Parliamentary Rights Research Articles

A Theory of External Wars and European Parliaments

AbstractThe development of parliamentary constraints on the executive was critical in Western European political history. Previous scholarship identifies external wars as a key factor, but with varying effects. Sometimes, willing monarchs granted parliamentary rights in return for revenues to fight wars. Yet at other times, war threats empowered rulers over other elites or caused states to fragment. We analyze a formal model to understand how external wars can either stimulate or undermine prospects for a contractual relationship between a ruler and elite actors. We recover the standard intuition that war threats make the ruler more willing to grant parliamentary rights in return for revenue. Our key insight is that war threats also affect the bargaining position of elites. A previously unrecognized tension yields our new findings: stronger outsider threats increase pressure either on elites to fund the ruler or on the ruler to accept constraints—but not both simultaneously. Elites with immobile wealth depend on the ruler for security. War threats undercut their credibility to refuse funding for an unconstrained ruler. By contrast, war threats make elites with mobile wealth and a viable exit option unwilling to fund a hopeless war effort. Only under circumscribed conditions do war threats align three conditions needed for parliament to arise in equilibrium: ruler willingness, elite credibility, and elite willingness. We apply our theory to posit strategic foundations for waves and reversals of historical European parliaments.

Enacting Safety and Omitting Gender: Australian Human Rights Scrutiny Processes Concerning Alcohol and Other Drug Laws

Global momentum for drug law reform is building. But how might such reform be achieved? Many argue that human rights offer a possible normative framework for guiding such reform. There has been very little research on whether human rights processes can actually achieve such aims, however. This paper responds to this knowledge gap. It explores how one human rights mechanism—the “parliamentary rights scrutiny process”—deals with alcohol and other drugs. We consider how four Australian parliaments scrutinized proposed new laws that would deal with alcohol and other drugs for their human rights “compatibility.” We find that laws that would limit the rights of people who use alcohol and other drugs were routinely seen as justifiable on the basis that alcohol and other drugs were inherently “unsafe.” Crucially, safety was conceptualized in a gender-neutral way, without regard to the potential role of gender, including specific masculinities, in the production of phenomena such as family violence and sexual violence and other public safety problems. Instead, such problems were regularly constituted as consequences, simply, of alcohol or other drug consumption. In making this argument, we build on the pioneering work of David Moore and colleagues (e.g., 2020). Their work asks important questions about how the causes of violence are constituted across different settings, including research and policy. Drawing on ideas from scholars such as Carol Bacchi and John Law, they identify “gendering practices” and “collateral realities” in research and policy on violence, in which the role of men and masculinities are routinely obscured, displaced or rendered invisible. We find similar problems underway within human rights law. In highlighting these gendering practices and collateral realities, we aim to draw attention to the limitations of some human rights processes and the need for more work in this area.

Restriction of the Rights of Russian Senators as a Political Responsibility

This article explores the features of the implementation of individual parliamentary rights by members of the Federation Council, the upper house of the Russian legislative assembly. The relevance of the study is since in recent years there has been a transformation in informal practices of political influence on parliamentarians. In this sense, the object of the study was the analysis of individual legal norms, the regulations of the Federation Council and the practice of holding parliamentary hearings. The authors focused on the negative consequences expressing the responsibility of senators, considering the ambiguous statutory regulation of such measures in modern Russian politics. During the development of the scope of activities carried out by the upper house of the Federal Assembly, the reasons by which its members could lose their powers were significantly expanded. By way of conclusion, it was noted that, despite the rarity of the application of such sanctions, the authors recorded a systematization of forms and measures of responsibility used for political purposes. Such tendencies create artificial barriers to the implementation of certain senatorial powers and acquire a political character.

Fragen über Fragen – zum Rechtsrahmen der Interpellation und der exekutiven Antwortpflicht

The legal framework of the parliamentary right of interpellation and the executive’s obligation to respond to these questions has traditionally been a field of contention between the government and the opposition . The Federal Constitutional Court has recently issued several decisions that have again concretized and expanded this framework . The number of parliamentary questions, which has been high for decades, has once more reached a new dimension in the current Bundestag’s legislative period and has led to demands for a legal limitation . Its feasibility is constitutionally controversial . The right to information under press law competes with the parliamentary right to ask questions and the executive’s obligation to respond . There is no legal claim of the questioner to be the first to use the answer in the media . However, it is good practice within a parliamentary system for the government not to thwart this practice .

Parliamentary Rights Scrutiny and Counter-Terrorism Lawmaking in Australia

This paper evaluates the impact of pre and post-enactment scrutiny of Australia’s counter-terrorism laws enacted from 2001 until 2018. Parliamentary scrutiny of rights-engaging laws is particularly critical in the Australian content, as Australia relies on a parliamentary model of rights protection at the federal level. The evaluation framework employed in this Paper considers a range of evidence to provide a holistic account of the impact of legislative scrutiny on the content, development and implementation of Australia’s counter-terrorism laws. This includes consideration of the legislative impact of scrutiny on the content of the law, the role scrutiny plays in the public and parliamentary debate on the law, as well as the hidden impact scrutiny, may be having on policy development and legislative drafting. The results are surprising. This study finds that parliamentary rights scrutiny, particularly by parliamentary committees, has had a rights-enhancing (although rarely rights-remedying) impact on the counter-terrorism laws. Further, this research finds that the hidden or behind-the-scenes impact of parliamentary scrutiny provides a particularly fertile ground for improving the rights-protecting capacity of the Australian legislative scrutiny system. These findings and the evaluation framework employed in this Paper have application and benefits for other jurisdictions seeking to understand and improve the quality of their legislative scrutiny regimes.

A constitutional evaluation of Article 92-6 ‘Disgraceful Conduct Crime’ of the Military criminal law

의회는 국민대표기관으로서 입법기관이며 국정통제기관이다. 현대국가의 의회는 권력분립원칙에 따라 일반적으로 행정부 통제를 위해 조사적 권한을 가지고 있다. 의회의 국정조사권은 의회의 헌법상 제 권한의 실효적 행사를 보장해주는 유효한 수단 중의 하나이다. 우리나라 국정조사의 대상기관은 사안에 의해 국회 본회의에서 승인한 계획서에 기재된 기관에 한정된다는 점이 한계로 지적된다. 그러나 현대 의회 기능의 회복과 강한 의회의 재생을 추구하는 측면에서 국정조사권은 국정 전반에 대한 통제수단으로서 기대되는 바가 크다. 최근 우리나라는 사법 농단 의혹을 규명하기 위해 노력하고 있다. 사법부에 대한 의회의 국정조사는 전례가 없었던바, 이는 사법부 독립을 존중하기 위한 것이었다고 평가할 수 있다. 그러나 국정조사 통해 실체적 진실을 발견할 수 있다면 오히려 사법부 독립의 강화하는 계기가 될 수 있다. 현대의 정당 국가적인 경향 하에서 국정조사권은 정당 간의 첨예한 이해관계 충돌과 제반 여건의 미비로 실질적 효력을 발휘하지 못하고 있다. 이에 대한 개선 방향으로 본 논문은 국회 내부의 전문성 강화, 국정조사계획서 승인 요건 완화, 상임위원회 중심의 국정조사 실시, 증인 채택 절차 개선 및 증인의 인권 보호 등을 제시하였다.As a national representative body, parliament is a legislative body and a state control agency. Parliaments of modern nations generally have investigative powers for administrative control in accordance with the principle of separation of powers. The parliamentary rights to investigate the state is one of the effective means of ensuring the effective exercise of parliamentary constitutional authority. It is pointed out that the subject institution of the investigation by the national assembly is limited to the institutions approved by the plenary session on a case by case basis. However, to recover the modern parliamentary function and regenerate strong parliaments, the power to investigate the state affairs of the parliament is highly expected as a means to control over the whole country. Recently, as efforts to identify the allegations charged on judiciary continue, there is no precedent of exerting the investigatory power of parliament to the judiciary, which can be evaluated as respecting the independence of the judiciary. However, if we can find the substantive truth through the investigation, it can be an opportunity to strengthen the independence of the judiciary. Under the trend of severe conflicts between the parties, the rights to investigate the state administration has not been practically effective. In this regard this paper suggests improvement measures as follows: the improvement of internal expertise within the National Assembly, the relaxation of the approval requirement of the investigation plan, the implementation of the investigation led by standing committees, the improvement of witness selection procedure and the protection of the human rights of witnesses.

Influence beyond formal powers: The parliamentarisation of European Union security policy

The European Union’s foreign and security policy is commonly described as an intergovernmental affair. Despite limited formal powers, several studies suggest that the European Parliament has increased its influence on the Union’s foreign and security policy. This article argues that, to gauge the significance of parliamentary participation, it is necessary to look beyond the notion of formal parliamentary rights and to take into account informal influence. The analysis shows how informal avenues of influence are crucial at certain stages of the decision-making process, and points to factors that constrain and enable parliamentary impact. Furthermore, it emphasises the important role that parliaments play in scrutinising security policy, which is a crucial component of democratic governance. In this particular field where there is little legislation, the establishment of solid procedures and practices for oversight and control can also be a significant indicator of parliamentary influence.

On the Margins of Consolidation: The Constitutional Court of Serbia

This article argues that the Constitutional Court of Serbia has only marginal role in political and legal life of the Serbian society and, consequently, very modest impact on the process of democratic transition and consolidation. This conclusion is drawn on the basis of the analysis of the Court’s institutional design, substantive constitutional framework and selected cases that involved thorny constitutional and political issues, as well as issues of the country’s compliance with European standards of parliamentary democracy and human rights protection. The article demonstrates how the Court’s deference to the political majority in power and, in particular, the delaying and avoiding strategies it employs, make it irrelevant in the process of democratic consolidation. Yet, the Court plays a more relevant role in the field of the protection of human rights (constitutional complaints competence). However, these are cases which usually do not involve major political interests, so the Court can rule without constraints, relying on the jurisprudence of the European Court of Human Rights, although not always consistently and aptly. Finally, the article demonstrates that the Court’s legitimacy is weak. In respect to the input legitimacy this is due to the non-transparent process of selection of justices and disregard for the selection criteria. Perceptions of the Court by the general and expert public also reveal that it lacks both sociological and normative legitimacy. Moreover, the output legitimacy is poor, since the effect of the Court’s decisions in the articulation of the dominant political values in Serbian society is close to insignificant.

The debate on the principle of legitimacy of power in France and Italy between 1815 and 1821

ABSTRACTAfter the revolutionary storm, which had exported Jacobin democracy on the tips of its bayonets and after the epic deeds of the Napoleonic era, which, in the midst of remarkable contradictions, had asserted a number of principles and values of the French Revolution, the moderate or conservative liberal thinkers who wished for the introduction of a representative government and of personal freedom in France and in Italy were faced with the return of the old regime and with attempts of the Restoration to eradicate the reforms of the previous period. The only way these thinkers could save or restore parliamentary institutions and civil rights was to link their efforts to the destinies of the ruling dynasties. In both countries, this move was fiercely opposed, especially by reactionary writers. Hence, this essay will deal with the structure and contours of a debate which set two alignments in opposition, from the time of the Congress of Vienna to the Revolutions of 1820-21 and hinged on the principle of monarchic legitimacy and on the foundations of political authority which, for the first time, were being openly questioned in the midst of the American and the French revolutions.

German Constitutional Law Cases 2012–2015

This contribution presents case law from the German Federal Constitutional Court (FCC – BVerfG) in the period of 2012–2015 which has been selected for its importance for an international audience. It covers the referral of the case on the Decision of the Governing Council of the European Central Bank of 6 September 2012 on Technical Features of Outright Monetary Transactions (section 1), as well as decisions on the wearing of a Muslim head scarf by female teachers (section 2) and on parliamentary rights of the Federal Parliament (Bundestag) regarding the deployment of the German armed forces abroad (section 3).

Patriotism and neutrality. The Spanish Parliament and the Great War, 1914–18

SUMMARYDespite the pressure exerted by rival protagonists, the Spanish government chose not to be involved in the Great War. This decision converted Spain into a neutral state, formally outside of the conflict yet deeply involved in several ways. Espionage and smuggling conducted by the belligerents in Spanish territory called the sovereignty of the state into question. In an effort to reduce these violations, the Spanish government adopted measures limiting freedom and parliamentary powers that were constitutionally guaranteed. As a result of the research carried out in the historical archives of the Cortes of Madrid, this article will examine the parliamentary response to executive infringements on individual liberty and parliamentary rights, focusing on two main aspects. First, the manner in which the Spanish deputies attempted to preserve the authority and institutional primacy of the Parliament against executive power during the war will be examined. Second, special attention will be paid to the debates on legislation introducing ‘extraordinary powers’ of public authority in 1918. The results of this analysis allow for a further and more in-depth exploration of the conventional depiction of the Spanish Parliament as passive and irrelevant at the end of the Restoration era (1875–1923).

The Human Rights Act: Ambiguity about Parliamentary Sovereignty

The Human Rights Act: Ambiguity about Parliamentary Sovereignty

A catalyst for secession? European divisions on the parliamentary right of the Labour party 1962-72 and the schism of British social democracy

This article addresses the nature, intensity and impact of debates and divisions over British membership of the European Community on Labour party and social democratic politics, and their significance for understanding both the fragmentation of Labour's traditional ‘dominant coalition’ and the later social democratic split from the party and schism of British social democracy. The article suggests that arguments and tensions in the debate over Europe cut across traditional party political lines. Contrary to conventional accounts of the gradual demise of Labour's centre-right coalition and the formation of the Social Democratic party in 1981, which emphasize the importance of arguments over more immediate intra-party constitutional factors in the new party's evolution, dimensions of internal conflict rendered by Labour's European discourse had already raised awareness of the potential need for the creation of an alternative vehicle of social democracy.

The Participation of the German Länder in Formulating German EU-policy

On the 30 June 2009 the German Federal Constitutional Court (Bundesverfassungsgericht, FCC) has passed its long-awaited decision on the compatibility of the Act approving the Treaty of Lisbon and the accompanying legislation with the Basic law (Grundgesetz). The FCC's decision according to which the ratification law is compatible with the Basic law was greeted with relief by many German and European policy makers. It has removed another obstacle for the adoption of the Treaty of Lisbon in the European Union (EU), which still has to be ratified by Ireland, Poland and the Czech Republic, though. But also Germany's ratification still depends on the amendment of the accompanying “Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters” (“Extending Act”) which the FCC has declared incompatible with the Basic law insofar as the legislature, Bundestag and Bundesrat, have not been accorded sufficient rights of participation in European law-making and treaty amendment procedures. The FCC has therefore ruled that the Federal Republic of Germany's instrument of ratification of the Treaty of Lisbon may not be deposited as long as the constitutionally required legal elaboration of the parliamentary rights of participation has not entered into force. This puts pressure on German law-makers to amend the accompanying “Extending Act” possibly before the referendum in Ireland and before German elections in autumn 2009.

THE LANGUAGE AND SYMBOLISM OF CONQUEST IN IRELAND,c. 1790–1850

ABSTRACTThe question of whether Ireland had been conquered by England has received some attention from historians of eighteenth-century Ireland, mainly because it preoccupied William Molyneux, author of the influentialThe Case of Ireland . . . Stated(1698). Molyneux defended Irish parliamentary rights by denying the reality of a medieval conquest of Ireland by English monarchs, but he did allow for what could be called ‘aristocratic conquest’. The seventeenth century, too, had left a legacy of conquest, and this paper examines evidence of consciousness among Irish Protestants of descent from ancestral conquerors. It considers how and why this consciousness took a more pronounced sectarian turn during the 1790s. Williamite anniversaries, increasingly associated with the Orange Order, became identified in the Catholic mind as symbolic reminders of conquest. Thanks to the protracted struggle for ‘Catholic emancipation’, this issue continued to feature in political debate about Ireland well into the nineteenth century, while the passing of the Act of Union (1800) revitalised the older debate about whether England could be said to have conquered Ireland. Liberal Protestants and Catholics contended that England had invariably intervened to prevent any possibility of reconciliation between conquerors and conquered. Thus the language of conquest remained highly adaptable.

Factionalism on the Parliamentary Right of the British Labour Party in the 1970s: a Reassessment

This article offers a reassessment of the type, character and implications of factional organisation and activity on the parliamentary right of the British Labour party in the 1970s. Parliamentary Labour right factionalism has received relatively less attention than that of the Labour left and, contrary to conventional accounts of largely limited and loyalist factional activity, the article argues that it was more frequent and adopted a more ‘oppositional’ and divisive form in the 1970s than previously, with significant consequences for the balance of power in the Labour party. The article suggests that a detailed study of parliamentary Labour right factionalism in the 1970s reveals the inherent complexity and gradual ideological, political and organisational fragmentation of the parliamentary Labour right at a crucial juncture of both Labour party and British politics, which has been an underdeveloped factor in explanations of the party's subsequent shift leftward and in the emergence of the SDP in 1981.

Conditions for EU constitutionalization: a qualitative comparative analysis

ABSTRACT This article probes the conditions conducive to the constitutionalization of the European Union: under what conditions have the powers of the European Parliament been extended and the institutionalization of human rights progressed? Based on the assumption that the constitutionalization of the EU is best understood as the outcome of strategic action in a community environment, we argue that progress in constitutionalization depends on the salience of the EU's democracy deficit, the coherence of demands for constitutionalization with extant EU or external norms, and the publicity of negotiations and deliberations. We test this constitutionalization hypothesis in a qualitative comparative analysis offering a systematic diachronic and synchronic comparison of sixty-six constitutional decisions between 1951 and 2004 across different areas of parliamentary competence and human rights issues. The findings corroborate the constitutionalization hypothesis and suggest that salience and, more recently, coherence are the most relevant conditions of EU constitutionalization.

The Europeanisation of the German Bundestag: Institutional change and informal adaptation

At first glance, the Europeanisation of the German Bundestag seems quite straightforward: in reaction to the process of European integration the Bundestag acquired a set of comparatively strong participation and scrutiny rights in EU politics. It therefore seems rather astonishing that German members of parliament make only very little use of these rights. Different explanations have been put forward in the literature, such as the complicated decision-making system of the EU and the government's gate-keeper position within it, institutional flaws of the German scrutiny system as well as the overall consensus on European integration and the low electoral salience of EU issues. The paper contributes to this discussion in two respects: On the one hand, it offers an additional explanation for the infrequent use of formal instruments. The main argument is that the formal instruments of scrutiny in EU affairs are incompatible with both the overall logic of a parliamentary system as well as the challenges of policy-making in the EU multilevel system. On the other hand, the paper argues that the exclusive focus on the use of formal parliamentary scrutiny rights leads us to overlook more informal means of parliamentary influence and therefore to underestimate the involvement of German parliamentarians in EU affairs. Thus, in order to fully assess processes of parliamentary Europeanisation, we need to take forms of informal or strategic Europeanisation into account.

Parliamentary Bills of Rights: An Alternative Model?

This paper examines the emergence of a new model for protecting rights (referred to as the ‘parliamentary rights’ model) in Canada, New Zealand, the United Kingdom, and the Australian Capital Territory. This parliamentary model is distinguished from the more traditional, judicial-centric, approach to rights protection in at least two ways. The first is that this parliamentary rights model incorporates the notion of legitimate political dissent from judicial interpretations of rights. The second way it challenges the court-centred model is by incorporating the systematic evaluation of proposed legislation from a rights perspective. Both of these features allow for the possibility of a broader range of perspectives on the appropriate interpretation of rights or the resolution of disagreements involving claims of rights than those arising from more judicial-centric bills of rights. The paper assesses whether this alternative approach to rights protection satisfies those sceptics who doubt the virtue or prudence of conceiving of political disputes as legal rights claims for which the judiciary has the dominant role in their interpretation and resolution.

Incorporating Policymaker Costs and Political Competition into Rent-Seeking Games

1. IntroductionRent seeking in politics involves agents who lobby policymakers for potential benefits. In a seminal contribution, Tullock (1980) modeled rent seeking as a lottery game. A major weakness of Tullock's game was that it lacked verisimilitude to actual rent seeking because it omitted politics. The absence of politics meant that the game essentially assumed that there are no costs to the policymakers of supplying rents. But as Tollison (1997) and others have pointed out, these costs are not zero, and the politics surrounding the policy decision influence the pattern of lobbying and the rent-seeking outcome. In this paper we address two aspects of those politics: the costs to policymakers of supplying rents and the variable intensity of political competition among a given number of rent seekers. Including these aspects increases the similarity of the game to actual rent-seeking situations and makes clearer the incentives to rent seekers.Costs to supplying rents arise due to various constraints. Legislators must build coalitions, acquire parliamentary rights, maintain a positive image, and service constituent interests. Policymakers in agencies must follow procedural rules, submit to congressional oversight and budgeting, pass OMB reviews, and so forth. Lower policymaker costs should increase the effectiveness of lobbying, and this should attract greater lobbying efforts among rent seekers.1 Increasing policymaker costs makes lobbying less effective. Indeed, because of these costs policymakers often turn away lobbies empty-handed. In short, policymakers have constraints that affect the policies they design, and this affects lobbying expenditures (Dougan and Snyder 1993). This paper introduces policymaker costs in monetary units, such that they are comparable to the value of the rent and rent-seeking expenditures.Political competition among rent seekers also influences the rent-seeking outcome. Competition traditionally has been modeled by varying the number of rent-seeking agents (actual or potential) or their relative lobbying expenditures (e.g., Posner 1975; Rogerson 1982; Sun and Ng 1999). Competition can vary, however, even among a given number of rent seekers and for a given profile of expenditures. For example, two agents may lobby a policymaker for the same unique and exclusive political good. Then one agent directly opposes the other and only one agent can win the good. Alternatively, the same two agents may lobby a policymaker for two separate political goods. In that case, the agents oppose each other only indirectly. This situation is frequent in politics as rent-seeking agents compete for space on the political agenda, for policymakers' time, and for portions of a particular government budget. In this situation, success by one agent does not necessarily result in failure by the other, but it does lower the probability that the other agent will succeed. Competition is more intense in the first example, even though the examples involve the same number of firms. Industrial organization economists have shown that a single parameter can determine incumbent firms' competition in price and quantity regardless of the number of firms present.2 This paper introduces rent-seeking competition analogously, allowing a parameter to alter the competitiveness of the rent-seeking game among a fixed number of firms.We incorporate monetized policymaker costs and the political competition parameter into the success probabilities of the standard rent-seeking game. The resulting model is a game in which the agents' simultaneous maximization of expected net returns (or profits) determines a Nash equilibrium in their expenditures. Incorporating politics into the standard game makes the game more accurate because equilibrium and comparative statics depend in part on the politics of the rent-seeking contest. More specifically, increasing political competition decreases rent-seeking expenditures unless the value of the rent is sufficiently large relative to policymaker costs; and dissipation rates are lower than in previous research because of policymaker costs. …