Guide for drafters of legislation enabling experimentation projects in society

Assistance for drafters of experimentation legislation

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Experimentation, rule of law and equality

The exercise of public powers must be based on law. When experimentation projects are being planned, it is essential to remember that public authorities must not deviate from the requirements of the law in any of their activities or other exercise of public power, even for the purpose of experimentation, unless this is provided by law. In accordance with the principle of the rule of law, laid down in section 2 of the Constitution, the law shall be strictly observed in all public activity.

An experimentation project is usually targeted at a limited group of people. This is why the constitutional right of equality is an issue that needs to be taken into consideration when planning such projects.

Under section 6, subsection 1 of the Constitution, everyone is equal before the law. The provision expresses not only a requirement for de jure equality but also the idea of de facto equality. The provision also prohibits arbitrary treatment and requires that no one shall be treated differently without an acceptable reason.

Compliance with the equality provision also applies to law drafters. Legislation cannot arbitrarily place people or groups of people in a more or less favourable position in relation to others. The equality provision does not, however, require that all people be treated similarly in all respects, unless the circumstances affecting the matter are the same. Equality aspects are of significance and must be taken into consideration both when legislation provides benefits and rights to people and when it imposes obligations on them. On the other hand, it is typical of legislation to treat some people differently from others in order to achieve a certain acceptable social goal and to promote de facto equality.

It will be possible to conduct an experimentation project if

  • the experimentation project has an acceptable objective
  • the provisions deviating from other legislation that are to be applied during the experimentation project are laid down by an act
  • the legislation enabling the experimentation project is proportionate
  • the participants in the experimentation project and/or the area to which the experimentation applies are specified in the act
  • the legislation enabling the experimentation project is not discriminatory
  • the experimentation legislation is in force only for the short time that is necessary for this, and
  • assessment of the results of the experimentation project is appropriately organised.

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