Compliance with good law drafting practice means that the prospective impacts of a legislative proposal have been assessed, the relationship to other legislation has been examined, and different stakeholders have been informed of the project and given an opportunity to express their opinion on the proposal. A fundamental requirement inherent in the law drafting process is that the activities to be regulated must be in compliance with the Constitution – they must treat citizens on equal terms, ensure equal legal protection for all, and must not provide undue advantage to anyone at the cost of someone else or violate anyone’s fundamental rights.
In order to obtain reliable information on the impacts of different choices in society we may have to treat people on unequal terms and thus deviate from the formal principle of equality. A credible social experiment with results that are meaningful for the development of high-quality law drafting and policies will be one that is built and conducted on a sound research basis and whose risks have been assessed. In the design of research-based experiments, research ethics must be taken into consideration, quality must be ensured and the legal parameters must be properly in place (see report published by the Prime Minister’s Office on 21 September 2017). The report, drawn up as a collaborative effort by a large group of experts, focuses especially on social experiments, such as the basic income experiment. In addition to ethical guidelines, the report provides practical instructions on how to plan and implement a high-quality research experiment and, as such, it is recommended reading for everyone planning experimentation projects.
Experimental schemes, trials and pilots do not essentially differ from other high-quality research. For example, the same ethical principles must be observed. The Finnish Advisory Board on Research Integrity defines the ethical principles to be observed in anthropological research in Finland. Researchers using anthropological research methods are bound by the Board’s ethical guidelines for the responsible conduct of research These guidelines also provide answers to most of the ethical questions related to social experiments.
Preliminary preparation is the first step in the legislative drafting process (1). This stage involves an evaluation of the need to launch a legislative project in the first place. This is also a decision that needs to be made when considering whether to launch an experimentation project. Can the project be conducted without legislative amendments or does its execution require the enactment of separate experimentation legislation? The experimentation project, on the other hand, will produce reliable information to be utilised in law drafting projects that may be launched after the project has been carried out. Therefore, it is important to determine why the experimentation project is necessary, what exactly is the focus of the project, what are the specific issues on which experiential knowledge is needed, how this knowledge would be obtained, what procedure would be used to analyse the information, how the results would be reported, and so on. Answers to questions of this kind often also provide an answer to the question of whether the experiment requires the enactment of a separate act or whether it can be undertaken without any legislative amendments by, for example, modifying certain practices, informing the parties concerned or providing training.
If new legislation is needed, it must be drafted in compliance with good law drafting practice and the guidelines on law drafting. It must also be kept in mind that preparation of basic legislation that is important in principle and of significance for the functioning of society requires more from the law drafters than preparation of a smaller-scale legislative project. The principles of good law drafting that must be adhered to are, however, always the same:
- law drafting must be based on reliable and accurate information
- law drafting must be open and transparent
- the practical drafting work must be carried out by professional and competent public officials
- the political guidance and direction of the drafting process must be timely
- a law drafting project must be carried out in a manner that is appropriate in regard to the nature of the matter
- enough time must be reserved for the drafting process, as required by the complexity of the matter, and
- sufficient resources must be allocated for the drafting.
This guide, together with the Bill Drafting Instructions and Lainkirjoittajan opas (‘Guide for law drafters’), provides a good foundation for the drafting of individual statutes enabling experimentation projects in society.
Compliance with the principles of good law drafting practice also helps ensure that the design of an experiment is of high quality and ethically sound and will provide reliable information. Thus, observance of good law drafting practice supports the achievement of the social objectives of experimentation projects.
The following section: Experimentation, rule of law and equality ›