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Exceptional law-drafting under normal circumstances (Law-drafting challenges)

Ministry of Social Affairs and Health
29.10.2020 12.00 | Published in English on 30.10.2020 at 15.28
Column
Kirsi Varhila

Law-drafting is a multi-stage process, which requires a wide range of professional competences and cooperation between multiple instances. In the Covid-19 situation, this work has been performed across ministries and in cooperation with agencies and research institution experts as well as practical actors.

The coronavirus has brought a new dimension to the haste typical for law-drafting when the objective has been to secure human lives and health within a tight schedule, preferably proactively. At the same time, the requirements for the legislative drafting are extremely demanding due to the nature of the regulation. The preparers of regulations and other experts have worked long days.

Constitutional issues have been highlighted

The constitutional issues have been highlighted in the Covid-19-related legislation while we are forced to weigh the importance of different fundamental rights and seek for the balance between them. The constitutional justifications for legislative proposals and the requirement level set for their extent have appropriately increased over the years.

Currently, higher-level consideration nearly corresponding to legal research is required from the constitutional discussions concerning legislative proposals. While the proposal has been prepared in ministries within the known constitutional law framework and this framework has been constantly developed in the Constitutional Law Committee, the justifications for the proposal may no longer be sufficient on the basis of the new standpoint.

A considerably higher requirement level is also set for the information presented and assessed in the Government proposal. It has naturally always been required that the Parliament is presented with correct and sufficient information in connection with the justifications for the proposal. However, the presentation of the selected regulation solution has been the focus in law-drafting. Currently, all alternative models and their impacts should be described and analysed more comprehensively and objectively in the proposals. 

Medical knowledge and assessment emphasised

Societal steering needs in the Ministry of Social Affairs and Health sector are often primarily defined on the basis of medical knowledge and assessment. This is emphasised in the handling of the Covid-19 situation. Medicine evolves constantly, and it is typical for scientific research that there are no absolutely certain, correct or right information or assessments.

The new virus creates a magnitude of medical uncertainties. Regulation guidance is poorly suited in controlling a situation in which the need for steering with respect to the contents varies rapidly. Regulation should be widely enabling so that the practical measures could be based on the latest and most reliable information.

However, when measures restricting fundamental rights are at stake, it is challenging to draft enabling and flexible legislation so that it would fulfill the basic and special requirements concerning the restricting of fundamental rights accurately and precisely. Seeking this balance is extremely challenging and time-consuming work which demands a dialogue between several ministries and constitutional law experts.

Only little time to assess the impacts of legislative proposals

In the current situation, there is only little time to assess the impacts of legislative proposals as a whole. We have been forced to decrease the number of parties heard in the preparation phase and shorten the time spent on the circulation for comments. According to the recommendations, six to eight weeks should be reserved for giving statements, as a rule, but now we have requested statements within a deadline that is less than one week.

The parties issuing statements have no time to go into the details of the legislative proposal in such a short time. This means, for example, that the information based on the practical knowledge possessed by the parties executing the legislation may be unexploited in the preparation. This also reduces the openness of law-drafting. 

All legislative proposals should be evaluated in the Ministry of Justice’s Legal Revision and Development of Legislation unit. Legal revision is a key element in the quality assurance of legislation. In some cases, there has been no time to conduct legal revision or it has been conducted superficially in haste without providing an actual assessment statement. 
Translating the proposals into Swedish takes time, and may cause serious problems if there is no time to spot a possible error in the Swedish version due to time pressure before the law enters into force. 

Law-drafting skills on a good level

Law-drafting skills are, on average, on a good level, but we must constantly pay attention to them. Lately, support and training in especially fundamental and human rights issues have been requested. Law-drafting skills are also affected by the high turnover of the preparers of regulations in places.

In order to ensure the law-drafting skills, the ministries should clearly also pay more attention to HR management solutions that would secure the preservation, development and sharing of skills.

Law-drafting development entered in the Government Programme

The Government Programme includes several entries concerning the development and improvement of the quality of law-drafting. The entries concern the increase of efficiency and expansion of constitutional assessment and impact evaluations, strengthening the preparatory parties’ fundamental and human rights skills, preparation of a government-level after effect assessment system and drafting of a comprehensive action plan for better regulation.  

The Ministry of Justice has appointed a cooperation group of representatives of ministries to develop law-drafting. The tasks of the working group include, for example, the promotion of the implementation of the entries concerning the quality assurance of law-drafting included in the Government Programme and to act as the steering group for the better regulation action plan.

 
Kirsi Varhila
Permanent Secretary
Ministry of Social Affairs and Health
 

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