Waldhoff, Christian & Cristina Gilfrich: Case law on parliamentary law at the state level since 2018
The development of case law on parliamentary law at state level since 2018 has essentially been shaped by the widespread entry of the AfD into the state parliaments. While the party’s communication style led to an increase in calls to order, the courts were not only concerned with parliamentary law issues relating to the imposition of disciplinary measures. Amendments to the rules of procedure, party-related statements and the AfD’s participation in parliament and its committees were also the subject of court decisions and led to a dynamic debate.On the other hand, the coronavirus pandemic and its impact on the state parliaments and their ability to function presented the courts with new challenges. General orders to wear a face mask, access restrictions in the form of 2G or 3G regulations and pandemic-related cancellations of state parliament meetings were examined by the courts. Following German reunification, the judicial involvement with the AfD and the coronavirus pandemic represents a new stage in the development of parliamentary law at state level in the last 40 years.ZParl, vol. 55 (2024), no. 3, pp. 485–505.
Gallon, Johannes: Acceleration of legislation: Actors and acceleration potentials in the procedure
This essay examines the acceleration of legislative procedures and fast-track legislation based on the legal framework of constitutional law, rules of procedure and parliamentary practice in the Federal Republic of Germany. In the multi-sectional constitutionally formalized legislative process, all procedural components can fundamentally be accelerated. In 2023, the Federal Constitutional Court announced that in the future, it will measure the acceleration of the internal procedures of the Bundestag based on the status rights of the members of parliament (Resolution of July 5, 2023 – 2 BvE 4/23).Examining the possibilities for acceleration reveals that primarily the respective organs determine the temporal design of legislative processes within the scope of their procedural autonomy. Only the Federal Government has few legal means to influence the procedural design from the outside. Therefore, the Bundestag, Bundesrat, Federal Government, and Federal President need to work together to enact fast-track legislation within a few days. Individual states as well as the opposition in the Bundestag can legally slow down fast-track legislation in the Bundestag or Bundesrat.ZParl, vol. 55 (2024), no. 3, pp. 519–539.
Pilniok, Arne: The applicability of European data protection law to national parliaments in recent ECJ case law and its consequences
Parliaments have long been concerned with taking data protection into account in their work. However, since the GDPR entered into force, there has been intense debate as to whether it also applies to core parliamentary activities – in particular lawmaking and oversight of government and administration. In its ruling of 16 January 2024, the ECJ clearly answered this question in the affirmative in its response to an Austrian court referring the case for a preliminary ruling. Based on a very brief and in detail questionable argumentation, the Court interprets the exceptions to the scope of the GDPR narrowly. The article critically analyses this judgement. Building on this, the consequences of the ECJ’s position for parliamentary law and parliamentary practice are discussed. In addition to the substantive issues, it is particularly important to clarify institutionally how data protection oversight should be organized in the parliaments. The case law of the ECJ on the applicability of the GDPR in parliaments is part of a general development on the transformation of organizational constitutional law under EU law, which will be examined in conclusion.
ZParl, vol. 55 (2024), no. 3, pp. 540–552.
Jung, Karsten: A robust community of values? The European Parliament’s proposals for improved protection of the Union’s fundamental values
In recent years, the European Parliament has regularly positioned itself as a staunch defender of the European Union’s fundamental values. It has repeatedly denounced grievances in member states as well as inaction by the Union’s other bodies. With its initiative for a ‘Mechanism for Democracy, the Rule of Law and Fundamental Rights’ and the latest ‘Proposals for Amendments to the Treaties’, Parliament has now put forward its own conceptual ideas on how to strengthen the procedures for protecting the Union’s fundamental values. A structured comparison of these proposals with the instruments already at hand – and their shortcomings in dealing with systematic violations – reveals, however, that further differentiation of the sanctions regime alone is unlikely to significantly advance the effective protection of Union values. The illiberal and anti-democratic developments in several member states are not just a legal or technical concern, but above all a political challenge to the European community of values. A viable strategy for its defense must take this fact into account.
ZParl, vol. 55 (2024), no. 3, pp. 553–573.
Sturm, Roland: Another landslide victory: The British General Elections on July 4, 2024
After 14 years in opposition, Labour is back in power. A governing party in conflict with itself, big and unresolved economic problems, and a Scottish National Party that managed to steer itself in a political cul-de-sac made change possible. The size of change is not least the result of the first-past-the-post electoral system and its disproportionality effects. These allowed the Labour Party to take 63.4 per cent of the seats in Parliament with only 33.7 per cent of votes. The British party system is more divided than ever before. The Liberal Democrats experienced a political comeback as alternative to the Conservatives, and the Green party made progress as an alternative to Labour. Reform UK, the party of the right-wing populist Nigel Farage, came third in the electoral contest with regard to vote totals. The lower turnout is surprising given the broader and stronger competition among parties. It reflects widespread disillusion among voters concerning politics, and the distancing of a growing number of people from the political process.
ZParl, vol. 55 (2024), no. 3, pp. 574–587.
Sully, Melanie: The British party system in flux
The British party system has been historically defined by two major parties, the Conservatives and the Labour Party. Parliamentary and election rules have reinforced this dominance which, in the twenty first century, is facing major challenges. The increasing use of referendums cutting across party lines, electoral volatility and a loss of trust in political institutions mean that even small parties can aspire to break the traditional party system. Issues such as immigration, the environment and international crises further undermine domestic political stability.New parties such as Reform UK with its charismatic leader, Nigel Farage, and a populist agenda but with only an embryonic organisation, have the potential to undermine the two-party system as we know it. Britain is an increasingly polarised society which is reflected in intra-party conflicts. Disputes between party activists, the parliamentary group and rival personalities contributed to the Conservatives’ electoral debacle in the 2024 General Election but the performance of the Labour Party flatters to deceive. A Labour Government that fails to deliver will also feel the wrath of voters. Reform UK poses a significant challenge to the two main parties yet it too has to contend with internal bickering which could thwart its ambition to expand its electoral base.
ZParl, vol. 55 (2024), no. 3, pp. 588–605.
Taylor, Robert Brett & Adelyn L. M. Wilson: Past, Present and Future — Scrutiny of retained EU law and assimilated law at the UK and Scottish Parliaments
The UK’s departure from the EU caused significant challenges in terms of legal continuity, and specifically how to retain EU law after Brexit to avoid a “cliff edge” scenario. Once Brexit was completed, the focus shifted to reforming or repealing retained EU law. Both processes have been led by the UK Government through the UK Parliament, but with governmental consent and parliamentary approval from the devolved nations where relevant.This article summarises the past powers and processes which underpinned the retention of EU law prior to Brexit, and the parliamentary scrutiny of that process in the UK with a particular focus on the devolved nation of Scotland. It then considers the present frameworks which have been in place following Brexit for changing retained EU law (now known as assimilated law): the revised process for Scottish parliamentary scrutiny, the Scottish Government’s keeping pace commitment, and the reforming powers now in effect under the Retained EU Law (Revocation and Reform) Act 2023. It concludes by reflecting on the future scrutiny challenges for both the UK and Scottish Parliaments.
ZParl, vol. 55 (2024), no. 3, pp. 606–618.
Akirav, Osnat: Never-ending overlapping crises — The story of Israeli democracy
The article describes and explains the challenges that Israeli democracy has experienced since 2019 when the constitutional crisis joined other crises the country has to cope with. Israel with its current extreme right-wing government has religious disputes, social gaps, corrupt leaders, and political disputes intensified by populist rhetoric led by a Prime Minister who has been indicted. Israeli democracy is under an orchestrated attack by the various parties of the coalition.I explain how three factors converged prior to the 25th Knesset election, enabling Netanyahu to form an extreme right-wing government: his indictments, the agendas of the ultra-Orthodox parties, and the agendas of the right-wing extremist parties. Additionally, I analyze two examples illustrating the coalition’s attempts to consolidate power without oversight.
ZParl, vol. 55 (2024), no. 3, pp. 619–632.
Winkelmann, Thorsten & Jost F. Noller: Turning point at the Cape of Good Hope? The 2024 parliamentary elections in South Africa
The most striking result of the parliamentary elections in South Africa of May 29, 2024 was that, for the first time since the introduction of democratic elections in 1994, the ANC had lost its majority. As a liberation movement against white minority rule, the ANC had won the support of the clear majority of the black population in all prior elections. But the consent with the ANC was reduced by high unemployment rates, high criminality, insufficient public delivery service such as supply of electricity as well as ongoing widespread poverty.Additionally, former president Jacob Zuma had founded a new party which won considerable support especially among the numerically biggest population group, the Zulus. After the election, the ANC decided to form a coalition “Government of National Unity” with the formerly largest opposition party, the liberal Democratic Alliance, as well as with various smaller parties. But the new MK-Party of Jacob Zuma and the leftist Economic Freedom Fighters are not part of this coalition and remain in opposition to the government. Members as well as voters of the various coalition parties belong to very different population groups with widely differing interests. So duration and prospects of this coalition can hardly be assessed.
ZParl, vol. 55 (2024), no. 3, pp. 633–650.
Mosler, Hannes: The South Korean electoral system and the parliamentary election on April 10, 2024
The parliamentary elections to South Korea’s 22nd National Assembly on April 10, 2024, were a classic mid-term election occurring during the five-year term of conservative President Yoon Suk-yeol, who had assumed office two years earlier. The election results reflected a clear protest vote against the conservative People Power Party (PPP), which was perceived to suffer as a result of its president’s poor government policies. This led to the opposition liberal Democratic Party (DP) securing a clear majority of seats in the National Assembly.The restrictive and exclusive electoral law ensured that the duopoly of these two dominant parties remained virtually untouched and smaller, alternative parties were systematically disadvantaged. Previous attempts, including the most recent electoral law reform, to break up this exclusive party cartel of a hostile symbiosis of conservative and liberal parties have failed. As a result, an ideologically distorted two-party system persists, impeding the development of a sustainable quality of democracy.ZParl, vol. 55 (2024), no. 3, pp. 651–669.
Huber, Peter M.: The dignity of parliament
The “dignity” of Parliament is an undefined legal concept, the application of which must, on the one hand, leave room for the freedom of the political mandate of Members of Parliament under Article 38 (1) sentence 2 of the Basic Law and take into account their equality on the other hand. Its requirements are subject to a prerogative of assessment by Parliament and its President and can only be reviewed by the constitutional court to a limited extent. However, the “dignity” of parliament is not an end in itself. It is at the service of democracy and at the service of the right of citizens to democratic self-determination which is enshrined in the guarantee of human dignity (Article 1 (1) of the Basic Law).ZParl, vol. 55 (2024), no. 3, pp. 670–681.
Taylor, Robert Brett & Adelyn L. M. Wilson: Vergangenheit, Gegenwart und Zukunft — Kontrolle des beibehaltenen und übernommenen EU-Rechts durch das britische und das schottische Parlament
Acht Jahre nach dem Brexit-Referendum und vier Jahre nach dem Ende der Übergangsperiode, in der das Vereinigte Königreich das EU-Recht so anwendete, als wäre es noch ein Mitgliedstaat, bleibt die Zukunft der EU-abgeleiteten Rechtsvorschriften in Großbritannien von zahlreichen Herausforderungen geprägt, die sowohl den Erhalt als auch die Anpassung dieser Vorschriften betreffen. Die Einbeziehung des schottischen und britischen Parlaments in die Überprüfung und Reform der assimilierten Gesetzgebung, die im Rahmen des Retained EU Law (Revocation and Reform) Act 2023 erfolgt, ist von großer Bedeutung.Die Dezentralisierung sowie die unterschiedlichen politischen Ansätze der Regierungen erschweren eine zeitnahe Überprüfung der EU-Rechtsvorschriften, was zu einer oberflächlichen Auseinandersetzung mit den politischen Implikationen führen könnte. In diesem Kontext spielt das European Scrutiny Committee eine entscheidende Rolle, indem es die Reformen überwacht und sicherstellt, dass die politischen und rechtlichen Auswirkungen angemessen berücksichtigt werden. Empfohlen wird eine engere Zusammenarbeit zwischen den Parlamenten sowie die kontinuierliche Evaluation der rechtlichen Rahmenbedingungen. ZParl, 55. Jg. (2024), H. 3, S. 606–618.
Akirav, Osnat: Endlose, sich überschneidende Krisen — Die Geschichte der israelischen Demokratie
Die israelische Demokratie ist durch eine Vielzahl historischer Ereignisse geprägt, die die nationale Identität, die Sicherheitsarchitektur und die politische Landschaft entscheidend beeinflusst haben. Neben diversen, multiethnischen Differenzen stellen die religiösen Spannungen innerhalb der militarisierten Gesellschaft in einem jüdischen und demokratischen Staat ohne formelle Verfassung anhaltende wie aktuelle Herausforderungen dar. Stattdessen existieren grundlegende Gesetze, die leicht und häufig geändert werden können. Diese Gegebenheiten, zusammen mit einem schwachen Parlament, instabilen Regierungen und populistischen Führern, bilden den Hintergrund für die seit 2019 andauernde verfassungsrechtliche Krise. Die jüngsten Justizreformen, die das Gleichgewicht zwischen Judikative und Exekutive gefährden, führten zu massiven Protesten und verstärkten die öffentliche Unzufriedenheit mit der Regierung. Diese Entwicklungen unterstreichen die Fragilität der demokratischen Strukturen Israels und die Notwendigkeit eines neuen sozialen Vertrags.ZParl, 55. Jg. (2024), H. 3, S. 619–632.
