Legislatures and Legislation

Recently, there have been discussions about the so-called “due process of lawmaking“. Although the term can be traced back to an article of Hans Linde (“Due Process of Lawmaking“, Nebraska Law Rev. 55, 1975), it has gained attention in academic writings and constitutional courts decisions in different countries such as Brazil, Israel, Germany, United States and South Africa and also in the European Union institutions. Drawing from these experiences, the paper proposes to examine the relationship between the due process of lawmaking and the principles of legislation. It will be shown that at an expanded understanding of due process of lawmaking points not only to legal rules but also principles that underlie basic democratic constitutional values. This opens questions related to the institutional design and judicial review of the rationality of the legislative process that are being addressed by constitutional courts decisions.

The flexible formula of the British constitution results in a relative openness to external influences. Notwithstanding, the membership of the UK in the UE‘s structures (1973-2020) resulted in a progressive limitation of the Parliament's sovereignty. Brexit will not reverse the effects of the ‘soft‘ modification of the foundations of the UK‘s system, which occurred in the sphere of the practical implementation of the competencies of the branches of governance. Prima facie, the decision on the withdrawal from the EU should result in a ‘renaissance‘ of the traditional doctrine of Westminster sovereignty, per A.V. Dicey. However, judicial activism, continued validity of the European Convention on Human Rights (incorporated on the basis of the Human Rights Act 1998) and also the irreversible consequences of the devolution of competences in the UK for Wales, Scotland and Northern Ireland are the factors that hinder the possible revitalisation of the sovereignty of the British Parliament.

The COVID-19 crisis showed once more that the trust and comprehension of legislation and regulation should be strengthened. An instrument for that could be the duty to state reasons. In the Belgian legal order, state powers are obliged to state reasons for their acts. This obligation is clearly visible for judg-ments and administrative decisions with an individual scope, yet hidden or inex-istent for legislation and regulation. The question arises what the juridical bases of this obligation are. Furthermore, what are the modalities of this duty to state reasons? In contrast with the Belgian legal order, there is an explicit, general duty to state reasons for acts of general application in the EU-law. Could the EU-law inspire the Belgian legislator to generalise, make explicit and thus strengthen the duty to state reasons? Alexandra Gjurova, PhD-researcher at the Department of Public Law, Faculty Law & Criminology, Vrije Universiteit Brussel