Improving the Quality of Law Drafting in Finland

4 Colum. J. Eur. L. 629 (1998)

Jyrki Tala, Juhani Korhonen & Kaijus Ervasti. Jyrki Tala, Research Manager, National Research Institute of Legal Policy. Juhani Korhonen, Senior Advisor, Public Management Department, Ministry of Finance. Kaijus Ervasti, Researcher, National Research Institute of Legal Policy.

Since the beginning of the mid-1990s, several projects have been implemented to improve the quality of law drafting in Finland. At the end of 1997, two final proposals introduced improved and more comprehensive methods to assess and forecast the impact of new legislation. One of the proposals covers the economic effects of legislation and the other, the environmental effects. Designed to ensure a minimum quality of law drafting from the technical point of view, a new set of instructions has also been issued recently, and training requirements for the drafters of legislation have been recommended in a recent report. These projects support the Government Program approved in May 1996 to improve law drafting. The program includes thirty-three guidelines and recommendations. Certain political momentum is evident in the fact that programs of this type have never before been introduced in Finland and that the demand for developing law drafting has never before received such a solid expression of political will.

The main thrust of the current efforts in Finland targets the law-drafting process and, consequently, the qualitative improvement of the laws. The majority of projects are linked to the law-drafting process, which takes place in the Government, its ministries, and statute-drafting bodies nominated by the ministries. In practice, the main responsibility for drafting legislation in Finland rests with permanent civil servants working in the various ministries. In principle, their official positions are not tied to politicians’ terms of office or to the current government’s political ideology. To some extent outside experts also take part in the drafting process. Similarly, there may be representatives of interest groups acting as members in various temporary law-drafting bodies, such as specially appointed committees and working groups.

The principal instrument with which the Government has attempted to control legislative drafting has, so far, been the Instructions on the Drafting of Government Proposals. These instructions specify the structure and code of writing bills introduced by the Government. Notably, the regulations stipulating the informative basis of the proposal, preparation of various alternative measures and the evaluation and forecasting of the impact of the bill do, in effect, control the working practices of law drafters in their daily task.

These rules regulating the practice and methods of law-drafting are designed to exert influence in four different ways. First, law-drafting must be based on a sufficient compilation of background information, including: (a) a presentation of the current legislation; (b) a record of its current application; (c) information about the prevailing social situation in terms of the issue in question; and (d) a summary of foreign legislative practices including related international trends. Second, in the general justification section, the proposed legislation must include a description of its goals and means-the core issues of the proposal. Third, the proposal must be accompanied by a discussion of alternatives for solving the problem. Alternative models should not be limited to legal measures. Fourth, a prerequisite of the instructions regarding all law-drafting is that the presumed impact of a bill is presented. The instructions stipulate that all effects on issues such as finance, organization, personnel and environment, require separate analysis. Likewise, the rules require an evaluation of the impact the bill would have on various groups in society, specifically in terms of social equality.

The Instructions on the Drafting of Government Proposals have clarified and provided uniformity in the external form of government bills. A survey of all the bills proposed by the Government in 1994 disclosed that, nonetheless, a certain number of omissions and defects in the practice of law-drafting continued to exist. The basic problem was that the supply of relevant background material was found inadequate; the description of the practices in applying the legislation, the effect on the social situation and international developments, as well as information on related legislation in other countries, was often insufficient and poorly documented. Alternatives to the proposed bills were found only in exceptional cases, and even evaluations and forecasts regarding the impact of the bills were frequently presented far too narrowly.

In practice, the current law-drafting process in Finland is characterized by a fairly strong instrumentalist concept of law. The contents of the laws and the need for legal reform are usually judged from the point of view of a specific rationale which is seen as a favorable state of affairs, something one wants to develop or can achieve by rectifying a deficiency. The idea of legislation as a goal-oriented activity and the instrumentalist concept of law can be viewed as two sides of the same issue. These two characteristics emphasize the impact of legislation. The instrumentalist concept of law is clearly evident in the rules governing the drafting of government bills in which the rationale and the means must be specified, alternative approaches to achieve the goal presented and forecasts of the effects submitted. The characteristic feature of instrumentalism is appreciation of the fact that legislation is a means of public decision making. Consequently, it is logical to expect those people who are engaged in the planning of various schemes of intervention to possess a thorough knowledge of the specific sector of society the bill will be directed at and to collect as much background information on the case as possible.

Legislation has played a fairly central role in the political system of Finland as an instrumental and controlling vehicle for decision makers. Fundamental structures of society and relevant rules of behavior are enforced by law. The qualitative importance of legislation is illustrated by the appraisal that society is not engaged in any activities on which legislation has no effect, at least indirectly.

In quantitative terms, the government has issued Parliament approximately two to three hundred proposals annually for ratification in the 1990s, the majority of which have covered more than one new proposed law. Almost all new laws in Finland originate from Government proposals. Only in extremely rare cases does a parliamentary motion lead to the emergence of a new law. As in most parliamentary systems, Parliament normally ratifies the contents of proposals issued by the Government. During the parliamentary process, however, minor technical adjustments are applied to approximately one half of the bills, and a few proposals are rejected in Parliament annually.

The number of ratified and modified laws that enters into force is about twice as large as the number of proposals. One half of the renewed laws are partial amendments of earlier laws. Only one law out of seven or eight covers a completely new issue or complex of issues or constitutes a complete substitution of an earlier set of rules and regulations. In the 1990s the amount of legislation in Finland, contrary to the situation in some other countries, has not caused widespread debate about floods of legislation or “juridification” of society (Verrechtlichung), although suggestions to that effect have been raised in academic circles. Membership of the European Union since 1995 merely seems to have increased the amount of legislation and its importance.”

Perhaps the most important reason behind the projects to improve drafting of legislation in Finland has been the criticism the Parliament has repeatedly directed, especially during the mid-1990s, at the quality of law-drafting by the Government and the diminishing respect toward law-drafting. Furthermore, momentum and support for the development of projects concerning the drafting process has been supplied by domestic research, to a limited extent, and by international organizations such as the Organisation for Economic Cooperation and Development (OECD) and the European Union. Some legislative reform failures have not, at least until now, put their stamp on the legislative development activities. This is true regardless of the fact that Finland experienced an unusually strong economic recession accompanied by an exceptional bank crisis in the early 1990s. Proposals for improving the quality of legislation have been made in a relatively neutral political environment without much difference among political parties. Reforms have not been linked with definite political programs of any kind such as deregulation plans or attempts to block certain reforms because of the excessive financial burden placed on special interest groups or particular sectors of society.

On the other hand, the relatively vague criticism directed at the quality and quantity of legislation in Finland, as in many other countries, has been established as one of the standard themes of political debate. Partly, the criticism seems to be based on disappointments experienced following promises made in political debates encouraging legislative reforms. To some extent, there have been real disappointments resulting from failed effects, negative impacts or excessive costs of legislation. Some aim their criticism at the quality of law- drafting although they may actually oppose the entire reform effort, its purpose and contents.