行政权特征与规范

行政法治的途径之一是加强对行政权的限制,但行政权行使的诸多方面却是与法治无关的,或者是法治所无法彻底解决的,这一点可以从行政权的固有特征中揭示出来。因此,行政法治所涉及的问题绝不仅仅是理论上简单的限制,而是应努力寻找到行政法治的真实对象和可行途径。     

美国行政协定的合宪性分析

对三种具体行政协定的合宪性讨论随着美国总统和国会之间就对外贸易政策制定权中主导权的争夺而开始兴起。大多数学者和美国法院都承认行政协定的合宪性。确认美国行政协定的合宪性,有利于理清行政协定和美国对外贸易政策的关系,有利于利用行政协定更好地实施美国对外贸易政策,促进其不断发展。     

提高领导干部行政执行力问题研究——以吉林省为视角

行政执行力是政府权力有效运行的重要保证,而领导干部的行政执行力直接关乎着政府的行政执行力。因此,提高领导干部的行政执行力是提高政府效能的迫切要求。对于吉林省而言,领导干部行政执行力的高低决定着老工业基地振兴的成败。所以,提高各级政府和领导干部的行政执行力,确保中央政策和吉林省发展战略准确有效的执行,是吉林省政府自身建设的重中之重。     

行政命令与行政处罚程序和谐关系之构建

行政命令与行政处罚是两种不同的具体行政行为,二者在实体上相互区分的同时,在程序上又相互联系,这种联系建立在二者都可针对相对人的违法行为作出的基础上,表现为程序上的排他关系、并行关系或优先关系,其中以命令前置为原则的程序优先关系是一种和谐的程序关系．它不仅体现了执法手段从轻到重的和谐,也体现了行政主体与行政相对人之间的和谐,构建这种和谐的程序关系对保障相对人的合法权益具有重要的意义。     

Modes of UK Executive–Legislative Relations Revisited

Anthony King's 1976 article ‘Modes of executive–legislative relations: Great Britain, France and West Germany’ is a classic in legislative studies. It argued that it is simplistic to analyse relations between ‘the executive’ and ‘the legislature’ in parliamentary systems, because parliaments are complex organisations comprised of competing actors. Instead, we must consider the various ‘modes’ through which these actors can interact to challenge the executive. As King pointed out, the classic view of the British Parliament was of a dominant ‘opposition mode’ and yet, in fact, the most important relationship was the ‘intraparty mode’: between the government and its own backbenchers. Other options, such as the ‘non‐party mode’ or ‘cross‐party mode’ were considered weak in Britain. This article revisits King's modes in the light of changes at Westminster during the intervening forty years. Developments such as the establishment of the select committee system and a more confident and party‐balanced House of Lords require significant changes to his conclusions. But his central insights, encouraging readers to focus on the multiple relationships inside legislatures, including those within political parties, remain fundamentally important.     

Curbing the royal prerogative to use military force: the British House of Commons and the conflicts in Libya and Syria

Abstract

To what extent does political practice under the British Conservative-Liberal Democrat coalition (2010–2015) reflect a ‘parliamentary prerogative’? From a formal-institutional point of view one should not expect substantial parliamentary influence in Britain. Yet recent developments suggest the emergence of a new convention. Examining parliamentary debates during the run-up to the votes on Libya and Syria, this contribution shows that the scope and contents of this convention remain contested. Specifically, there is disagreement about the kind of operations that ought to be exempt from the rule, questions of parliamentary procedure that favour the executive and, crucially, the proper timing of substantive votes. Nonetheless, parliament has emerged from the vote on Syria as an informal veto player on decisions regarding war involvement. However, whether MPs will exercise their veto power in prospective cases will depend on the preference distribution in the legislature and the nature of the proposed deployment.     

The party politics of legislative‒executive relations in security and defence policy

Abstract

The move from territorial defence to ‘wars of choice’ has influenced the domestic politics of military interventions. This paper examines the extent to which both the substance and the procedure of military interventions are contested among political parties. Regarding the substance, our analysis of Chapel Hill Expert Survey data demonstrates that across European states political parties on the right are more supportive of military missions than those on the left. On the decision-making procedures, our case studies of Germany, France, Spain and the United Kingdom show that political parties on the left tend to favour strong parliamentary control whereas those on the right tend to prefer an unconstrained executive, although with differences across countries. These findings challenge the view that ‘politics stops at the water’s edge’ and contribute to a better understanding of how political parties and parliaments influence military interventions.     

Decisional Capacity and Personality Disorders: Substantially Unable or Substantially Unwilling?

Capacity assessments are performed when there is suspicion that a person is unable to adequately care for their physical, medical, or financial well-being. The purpose of these assessments is to inform the legal system as to whether or not guardianship may be necessary. It is well established that certain mental illnesses, such as neurocognitive disorders (dementia) or psychotic disorders (like schizophrenia), may diminish capacity and, in some cases, lead to the need for establishment of a legal guardian. However, personality disorders are another common category of mental illness which may impair decision-making. There is very little information in the literature about how or why these disorders could impair capacity, and thus, it can often be difficult to discern whether clients with personality disorders are substantially unable to care for themselves—versus unwilling to act in a way contrary to their ingrained habits. We present a series of three cases in which clients are determined to lack capacity primarily mediated by a personality disorder diagnosis. They are demonstrated to have mild deficits in cognitive functioning, but they show impaired decision-making out of proportion to these deficits. In all three cases, it is apparent that the personality disorder is substantially impairing their ability to care for themselves. Discussion includes consideration for ways to incorporate evaluations of cognitive function, activities of daily living, and personality considerations into capacity assessments, and how to approach recommendations (such as guardianship vs. less restrictive option) based on both level and scope of impairment.     

Maintaining neutrality in the Minister's office

How do non-partisan advisors in Ministers’ offices maintain political neutrality while immersed in a highly politicised environment? Private Secretaries are ubiquitous non-partisan public service representatives in the political environment of Ministers’ offices. There has been significant research undertaken the role of political advisors in Ministers’ offices, yet the contribution of these non-partisan advisors has not yet been described in academic literature. The risk of Private Secretaries being overly responsive to politicians and undertaking political tasks rather than maintaining neutrality is ever present. Further, they must actively manage the risk of free and frank advice being obstructed by political advisors. This article presents views about political neutrality gleaned from interviews with Private Secretaries who have worked in Ministers’ offices in New Zealand during the period of 1997–2018. It presents new insights into the tensions within a key setting of the core executive.     

Politicians and Civil Servants: Unfinished Business—The Next Steps Report,Fulton and the Future*

This article discusses the origins of the Efficiency Unit's ‘Next Steps’ Report, published 20 years ago which recommended the executive agency as an organisation for much of the British government. Within five years more than half the civil service had been transferred to work in agencies but the other major recommendation of the report – improving the management skills of the senior civil service received far less enthusiastic attention. From the Fulton Report, the Next Steps report to the Capability Reviews of current Whitehall the same problem is highlighted: there is still too little management competence within the public service despite the endorsement of the need for improvement by successive governments.