Rule-making, rule-breaking? Law breaking by government in the Netherlands and the United Kingdom (original) (raw)

Rule of Law or Law Overruled ? Why the Rule of Law Should Be on the Public Administration Research Agenda

NISPAcee Journal of Public Administration and Policy, 2011

Th ere appears to be a remarkable contradiction between what is happening in public-administration science and in public-administration practice. In the former, legal approaches have been displaced by managerial and political approaches. Th is shift sharply contrasts with the continuous legalization and juridifi cation of publicadministration practice. Public-administration practice has gradually converged with the law. Lawyers and legal scholars applaud the convergence of the law and public administration as the ultimate realization of the ideal of the Rechtsstaat. A public-administration perspective should take a more critical stance. From a publicadministration perspective, the Rechtsstaat produces both functional and dysfunctional eff ects. Assessing these eff ects requires comparative and multidisciplinary research. Comparative research will reveal diff erent legal and administrative traditions both within Europe and between Europe and other parts of the world. Th e Rechtsstaat should therefore return onto the public-administration research agenda.

A Content Analysis of the Rule of Law within Public Governance Models: Old vs. New EU Member States

NISPAcee Journal of Public Administration and Policy

This paper aims to analyze the development of the rule of law and its key characteristics as a principle within public governance model (PGM) research. In the study, we analyzed two main EU cultural and geographical subgroups, selected old and new EU member states, in order to identify the main convergences and differences characteristic of the respective clusters. With the accession to the European Union, these acceding countries were to transfer EU law into national law and reform their governance models accordingly. The aim of the research was achieved by following an original methodology, encompassing 431 relevant scientific papers from the Scopus database. Th e known QDA Miner 5.0.11 soft ware package was selected as the main tool for the analysis. Th e research questions were aimed at covering: (i) the role of the rule of law as one of the key governance principles in relation to the countries’ historical legacy and different governance models, (ii) the relationship between th...

The Bumpy Road to Rule of Law Enforcement: The Commission’s 2020 Annual Rule of Law Report

Περιμένοντας τους Bαρβάρους. Law in a Time of Constitutional Crisis., 2021

The paper assesses whether the von der Leyen Commission could give a realistic picture of the state of the rule of law in its first ever Rule of Law report of September 2020. On the plus side, the Commission starts with a clear definition of the rule of law, dispelling any fabricated arguments about the vagueness or even uselessness of the concept. The Commission promises to make the reporting exercise a regular one, treating Member States on an equal basis. The broad selection of relevant subject matters covered allows the reader to gain an overview of where Europe stands with regard to the rule of law. On the minus side the Commission aims at preventing violations and to provide a platform for dialogue-concepts incomprehensible and irrelevant in countries where state capture already happened. The report at times tries to give a qualitative analysis, but when it comes to systemic breaches, it fails to give the necessary context, and to connect the dots. But since all the national reports have enumerations of negative and positive developments, just by reading the Annual Reports one does not grasp how hybrid authoritarian regimes are qualitatively different from resilient democracies. On the side of authoritarian regimes, this approach also fuels whataboutery. Finally, the success of any monitoring exercise will depend on whether the response prong of the EU's rule of law enforcement mechanism manages to attach dissuasive and efficient consequences in due time to values' violations. Keywords Rule of law; Article 2 TEU; European values; European Commission; European Union; Annual Rule of Law Report The concept of liberal democracy is in danger and the tools used to destroy it are legal. Legalistic, but in violation of the rule of law in several EU Member States. As Professor Mirosław Wyrzykowski put it, it is both 'trivially simple, and trivially effective' to destroy constitutionalism. 'The state loses its sovereignty because a state whose constitutional authorities violate the constitution is not a sovereign state. A 'technological sequence' of the destruction of the constitutional state is being created, in which all state bodies, institutions and procedures are involved in turn. ' 1 Institutions and en-1 M. Wyrzykowski, 'The ghost of an authoritarian state stands at the door of your home' , VerfBlog 26 February 2020, https://verfassungsblog.de/the-ghost-of-an-authoritarian-state-stands-at-the-door-of-your-home/ (all links last accessed on 24 October 2020), given at the 48th European Presidents' Conference of Lawyers 2020 in Vienna. I take some pride in having a joint experience with Professor Wyrzykowski in this regard. For my speech at the 47th European Presidents' Conference of Lawyers see P. Bárd, 'Contribution to the rule of law debate at the 47th European Presidents' Conference' ,

Repressive administrative law

European Journal of Social Security

With the introduction of strict obligations and sanctions in social security, the traditional boundary between criminal law and administrative law seems to fade away. Administrative fines in particular facilitate strict, efficient and effective law enforcement. In spite of the fact that administrative fines are part of administrative law, criminal law safeguards are still applicable. This could cause problems, since administrative authorities and administrative judges are not necessarily familiar with these criminal law principles. This article addresses the question of how administrative authorities and administrative judges assess culpability when deciding on administrative fines in the Netherlands. The main finding is that administrative authorities, and especially municipalities, overestimate the degree of culpability. The case shows that, in the search for more repressive instruments, it is imperative to allow courts to keep an eye on the proportionality of the sanctions.

An Expanding Culture of Control? The Municipal Administrative Sanctions Act in Belgium

This article provides an in-depth study of the Act on Municipal Administrative Sanctions 1999 (MAS), which is the first major piece of legislation regulating antisocial behaviour in Belgium. MAS provides municipalities with an instrument to sanction antisocial behaviour and conduct perceived to disturb public order. The article uses Garland's (2001) thesis on the culture of control to analyse whether MAS has led to increased government control and the exclusion of significant groups of the population. The research is based on a multiple case study in which the application of MAS was analysed over a 25-year period of security policies in Belgium (1985–2010). The Act's implementation was studied in the two Belgian cities of Antwerp and Liège in order to consider the influence of the Flemish government and the Walloon government, respectively, in this policy area. The article uses insights from this comparison to revisit the culture of control thesis and its limitations in understanding the political competition that exists over the formulation of policies on antisocial behaviour.

Soft Law, Policy Rules and the Quality of Administrative Decision-Making

To the extent that an administrative body has discretionary powers, it will inevitably make use of administrative guidelines or administrative rules that supplement rules in laws and statutes. These administrative rules are the soft law every organization applies in decision-making. In Dutch law, there is a category of administrative rules with a special legal status. They are called "policy rules" in de General Administrative Law Act (Awb). Especially administrative bodies in municipalities often use other administrative rules than policy rules. In other words, municipalities use administrative rules that do not (entirely) fit the legal requirements of the Awb "policy rule". Apparently, municipal authorities can do without administrative rules in their codified form of "policy rule". This observation was the immediate cause for conducting this research. The central question of this paper is: What is the supplemental value of policy rules for the qualit...

Law, Convention and Abuse of Power

The Political Quarterly, 1989

A STRIKING feature of constitutional law in Britain has been the minimal level of legal regulation of political institutions. Parliament, central government and local authorities have been constrained from abusing their very wide freedom of action by constitutional conventions and accepted standards of political behaviour; these express the tradition of limited government and the liberal-democratic consensus that has existed at least since the Second World War. Some, but not all, of these constraints are given expression in circulars and codes of conduct, but these are not legally enforceable. Since about 1980, however, there has been a trend in the direction of detailed statutory regulation (of local government in particular) and a reduction in the freedom of action of these institutions not only by regulation, but also by financial controls. The Government's proposals for increased political accountability (for instance through the community charge) and institutional changes-including the privatisation of local authority services, provisions for the right to buy council housing, opting out of schools and changing landlords for council tenants-entail further restrictions on the scope and freedom of action of local authorities. At the same time we are witnessing an increasing centralisation of power in Whitehall, which remains subject to minimal legal regulation. This article will consider what the reasons are for these trends and the implications for the future role of the law in empowering and controlling the state. Departures from the Liberal-Democratic Conventions The changes in local government law have in large part been prompted by the Government's dislike of the policies of Labour-controlled local authorities and by repeated instances of local authorities acting in breach of established constitutional conventions and the liberaldemocratic tradition. This in turn has generated hostility on the part of central government to the influence of party politics in the provision of

Governance Beyond the Law: The Immoral, The Illegal, The Criminal

Public Sector Economics

abel polese, alessandra russo, francesco strazzari (eds.): governance beyond the law: the immoral, the illegal, the criminal public sector economics 43 (3) 325-335 (2019) abel polese, alessandra russo, francesco strazzari (eds.): governance beyond the law: the immoral, the illegal, the criminal public sector economics 43 (3) 325-335 (2019) abel polese, alessandra russo, francesco strazzari (eds.): governance beyond the law: the immoral, the illegal, the criminal public sector economics 43 (3) 325-335 (2019) abel polese, alessandra russo, francesco strazzari (eds.): governance beyond the law: the immoral, the illegal, the criminal public sector economics 43 (3) 325-335 (2019)