Professor of Comparative Jurisprudence, University of Tartu
Good Law Making Practice and Legislative Drafting Conforming to It in the Republic of Estonia
Legislation is not conducted, nor laws created, merely for providing legislative institutions with work. Neither can legislation be aimed at a relatively narrow circle of society. Legislative work and the law have been and are almost the only means available to states through which the conduct of the major part of society can be regulated1.Such perception and recognition of the role of legislation in society requires that due regard be paid to several factors in legislative drafting in order to ensure quality. Most broadly, these factors can be divided into the technical (related to regulatory practice) and substantive (iusestarsboni et aequi).
The regulatory rules of legislative drafting comprise a set of measures and methods, justified on the basis of theory, used in preparing drafts of legislative acts. Regarded as such, regulatory measures form an inseparable part of the procedure of legislative drafting and help ensure the validity and effect of the legislative act adopted2. In the Estonian legal order, the regulatory issues have been considered so important that on 28 September 1999, the government adopted Regulation 279, 'Regulatory rules of draft legislative acts'3, which entered into force on 1 January 20004. The objective of the regulation was to guarantee a certain uniformity and quality of draft legislative acts through establishing the principal regulatory rules. The regulation was amended on
Yet it is clear that a legislative act can be used for providing general requirements. The author of the foreword to the recently published 'Handbook of Regulatory Practice', the present Minister of Justice, correctly says: 'Real life is much more varied, and while implementing general provisions we may still face the fact that problems cannot be solved merely by legislative acts.'*5
Here we have to ask whether, besides the obviously necessary but general regulatory provisions and rules of practice, more detailed regulations that thus have a more substantive and concrete effect on drafting are required. Or would it be more reasonable to establish general rules for the substantive aspect of regulatory practice to accompany the general rules for legislative drafting? The logic behind the latter idea is that legislative drafting would be organised by a set of general rules covering both general regulatory and substantive elements.
More precisely, the question concerns good law making practice or rules characterised by a certain level of quality6. Rules for good law making practice are aimed at obtaining the maximum benefit from legal regulations. Almost all rules of good law making practice are related to various aspects of analysis of the impact of a legislative act7.As regards terminology, this may also be implied through 'analysis of the impact accompanying regulation' or 'analysis of the impacts of regulation'. The latter primarily derives from English sources, which use 'regulatory impact analysis'. The paper by OECD understands regulation as highly varied legal instruments from constitutions to guidelines and instructions.*8
At the same time, the problem lies in the fact that at times, the constitutive aspect of the Continental European legal culture - legal positivism - restricts comprehension of the set of rules of good law making practice or the use thereof. However, we must agree with the present-day position: 'The number of cultural, social, legal, economic, communicative, and other subdisciplines that are associated with law is constantly increasing, and a postmodern approach has been frequently applied to interdisciplinary treatments. (In Estonia, the trends of social and legal studies have developed only recently, and several areas have not been covered yet) [...] [T]he formal and legal positivist approach to law and legislative drafting is starting to wane as a result of the influence of widespread social research, development of interdisciplinary approaches, and new media networks as well as networks in civil society, and hence the legal systems and constitutional institutions based on modernist values are searching for new theoretical points of equilibrium in the globalising world.'*9
The conventions of good law making practice as a set of rules include an increase of political decisiveness and a more extensive use of regulatory impact analysis in policy planning, discussion, and evaluation; sharing of liability for the implementation of the regulatory impact analysis programmes; provision of training to experts; a systematised and flexible use of the methods of regulatory impact analysis; development and implementation of data collection strategies; guiding of the regulatory impact analysis in the right direction; integration of the regulatory impact analysis into the process of policy-making at the earliest stage possible; notification of stakeholders concerning the results of the regulatory impact analysis, which also serves as a precondition for a dialogue; a consistent and appropriate approach to the public; determined and timely consulting with the interest groups; and the use of regulatory impact analysis methods for assessing the impact of both already applicable (ex post) and new (ex ante) legislation.
The space available does not allow for discussion of all the rules related to good law making practice. Therefore, we will focus in greater detail on the requirement for increased political decisiveness, the rule that demands broader use of regulatory impact analysis. This is caused, above all, by the fact that Estonia's membership in the European Union poses new challenges for legislative drafting, which require a broader vision of legislative drafting and a systematised perception of its new dimensions.
The requirement to increase political decisiveness and make more extensive use of regulatory impact analysis for that purpose is the first rule of good law making practice. Regulatory impact analysis must be used more widely than before in planning, discussing, and evaluating matters of politics. In the spring of 2001, the editorial board of the Journal of the Estonian Parliament*10 developed the idea of investigating whether and to what extent Estonian governmental authorities engage in ordering draft legislative acts and applied research, including the proportion of the surveys that are related to legislative drafting. The initial issues were as follows:
Estonian legislation reveals problems related to the concordance between the European Union and Estonian national legal order and related to the analysis of the social, economic, and budgetary impact of legislation.
The political choices provided in draft legislative acts are not based on the analysis of Estonian society.
Information on budgetary surveys is not communicated between state agencies and is not available on the Internet either.
The theoretical point of departure of a parliamentary survey is the concept of moral and responsible politics, which presume an analysis of the social impacts and risks of draft legislation.
Unless the social facts (including public opinion, state budget, etc.) support the legal provisions of a new legislative act, this may entail political, legal, and economic problems. The better the legislators are able to analyse and consider the budgetary, economic, social, and administrative impacts accompanying the implementation of a legislative act, the better the act fulfils the social objectives inherent therein11. Of the results of the survey, in the context of good law making practice, of considerable interest are those characterising political choices, the implementation of which presumes a sufficient political will to improve public law and administration.
In order to regulate the institutional system of Estonian government agencies and orders for applied research, first of all, a detailed inventory should be conducted concerning previous practice regarding survey orders and the existing intellectual and other means that could serve as the basis for improving the procedure for preserving and systematising relevant information and improving the procedure for ordering and evaluating surveys.
Estonia needs a government programme for promoting the principles of knowledge-based legislative drafting and public administration. In the case of a political agreement, the task of initiating the government programme may also be negotiated in the committees of the Estonian parliament (Riigikogu) and be formalised as a decision of the Riigikogu.
The alteration of the role of the national parliaments in the context of the globalising political landscape and economy and the information society requires firm establishment of...