Legislative Intent Research Articles

МІГРАЦІЙНА ПОЛІТИКА СПОЛУЧЕНОГО КОРОЛІВСТВА ТА МІГРАЦІЯ З УКРАЇНИ (1990–2020 рр.)

The article is devoted to the formation and evolution of migration policy of British governments at the present stage. It is noted that migration processes are one of the main features of globalization. It is also claimed that the UK has always attracted migrants from different parts of the world, especially from the post-colonial countries and Eastern Europe. As a migration project, it has always been characterized by a high standard of living and a high level of wages in the European Union. However, as a member of the European Community until 2019, Britain has always differed from its European partners in its autonomy and separateness, particularly in the field of immigration policy. The author analyzes the current migration laws passed by the British governments from 1990 to 2020. The active development of migration legislation began during the premiership of the conservative John Major (1990–1997). Therefore, the Conservative government has taken steps only in the direction of quota migration flows. It was determined that the basic purpose of the migration legislation of the United Kingdom was the governments’ ability to comprehensively address the migration problem as a threat to national security. It was officially recognized during the reign of Gordon Brown (2007–2010). It has been proven that the priorities in the UK’s migration policy have been the issues of restraining and controlling the flow of immigrants, in particular their consequences for immigrants from Ukraine. Special attention is paid to the migration component of the Labor government of Tony Blair (1997–2007) and the Conservative government of Theresa May (2016–2019) as the most loyal and hostile cabinet ministers on immigration. The competition between the party principles of controlled (Labor) and rigid (Conservative) migration under their rule has led to the adoption of new laws. In essence and content, they were designed to cope with the growing migration crisis in the country. The importance of the media and information propaganda in the reflection of immigration as a trend of British domestic policy and a key cause of Brexit (2016–2019) is emphasized.

Non-Implementation Despite Legislation: Lipsky’s Theory of Street-Level Bureaucracy and Certain Procedural Criminal Provisions of the Bengal Excise Act, 1909 and the Narcotic Drugs & Psychotropic Substances Act, 1985

Public policies are reflected in the public domain more by how laws are implemented on the ground than by what their legislative content is. The departures from legislative intent are often scripted by the non-legislative actors at the cutting edge level in public organizations and people outside of the reference frame are often at their wits’ end as to why such departures take place at all. This essay takes up two Indian laws—one provincial and the other federal—and relying upon Michael Lipsky’s theory of street level bureaucracy, seeks to explore why two critical provisions thereof remained mostly unimplemented right since their legislation. Why do the street level bureaucrats mostly intend to depart from the avowed intent? Do they really stand to gain in such a scenario of non-implementation? If so, how? These questions are discussed in an expanded way in regard to the Bengal Excise Act, 1909 and the Narcotic Drugs & Psychotropic Substances Act, 1985.

Essentially Derived Varieties in View of New Breeding Technologies – Plant Breeders’ Rights at a Crossroads

Abstract Plant breeders’ rights (PBR) within the framework of the International Convention for the Protection of New Varieties of Plants (UPOV) are the sui generis intellectual property (IP) system of choice for plant varieties. It achieves a balance between the protection of new varieties and access to protected breeding material for further improvement. The extension of the protection to essentially derived varieties (EDVs) in the UPOV 1991 Convention1 was controversial from the beginning as it creates a tension with the breeders’ exemption. The 2017 UPOV Explanatory Notes on EDVs further fueled the debate as they were seen to limit the EDV extension, while some argue that the EDV scope should extend to all predominantly derived varieties merely on the basis of genetic conformity. With the rise of new breeding technologies (NBTs), legal certainty on the EDV definition is of fundamental importance to avoid a chilling effect on these promising technologies. Not only would a broad EDV definition block critical innovation and restrict the full potential of NBTs to a few multinational companies,2 it would also substantially limit the scope of protection of NBT-derived varieties, as an EDV itself is not entitled to the EDV extension: Valuable NBT-derived varieties would become easy prey for plagiarism. This article shows that the legislative intent of the EDV provision does not limit innovative breeding to conventional crossing and that there is no basis for extending EDV protection to new, innovative varieties which do not retain the essential characteristics of the initial variety (IV) even if there is a high genetic conformity. By analogy with the doctrine of equivalents under the patent system, a derived variety cannot qualify as an EDV if it (i) does not retain all the essential characteristic of the IV and (ii) is ‘non-obvious’ and causes a ‘significant technical progress of considerable economic interest’. The article finally suggests guidelines and processes to overcome the current EDV dilemma.

Contra el modelo conversacional de la interpretación jurídica

The so-called conversational model claims that legal interpretation does not significantly differ from ordinary understanding: both are inferential processes complying with a pattern that can be traced back to Paul Grice’s thesis. This essay seeks to criticize such a claim, showing that the so-called legislative intent is not able to play the role that speaker’s intention plays in ordinary understanding and the Gricean thesis.

Potential of Green Diesel To Complement the Brazilian Energy Production: A Review

The introduction of biodiesel to the energy production of Brazil occurred mainly because of a legislative incentive that delimits minimum contents of this biofuel to be added to conventional diesel...

Protecting vulnerable adults in Singapore: the creation of the Vulnerable Adults Act 2018

Purpose The purpose of this paper is to describe and analyse the development and content of the Vulnerable Adults Act 2018 (hereafter “the Act”) in Singapore. It reports the parliamentary processes and deliberations. Design/methodology/approach A synthesis of publicly available research, policy documents, parliamentary debate, media reports and commentary. Findings The paper sets the Act’s development and aims in Singapore’s social and legal contexts. It notes the interface with other legislation and the focus of the Act on community and family abuse and neglect. Research limitations/implications The paper suggests some areas for research including how the Act is used and its impact and also points to areas where the Act does not apply. Practical implications The paper outlines new professional powers and responsibilities and the role of government and community-based organisations. Originality/value This paper provides an early account of the genesis and aims of the new legislation, its powers and administration. Also, international comparisons are drawn.

Mniejszościowy etnobiznes w Rumunii. Przypadek słowiańskojęzycznej ludności w Marmaroszu

The author addresses the issue of ethno-business, which has been largely unresearched to date. In the approach proposed by the author, ethnobusiness is understood as a wide range of practices and behaviours related to the deliberate use of existing regulations going beyond the intentions of legislators that guarantee cultural and political privileges for national and ethnic minorities. Various activists and leaders gathered around ethnic organizations and co-creators of the discussed phenomenon most often pursue their private material or political interests. However, ethno-business is closely linked to the established Romanian legislation on national minorities. Thus, the author investigates the roots of this phenomenon, introducing readers to the regulations on minorities in Romania, and points to the social consequences of ethno-business. The analysis of the discussed problem is supplemented and illustrated by examples of specific behaviours observed by the author during his long-term and extensive ethnographic field research carried out on the Romanian-Ukrainian borderland between 2009 and 2010. Although this research project focused on aspects of ethnic and national identity among the Slavic-speaking community of the Maramures region, it also gave an opportunity to spot a number of behaviours that can be interpreted in the context of ethno-business. The ethnographic examples given in the article show how the policies related to the protection of national minorities in Romania can be exploited in various circumstances by different individuals who have relevant knowledge of the rights of national minorities.

PERAN PLENO KAMAR AGAMA MAHKAMAH AGUNG DALAM MENCAPAI TUJUAN PERUNDANG-UNDANGAN KELUARGA INDONESIA

The Plenary Meeting of the Supreme Court is a system established to maintain the unity of the application of the law and the consistency of the judge's decision. This system is carried out every year and starts in 2011. In the plenary meeting of the Supreme Court there is a division of rooms according to the abilities of each judge divided into five rooms. Namely the criminal chamber, civil chamber, state administration room, religious chamber, and military room. In the case of the plenary chambers of religion there are a number of things that are regulated every year and there are some rules that have been reformulated. With the existence of the plenary chamber of the Supreme Court of Religion, the rules in it partly reflect the purpose of family law legislation. But there are rules that are actually on the contrary to the goals of family law legislation. This paper aims to find out how the role of SEMA as a result of the Plenary Meeting of the Supreme Court of the Supreme Court has been in accordance with the objectives of Law No.1 of 1974 concerning marriage. This research is a library research with a juridical approach by looking at the legal rules and legal principles, and is analytic descriptive. The results obtained are the rules in the SEMA as the results of the plenary meeting of religious chambers are not all in line with the objectives of the Indonesian marriage law.
 Keywords: Supreme Court, Plenary Chamber, Purpose of Family Law.

Two steps forward, one step back: transformation of higher education policy and reforms in the Czech Republic

ABSTRACT Higher education transformation in the Czech Republic has been aimed at increasing the competitiveness of Czech higher education institutions within the European context, as well as strengthening their role as the main sources of innovation for sustainable development in its economic and social dimensions. This transformation has undergone a turbulent development in last years. The paper elucidates some recent legislative amendments and aims of the Ministry of Education’s development plans. We also clarify some research steps that have been undertaken to shed light on the next steps in the transformation. The problem with the reform process is that many systemic undertakings come under pressure from changes in policy cycles, governmental priorities, budgeting, and socio-demographic conditions.

How to define ‘article of manufacture’: a comparative study of the United States and India

While the first smartphone was developed in 1992,1 a case claiming infringement of design patents protecting certain features of a smartphone was only filed in 2011 in the United States of America ('US'). The case is Apple Inc. v Samsung Electronics Co., Ltd, wherein Apple Inc. (‘Apple’) accused Samsung Electronics Co., Ltd (‘Samsung’) of infringing its three design patents and two utility patents.2 While there was an unequivocal finding of infringement of Apple’s design patents by Samsung, the issue of damages was highly contended. In contrast, India has not witnessed any major disputes or judgments on the infringement of industrial designs. The smartphone industry is known for a wide variety of patents, such that the industry mammoths, namely Google and Apple, are acquiring smaller companies and start-ups on the basis of their intellectual property profile.3 In this article, we undertake a comparative study of the approach adopted in the US and India with respect to the extent of damages awarded for infringement of design patents and industrial designs, respectively. Furthermore, we make appropriate proposals and recommendations on undertaking an examination of the wording of the statute, legislative intent and judicial precedents in these countries.

Administration of Criminal Justice Act of Nigeria 2015

The quality of any legislation is determined chiefly by its ability to accurately communicate its intention as well as its capacity to meet the society’s expectations and needs at every point in time. Language is the tool of communication. Legislative competence requires a good mastery of the use of written language and the relevant techniques for translating legislative intent into properly structured sentences that serve the goal of the legislation. Nigeria’s Administration of Criminal Justice Act (ACJA) 2015 was long overdue and well received. It aimed at tackling the multi dimensioned problems that plagued the criminal justice system for decades. Through a desk review, this article examines certain legislative expressions in the Act. It finds that the Act is plagued by a significant measure of substantive and legislative expression gaps, which diminish its quality and negatively impact its implementation. The article proffers relevant alternative redrafts and suggestions. Its position is that if these gaps are not timely addressed, they may further affect the effective implementation of the Act. It, therefore, recommends the amendment of the Act along the line of the issues identified in the article, in addition to all other related issues in the Act.

Lord Burrows on Legislative Intention, Statutory Purpose, and the ‘Always Speaking’ Principle

Abstract In his 2017 Hamlyn Lectures, Professor (now Lord) Burrows set out his opinions about statutory interpretation. Given his recent appointment to the UK Supreme Court, these opinions now have more practical importance than those of most academic theorists. One of his main theses is that the modern approach to statutory interpretation, which focuses on text, context and purpose, should not include any reference to legislative intention. He dismisses this as ‘an unhelpful fiction or mask that should be avoided altogether’. I show that this thesis is mistaken, internally inconsistent, and might in practice undermine sound interpretation based on fundamental constitutional principles.

The institutional dynamics behind limited human health considerations in environmental assessments of coal mining projects in New South Wales, Australia

Coal extraction remains supported in many countries despite a global context challenging the industry. A large evidence base links coal with negative consequences for human health. Environmental assessments (EAs) are regulated in nearly every country to assess and set conditions for large industry projects, including coal mines, but tend to exclude health impacts. This study investigated the institutional dynamics surrounding the inclusion of health in coal mining EAs in New South Wales, Australia. Semi-structured interviews with varied stakeholders were supported by a review of legislation, relevant case law and media analysis. Using insights from theories on power and institutions the findings show how EA practice is influenced by the politicization of coal mining that excludes potentially negative narratives surrounding the known human health impacts of coal. Poor EA practice is compounded by legislative ambiguity and lack of conceptual understanding about assessing health. EA's legislative purpose of approving projects undermines confidence that a balanced assessment of impacts has been made. EA is seen as a pro-industry process that disempowers those with dissenting voices. The research explains how the institutional dynamics of a policy process like EA challenge its potential to meaningfully engage with the impact of coal mining on human health.

Discrimination and the Church of England: To What Extent does the Equality Act 2010 Adequately Protect Church of England Clergy?

Abstract The extent to which members of the clergy are considered ‘employees’ for the purposes of secular employment and equality legislation has been the subject of much discussion, but essentially remains a fact sensitive question. The Equality Act 2010 (‘the 2010 Act’) seeks to prevent discrimination on the basis of nine ‘protected characteristics’. While recognizing that the application of the 2010 Act to the variety of clergy offices is ‘not straightforward’, the Church of England (‘the Church’) has opined that an equitable approach to clergy appointments is to proceed as if they were subject to the provisions of the 2010 Act. What follows is in`tended to be a thorough review of the eligibility criteria for clergy appointment in the Church to assess their compatibility with the requirements of the 2010 Act. In addition, particular consideration will be given to Schedule 9(2) to the 2010 Act which makes specific provision relating to religious requirements concerning the protected characteristics of sex, sexual orientation, and marriage and civil partnership. In short, where the employment is for the purposes of an organized religion, such as the Church, requirements which relate to these protected characteristics will not constitute discrimination where they engage the ‘compliance or non-conflict principle’. What these principles mean and how they might operate in practice is discussed below, taking into account the likely canonical and theological justifications for discriminating against certain individuals. Whether the law strikes the right balance between, on the one hand protecting clergy and, on the other, providing the Church with the autonomy to act in accordance with its established doctrine, will be explored in the final analysis.

Section 267a and the Taxation of Hybrid Mismatches Under the Code

Hybrid mismatches are differences in tax rules between countries. It has been one of the main tools for multinationals to minimize their tax liabilities. As such, it has been a subject of concern for many legislators, international tax scholarship, and countries worldwide and evoked intriguing intellectual discussions on their legitimacy and how to address them. Indeed, this issue encompasses many complex issues, including the differences between accounting for the legal and economic situations of taxpayers, corporate and individual taxpayers, international tax and international law, distinguishing different types of income and more. These considerations are taken into account to address the conflict between the jurisdictions’ freedom to tax their subjects as they wish and their fight against base erosion and tax competition to ensure their ability to redistribute wealth in their societies. The recently enacted hybrid rules were designed to disallow deductions from payments of interest, royalties, and dividends by or from foreign related parties if such related parties are not already taxed for these payments. The legislative intent, structure of these sections, and the similarities between the first OECD’s Base Erosion and Profit Shifting show that these sections are international customary law. As such, this paper seeks to analyze and improve the current law by leaning on international tax principles and recent international tax trends, and argues that a BEAT-like minimum tax approach to these hybrid payments would apply the international tax principles substantially and coherently better as it prevents double non-taxation as well as de-minimis taxation and over taxation. In addition, this approach may reduce the complexity of the current law.

A machine-learning history of English caselaw and legal ideas prior to the Industrial Revolution II: applications

AbstractThis is the second of two papers that generate and analyze quantitative estimates of the development of English caselaw and associated legal ideas before the Industrial Revolution. In the first paper, we estimated a 100-topic structural topic model, named the topics, and showed how to interpret topic-prevalence timelines. Here, we provide examples of new insights that can be gained from these estimates. We first provide a bird's-eye view, aggregating the topics into 15 themes. Procedure is the highest-prevalence theme, but by the mid-18th century attention to procedure decreases sharply, indicating solidification of court institutions. Important ideas on real-property were substantially settled by the mid-17th century and on contracts and torts by the mid-18th century. Thus, crucial elements of caselaw developed before the Industrial Revolution. We then examine the legal ideas associated with England's financial revolution. Many new legal ideas relevant to finance were well accepted before the Glorious Revolution. Finally, we examine the sources of law used in the courts. Emphasis on precedent-based reasoning increases by 1650, but diffusion was gradual, with pertinent ideas solidifying only after 1700. Ideas on statute applicability were accepted by the mid-16th century but debates on legislative intent were still occurring in 1750.

Why Write Statutes Which Some People Cannot Read?

Bilingual statutes pose a practical and philosophical problem. Many members of the community whose actions are regulated by such statutes will be unable to read them. Why, then, write statutes in language that will be incomprehensible to many? Answering this question helps to ventilate important philosophical and practical issues about legislative drafting and to reveal the nature and purpose of legislation. In this paper, I will consider the various potential justifications for bilingual legislation, concluding that the justification offered in Canada's Official Languages Act, championed by Pierre Elliott Trudeau, is the most persuasive. First, I consider a knowing the law justification: perhaps bilingual statutes are produced to that speakers of both national languages can understand the laws to which they are subject. However, if the members of a community cannot understand a given language they will not be able to understand laws written in that language. Moreover, in systems of bilingual legislation, knowledge of both official languages might be a pre-requisite to understanding the law. Second, I consider a better law justification: perhaps the discipline of producing multiple language versions of legislation may itself be a justification for bilingual legislation – bilingual legislation might simply be better than unilingual legislation. Whether this is true, however, is difficult to measure and, in any event, if some members of the community cannot understand statutes then it is hard to say bilingual law is better law. Third, I consider whether bilingual statutes simply reflect the balance of political power in a given jurisdiction at a given time. But this justification tends to collapse into the knowing the law justification and, moreover, struggles to explain the passion with which minority groups put their claims for official language status. Lastly, I consider a dignitarian justification: perhaps producing bilingual legislation is a mark of respect for speakers of all the official languages of a jurisdiction. Canada’s Official Languages Act puts the point very neatly. According to s. 2 the purpose of the Act is to ensure respect for English and French as the official languages of Canada and equality of status and equal rights and privileges as to their use in all federal institutions... Even if individuals do not read the laws; even if bilingual laws are not better laws; even if bilingual laws cannot be understood and perforce could not be better laws; bilingual legislation can nonetheless serve an important dignitarian function by providing a potent symbol of respect for a country’s official language communities. This is the most persuasive of the justifications for bilingual legislation.

Against the conversational model of legal interpretation

The so-called conversational model claims that legal interpretation does not significantly differ from ordinary understanding: both are inferential processes complying with a pattern that can be traced back to Paul Grice’s thesis. This essay seeks to criticize such a claim, showing that the so-called legislative intent is not able to play the role that speaker’s intention plays in ordinary understanding and the Gricean thesis.

COVID-IP: staring down the Bayh-Dole Act with 2020 vision.

ABSTRACTAs the human and economic toll of the COVID-19 coronavirus steadily escalates, there is extreme uncertainty regarding the timeframe for prevention, detection, and treatment. 1 There is also concern about the eventual costs associated with approved products and the barriers to access created by the patent system. Industry, government, and academic collaborations are leading the charge in the discovery race, partnerships which have triggered calls for the activation of the federal governments so–called ``march–in rights'' established in the Bayh–Dole Act. 2 The Bayh–Dole Act dramatically altered the patent protections available to federally funded institutions and initiated a 40-year debate over appropriate incentives for innovation and the scope of the government's authority. The COVID-19 pandemic provides an opportunity to reflect on the purpose and impact of the historic legislation as well as contemplate the implications for our public health future. Patent rights for therapeutic compounds, methods of delivery, and medical diagnostics will significantly impact access to and cost of life-saving innovations. This article examines current calls for the U.S. government to utilize governmental march–in rights to quell concerns about patent monopolization and product pricing in the face of our current pandemic.

The Transparency Paradox: Why Transparency Alone will not Improve Campaign Regulations

AbstractThe role of new sources of data has become of increasing interest to those involved in political campaigning and a legislative focus of policy makers and regulators. Utilising Karl‐Heinz Nassmacher’s ‘magic quadrangle’ of ‘accounting, practicality, sanctions and transparency’ and a case study of the Political Parties, Elections and Referendums Act 2000 this article unpicks how successful the ‘guiding philosophy’ of transparency was in delivering increased citizen confidence in the democratic process. I ultimately argue that at the heart of all discussions about what regulation in this area should look like, an uncomfortable paradox has to be accepted: that transparency may well help to quell actual instances of malfeasance and the misuse of data, but may at the same time increase citizen distrust in democratic processes. Any regulation should consider the ways in which transparency might be implemented such that it better supports the stated legislative aims.