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Marcus Hahn-Lorber, PARALLELE GESETZGEBUNGS-KOMPETENZEN. NICHT-HIERARCHISCHE KOMPETENZVERTEILUNG IM DEUTSCH-SCHOTTISCHEN VERFASSUNGSVERGLEICH Tübingen: Mohr Siebeck (www.mohr.de), 2012. xxvii + 439 pp. ISBN 9783161516863. €69.

Document Cited authorities 4 Cited in Related
Vincent
AuthorDirk Hanschel
Date01 May 2014
Published date01 May 2014
DOI10.3366/elr.2014.0223
Pages308-310

This book provides a very timely and innovative analysis which deals with the challenge of comparing the distribution of central and regional legal competencies under the German and Scottish constitutional frameworks (or, more precisely, the UK constitutional framework in relation to Scotland).

Based on a slight qualification of Jacob von Andreae's hypothesis of a substantive continuum of decentralization allowing for a comparison of German federalism and UK devolution (see Devolution und Bundesstaat, Boorberg, 2005), Hahn-Lorber focuses on some of the more recent changes of the German Basic Law due to federalism reform in 2006. He sets out to argue that Art 72, para 3 and Art 84, para 1, cls 2–4 of the Basic Law, which deal with certain matters of concurrent legislation and rules for administrative procedure respectively, display a new category of non-hierarchical, i.e. parallel legal competencies characterised by the equal ability of the Federation and the Länder to pass laws. These provisions have in fact created a system whereby the Länder may derogate from federal legislation whilst being themselves subjected to subsequent legislation of the Federation. Scholarly opinion has criticised this widely as leading to a potential “ping pong game” that is difficult to reconcile with the principle of hierarchy of norms. Whilst this criticism may be well justified, Hahn-Lorber deserves merit for suggesting a much more positive view of this reform by understanding it as a stipulation of a new type of parallel competencies of both levels embedded in the context of a wider, pluralist reading of the constitution.

This opens an exciting avenue for the author to embark on a very fruitful comparison with the current devolution settlement in the United Kingdom in relation to Scotland (in particular as regards sections 28 and 29 of the Scotland Act 1998), based on the assumption that the UK Parliament has transferred powers to the Scottish Parliament in a similar fashion. Naturally, this assumption poses a number of rather fundamental challenges, since, as opposed to the German situation, the key doctrine of UK parliamentary supremacy might allow for the retraction of devolved powers at any time. Hahn-Lorber is, however, fully aware of this objection and argues rather convincingly (whilst maybe slightly understating arguments to the contrary) how the UK Constitution, in particular due to the Sewel Convention, bars such unilateral action without prior Scottish...

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