the debate over the Bush Administration’s Healthy Marriage Initiative may explain why questions regarding the proper role of government in regulating adult intimacy have received little attention. Social science research focuses on outcomes such as well-being and health. In contrast, rights-based legal theory considers whether state action undermines the rights of individuals. In this article, I intend to shift the debate over marriage promotion policy from questions of child well-being to questions of individual rights. I will ask the following questions: Do individuals have a liberty interest in making their own choices about intimate relationships, such as marriage? Do federally-financed (and frequently state-run) marriage programs compromise this liberty interest? Are there any constitutional grounds for objecting to marriage promotion policy?     

Models of Post-Incorporation Judicial Review: 1985 Survey of State Constitutional Individual Rights Decisions

In 1985 state supreme courts issued the largest number of decisionsto date in which protections of individual rights were basedupon provisions of state constitutions. With increasing frequency,state high courts have held that certain constitutional minimumsof rights protection set by U.S. Supreme Court interpretationsof the U.S. Constitution do not satisfy more demanding preceptsof state constitutional law. Although much of this activityremains reactive rather than systematic, there has been a slightmove toward greater systematic analysis. Furthermore, statecourt decisionmaking can be understood in terms of five modelsthat reflect judicial perceptions of varying degrees of equivalenceor nonequivalence between rights provisions in the U.S. Constitutionand state constitutions. At the same time, however, the U.S.Supreme Court has clearly indicated an interest in monitoringthe individual rights decisions of state high courts, whilelower federal courts have begun to place greater reliance onstate constitutional law to preclude U.S. Supreme Court review.     

Sui Generis and Treaty Citizenship

This article, written from an Aboriginal perspective, explores the problematic invitation to federal citizenship in Canada for Aboriginal peoples. Its focus is on the deficits of such an offering for the constitutional rights of Aboriginal peoples, which is characterized by sui generis and treaty citizenship. Informed by Aboriginal and intercultural perspectives, the article argues that the offerings of statutory citizenship for Aboriginal peoples inverts rather than respects the constitutional relationship. It looks at how the Supreme Court of Canada has located and structured sui generis Aboriginal orders, the concepts of sui generis citizenship, treaty federalism, and constitutional supremacy as compared with the idea of federal citizenship, concluding that such 'invitations' to Canadian citizenship are inconsistent with and infringe upon the constitutional rights of Aboriginal peoples. By understanding the prismatic nature of Canadian federalism in a postcolonial context, this article aims at reconceptualizing Canadian citizenship in terms of ecological belonging, fundamental rights, and respect for human diversity and creativity.     

New Labour and Government in Britain: Change or Continuity?

The 1997 British election marks a major change in British government. Eighteen years of Conservative rule had brought about growing inequality and social division and have generated powerful demands for new directions in public policy, especially in the areas of welfare and public administration. On welfare state reform Labour is constrained by election promises to restrain taxation and public expenditure. New Labour ministers influenced by the New Right have in any case largely rejected traditional social democratic redistributive strategies and are seeking instead new ways of reducing welfare dependency.
The virulent spread of quangos at all levels of government and a marked increase in the centralisation of power in Whitehall have given a new impetus to demands for constitutional reform. Labour's response to these demands is a major program of regional devolution, House of Lords reform and open government measures.
This article explains what 'New Labour' means and discusses New Labour policies on welfare and constitutional reform and their implications for the future of public administration in Britain.     

论我国宪法权利限制的实质、困境与对策

尽管享有权利是人类社会生活的一部分,但为了维护公共利益,个人宪法权利还必须受到限制。然而,权利限制的最终目的还是为了保障人的生存与发展,进而实现人的价值。由于诸多原因的影响,我国宪法对公民宪法权利的限制存在着一定的缺陷,不利于公民宪法权利的实际享有。因此,亟需从宪法权利限制的原则、方式和具体条文等方面完善我国宪法权利的限制。