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The challenge that delegated legislation poses to parliamentary sovereignty and associated supremacy in the UK is purportedly addressed through what we term the 'constitutional bargain of delegated law-making'. This has three elements: the proper limitation of delegation by Parliament through well-designed parent legislation; the exercise of self-restraint by the Executive in the use of delegated authority; and the enablement of meaningful scrutiny by Parliament. As a paradigm situation in which delegated law-making might be said to be necessary, the first year of the Covid-19 pandemic is an apposite context in which to assess the robustness of that bargain. Our analysis uses a sample of Westminster-generated pandemic-related secondary instruments as a peephole into the broader dynamics of this constitutional bargain and further reveals its significant frailties; frailties that are exposed, but not created, by the pandemic. [ABSTRACT FROM AUTHOR]

Recent years have seen an increase in the use of delegated legislation to implement major policy decisions in the UK. This has exacerbated the longstanding criticism that Westminster lacks sufficiently robust procedures for parliamentary scrutiny of delegated legislation. However, the UK is not the only country to use delegated legislation, or to face the challenge of ensuring it receives adequate parliamentary scrutiny. This article therefore places the UK system in wider context by comparing it to six other national parliaments. We highlight one comparative strength of the UK system, two weaknesses it shares with the other six cases, and one way in which the UK might learn lessons from elsewhere. Overall, our evidence suggests that no one country offers a clear template for more rigorous parliamentary scrutiny of delegated legislation. Successful reform of the UK's system is likely to require creative procedural innovation. [ABSTRACT FROM AUTHOR]

The usage of delegated legislation as a means of governance deserves significant attention, in view of the enormous impact that it is capable of having on the lives of citizens. While reforms to the process of parliamentary scrutiny are an important means of minimising the inappropriate usage of delegated legislation, this paper explores the possibility of drawing more fruitfully upon judicial review as an additional control mechanism. It undertakes a theoretical analysis of what makes delegated legislation distinct from primary legislation and other types of executive action for the purposes of judicial review, with a view towards identifying the proper normative orientation of judicial review of delegated legislation – upholding the moral requirements of delegation relationships and safeguarding democratic accountability and the rule of law. It then argues that existing grounds of review applied towards delegated legislation go some way towards but are inadequately directed at this normative orientation. Drawing inspiration from Irish and US jurisprudence, the paper critically evaluates several possible means of filling this doctrinal space, and concludes that the non-delegation doctrine and a rule of law-based ground of judicial review directed at exercises of delegated law-making power can supplement the law of judicial review of delegated legislation. [ABSTRACT FROM AUTHOR]

Australia’s combustible cladding crisis is estimated to cost approximately $6 billion to remediate. No study has been published which determined the causative factors for the magnitude of this issue. Investigators for the Federal Building Ministers’ Forum stated that building practitioners misinterpreted or ignored the requirements of the National Construction Code. However, research by the authors showed that the cause of Australia’s combustible cladding crisis are likely deficiencies in the National Construction Code itself. A comparative analysis of historic National Construction Code requirements and recent National Construction Code changes in response to cladding fires showed that the factors which contributed to Australia’s combustible cladding crisis were present for nearly 20 years. Findings also showed that some of the newly introduced measures incorporated in the National Construction Code to address the combustible cladding crisis do not fully address combustible cladding risks and fail to completely address the historical deficiencies.

The article in the magazine "Environmental Legal News" presents the ruling of the Supreme Court on October 2, 2024, in which it rules on an administrative litigation related to hydrological plans in the Guadalquivir demarcation. The appeal focuses on the transfer from the El Portillo dam to the municipality of Baza and the overexploitation of the aquifers in the Sierra de Baza. The Court concludes that the works are in accordance with the legal system and dismisses the appeal filed. [Extracted from the article]

The COVID-19 pandemic is testing parliamentary systems of governance across the world, especially in relation to oversight of executive actions. Observers in multiple jurisdictions have already noted the proliferation of delegated legislation during the pandemic and the shortcomings in legislative oversight of the same. To date, however, no close analysis has been conducted of the way in which legislative oversight mechanisms have broken down during the pandemic. This paper provides such an analysis, using examples from Westminster systems adopting the 'legislative model' of providing extraordinary powers. Looking at individual examples from Australia, New Zealand and the United Kingdom, the analysis seeks to identify and explain the failures, and relative successes, in different mechanisms for parliamentary oversight, including parliamentary scrutiny committees (pre-existing and ad-hoc), disallowance, and sunset clauses. Although primarily descriptive, the comparative approach analysis permits preliminary conclusions to be drawn as to the way each jurisdiction may improve its methods of parliamentary oversight of delegated legislation. These comparative lessons will be of use both during and beyond the pandemic. [ABSTRACT FROM AUTHOR]

Delegated legislation involves Parliament lending its legislative powers to the executive branch of government, such as to the cabinet or an individual minister. As the ultimate source of legislative power, Parliament has a special responsibility to keep an eye on executive lawmaking. The Australian federal scrutiny committee – formerly called the Senate Standing Committee on Regulations and Ordinances, and now rebadged as the Senate Standing Committee for the Scrutiny of Delegated Legislation – recently carried out an inquiry to consider how it could improve its scrutiny process. In 2019 it published a unanimous report that was endorsed by the Australian Senate in November when it amended its Standing Orders in line with the committee’s proposed changes. This article provides an overview of the Australian scrutiny committee and its inquiry. It then considers the committee’s report and recommendations, which present an opportunity to consider changes to the parliamentary scrutiny of delegated legislation in other jurisdictions such as Canada. [ABSTRACT FROM AUTHOR]

The article deals with the South Tyrolean Option of 1939 and the motives of the German-speaking population in the decision "to leave or to stay". It discusses the instrumentalization and different uses of the term. The article also provides an overview of the historical events from 1918 to 1938, the division of Tyrol and the annexation of South Tyrol by Italy. Under the fascist regime, the South Tyroleans were confronted with repression. The Italianization of South Tyrol took place in two phases: first, the political and cultural assimilation through decrees and laws, followed by the majorization, the expansion of industry, and the state-sponsored immigration of Italians. The Option of 1939 allowed the South Tyroleans to choose between German and Italian citizenship and led to their resettlement in the German Reich. [Extracted from the article]

Lawmakers and scholars concerned with content moderation regulation typically appeal to "analogies" to justify or undermine different forms of regulation. The logic goes: law should afford individuals due process rights against speech platforms because speech platforms are "like" speech governors as a matter of objective reality. Other common analogies include common carriers, publishers, distributors, shopping malls, and bookstores. Commentators attempt to invoke social roles to understand what the content moderation relationship is, what behaviors are "right" and "wrong" within it, and how law should police behavioral deviations. But they do so without relying on foundational sociology theory that explains what social roles are, what they do, and how they come to be. Without this theoretical foundation, the discourse incompletely portrays the project of content moderation regulation. Content moderation regulations do not simply "take" speech platforms' role as it currently exists----they will also "make" speech platforms' role by expressing that speech platforms should be speech governors, common carriers, publishers, or something else, based on how lawmakers choose to regulate. This Article is the first to introduce role theory into the content moderation discourse. Content moderation regulations are poised to define the basic contours of what it means to be a "speech platform" because the role remains unsettled. Earlier, the Communications Decency Act failed to articulate coherent roles within the content moderation relationship. But current content moderation regulatory reforms--including the PACT Act in Congress as well as state platform-common carriage laws and their judicial review--have a renewed opportunity to script social roles for speech platforms and individuals. Foregrounding these reforms' role scripts directs attention to urgent questions about whether they are likely to produce a desirable content moderation relationship and an online speech ecosystem that meets the public's needs. [ABSTRACT FROM AUTHOR]

Despite empirical evidence documenting its harms and substantial legislative efforts to ban its practice, conversion therapy remains a tragically prevalent practice in the United States. Recently, a circuit split between the Ninth and Eleventh Circuits has developed, raising questions about the future of conversion therapy regulation. This Note takes a retrospective look at the last ten years of conversion therapy bans and related legal challenges, questions the effectiveness of enacted bans, and explores routes for more effective regulation. This Note ultimately argues that conversion therapy bans must shift their focus to the regulation of unlicensed practitioners in order to better protect minors from the empirically demonstrated harms of conversion therapy. [ABSTRACT FROM AUTHOR]

All armed groups have internal regulations, and these regulations frequently involve the governance of affect, intimacy, and reproduction. Drawing upon [End Page 411] my ethnographic research with female former combatants from Fuerzas Armadas Revolucionarias de Colombia (FARC), I explore the gendered aspects of these governance regimes. How was intimacy dictated and policed by commanders and peers? What are the tropes regarding women and violence, and how are these frequently eroticized? What forms of reproductive governance were exercised within the ranks? For women who chose to leave the FARC, either informally or via official Demobilization, Disarmament, and Reintegration programs, to what extent does reintegration involve the redomestication of "transgressive" women? [ABSTRACT FROM AUTHOR]

Introduction to The Problem: Delegated legislation in Indonesia is a new type of legislation that should be interpreted and ruled carefully. However, nowadays, the Indonesian legal system has no fixed term for delegated legislation and no hierarchy on it. Furthermore, as many as 57.677 regulations at the level of Ministries, Agencies and State Institutions have the potential to overlap regulations and become subject to judicial review in the Supreme Court Purpose/Objective Study: This article aims to analyze the best term and hierarchy of delegated legislation in the legal system in Indonesia. Design/Methodology/Approach: This legal research conducted normative studies, by examining previous studies on delegated legislation and Electronic and Information Transaction (EIT) law to imagine the delegated legislation type and hierarchy. The data was analyzed by a prescriptive method to give a new idea regarding delegated legislation in Indonesia's legal system. Findings: This paper finds no fixed term for delegated legislation in the Indonesian legal system. There is a loophole in the Indonesian legal system related to delegated legislation. However, some scholars argue that delegated legislation in Indonesia can be found in Government Regulation, Presidential Regulation, Local Regulation and beleidsregel in Article 8 Paragraph (1) Law Number 12 of 2011 concerning Establishing Statutory Regulation and its amendment. As a suggestion, the amendment of the Law on Establishing Statutory Regulation is a must in carrying delegated legislation definition, purpose and hierarchy. [ABSTRACT FROM AUTHOR]

This article examines the judicial review of delegated legislation after the Supreme Court of Canada’s 2019 landmark administrative law decision Canada (Minister of Citizenship and Immigration) v Vavilov. Using environmental regulations as an example, the article focuses on Cabinet-enacted regulations—a delegated instrument that has traditionally demanded significant judicial deference on review—and considers the recent trend of appellate courts to follow Vavilov’s presumption of reasonableness when determining the standard of review. Delegated legislation is an important, but not often discussed, tool for Canadian legislatures to implement and create laws via the executive branch of government. However, because of Canada’s flexible relationship between the legislature and the executive, this important lawmaking tool may sometimes become a backdoor method for governments to create laws that would not be politically desirable for the legislature to pass directly, where they would be open to criticism, debate, and vote. While critics might view judicial interference with the legislature and executive’s delegation relationship as inappropriate, I argue that a more searching judicial review of regulations under Vavilov strengthens the separation of powers and upholds the rule of law. Although courts will not question the policy wisdom of delegates, Vavilov’s reformulated reasonableness constraints may require the executive to more thoroughly justify their delegated lawmaking through the regulatory record. Under this approach, the legislative branch still maintains sovereignty. Subject to the visibility of primary lawmaking, legislatures may ultimately restrict judicial review to the extent constitutional via legislated standards of review. [ABSTRACT FROM AUTHOR]

Australia's combustible cladding crisis is estimated to cost approximately $6 billion to remediate. No study has been published which determined the causative factors for the magnitude of this issue. Investigators for the Federal Building Ministers' Forum stated that building practitioners misinterpreted or ignored the requirements of the National Construction Code. However, research by the authors showed that the cause of Australia's combustible cladding crisis are likely deficiencies in the National Construction Code itself. A comparative analysis of historic National Construction Code requirements and recent National Construction Code changes in response to cladding fires showed that the factors which contributed to Australia's combustible cladding crisis were present for nearly 20 years. Findings also showed that some of the newly introduced measures incorporated in the National Construction Code to address the combustible cladding crisis do not fully address combustible cladding risks and fail to completely address the historical deficiencies. [ABSTRACT FROM AUTHOR]

Substantial numbers of criminal offences are created in the UK in delegated legislation, often carrying heavy maximum penalties. The majority are created in statutory instruments passed under the negative resolution procedure, which offers very limited opportunity for scrutiny and does not involve a parliamentary vote. This phenomenon has slipped under the radar of orthodox criminal law scholarship, where debate has focused primarily on the criteria that should be used to determine the content of the criminal law and on the principles to which such offences should conform, rather than on the process of creating criminal offences. Creating offences in delegated legislation raises questions of democratic legitimacy and has resulted in criminal offences being created which do not conform to basic principles of fair notice and proportionality of penalty. To address this, we propose that parliamentary approval should be required for all serious offences. It would be impractical to do this for all criminal offences, and direct participation in the legislative process via consultation can act as an alternative (or additional) legitimating principle. This does, however, require that the consultation process complies with certain basic minimum requirements, and we explain how these requirements might appropriately be framed. [ABSTRACT FROM AUTHOR]

The article focuses on recent Commission Implementing Regulations concerning the registration and amendment of protected designations of origin and geographical indications. Topics include the registration of various food products, updates on feed additive authorizations, and amendments related to food safety and import regulations.

Originalist proponents of a tougher nondelegation doctrine confront the many broad delegations that Congress enacted in the 1790s by claiming that each fell into some exceptional category to which the original nondelegation doctrine was inapplicable or weakly applicable, one being foreign affairs. There is lively debate on whether the founding generation actually recognized an exception to nondelegation principles for foreign affairs. This Article, commissioned for a symposium on “The Statutory Foreign Affairs Presidency,” intervenes in the debate by examining the Embargo Authorization Act of 1794, which empowered the President to lay an embargo on all ships in U.S. ports (and/or other classes of ships) if “the public safety shall so require,” for the upcoming five-month congressional recess. This was a delegation of remarkable power over the U.S. economy, which at the time depended heavily on maritime transport. An examination of the Act undermines the idea that there existed a foreign-affairs exception to cover it. Originalist proponents of a tougher nondelegation doctrine claim the doctrine was meant to protect private individual rights of liberty and property, yet Americans in the late 1700s lived in an economy that was more dependent on foreign commerce than it has ever been since, in which a five-month international embargo could be disastrous for private business nationwide. In this context, an “exception” for foreign affairs would be strange, turning economic reality on its head. Furthermore, the Act itself flouted any objective or even workable distinction between the foreign and the domestic. The Act’s unqualified use of the term “embargo” authorized the President to prohibit the departure of all ships, not only those sailing to foreign ports but also to other U.S. ports in the coastwise trade, which was then the main channel of U.S. domestic commerce. And even if the President were to impose an embargo aimed mainly at international maritime trade, preventing evasion of such a restriction required regulation of the coastwise trade—regulation that contemporaries apparently understood the Act to authorize. [ABSTRACT FROM AUTHOR]

The text presents the presentation of the XVI International Symposium of the Martín de Azpilcueta Institute, which focuses on "Universal Legal Principles and Canon Law". The author highlights the importance of appealing to these principles in a moment of institutional crisis in the world, where the capacity of the legal system to guarantee freedoms is questioned and the separation of powers is eroded. The tendency to abuse decree laws in Spain and the lack of clarity in legislation are also mentioned. In addition, the importance of legal criticism in the ecclesiastical field is pointed out, and the need to improve the legal system in service of the common good and the salvation of souls is emphasized. [Extracted from the article]

Parliamentary Control of Delegated Legislation: Lessons from a Comparative Study of the UK Parliament and the Korean National Assembly As the scale of administrative agencies expands and their functions become more specialized in the complex and variable administrative reality, delegated legislation has increased explosively. This article examines the need for the introduction of appropriate parliamentary controls to prevent harm caused by the flood of delegated legislation. Through comparison with the UK Parliament, this article identifies the relative position of the Korean National Assembly and presents measures to strengthen parliamentary scrutiny on delegated legislation. [ABSTRACT FROM AUTHOR]

Australia was once a world leader in parliamentary oversight of delegated legislation. Today, parliamentary scrutiny has been undermined by a number of factors, including overly wide delegations, uncritical bi-partisan support for measures, party discipline restraining oversight, abuse of the disallowance procedure and parliamentary recesses to avoid parliamentary scrutiny, and interest-group capture within government. One of the reasons for the current state of affairs has been the constitutional orthodoxy in Australia that the courts do not intervene in the relationship between Parliament and the Executive. This article develops an alternative to that orthodoxy. I argue that the courts have a proper and necessary role in prodding parliamentary oversight of executive power, specifically in the delegated legislative sphere. [ABSTRACT FROM AUTHOR]

TABLE OF CONTENTS I. BACKGROUND 837 II. THE SIGNIFICANCE OF TSA'S FACIAL RECOGNITION 841 PROGRAM III. HISTORICAL DEFERENCE TO AGENCY INTERPRETATIONS 845 IV. HOW THE COURT MIGHT REVIEW THE TSA'S [...], The Transportation Security Administration (TSA) has begun using facial recognition technology (FRT) to screen passengers at airports. Although travelers can currently opt out, it is not clear that this will continue to be an option as the program expands. This raises significant concerns about the amount of personally identifiable information being collected by the agency, as well as the level of discretion the agency has to implement this increasingly invasive technology without input from Congress. This Note proposes that, in light of the United States Supreme Court's shift away from its deferential Chevron standard for reviewing agency action, litigators can and should argue that the TSA's program ought to be struck down. Furthermore, it concludes that, regardless of whether the TSA's program would be invalidated in court, Congress should step in and pass legislation guiding the agency's adoption of FRT. Although much has been written about the Court's evolving Chevron-deference jurisprudence, this Note contributes to the discussion by applying this analysis to the TSA's potentially problematic new FRT program.

The institution of deputy minister in the Turkish Public Administration system was introduced in 2011 through Decree Law No. 643. Criticisms arose regarding the inadequacy of the deputy minister institution in certain areas. Moreover, Following the abolishment of the undersecretary institution, there are views that the void created have not been filled. This study, which aims to highlight the pros and cons of the Deputy Minister system, was conducted in collaboration with active and retired senior ministry bureaucrats who have experienced both the old and new eras. In this research, a qualitative research design, predominantly used in social sciences, was chosen. The necessary data for the research was collected through a semi-structured interview form consisting of specific questions. After the interviews, the obtained data were categorized into themes and subthemes using content analysis technique. Additionally, descriptive analysis technique was employed to include direct quotations from the interview forms. As a result of the research, four main themes were identified: "Qualities of the Deputy Minister Institution," "Qualities of the Undersecretary Institution," "Deputy Minister and Undersecretary Institutions in Terms of Institutional Sustainability," and "Recommendations for the Deputy Minister Institution." Through thematic analysis, participants emphasized that Deputy Ministers prioritizing political affairs was the most important quality, and they positively evaluated the acceleration of the decision-making process within the ministry organization. Mastery of business processes and personnel, as well as career advancement based on merit, were identified as the primary advantages of Undersecretaries over Deputy Ministers. In conclusion, participants stressed that it would be very challenging to maintain the Deputy Minister system in its current form and recommended the implementation of new regulations that incorporate the positive aspects of the Undersecretary system. [ABSTRACT FROM AUTHOR]

Few federal agencies have generated more controversy than the small Office for Civil Rights (OCR) in the Department of Education. From desegregation and bilingual education to intercollegiate athletics, sexual harassment, and transgender rights, it has turned short civil rights statutes into lengthy administrative rules. It thus offers a useful window into what has become known as "the administrative state." But this window is far from transparent: OCR rarely uses standard Administrative Procedure Act rulemaking, opting instead for unilateral "Dear Colleague Letters" written with little external participation; the bulk of its resources are devoted to investigation of individual complaints, with little public explanation of the outcomes. Innovation and expansion of the agency's mission has not come from the permanent bureaucracy, but from the courts and from agency leaders appointed by the president. From the 1960s through the 1990s, the result was slow but steady accretion of power and responsibility. More recently political polarization and shifting Supreme Court jurisprudence has led to more rapid alteration of agency policy and enforcement practices. [ABSTRACT FROM AUTHOR]

This paper aims to explore the dynamics evident in views among Chinese-Indonesians regarding the preferred name for their ethnic identity, with particular reference to the 2014 Presidential Decree that changed the official term from 'Cina' to 'Tionghoa'. Using a qualitative approach, the data was collected through surveys and in-depth interviews with a number of purposely selected Chinese-Indonesian participants. In general, the survey results indicated that both older and younger generations of Chinese-Indonesians believe the policy of officially naming their ethnic group is a valid means to eliminate discrimination and negative stereotyping. However, acknowledging their intrinsic heterogeneity, although it is deemed necessary to regulate an ethnic identity term or name, it is likewise important to develop that identity by supporting a bottom-up process that encourages a fair understanding in the wider community that being 'Cina', 'Tionghoa' or 'Chindo/Cindo' are an integral element of Indonesian-ness. [ABSTRACT FROM AUTHOR]

This article assesses the constitutional foundation by which Parliament lends its lawmaking powers to the executive, which rests upon a century-old precedent established by the Supreme Court of Canada in a constitutional challenge to wartime legislation. While the case law demonstrates that courts have continued to follow this early precedent to allow the parliamentary delegation of sweeping lawmaking powers to the executive, it is time for courts to reassess the constitutionality of delegation in light of Canada's status as a liberal democracy embedded within a system of constitutional supremacy. Under the Constitution of Canada, Parliament is placed fi rmly at the centre of public policymaking by being vested with exclusive legislative authority in certain subject matters. Parliament must therefore play the principal federal lawmaking role. The Supreme Court's 1918 judgment should no longer be followed to the extent that it allows courts to accept near unlimited delegation of Parliament's lawmaking powers to the executive. Instead, and to that extent, the judgment should be seen as an historical anachronism, a holding that was suitable for a young country in the context of the First World War but now out of step with the constitutional role of Parliament as seen through the contemporary approach to constitutional interpretation. Courts and Parliament must take delegation more seriously, and constitutional safeguards should be established to better protect the role of Parliament as lawmaker in chief and restore the proper constitutional balance. Achieving this goal would be a major advance toward the democratic, representative and accountable federal lawmaking process contemplated by the Constitution. It is possible through reforms to strengthen the judicial scrutiny of the vires of regulations and creating effective parliamentary mechanisms to scrutinize and supervise the exercise of delegated lawmaking powers. [ABSTRACT FROM AUTHOR]

The article discusses prospect of using delegated legislation post-Brexit. Topics discussed includes proposal of the Lord Chancellor to modify the eligibility criteria for civil legal aid in England and Wales, constitutional basis for judicial review of secondary legislation, and legality of secondary legislation.

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