Law chapter 5 Flashcards
Chapter 5 is about
How laws are made and how the Dutch government copes with the different kinds of problems legislation can cause.
Nine phases of the process of legislation
- Phase of initiative, a minister, a state secretary or the government decides that preparations for new legislation are to start.
- Departmental preparations, the bill is drafted by a ministry, together with an explanatory memorandum.
- Interdepartmental consolations, The bill is presented to other departments for consolation.
- Advice and deliberation, organization in society may be asked for advice.
- Decision of the cabinet, the cabinet discusses the bill and decides whether the bill can be sent to the council of state.
- Advice from the council of the state
- Presentation of the bill in the 2nd chamber, a standing committee studies and delivers a report on the bill; the 2nd chamber secretaries may amend the bill; first there is a vote on every article of the bill and then there is a vote on the bill as a whole.
- Presentation of the bill in the 1st chamber, a standing committee studies and delivers a report on the bill; the 1st chamber discusses the bill and votes on it; formally the 1st chamber has no right to amend the bill.
- Signing the act and publication, for the bill to be enacted it is to be signed by the queen and the ministers and/or state secretary involved; finally the law is published in the staatsblad
Amending the constitution
Amending the constitution is more complicated, it is required that the proposal is discussed twice in the 2nd chamber and 1st chamber. First time as a normal legislation, then the parliament has to be dissolved and general elections have to be held. Then the new government has to present the proposal again in the 2nd and 1st chamber. The proposal can only be rejected/accepted not amended. Furthermore a qualified majority is required (ie 66%+).
EU Law
The EU law is more important than Dutch law. Member states have the duty to ensure the realization of EU law. This means that national laws have to be amended to comply with EU law (maastricht treaty).
Negative consequences of overregulation
- Governmental regulations are not geared to each other sufficiently, with the result that they cause confusion and disturbance in society.
- Governmental regulations that aim at correcting and influencing social practice can disturb its self-regulating function.
- Such regulations are not transparent or well ordered, and therefor they are no reliable compass for decision-making in society. As a result ,citizens try to evade and get round the legal rules.
- Governmental regulations that were originally promulgated to support results of decision-making in society lead to calls for further interventions. As a result, activities that were carried out mostly in the private sphere were transported to the public sphere.
- State interventions which are based on governmental regulations have effects opposite to the ones intended, either because the presumptions on which the state policy is based are outdated or because the decision making in the public sphere cannot keep pace with developments in the private sphere.
The 6 Quality criteria for legislation
Lawfulness and the realization of the principles of justice effectiveness and efficiency subsidiarity and proportionality feasibility and enforceability coordination simplicity, clarity and accessibility
Lawfulness and the realization of the principles of justice
Laws should be consistent with justice. Principles of justice: The protection of vulnerable interests and legal security.
Effectiveness and efficiency
Law should lead to the achievement of the aims of the legislator. In addition, the law should achieve its targets without leading to unnecessary inefficiency in society or the government.
Subsidiarity and proportionality
No drastic interventions should be undertaken by the government unnecessarily. Subsidiarity: where possible responsibility should be left or entrusted to local authorities and social organizations. (the government should as far as possible confine itself to creating necessary preconditions, establishing minimum requirements, supporting social processes and guarding against unwelcome and inadequate results. Instead of intervening directly policies should be made more in interaction with society.) Proportionality: a reasonable ratio between the benefits and costs that may be ensuing from the law.
Feasibility and enforceability
Laws should be feasible and enforceable. Enforceable: Possibility to force compliance with legal regulations. Feasibility: Capacity to execute the law
Coordination
If there is inadequate coordination between the rules within a legal system, the legal system becomes inconsistent and friction among lower legislative orders, implementation and enforcement authorities, citizens and courts ensues.
Simplicity, clarity, and accessibilty
Citizens as well as the administrative bodies and courts should be able to understand clearly the meaning of the law.
Exit instrumentialism
A movement in legal theory that tried to turn law and jurisprudence into a tool for the emancipation of the poor and underprivileged. (There is more too it but.. meeh)
8 new forms of regulations (interactionism enters)
Delegation Independent administrative bodies Policy rules Policy contracts Covenants Communicative legislation Self regulation Privatization
Delegation
The legislator instructs a lower authority to elaborate certain rules.
