Notes transmitted by the Parliaments represented in the  Working Group

 FINLAND

 Note on experiences of the legislative process in Finland

The Finnish understanding of quality of legislation is a product of history. In Finland, the historic tradition has created a high level of expectation.
Finnish legal tradition since at least the reformation in the 16th century has as a principle that the content of the law must be (1) readily accessible to every citizen, (2) comprehensible to the lay reader - or at least to the category of reader, e.g., merchants, to which the specific statute applies - and (3) comprehensive in the sense that what is apparent from the statute book is an up-to-date and precise statement of the law as it stands. Since the publication of the Code of 1734, the body of the law has been available to every citizen prepared to open the book. (Consolidated codes have been regularly produced and widely distributed ever since.) In other words, the citizen should only need to seek professional legal counsel in exceptional circumstances.
In the 1990ies, there was a widespread feeling, in Parliament and in society at large, that much new legislation fell short of the traditional standard. Specific causes of complaint were, int. al., (1) poor comprehensibility, e.g., complicated, wordy or archaic language; (2) poor consistency, e.g., with other legislation; (3) poor cohesion, e.g., by scattering related legal norms in unrelated statutes and (4) poor justification, i.e., the purpose, impact or intended interpretation of enactments were insufficiently analysed in legislative bills. These shortcomings were partly explained by the need to transpose the huge bulk of Community legal acts forming the acquis communautaire and by the hastily prepared legislation required to mitigate the effects of the deep economic recession of the early 1990s. Partly they were a consequence of poor legislative drafting technique and regulatory management.
At the recommendation of its Constitutional Law Committee, Parliament required of the government concrete steps to remedy the situation. The remedies largely involved standardisation of the legislative drafting process throughout the administration and the adoption of binding guidelines for legislative drafting.
Below is a presentation of the current legislative process in Finland. It is the product of a concerted and continuing effort, at both the political and the civil service level, to raise the standards of legislative drafting. The guiding principles can be summarized as transparency, consultation, and consensus.
In Finland, drafting of legislation takes place under the guidance of the Government, and the laws adopted by Parliament are usually based on Government proposals. Each member of Parliament has a right to propose private member's bills but they rarely lead adoption of a law.
Within the Government, each ministry is responsible for legislative drafting in its field of competence. However, ministries frequently participate in preparation of legislation belonging to the competence of another ministry. The Ministry of Justice plays a central role in supervising the technical aspects of legislative drafting. Its task also is to develop preparation of legislation under the auspices of the Government. Government proposals have to be forwarded to the Ministry of Justice for inspection before they are presented to Parliament.
Drafting of legislation can be divided into the following stages:

• preliminary preparation
• basic preparation
• consultation
• continued preparation
• decision-making at the Government level
• consideration by Parliament
• ratification, promulgation and entry in force
• follow-up

A legislative project can be initiated in different ways. Generally, preparation of laws is based on the Government programme, the implementation of which is followed-up with the help of a more detailed "project portfolio". Legislative projects can also be initiated because of statements adopted by Parliament, opinions of the institutions responsible for supervision of legality, i.e, the Chancellor of Justice of the Government and the Parliamentary Ombudsman, or public debate. International agreements and Community legal Acts may also lead to initiation of a legislative project.
Preliminary preparation consists of clarification of the present state of affairs relating to the concerned issue and assessment of the need for reform and possible goals that could be set out for the project. Preliminary preparation forms the ground-work of the legislative project, and one part of it consists of finding the most appropriate way of organizing the actual preparation. Preliminary preparation usually takes place in the relevant ministry but for some larger projects the preliminary preparation can involve a broader structure.

The purpose of basic preparation is to prepare a draft of the relevant legislative provisions with an exposé des motifs. Presently, drafts proposals are prepared in the technical form of a Government proposal following the guidelines included in "Instruction on the drafting of Government proposals" (1992) concerning structure, standard headings etc. Basic preparation can be entrusted to a single or several officials of a ministry or to another public body. However, often a temporary organ is set up for preparation:

• The ministry concerned may set up a working group which may also include other than civil servants, for example outside experts;
• The ministry concerned may set up a commission if the concerned matter has a broader impact in the sector concerned and representation of other than public authorities of the sector is needed to ensure proper preparation of the matter;
• The Government may set up a committee if the concerned matter is wide-reaching and important and if it may entail substantial societal, economic or environmental impacts;
• The Government or the ministry concerned may entrust the preparation for a single individual, e.g., for an eminent civil servant or expert (one-man committees, "wise men");
• The preparation can take place under the auspices of a special project organization set up for other purposes.

The composition of a commission or a committee is decided taking into account the main contents, objectives and scale of the concerned project. The organs may include, for example, members of Parliament (so-called parliamentary committees ), representatives of NGOs, civil servants and/or independent experts. The organ is given a written mandate which defines its task and the main objectives of the project. A time-limit not exceeding two years is also set out for the work of the organ. The time-limit may be prolonged on special grounds. Otherwise, the temporary organ plans and organizes its work itself. For example, it may hear experts or arrange public hearings, seminars or other similar events.
The organ prepares a report on its findings and proposals for the institution that has set it up, i.e. the Government or the concerned ministry. These reports are published in print in a special series (Reports of committees and commissions). Reports of workings groups set up by ministries are made available to the public by the concerned ministry.
As a rule, documents forwarded to committees, commissions and working groups for consideration become accessible to the public when the concerned body has received them. These bodies are obliged to transfer their archives to the relevant ministry three months after they have finished their work.

After the report of a committee, a commission or a working group or a draft prepared within a ministry has been published, public debate and a formal consultation takes place. Ministries are obliged to seek written opinions from relevant authorities, interested parties, such as NGOs, and experts on the proposals taking into account the substance and the importance of the project. They may also arrange public hearings on the matter. Ministries prepare a written summary of the opinions received during the consultation. The summary as well as the opinions themselves are public documents which everybody is entitled to study. The summaries of opinions are often published in print or mimeograph.

The concerned ministry continues preparations if, on the basis of debate and opinions received during the preceding phase, sufficient political, economic and societal conditions seem to prevail for continuation of the project. During the continued preparation: Ø the ministerial civil servants responsible for legislative drafting finalize the proposals from a legislative technical point of view and make the amendments necessitated by the feed-back received during the consultation phase; Ø the concerned minister decides issues requiring a political solution; the matter may also be negotiated on a broader basis within the Government (in various informal or formal working parties including relevant ministers and, possibly, leaders of the Parliamentary factions represented in the coalition). The draft Government proposal resulting from the continued preparation has to be presented to the Ministry of Justice for legal-technical inspection before it is forwarded for formal adoption by the Government and the President of the Republic. The formal decision concerning submission a Government proposal to Parliament for adoption is taken by the President of the Republic upon presentation of the Government. The President can once return the proposal to the Government for new consideration but, when the matter is presented for the second time, the President has to submit it in the form proposed by the Government.

In Parliament, all Government proposals have to be scrutinized in the relevant standing Committee before they can be considered by the plenary session (the so-called mandatory preparation in committee). Parliamentary consideration starts by a preliminary plenary debate on the proposal. The preliminary debate ends with the decision concerning the Committee to which the proposal is referred. At this stage, Parliament often also decides that other Committees shall give their opinion to the Committee in charge of the matter.
The Committees concerned hear experts (int. al. ministerial civil servants, representatives of other authorities and interested parties, such as NGOs, law professors and other independent experts etc.) and they may ask an opinion of other Committees. The competent Committee in charge of the matter is obliged to seek opinion of the Constitutional Committee of Parliament if there are questions relating to constitutionality of the proposal or concerning its relation to international human rights instruments. While preparing its opinion, the Constitutional Committee mainly hears experts on constitutional and/or international law.
A Government proposal always includes a full description on the preparation of the matter with references to all preceding documentation. Consequently, all materials relating the preceding phases of preparation are available to Parliament and its Committees.
The competent Committee issues a report on the matter. The legislative drafts are taken for consideration by the plenary on the basis of these reports.
As a rule, the meetings of Committees of Parliament take place in camera. However, a Committee may decide that its meetings are public, when the Committee seeks information and advice on the matter. This option has not gained wide application by the Committees.
On the other hand, records of the Committees and the enclosed documents are accessible to the public. The documents relating to the consideration of the matter by the Committee (for example written opinions of experts hears by the Committee) become public whence the matter is closed by the Committee.
Government proposals and reports and opinions of the Committees are published in print and they also are accessible through the public net-sites of Parliament. Thus, everybody can follow the different phases of the parliamentary proceedings and participate in the relating public debate.

The President of the Republic ratifies the laws adopted by Parliament. If the ratification is withheld, the law is returned to Parliament. If Parliament re-approves the concerned law unamended, it enters into force without ratification.
The Government is obliged to publish the laws in The Statutes of Finland, and they are also accessible without cost to the public through Internet. The Statutes of Finland include for each law a reference to the relevant Government proposal or private member's bill, to the relevant report and opinions of Committees of Parliament, to the relevant decision of Parliament and, possibly, to Community legal acts, if the law concerns their transposition or implementation.
A law must stipulate the date on which it enters into force. If the law has not been published before this date, it enters in force upon its publication.

As a part of good law drafting, each ministry is obliged to follow-up the impacts of laws prepared by it. For broader pieces of legislation, this follow-up may be organized in a more systematic manner, for example by arranging a study concerning the impacts a few years after the entry into force of the law.