Legislative complexity and the role of Parliaments in the era  of globalisation

Lisbon, May 1999

 FOREWORD

For the Conference in Lisbon, the Working Group of European Speakers on the quality of legislation, established in Helsinki in 1997, has prepared a document, divided in two sections.
In the first section, the main causes of legislative complexity in the advanced democracies are analysed. The second section sets out a number of policy indications addressing the legislative issue that were approved by the Working Group at its Rome meeting on December 11th and 12th 1998.

By consensus, the Conference proposed in Lisbon that the document prepared by the working group should be submitted to the Speakers who may decide whether to bring it to the attention of the competent Parliamentary bodies or to individual members of Parliament. The issue of legislative complexity should become an agenda item at the Rome Conference of Speakers and it should be taken forward by an ad hoc Working Group following the method that has been adopted so far.

 I N D E X

1. Analytical basis

1.1. The issue of the excessive complexity of legislation and its implications at the European Union level and in the member states
1.2. Different levels of legislative policy in the context of legislative complexity

1.2.1. Rationalization and simplification of existing legislation
1.2.2. The design and verification of the results of legislative policy by the executive power
1.2.3. The role of Parliaments

2. Policy guidelines to address the issue of legislative complexity

 The complexity of legislation and the role of Parliaments in the era  of globalization

 1. Analytical basis

 1.1. The issue of the excessive complexity of legislation and its implications at European Union level and in the member states

The issue of the "excessive complexity of legislation" is receiving increasing attention in all of the European nations, in the European Union, as well as in a number of international bodies (OECD, IMF).
Citizens, associations and businesses are increasingly expressing their concern about the growing burden that is placed upon them by legislation emanating from different sources and having different aims. Public administration is constantly having difficulty in achieving public policy objectives. The quantitative increase in legislation is an objective and measurable phenomenon. It affects the public sphere (both Acts of Parliament and regulations) as well as the private sphere, which is also involved in the production of a large number of rules that vary in scope and cogency.
Many European governments have adopted extensive programs to simplify legislation. The European Union has also pursued this aim for some time and has adopted numerous initiatives, some of which have an inter-institutional nature. But the results achieved so far do not appear to be in any way decisive.
The methods to simplify legislation that have been tried thus far pertain prevalently to legal technique. They do not appear to adequately reflect the scope and depth of the factors that are at the root of the growing complexity of legislation.
It is important to distinguish the part of legislative complexity that can be eliminated from the part which cannot, and to adopt different instruments in the two instances. Avoidable complexity can be tackled with techniques to simplify and improve the quality of legislative text drafting. In the case of unavoidable complexity, which is the prevalent case, political institutions can only take effective action by adapting their roles and procedures. The current situation is new, and it is also changing at an increasingly rapid pace. Moreover, these changes are of a permanent nature. There are structural reasons for this situation and they stem from the very complexity of contemporary society in the more advanced and integrated economies.


The structural character of legislative complexity in advanced societies
The growing complexity of legislation flows from the structural elements of contemporary society, and in particular from the evolution of contemporary social and political systems. Social complexity and legislative complexity are closely interrelated: the former partly justifies the latter, while the latter contributes to further increasing the former.
Some factors related to social complexity lead to growing technical complexity in the legislation produced, while others merely call for a quantitative increase in the number of laws and regulations. The main factors in this trend may be outlined as follows:


- the evolution of markets in a global and open economy: the national and supranational regulation of markets is increasingly driven by the need to ensure sound integration and competition;
- in the European Union countries, the integration process has resulted in the expansion of legislation originating from or enacted by the EU, and the need to integrate different legislative acts and policies;
technological development increasingly requires extensive and sophisticated forms of regulation, which must be continuously adapted: the expansion of technical and scientific knowledge in all fields entails the need for rapid regulation on a global scale and the ongoing adaptation of existing legislation;
- the interdependence of events occurring throughout the world has a steady impact on the legislation of every country and requires its constant adaptation;
- the reduced capacity of large political party and leadership systems to achieve a synthesis of the interests they represent and to fulfill a role of social mediation results in the multiplication or the strengthening of autonomous areas representing interests which require specific forms of regulation and protection;
- the greater complexity of society and its sub-systems, with an ensuing weakening of the centers of social authority and informal conflict-resolution systems, leads to a growing demand for legislative protection on the part of social groups and private interests;
- the trend towards the greater contractualization of social relations generates further bilateral or multilateral rules that in any case have an effect also on third parties. This may occasionally set up a reflex legislative reaction, particularly in countries with a centralistic tradition, that tends to reduce to a homogeneous form the numerous proliferating heterogeneous situations produced by contractual regulation;
- technological development of information systems is at once the context and one of the causes of legislative proliferation: and the enhanced circulation of information has an impact on the formation of political issues and on the rallying of public opinion to demand legislative responses; the huge increase in the pervasiveness, speed and accessibility of communication systems has greatly reduced the cost of forming interest groups that focus on the most diverse issues and who demand legislation to protect their interests (ranging from broadly-based to micro-sectoral issues);
- the democratic political and electoral cycle: the alternation of different majorities in power entails that substantial changes are periodically introduced into legislative policies; the frequency of elections at different levels having nationwide relevance increases the frequency of legislative action - for reasons of political visibility - aimed at meeting the demands of the organized interests that have the greatest political clout at election times (organized groups, community issue advocates, etc.).




Main characteristics of legislative production in European countries and repercussions of social complexity on legislation and on the other sources of law

The production of legislation in the various countries is characterized by the following trends:

o the growing complexity of policies;
o the prevalence of technical factors in defining the possible options;
o the multiplication and differentiation of the sources of law.

More specifically:

a) in many countries, legislation to be adopted by Parliament is drafted mainly by the executive power, and this is almost always the case for E.U. legislation;
b) the most politically relevant legislation is the expression of major policies, which consist of a multiplicity of interlinked measures, often at both E.U. and national levels. These measures are in part legislative, and in part linked to administrative action (deficit control policies, privatization, reform of the civil service and welfare state, citizenship and immigration, legislative simplification etc.). Major policies require a high degree of consistency and effectiveness if they are to achieve their overall objectives. They are therefore highly complex from a technical viewpoint;
c) sectoral legislation is also technically complex owing to its increasing specialization; the proportion of regulations issued directly by the executive using administrative procedures is growing;
d) legislation needs to be constantly amended and adjusted owing to implementation difficulties in a rapidly-changing society (consider, for example, the frequency with which immigration legislation is amended in certain European countries such as France, Germany and Italy);
e) national legislation is in many areas subordinate to policies laid down by the European Union, and thus it is interlinked with legislation produced directly by the European Union;
f) within each country having a federal or regional organization (Austria, Belgium, Germany, Italy and Spain) there is also a gradual expansion of the area reserved for autonomous law-making powers vested in the Laender, and the regional and local authorities;
g) the application of the subsidiarity principle may at times make it difficult to coordinate the supra-national and regional sources of law with the national legislation;
h) Government agencies and independent authorities also issue technical regulations , a phenomenon that bears out the limits of traditional methods of legislation in fields characterized by fluidity, mobility and globalization, such as the financial markets, informatics and audiovisual communication.


In these circumstances, legislative complexity raises a serious problem of democratic deficit, not only on the European Union level, but also on the national level.
This is because in the eyes of citizens, the effects of complexity impinge on the functioning of democracy. From the citizens' viewpoint, access to information, transparency and accountability, which are essential conditions for democracy in the actual exercise of power, are severely threatened. The interweaving of European Union legislation with national legislation (Acts of Parliament, regulations and technical-administrative action), as well as the expansion of local government has had the following results in all countries:


i) a lack of transparency and accessibility of the ottimate sources of the law;
j) a growing gap between the objectives and the actual effects of the law;
k) a weakening of the role of the elected Assemblies and a lessening of the accountability of public powers.


In such a context, the issue of the quality of legislation can no longer be limited to such formal and technical aspects as clarity and consistency. It requires the adoption of a broader institutional policy on legislation to ensure conditions such as access to legislation and the accountability of the law-producing centers.


 1.2. Different levels of legislative policy in the context of legislative  complexity

Owing to the relevance of structural factors and their far-reaching repercussions, overly complex legislation can be viewed as one of the major problems facing advanced democracies in the future.
The highest political institutions, and hence the system of constitutional relations between Parliament and Govemment, must be permanently endowed with the necessary means to deal with this issue as an essential part of their responsibilities. A realistic perspective would require that all of the actions undertaken by public authorities take into account the issue of complexity and its management and be shaped by the constant effort to contain it. This should also apply to the actions of E.U. bodies, and to relations amongst the various institutions in the European Union.
Legislative complexity requires a comprehensive legislative policy. lf the experience of the various European countries, and of the European Union itself, is considered as a whole, then such a policy does seem to be emerging.


Concrete policies for legislation have been adopted. However full awareness and a uniform definition clearly uniting the various approaches appear to be lacking.
On the basis of current experience, three different and complementary levels on which true legislative policy is emerging may be identified:


l) rationalization and simplification;
m) the design and verification of the results of legislative policy by the executive authority;
n) the role of Parliaments.


 1.2.1. Rationalization and simplification of existing legislation

The current programs for legislative rationalization and simplifícation are applied ex post with the aim of re-ordering and consolidating existing legislation.
The aim is to eliminate wherever possible inconsistencies and excessive detail in legislation, the overlap of different legislative measures, and the failure to update past legislation or to repeal obsolete measures. This activity must be undertaken in a permanent and cyclical fashion, as it is necessari to constantly adjust pre-existing legislation. Permanent and comprehensive programs are of special use, in addition to those that prescribe well-ordered approaches to the amendment of codes or consolidaded acts. Such action cannot ultimately be decisive since, it does not in itself ensure any basic consistency of the system although it makes the existing legislation easier to understand.

 1.2.2. The desígn and verification of the results of legislative policy by the executive power

It is increasingly evident that, to a significant degree, the excessive complexity of legislation may be a consequence of public policy itself. It may be due to inadequate policy design, or to a failure to carry out an assessment of overall effects, or to an insufficient verification of the results of implementation.
The introduction of new laws should always be preceded by an analysis of the actual functioning of legislation in force.The need for new laws should be demonstrated on the basis of such an analysis. Once this need has been ascertained, it is important to ensure that the new law is coordinated with pre-existing legislation in such a way as to achieve the maximum level of simplification possible. In the implementation phase, there is a continual need for the assessment of results. Such assessment should also indicate necessary amendments to the legislation in force.

According to guidelines that are widely shared in international fora, preliminary legislative scrutiny includes an evaluation of the following items:


a) The actual need for the legislative measure, based on an analysis of pre-existing legislation;
b) The necessary consístency of all of the applicable measures;
c) An assessment of the efficacy of the measure, with reference to its overall results and its practical functioning with respect to the objectives;
d) The identification of the simplest possible solution;
e) A stringent application of the subsidiarity principle.


There is obviously nothing novel about these principles. The legislator normally applies the described method intuitively. What must be done, therefore, is to systematize and institutionalize their use. The prior assessment of ali aspects of the issue to be regulated and the subsequent verifícation of the effects of the legislation introduced must become a central aspect of the legislative procedure and engage the responsibility of governments. The parliamentary examination of the govemment's legislative proposals will thus become an essential step in ascertaining whether they are consistent with the situations to be regulated and that all the interests involved have been taken into consideration.
The improvement in legislative decision-making afforded by these procedures thus consists in anchoring the legislative decision to compulsory forms of technical assessment (insofar as the evaluation of consistency and effectiveness are absolutely essential in a context of legislative complexity). It also involves guaranteeing that the technical assessments are verifiable and transparent at the stage in which the passage through parliament becomes a decisive context for publicity and verification based on general criteria of compatibility.

 1.2.3. The role of Parliaments

At the highest level, legislative policy deals with the actual modalities of the unfolding of constitutional relations between Parliament and Govemment in the legislative process. In the current highly complex situation, designing legislation makes it necessary for Parliament to perform a preliminary scrutiny, as is often the case within the esecutive power. This technical procedure must, however, take on a political and institutional relevance.
The mission that is historically attributed to Parliaments in constitutional systems is to guarantee the transparency and the democratic nature of the decision-making process at the highest level.
In a complex legislative scenario, the exercise of this traditional function requires compliance with specific procedures and the adoption of new tools.


The main point is related to the procedures that are required to institutíonally guarantee the effective and steady performance by the govemment of the necessary steps in the legislative design process. The objective and transparent performance of a preliminare scrutiny can no longer be considered as a technical procedure alone. It is of fundamental interest for the nation, as it guarantees that those who exercise power have the duty both to provide the reasons for and to demonstrate the validity of their choices and to clarify the objectives that they are effectively pursuing.
The second aspect is linked to transparency and access to information. It is essential that adequate conditions for the Parliament's work be ensured for this purpose. It is not enough to provide technical information. This information must be provided in a usable form, which means that it must be rilevant and synthetic. The information must also be verifiable (meaning essentially that it contains the elements for its demonstration).


In these conditions, the technical information which is provided by Govemment to Parliament, and through Parliament to the public to support or to validate the choices made, becomes a prime factor in the sound functioning of a constitutional system based on the principle of accountability.
In this way, Parliament may once again become essential in ensuring transparency for the benefit of the citizen, in accordance with the most ancient rule of constitutional Govemment. In various ways, reflecting also the specific legislative needs of each E.U. country and of the European Union, this would appear to be the current trend.

 2. Politicy guidelines to address the issue of legislative complexity

The Working Group on the quality of legislation has agreed on the following political aims and policy guidelines to address the issue of legislative complexity.

 2.1 Regarding the political objectives, the following points were considered:

a) part of the legislative complexity may be eliminated through technical measures such as re-ordering and simplification. Nonetheless, legislative complexity is largely the result of the expansion of democracy, the development of contemporary society and the trend towards globalization. Advanced democracies must therefore adopt new tools to govern this complexity;
b) the accumulation of legislation of different origins applied to the same subjects, and the uncontrolled interference between different legislative measures, have given rise to a growing gap between the aims of legislative intervention and its results. This may lead to a gap between the expectations of citizens and the effectiveness of public authority;
c) legislative complexity carries the risk of undermining the functioning of democracy. Institutions must, therefore, undertake political initiatives that adequately reflect the magnitude of this issue. There is not so much a need for separate action on the part of individual institutions as for broad institutional cooperation within countries and in a supranational context;
d) Parliaments are the bodies that represent society as a whole as well as the forum where conflicting political and social interests are mediated. Hence, Parliaments are the institutions that have the greatest interest in fostering forms of inter-institutional cooperation;
e) it is necessary to guarantee the consistency and efficacy of legislative measures, as well as the transparency of the decision-making process. Representative bodies, as well as the public must have access to the information that is needed for effective action. In this connection, legislative design as well as ex ante and ex post evaluation techniques assume special relevance in inter-institutional and political relations.

 2.2 The suggested guidelines for action to achieve the above political objectives may be outlined as follows:

a) provision for minimum and maximum deadlines in the legislative decision-making process;
b) assessment of the actual need for new legislative measures (including an evaluation of the so-called zero option, namely an assessment of the possibility of achieving the same objectives without introducing any changes to legislation);
c) presentation of programming documents or the preparation of legislative programmes by the Executive;
d) reinforcement by Parliament of the tools with which to evaluate the elements that are used to demonstrate the actual need for new legislation and its efficacy and consistency; adoption of technically-verifiable methods. Such evaluation should also be based on an analysis of the functioning of the legislation in force;
e) in particular, Parliamentary evaluation could be reinforced in the following manner:

· by stimulating debate between the majority and the opposition on the issues;
· by implementing as widely as possible the principle of inter-institutional cooperation between Parliaments and the other powers, within the framework of the different constitutional systems. Over and beyond the links amongst the elected assemblies at the various levels, this principle would apply primarily to relations between Parliament and the Executive. It may also extend to constitutional and ordinary judiciary bodies, as well as to other independent bodies, including scientific research institutions;
· by introducing specific bodies or tools in parliamentary procedure that may serve to provide a comprehensive view over legislative production and the problems relating to the quality of legislation;

f) clarification of the relations between national legislation and EU legislation, amplifying the exchange of information amongst all the Parliaments involved when drafting legislation that falls in their sphere of competence.

 2.3 Within the framework of the guidelines for action outlined above, it is suggested that state-of-the-art experiences concerning the production of and access to as well as re-ordering of legislation be collected worldwide and disseminated. This can be accomplished, in part, with the support of modern information technology.