Legislative Capacity Research Articles

Significant EU Environmental Cases: 2012

Directive 2003/4/EC of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC1 implements the first pillar of the Aarhus Convention and gives individuals a right of access to environmental information held by public authorities. Article 2(2) of the Directive defines ‘public authority’ and states that Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. In Case C-204/09 Flachglas Torgau GmbH v Germany (judgment of 14 February 2012), a German undertaking sought information from the Federal Ministry for the Environment relating to the allocation of emission allowances. But the Ministry refused on the grounds that the information related to a process that had resulted in the adoption of a legislative measure. The Court (Grand Chamber) held that the purpose of excluding legislative bodies from the definition of ‘public authority’ was ‘to ensue that the process for the adoption of legislation runs smoothly, taking into account the fact that, in the various Member States, the provision of information to citizens is, usually, adequately ensured in the legislative process’.2 The Court went on to apply a functional test and held that Ministries of central government could be excluded from the definition of ‘public authority’ to the extent that they participate in the legislative process. Importantly, the Court emphasised that the Member States’ option to exclude legislative bodies from the definition of ‘public body’ came to an end once the legislative process was complete i.e. the measure had been adopted and promulgated. Accordingly, although individuals cannot gain access to environmental information during the legislative process, they can do so after the legislative measure has been adopted and therefore information can be obtained for the purposes of challenging the legislative measure subsequent to its adoption.

Congressional parties, institutional ambition, and the financing of majority control

With the need for ever increasing sums of money to fuel the ongoing campaign for majority control, both Republicans and Democrats have made large donations to the party and its candidates mandatory for members seeking advancement within party and congressional committee hierarchies. Eric S. Heberlig and Bruce A. Larson analyze this development and discuss its implications for American government and democracy. They address the consequences of selecting congressional leaders on the basis of their fundraising skills rather than their legislative capacity and the extent to which the battle for majority control leads Congress to prioritize short-term electoral gains over long-term governing and problem-solving.

A New Index of Oversight Capacity

The purpose of this paper is to present a new index of legislative oversight. Building on the work by Stapenhurst (2011), who argued that a proper index of legislative oversight capacity should reflect not only legislatures’ internal oversight capacity but also the impact of contextual factors, we devise and propose a modified version of the Stapenhurst. The results of the empirical analyses presented in the paper sustain the claim that when properly operationalized and measured, legislative oversight capacity is a good predictor of legislative oversight effectiveness and other policy relevant results.

Congressional Government Rebooted: Randomized Committee Assignments & Legislative Capacity

Congress’s stature and relative role in governance are in the midst of a long-term decline. To mitigate this trend, this article proposes a novel change to the branch’s institutional design: replacing the current committee assignment system with the random assignment of members to committees. I argue that this reform would greatly enhance Congress’s internal capacity, altering the roles that party organizations, expert or deliberative committees, interest groups, and political minorities play in the policymaking process. Random committee assignment could also impact Congress-Court dynamics, encouraging greater use of legislative history in statutory interpretation and promoting a more deferential judicial posture in assessing the constitutionality of statutes. Finally, random assignment could facilitate greater congressional involvement in administration, particularly concerning committee oversight of executive agencies and use of the post-Chadha legislative veto.

Arguments from Colonial Continuity: The Constitution (First Amendment) Act, 1951

In May 1951 Jawaharlal Nehru introduced before Parliament a Bill to amend the Indian Constitution, some fifteen months after it had come into force. Some of these amendments concerned important “fundamental rights”: the right to freedom of speech (Art. 19(1) (a)); rights against the compulsory acquisition of property (Art. 31); and rights against non-discrimination (Art. 15(1)). Each of these amendments was a response to judgments of the High Courts and the Supreme Court striking down legislation for violating these rights; and each amendment had the effect of nullifying the offending judgments.My paper traces the history of the Art. 19(1) protection of free speech and expression through three phases: the Constituent Assembly Debates in 1946-49; the constitutional challenges in the Courts in 1950-51; and the Parliamentary debates of May 1951. I suggest that they illustrate the development of a new Constitutional idiom at this transitional time, and I attempt to elucidate that idiom to some extent.This idiom can only be understood in the context of the peculiar circumstances in which the Bill was proposed. Since elections under the new Constitution did not take place until late 1951, the Parliament was accused of lacking the legitimacy to make sweeping Constitutional changes. But in another respect the legitimacy of this Parliament to discuss the Constitution was not in doubt: under the terms of the India Independence Act of 1947, the Constituent Assembly was to sit in a legislative capacity until the new Constitution came into force. So these constitutional amendments were debated by the very people who had framed the Constitution.Who, then could speak for the Constitution? Was it the Courts, which were set up by the Constitution and explicitly given the power of judicial review? Or did the Framers, now sitting in their legislative capacity, have greater authority to interpret the Constitution they had written, and correct “errors” in judicial interpretation?I argue that debates about legitimacy were ultimately cast in terms of the extent to which the institutions in question represented continuities with colonial rule. Was it the Courts, as Nehru suggested, which were still stuck with a conservative “colonial mentality,” manned as they were by judges who had been appointed by the British before Independence? Or was this charge more aptly pressed against the Government, which was seeking to enact the very same laws that the British had earlier used to suppress the Independence movement?

Resourcing for post‐disaster reconstruction: a comparative study of Indonesia and China

PurposeThere is a need to understand resourcing issues when reconstructing the built environment in a post‐disaster situation. The purpose of this paper is to determine the resourcing difficulties that are likely to face the international practitioners in post‐disaster reconstruction by identifying and comparing the factors that affected resource availability following natural disasters in Indonesia and China respectively.Design/methodology/approachThe research methodology included field‐based questionnaire surveys, semi‐structured interviews and observations. A comparative analysis was used to extract similarities and differences with regard to resourcing approaches in Indonesia and China.FindingsDespite the different resourcing approaches adopted in Indonesia and China in their recovery from large‐scale disasters, there are common issues facing post‐disaster reconstruction stakeholders, including competence of the implementing agencies, capacity of transportation, governance and legislation, and market conditions. Specifically, community‐related housing features played a dominant role in donor‐driven resourcing practice in post‐Indian Ocean tsunami reconstruction in Indonesia, whereas factors related to project control and management primarily contributed to resourcing performance of Chinese reconstruction specialists following the Wenchuan earthquake.Research limitations/implicationsTo solve resourcing problems, countries need to create an enabling environment and build institutional capacity. The cross‐cultural comparative analysis encourages policy makers and practitioners to exchange experiences from recent recovery operations.Originality/valueThe paper illustrates the infrastructural and institutional weaknesses that hindered effective resource procurement during post‐disaster reconstruction in Indonesia and China. The research findings show common areas in need of improvement in other disaster prone countries, along with the issues to be addressed in the donor‐led or contractor‐led resourcing practice in the two studied countries.

Federal supports for state oral health plans

The past decade has witnessed both a proliferation of state oral health plans that include very specific proposals for action and an emergence of federal laws that include support for oral health. This paper provides an overview of state oral health priorities for action as reflected in 40 oral health plans that were developed independently by states. It examines four federal laws - the 2002 Safety Net Improvement Act, the 2009 CHIP Reauthorization Act, the 2009 economic stimulus law, and the 2010 health reform law - to identify opportunities for alignment with action steps proposed in state plans. This analysis identifies 23 categories of activity proposed by states in their action plans and determines that all but six of these activities are now supported by one or more of these four federal laws. State activities undertaken through grants provided under the 2002 Safety Net Improvement Act are analyzed as an example of how states can leverage federal legislation to advance their oral health plans. The paper concludes with consideration of the steps needed for states to promote their oral health plans by leveraging the full capacity of federal legislation.

Public Accounts Committees in the Commonwealth: oversight, effectiveness, and governance

For the past 15 years the international community has assumed that by strengthening legislative capacity, legislatures are better equipped to oversee government activity and spending, to keep governments accountable, to secure good governance, prevent corruption, and create the conditions for sustainable economic development. The purpose of the present paper is to test this set of assumptions by focusing on one of the oversight tools that the international community regards as particularly important, the Public Accounts Committee (PAC). Structural and organisational features that affect the performance of PACs is analysed, the relationship between oversight activity and effectiveness is investigated, and it is assessed whether good governance is a function of oversight activity, of effectiveness or of both. The analyses reveal that while oversight activity does not always have a significant or directly positive impact on good governance, good governance is indeed a function of oversight effectiveness as the international community had long assumed.

Julio Sánchez Álvarez, El protomedicato navarro y las cofradías sanitarias de san Cosme y san Damián: el control social de las profesiones sanitarias en Navarra (1496–1829), Temas de Historia de la Medicina, 9, (Pamplona: Departamento de Salud, Gobierno de Navarra, 2010), pp. 365, €9.00, ISBN: 978-84-235-3154-7.

Navarre, one of Europe’s mediaeval kingdoms, was situated on both sides of the Western Pyrenees. In 1512, it was annexed by the Spanish monarchy but maintained its privileges and legislative capacities until 1841. This book deals with the regulation of the healthcare professions during the above period, a subject about which, up to now, we have had very little information due to the scarce documentary sources available. The author states that until the fifteenth century there were no bibliographical sources for the control of healers, that there was no university in the kingdom, and that there were flourishing Jewish communities in the main enclaves, which leads us to believe that the healers were from many different places. In 1496, when Navarre was still an independent kingdom, the first healthcare guild was set up under the protection of Saints Cosmas and Damian, and was awarded the monopoly to issue licences for the practice of physicians, chemists and surgeons in Pamplona and seven leagues around the city. The institution enjoyed royal protection and was extremely powerful for almost four hundred years. Since around 1430, the Protomedicato tribunal had existed in Castile; this institution was set up by royal decree to examine and license candidates for the healthcare professions. This tribunal hunted down professional quackery, imposed fines and sentences, and had legal responsibility on civil and criminal cases in which healthcare workers were involved due to their profession. Moreover, the members of the tribunal inspected the druggists’ and spice merchants’ stores. The author explains that the reasons behind the founding of the Protomedicato in Navarre (1525) were political: it was the only way for the Castilian authorities to intervene in the country, circumventing the complications of Navarrese law and the privileges of the Pamplona Health Guild. This book by Julio Sanchez Alvarez was originally written as an academic work for the author’s doctorate in medicine; his research was directed by Professor Pedro Gil-Sotres, who has written the prologue for this edition. Its main achievement is the use of abundant manuscripts and unpublished documentary material from the General Archives of Navarra, one of the richest and best-organised archives in Spain. Sanchez Alvarez has made excellent use of the legal actions taken by the tribunal members and the Pamplona guild members over the centuries in his reconstruction of the Navarrese Protomedicato tribunal from its foundation, and step-by-step has followed the activity of the healthcare guilds in Pamplona, Tudela and Estella. This work clearly and reliably describes the struggle for the different powers that the tribunal and guild members were not prepared to surrender; the conclusion is that the creation of the guilds in Estella and Tudela was a reaction to the Protomedicato tribunal; and it shows the significance, for the guild members, of being appointed members of the tribunal. It also describes the most important medical individuals in Navarre between the fifteenth and eighteenth centuries. Sanchez Alvarez shows how professional regulation was one of the areas where the Navarrese institutions, both civil – the government of the kingdom or the Navarrese court – and professional, fought to maintain their independence from the central powers. This meant that, although the Navarrese Protomedicato tribunal was based on the Castilian model, its course did not run parallel to it. There is no doubt that this book will be an essential work of reference for any future studies which may be carried out on the world of medicine and the medical institutions in the ancient Kingdom of Navarre. For all healthcare historians, reading this work will be worthwhile for its reconstruction of the past from archival sources, and because it is a perfect example of the confrontation of the different institutions in the shaping of the healthcare professions in Europe. The powers-that-be are often said to have watched over the preparation and training of healers because of the enormous effect of their work on society. Sanchez Alvarez’s work shows that there were other, more covert vested interests among individuals and the local or general politics of the kingdoms.

Turkish 'Environmental' Accession to the EU: The European Union Emissions Trading System

Since the establishment of its original mandate as a purely economic union, the competences of the European Union have rapidly expanded, not least in the area of environmental policy making. This increase in competency areas has also affected the accession conditions for Turkey – the necessity for Turkey to harmonize its laws with the European acquis communautaire now includes the harmonization of environmental regulations. This inclusion will require much in terms of administrative and legislative capacity from the Turkish government. As such, Turkey’s pre-existing environmental situation has been described as ‘a considerable obstacle in its EU accession efforts’. This article will focus on the current stumble blocks for Turkey in terms harmonization of environmental regulation, specifically in the area of climate change policy. The increasing use of so-called market-based instruments in this area prima facie appears to aid Turkey in combining economic development with environmental sustainability but the reality proves to be very complex. This article will discuss the position of Turkey as a candidate state to the European Union in terms of environmental policy, focusing on its potential role within the EU ETS. The build up of this paper will thus be as follows: first, the most important features of current European climate (change) policy will be highlighted, focusing on the internal targets of “20 20 by 2020” (January 2008) and the more externally focused “International climate policy post- Copenhagen: Acting now to reinvigorate global action on climate change” (March 2010). Then, the context and functioning of the EU ETS will be explored. Second, an overview of the Turkish environment and possible hurdles regarding the implementation of the European environmental acquis will be given. The final part of this article will analyze the possible advantages for Turkey in joining the EU ETS – compared to its current position under theKyoto Protocol mechanisms – and the legal stumble blocks possibly preventing inclusion in the EU ETS – both in terms of European law and international law.

The Potential Use of Cellular Phone Technology in Maintaining an Up-To-Date Register of Land Transactions for the Urban Poor

This article investigates the concept of using cell-phone technology for obtaining informationabout unofficial (off-register) transfers in land as are commonly undertaken by the urban poor inSouth Africa. Since the introduction of social housing programmes in South Africa after the democratic elections in 1994, mass land distribution and housing projects have been undertaken. Formal transfer of these properties has been discouraged by policy (such as a moratorium on transfers for a period of years), and the inaccessibility of land professionals and formal processes to the poor. From the disuse of formal transfer mechanisms one can conclude that these fail, at least in part, to meet the needs of this segment of society. Cell- (mobile) phone technology penetrates urban poverty more than other interactive technologies such as the internet, largely due to the lack of access to computers and the 'digital divide'. The aim of this article is exploratory. It investigates the potential use of cell-phone technology as a means to inform authorities that a transfer of property has taken place informally or semi-formally. Such information could pave the way for a process of formal registration and hence aid the upkeep of the deeds registration system. Research into the potential use of the cell-phone as an information and communication technology (ICT) tool of land administration, particularly in the developing world, is undertaken. It is envisaged that a more detailed investigation will follow, which will include an analysis of organisational and legislative capacity. Further study in which the use of cell-phone technology in land administration is tested, taking into consideration structural/organisational factors as well as socio-economic and cultural factors and motivating factors for use, may be required.KEYWORDS: Land registration, land tenure, cadastral systems, e-registration, m-registration, e-governance.

A Cayman Islands Perspective on Transborder Insolvencies and Bankruptcies: The Case for Judicial Co-Operation

The freedom of movement of capital in the modern global economy has been indispensable to the development of international corporate enterprise. This paper argues that the judicial and legal institutions of states are as essential to the stability of the global economy as the traditionally heralded international economic channels that have been so carefully crafted globally. In fact, in the sphere of trans-border insolvency and bankruptcy, judicial and legal institutions could be perceived as even more vital, as the vibrancy and the health of global enterprises can be radically challenged and even severely impeded should countries fail to institute universally accepted legislative and judicial codes of practices. The quest for this normative approach has found expression by the United Nations in its development of the UNCITRAL Model Law, a prototype which has since been adopted by twenty-two States. A number of other States, as well, have adopted measures which mirror the cooperation and co-ordination principles of the UNCITRAL Model Law These States all accept that legislative and judicial capacity and competence are essential ingredients in the salutary infusion of mutual confidence, and it is this very shared trust that is the ultimate catalyst for successful resolution of cross-border and other disputes. For Offshore Financial Centres (OFCs), reinforcement of confidence in their Courts in the international arena is perhaps even more highly critical to their sustained roles in today’s globalized economy. This paper outlines the legislative and judicial competencies and roles that have enabled the Cayman Islands, as an example of a key OFC, to emerge as a major player in international cross-border conflict resolution. This discourse also acknowledges the hurdles OFCs have had to overcome in both perceptions and reality in the global marketplace and the increased pressures faced by Courts today in meeting demands of public policy objectives. With specific regard to the Cayman Islands as an example of an effectively functioning OFC, the paper examines the Islands’ insolvency regime, reviews a number of cases demonstrating the efficacy of the approach of the Islands’ Courts, and highlights relevant Cayman Islands’ legislation and orders made pursuant to those laws. This analysis demonstrates how, by implementing through its Courts a public policy model on a par with international codes of conduct, the territory has vouchsafed its ability to render the kind of international judicial assistance that is critical to the fulfilment of the tenets of the UNCITRAL Model law and to the principles of universality of bankruptcy that the Law embraces. A further benefit is that Cayman’s Courts and court-appointed officials, in turn, may expect to receive full cooperation from other jurisdictions. Indeed, the emergence of the Cayman Islands as a leader among financial centres is due in no small part to its compliance with international regulatory requirements across the breadth of its financial industry. In addition to complying with FATF Directives on money laundering, the territory complies with OECD threshold requirements for tax information exchange and serves as a member of the Steering Committee of the OECD’s Global Forum on Transparency and Exchange of Information. Furthering its position of strength, the Islands’ legal and judicial system is based on English common law traditions, and its local legislative arsenal is being constantly modernized to meet contemporary Cayman Islands’ needs. This legislative progression, given the Islands’ continued status as a British Overseas Territory (UKOT) located in the North West Caribbean Sea, includes the extension, as required, of United Kingdom legislative provisions to the Islands.

Jurisdiction Granting: Legislative Capacity and Ideology

Congressional power over the federal court system includes the constitutional power to define the jurisdiction of the federal district courts. Congress exercises its power by passing jurisdiction-granting legislation which confers on the district courts authority to address policy issues. Congress is therefore a participant in the process by which the district courts set their agendas. As Congress can determine who may sue, when they may sue, and which issues they may raise it influences the issues that appear before the courts. This paper explores the conditions under which Congress will grant jurisdiction, testing the relationship between grants of jurisdiction and legislative capacity and ideology.

A Constitutional Convention Won't Produce the Reforms California Needs

THE CALIFORNIA Journal of Politics & Policy Commentary A Constitutional Convention Won’t Produce the Reforms California Needs John Sweeten * Retired county administrator While constitutional reform is essential for addressing the dysfunctionality that characterizes California govern- ment, it probably cannot be accomplished by means of a convention. Why? Because the same forces that have cre- ated the current problems would be in a position to make sure their interests are protected in the convention pro- cess. A better approach is to amend the constitution through a series of voter initiatives, the approach that California Forward has embraced. This approach stands a better chance of targeting strategic reforms, while at the same time mitigating the influence of special interests. www.bepress.com/cjpp Volume 2, Issue 2 , 2010 Among the many reforms needed, two of the most im- portant would be (1) to increase the capacity of the legis- lature to make wise decisions, and (2) to create a decision- making process that would allow wise choices on the part of individual legislators to translate into collective action by the legislature. Legislative Capacity There was a time when chairs of legislative policy committees were selected because of their expertise in the subject matter—an expertise flowing from many years of dealing with the complex issues that came before the com- mittees. Term limits effectively eliminated that expertise. Freshman legislators may now find themselves chairing *John Sweeten is a member of the California Bar and a retired county administrator with 34 years of county administrative experience including managing state-county relations for a large California county.

Human Rights and Social Justice: the Convention on the Rights of Persons with Disabilities and the quiet revolution in international law

On the 60th anniversary of the Universal Declaration of the Human Rights (UDHR) the Commonwealth Attorney General announced a national public consultation concerning the need for better human rights protection in Australia and the viability of a federal human rights charter. Whether or not the anticipated Charter includes social, economic and cultural rights is directly relevant to questions of social justice in Australia. This paper argues that the legislative acknowledgment of civil and political rights alone will not adequately address the human rights problems that are experienced in Australia. The reluctance to include economic, social and cultural rights in human rights legislation stems from the historical construction of an artificial distinction between civil and political rights, and economic social and cultural rights. This distinction was articulated and embedded in law with the translation of the UDHR into binding international law. It has been accepted and replicated in judicial consideration of the application on human rights legislation at the domestic level. The distinction between the two forms of rights underpins a general ambivalence about the capacity of human rights legislation to deliver social justice and echoes a critical tradition in legal philosophy that cautions against the reification of law. Coming into force early in the 21st century, the Convention of the Rights of Persons with Disabilities illustrates the effort of the international community to recognize and eschew the burden of the false dichotomy between civil and political and economic, social and cultural rights. Acknowledging the indivisible, interdependent and indissociable nature of human rights in Australia is a crucial step toward achieving human rights based social justice.

Some Observations on Legislative Capacity in Constitutional Interpretation

AbstractHow well can legislatures evaluate the constitutional questions that are inevitably bound up with regulation of the political process? Modern parliamentary systems have developed forms of “rights-vetting” using specialized committees and ministry units to consider constitutional questions. Designing such institutions requires careful consideration of their ability to perform rights-vetting in a timely manner. The United States lacks such institutions in Congress, and creating them would be difficult in light of the congressional committee structure.

Designing tradeable rights to manage aquifer recharge according to robust separation principles

Many cities are experiencing mature urban water economies, characterised by limited opportunities for future water impoundments, rising incremental supply and infrastructure costs, intensified competition and increased interdependencies between diverse water uses. Aquifer storage and recovery (ASR) is currently promoted as one option to augment existing supplies and in many jurisdictions is assuming increasing importance in the portfolio of urban water management strategies. Consistent with trends in international water policy development, Australian water reform has emphasised institutional and governance approaches promoting voluntary transfers of water through market exchange. The reform process has made substantial advances in addressing the constraints and tensions associated with mature rural water economies, with limited influence in urban water systems. What remains unclear is the degree of alignment of new water management technologies such as ASR operations with explicit water reform directives of market development and the capacity of subsequent urban water legislation to provide consistent and coherent ASR guidelines. The paper describes a systematic approach to align the hydrological characteristics of an aquifer with economic and policy interpretations central to the development and management of ASR. The paper introduces a schema to identify the elements of the urban terrestrial water cycle specific to ASR, the development of a typology to characterise the aquifer potential for ASR, and identify and determine the nature of property rights for each system element according to the principles of robust separation of water rights.

After conditionality: post-accession compliance with EU law in East Central Europe

The European Union's pre-accession conditionality was very effective in prompting the alignment of the post-communist candidate countries with EU law. As the conditional membership incentive was the main factor driving alignment, the changing incentive structure after accession suggests that – ceteris paribus – post-accession compliance with EU law will deteriorate. Data on infringements of EU law allow us a first insight into whether this negative scenario has materialized. The data suggest that, far from constituting an ‘eastern problem’, virtually all of the new member states outperformed virtually all of the old members during the first four years of membership. To explain this unexpectedly good performance, further research should focus on two factors, both related to the experience of pre-accession conditionality: a greater susceptibility of the new member states to shaming and an institutional investment in legislative capacity.

THE LEGISLATIVE ROLE OF THE SECURITY COUNCIL IN ITS FIGHT AGAINST TERRORISM: LEGAL, POLITICAL AND PRACTICAL LIMITS

AbstractThis article studies the normative activity developed by the Security Council (SC) in recent years, particularly in the fight against terrorism. This legislative activity has aroused a great deal of controversy both among scholars and the States. Is the SC acting ultra vires? Has it revealed a new form of creating of international norms, which overrides definitively States' consent as the only material source of international law? This contribution tries to answer these questions by investigating the scope of the SC powers in the Charter, their historical background and the reaction of UN Member States towards its Resolutions. After this analysis, it is submitted that the SC does have a legislative capacity, but with important legal, political and practical limits.

Pockets of Expertise: Institutional Capacity in Twentieth-Century State Legislatures

We examine the development of legislative capacity in U.S. state legislatures in the twentieth century. This capacity can be derived from the legislators themselves, or from institutions and practices. We consider both sources as we provide an account of the ragged and piecemeal development of legislative capacity in the states. We argue that most state legislatures have been neither entirely professional nor amateur, but rather have existed somewhere in between, in a place where pockets of expertise fill in for professional capacity.