Skip to main content
SpringerLink
Log in

Material Content of Enumerations

  • Chapter
  • First Online:
Double Enumeration of Legislative Powers in a Sub-State Context

Part of the book series: SpringerBriefs in Law ((BRIEFSLAW))

  • 126 Accesses

Abstract

In the continental European legal tradition and consequently also in Denmark and Finland, a division of the legal order into public law and private law is carried out on grounds which generally imply that legislation which establishes a vertical relationship of a non-dispositive nature between public authorities and individuals, including public powers for authorities to make decisions concerning individuals on the basis of provisions in legislation, is a matter of public law, whereas legislation which creates the platform for a horizontal relationship of a dispositive nature between individuals or enterprises is a matter of private law. Criminal law and law of procedure are normally included in public law. A similar distinction between public law and private law is observed in common law countries such as Canada, where, for example, constitutional, administrative, criminal, and other areas of regulatory law (such as environmental law and tax law) are understood as areas of public law, while areas such as tort law, contract law and property law are considered areas of private law. In Finland, this is to some extent reflected in the double enumeration, but less so in the double enumerations of Canada and Denmark.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
eBook
USD 16.99
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Softcover Book
USD 16.99
Price excludes VAT (USA)
  • Compact, lightweight edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

  1. 1.

    Craik et al. 2011, p. 1. For a British view into public law, see Barnett 2010, p. 1, and Le Sueur et al. 2010, pp. 3–9. Without doubt, the distinction between public law and private law is in many ways problematic, and in a modern society, they are also increasingly mixing with each other.

  2. 2.

    For the lists of powers in the Canadian Constitution, Sections 91–95, see http://laws-lois.justice.gc.ca/eng/Const//page-4.html#docCont (accessed on 4 January 2018). For an analysis of the material contents of legislative powers in Sections 91 and 92, see Hogg 2014, from s. 18.1 until s. 33.5. See also Inwood 2013, p. 9.

  3. 3.

    See Hogg 2014, s. 5.1(g) for a comment from the point of view of subsidiarity.

  4. 4.

    As pointed out in Leclair 2010, p. 567: “Parliament’s enumerated powers are, for the most part, ‘electorally unattractive’. Interprovincial transportation, communications and national defence might have had some appeal in 1867, but with the advent of the welfare state, health, social welfare and education have become the politicians’ preferred fields of battle. The sorrowful nature—if I may be allowed this expression—of the central government’s enumerated heads of power explains the enthusiastic recourse to the spending power witnessed during the 1960s through the 1980s and beyond. However, in view of the spending power’s dubious constitutionality in the eyes of many, the central government has tried, quite legitimately, to find ways of expanding its existing legislative powers.”

  5. 5.

    As pointed out in Hogg 2014, s. 5.3(i), “[t]he federal Parliament’s power under s. 92(10)(c) to bring a local work within federal jurisdiction by declaring it to be ‘for the general advantage of Canada’ was frequently used in the past, mainly in respect of local railways. It has been used only sparingly in recent years.”

  6. 6.

    As pointed out in Hogg 2014, s.5.3(h), the federal power under Section 93 to “enact remedial laws to correct provincial incursions on minority educational rights has never been exercised, and has in practice become ‘obsolete’”.

  7. 7.

    For the two enumerations, see the English translation of the 1991 Self-Government Act, as amended by 2011, at http://www.lagtinget.ax/text.con?iPage=59&m=228 (accessed on 4 January 2018).

  8. 8.

    This power of creating an internal constitutional distinction between ordinary legislation enacted by simple majority and particular legislation enacted by the qualified majority of two-thirds has not been used but occasionally. See Suksi 2011, pp. 157–158.

  9. 9.

    For an explanation of what these matters entail in terms of substantive law, see Forslag til Lov om de færøske myndigheders overtagelse af sager og sagsområder, fremsat den 11. maj 2005 af statsministeren (Anders Fogh Rasmussen), section 4. As pointed out in section 6.3., the Faroese authorities would also not have competence to determine, which general rules there exist for the activities that Danish authorities exercise in the Faroe Islands, such as particular duties of staff persons with Danish authorities, and that civil service legislation for Danish authorities in the Faroe Islands will continue to be a competence of the Parliament of Denmark.

  10. 10.

    Rasmussen 2002, pp. 377–380.

  11. 11.

    For English-language versions of the 1948 Home Rule Act and the 2005 Takeover Act, see http://stm.dk/_p_13089.html (accessed on 4 January 2018).

  12. 12.

    See Oversigt over sagsområder overtaget af de færøske myndigheder, at http://www.stm.dk/multimedia/FO_DK_oversigt_sagsomraader_010811.pdf (accessed on 2 February 2018), which indicates that of matters in List A, everything has been taken over by the Faroe Islands, except parts of paras. 4 and 5. Within para. 4, pharmacies and promotion of health (environmental issues) have been taken over as matters of the Faroe Islands, while the rest of the health area is still a common matter where framework legislation is enacted by the Parliament of Denmark, but particular legal rules and administration is with the authorities of the Faroe Islands to the extent subsidies from the state budget are paid to the Faroe Islands. Within para. 5, social care, mandatory insurance for accidents, labour force, labour relations, apprenticeships and vacations have been taken over as matters of the Faroe Islands, while special forms of social care and general social insurance are still common matters where framework legislation is enacted by the Parliament of Denmark, but particular legal rules and administration is with the authorities of the Faroe Islands to the extent subsidies from the state budget are paid to the Faroe Islands.

  13. 13.

    For examples of such areas of law that were not mentioned in any of the lists but that were discussed for the purposes of legislative action in the Faroe Islands (mortgaging of cargo, working environment of state authorities in the Faroe Islands, names of persons, safety at sea), see Rasmussen 2002, pp. 377–380.

  14. 14.

    According to Section 46 of the 1994 Faroese Act on the Government of the Faroe Islands, after the decision of the government of the Faroe Islands, a matter is overtaken pursuant to an act of the Legislative Assembly. See also Forslag til Lov om de færøske myndigheders overtagelse af sager og sagsområder, fremsat den 11. maj 2005 af statsministeren (Anders Fogh Rasmussen), where it is mentioned in sub-section 3.2. that the authorities of the Faroe Islands make particular decisions about taking over legislative competence.

  15. 15.

    See Forslag til Lov om de færøske myndigheders overtagelse af sager og sagsområder, fremsat den 11. maj 2005 af statsministeren (Anders Fogh Rasmussen), section 2 on main points of the proposal.

  16. 16.

    See, e.g., Rasmussen 2017, pp. 60–65.

  17. 17.

    Løgtingslóg nr. 41 frá 10. mai 2006 um ræði á málum og málsøkjum, sum seinast broytt við løgtingslóg nr. 55 frá 26. mai 2011, at http://www.logir.fo/Logtingslog/41-fra-10-05-2006-um-raedi-a-malum-og-malsokjum-sum-seinast-broytt-vid-logtingslog (accessed on 4 January 2018).

  18. 18.

    Løgtingslóg nr. 7 frá 17. februar 2010 um broyting í løgtingslóg um ræði á málum og málsøkjum, at http://www.logir.fo/Logtingslog/7-fra-17-02-2010-um-broyting-i-logtingslog-um-raedi-a-malum-og-malsokjum (accessed on 12 January 2018), dealt with the repeal of Section 1, Sub-section 2, para. 15 of the Faroese Act of 2006 with the listing of Danish powers.

  19. 19.

    Forslag til Lov om de færøske myndigheders overtagelse af sager og sagsområder, fremsat den 11. maj 2005 af statsministeren (Anders Fogh Rasmussen), section 3.2.2. For a specification of the contents of each matter or field of law from the point of view of material Danish law that has been passed within the matter, see sections 3.2.2.1.–3.2.2.12.

  20. 20.

    See the 2014 report of the State Commissioner on the Faroe Islands (Rigsombudsmanden på Færøerne—Beretning 2014), p. 223, at http://www.stm.dk/Index/mainstart.asp/multimedia/Beretning_2014_PDF1.pdf (accessed on 16 October 2015). See also an English-language version of the list of matters taken over by the Faroe Islands at http://stm.dk/multimedia/FO_UK_oversigt_sagsomraader_010811.pdf (accessed on 20 October 2015).

  21. 21.

    Lov nr. 579 af 24. Juni 2005 om Færøernes landsstyres indgåelse af folkeretlige aftaler. For an English-language version of this Act, see http://stm.dk/_p_13089.html (accessed on 4 January 2018).

  22. 22.

    See, e.g., Preliminary answers to questions raised by the Guernsey Constitutional Investigation Committee, Prime Minister’s Office, Faroe Islands, 28 October 2014, para. 12 (on file with the author). See also the decree of the Danish Government on the entering into force of the European Convention of Human Rights in the Faroe Islands (Anordning nr. 136 af 25. Februar 2000 om ikrafttræden for Færøerne af lov om Den Europæiske Menneskerettighedskonvention), at http://logir.fo/Anordning/136-af-25-02-2000-om-ikrafttraeden-for-Faeroerne-af-lov-om-Den-Europaeiske-Menneskerettighedskonvention (accessed on 10 November 2015).

  23. 23.

    See Hogg 2014, s. 5.1(d), where the difficulties posed for the federal parliament of the operation of a general opt-out scheme are commented, at the same time as some examples on such national policies are given from which the province of Quebec has opted out (although when doing so, not opting out from any of the federal powers established in Section 91 of the Constitution). See also Hogg 2014, s. 6.7 for examples of opting-out.

  24. 24.

    On the relationship between sub-state entities in Canada and Finland, on the one hand, and international human rights treaties, see Ekholm v. Finland, Application no. 68050/01, European Court of Human Rights, Judgment of 24 July 2007 (in which Finland was found to be in violation for non-application in the Åland Islands by Ålandic public authorities of legislation within the competence of Åland, amounting to failure to comply with domestic judicial decisions), Ballantyne, Davidson, McIntyre v. Canada, Communications Nos. 359/1989 and 385/1989 to the UN Human Rights Committee, U.N. Doc. CCPR/C/47/D/359/1989 and 385/1989/Rev.1 (1993) (where a violation of freedom of expression in Art. 19 CCPR was found on the part of Canada for legislation in Quebec on banning public display of advertisements in English), and Waldman v. Canada, Communication No 694/1996 to the UN Human Rights Committee, meeting of 3 November 1999, U.N.Doc. CCPR/C/67/D/694/1996 (where a violation of equality in Art. 26 CCPR was found on the part of Canada for legislation in Ontario that made possible public funding to Roman Catholic schools, but not to other private denominational schools). It appears that for the time being, no individual case has been resolved before any treaty body that would involve the application of the law of the Faroe Islands. Concerning the position of Canada to international law, see also Ahani v. Canada, (2002) 58 O.R. (3d) 107 (C.A.); leave to appeal to the S.C.C. denied on May 16, 2002, as commented in Hogg 2014, s. 11.4(a), the case of Labour Conventions, [1937] A.C. 326, 349, as commented in Hogg 2014, s. 11.5(b), 11.5(c), and the Radio Reference, [1932] A.C. 304, 312, as commented in Hogg 2014, s. 11.5(c). It seems that position of the Faroe Islands in relation to international law is the opposite also to the Canadian situation, and that applicability of international law is apparently dependent on whether the Legislative Assembly has been presented the international treaty.

  25. 25.

    This provision is rarely used in courts. However, see Reference re Assisted Human Reproduction Act, [2010] 3 SCR 457, 2010 SCC 61 (CanLII), which dealt with the constitutionality of various provisions in the federal Assisted Human Reproduction Act. The Act was in part upheld (especially as concerns the criminalizations), but in part unconstitutional, because some of the provisions crossed over to the provincial powers and could not be saved, e.g., by reference to ancillary powers.

  26. 26.

    For an example, see the Opinion of the Supreme Court No. 3169 of 9 October 1994 concerning the holding of an advisory EU referendum, Chap. 5.

  27. 27.

    See Suksi 2005, p. 242 ff.

  28. 28.

    See also Rasmussen 2002, p. 377.

  29. 29.

    See, e.g., Lov nr 316 af 17/05/1995 om om sundhedsvæsenet på Færøerne, at http://www.sslug.dk/~chlor/www.retsinformation.dk/lov/l46921.html (accessed on 10 November 2015). This Act of the Danish Parliament grants the power to the Government of the Faroe Islands to pass rules about the services, benefits and administration of health issues, and it also grants the Legislative Assembly the right to amend provisions of the national health legislation, except certain provisions of the national Hospitals Act.

  30. 30.

    See, e.g., speech by Eidesgaard (2006).

  31. 31.

    Suksi 2011, p. 127 f.

  32. 32.

    As pointed out in Hogg 2014, s. 15.9(d), “[t]hese three provisions [sections 92A(2) and 92A(3), 94A, 95—MS] obviously cover only a small portion of the field of legislative power. In the Canadian scheme of distribution, exclusivity is the rule and concurrency the exception”. Hogg contrasts the Canadian situation to the situation in the USA and Australia, but is of the opinion that the difference is in practice not as sharp as one might expect.

  33. 33.

    See Hislop v. Canada (Attorney General), 2009 ONCA 354 (CanLII), in which the Canada Pension Plan was held to be valid federal legislation, enacted Section 94A, while Class Proceedings Act, 1992, under which claims for crediting remuneration towards pensions were made, was valid provincial legislation enacted under Section 92(13, 14) as procedural law which neither modified nor created substantive rights to pension. The power that Section 94A confers on Parliament to make laws in relation to old age pensions and supplementary benefits is expressly concurrent with provincial power over the same subject-matter and sets up a reverse paramountcy rule, assigning predominance to provincial laws contrary to the usual preferential place accorded to federal laws. To engage Section 94A, there must be both federal and provincial laws in relation to old age pensions and supplementary benefits, or laws in relation to either one of those subjects. The Court held that the CPP qualifies as a law in relation to old age pensions and supplementary benefits but that the CPA cannot claim any such constitutional foundation. The CPA is a statute of general application, a law that deals with procedure in civil matters, but is not and does not purport to be a law in relation to old age pensions and supplementary benefits. Therefore, the conditions under which establishing provincial paramountcy could have emerged were not established.

  34. 34.

    See also Palmgren 1995, p. 88.

  35. 35.

    However, see Jääskinen 2003, p. 16, who is of the opinion that the Åland Islands has, on the basis of the general foundational solutions in the Self-Government Act, a duty to legislate within areas that belong to the legislative competence of the Åland Islands if a non-regulated situation is considered unacceptable.

  36. 36.

    Initially, the Supreme Court held in an Opinion from 1997 that it would not include implementation of EU law in the Åland Islands in the control of legislative competence, but this position was reversed. The changed position is present in, e.g., Opinion of 18 August 2003 (Dnr 1958), where the Supreme Court held that a violation of legislative competence has taken place when the Ålandic Tobacco Act did not correctly implement Section 8 of the Tobacco Directive of the EU. The Supreme Court is, however, of the opinion that the review of Ålandic Acts in relation to EU law is not performed in a comprehensive manner by the Supreme Court, but is in practice dependent on regular mechanism of preliminary rulings from the Court of Justice of the European Union, effectuated when courts of law apply the Ålandic legislation in concrete situations, alternatively in proceedings instituted by the European Commission against Finland in the Court of Justice for breach of treaty-based obligations. In the context of competence control, implementation of EU directives has recently been mentioned, albeit not fashioned as violation of the competence of the Parliament, in, e.g., Opinion of the Supreme Court of 31 March 2017 (Dnr OH 2017/34; Directive 2014/30/EU of the European Parliament and of the Council of 26 February 2014 on the harmonisation of the laws of the Member States relating to electromagnetic compatibility and Directive 2014/35/EU of the European Parliament and of the Council of 26 February 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of electrical equipment designed for use within certain voltage limits) and Opinion of 12 September 2017 (Dnr OH 2017/133; Directive 2014/61/EU of the European Parliament and of the Council of 15 May 2014 on measures to reduce the cost of deploying high-speed electronic communications networks). In the Opinion of 31 March 2017 (Dnr OH 2017/33; Directive 2014/33/EU of the European Parliament and of the Council of 26 February 2014 on the harmonisation of the laws of the Member States relating to lifts and safety components for lifts), the Supreme Court summarized the praxis by concluding that provisions in Ålandic acts have been vetoed if it has been evident that they would lead to a conflict between the legislation of the EU and legislation of the Åland Islands. This was the case at least in relation to legislation concerning emissions trade (OH 2005/61) and prevention of discrimination (OH 2005/91). Following that praxis, the Supreme Court recommended to the President that two provisions in the Ålandic Act on Implementing the State Act on Safety of Elevators be vetoed for breach of Section 27(4) concerning the legislative competence of the State in the area of foreign relations.

  37. 37.

    See Suksi 2005, p. 469, for a listing of provisions of the Constitution that apply in the Åland Islands, of provisions of the Constitution whose applicability on the Åland Islands is excepted by the Self-Government Act, and of provisions whose applicability is unclear. Notably, the Opinions of the Supreme Court relatively often deal with Section 121 of the Constitution when Ålandic legislation is enacted within the legislative competence of the Åland Islands with a view to municipal law. In such situations of applicability of Section 121 of the Constitution, which is clear, the Supreme Court asks whether the Ålandic legislation respects the constitutional right of self-government accorded to municipalities, in particular in light of the praxis on the same issue of the Constitutional Committee of the Parliament of Finland. See, e.g., Opinions of 16 December 2015 (OH2015/213; within competence), 12 September 2017 (OH2017/135; not within competence).

  38. 38.

    See the Supreme Court case SC 2004:65 on a damages claim towards the Government of the Åland Islands by a fisherman, in which the relationship between the three jurisdictions, the European Union, Finland and the Åland Islands, is worked out. According to the case, a fisherman involved in commercial fishing of salmon in the Åland Islands should have followed the quota provisions of an EU regulation, not those of the national Ministry of Agriculture and Forestry and certainly not those of the Government of the Åland Islands for reasons of ultra vires creation of individual fishing quotas in the Åland Islands. See also the case SC 2017:47, where the Supreme Court held that lacking agreement between governmental authorities of Finland and the Åland Islands on the distribution of a fishing quota allocated to Finland by the EU, the national Ministry of Agriculture and Forestry was competent to determine the distribution of the quota between mainland Finland and the Åland Islands.

References

  • Barnett H (2010) Understanding public law. Routledge-Cavendish, London, New York

    Google Scholar 

  • Craik N, Forcese C, Bryden P, Carver P, Haigh R, Ratushny Ed, Sullivan R (eds) (2011) Public law—cases, materials, and commentary, 2nd edn. Emond Montgomery Publications, Toronto

    Google Scholar 

  • Eidesgaard J (2006) ‘Færøernes forfatningsmæssige stilling’, speech at Nordic Lawyers’ Academy on 24 August 2006 in Tórshavn, the Faroe Islands (on file with author)

    Google Scholar 

  • Forslag til Lov om de færøske myndigheders overtagelse af sager og sagsområder, fremsat den 11. maj 2005 af statsministeren

    Google Scholar 

  • Hogg PW (2014) Constitutional law of Canada, 5th edn Supplemented, vols 1 and 2. Thomson & Carswell, Toronto [NB! References to Hogg 2014 are to sections in the supplemented loose-leaf volume, not to pages.]

    Google Scholar 

  • Inwood GJ (2013) Understanding Canadian Federalism—an introduction to theory and practice. Pearson, Toronto

    Google Scholar 

  • Jääskinen N (2003) EU: behörighet och Åland. Utredningsman Niilo Jääskinens utredning. Statsrådets kanslis publikationsserie 7/2003. Statsrådets kansli, Helsingfors

    Google Scholar 

  • Le Sueur A, Sunkin M, Murkens JEK (2010) Public law—text, cases, and materials. Oxford University Press, Oxford

    Google Scholar 

  • Leclair J (2010) “Please, draw me a field of jurisdiction”: regulating securities, securing federalism. Supreme Court Law Rev 51(2):555

    Google Scholar 

  • Palmgren S (1995) Landskapet Ålands lagstiftning. Nordisk Administrativt Tidsskrift 1:22–32

    Google Scholar 

  • Rasmussen S (2002) Til hjemmestyreloven os skiller. Ugeskrift for Retsvæsen, nr. 43, 26 oktober 2002, pp 377–383

    Google Scholar 

  • Rasmussen TV (2017) Opportunistisk dansk fortolkning af det færøske hjemmestyrets lovgivningskompetence. Ugeskrift for Retsvæsen, nr 6, februar 2017, pp 60–65

    Google Scholar 

  • Suksi M (2005) Ålands konstitution. Åbo Akademis förlag, Åbo

    Google Scholar 

  • Suksi M (2011) Sub-state governance through territorial autonomy. Springer, Heidelberg

    Book  Google Scholar 

Download references

Author information

Authors and Affiliations

  1. Department of Law, Åbo Akademi University, Turku, Finland

    Markku Suksi

Authors
  1. Markku Suksi
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Markku Suksi .

Rights and permissions

Reprints and permissions

Copyright information

© 2018 The Author(s), under exclusive license to Springer International Publishing AG, part of Springer Nature

About this chapter

Check for updates. Verify currency and authenticity via CrossMark

Cite this chapter

Suksi, M. (2018). Material Content of Enumerations. In: Double Enumeration of Legislative Powers in a Sub-State Context. SpringerBriefs in Law. Springer, Cham. https://doi.org/10.1007/978-3-319-90921-9_3

Download citation

  • DOI: https://doi.org/10.1007/978-3-319-90921-9_3

  • Published:

  • Publisher Name: Springer, Cham

  • Print ISBN: 978-3-319-90920-2

  • Online ISBN: 978-3-319-90921-9

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics

Search

Navigation