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Commenting on the government program presented by Saulius Skvernelis in 2016, I lamented that “there was no room in the government program for a more in-depth and systematic approach to legislative issues. Especially in comparison with the very rightly observed problems in the program of the Lithuanian Greens and Peasants Party and the ways to solve them. The need to manage the legislative process was already demonstrated in the first sessions of the new Seimas ”. Will history not repeat itself?
Achieve modus operandi a breakthrough in legislation is not so easy. It is not enough to use a cost-benefit analysis method or consult the public to solve a legislative problem; Deeper systemic, institutional and spatial cultural changes are also needed to address legislative challenges.
The first immediate problem that the new coalition will face is the preparation of a new government program. The basis of the government program is the programs of the political parties belonging to the coalition. It is not necessary to base the ideas of political party programs on evidence. Legislation, on the other hand, must be based on evidence, cost-benefit analysis, public consultation.
Addressing legislative issues also requires deeper cultural, institutional, and spatial changes.
Even if you wanted to evaluate an initiative using a legislative instrument before moving from a political party program to a government program, it is practically impossible to do so. The Constitution provides for a very short period of 15 days, during which the Government’s program must not only be prepared, but must also be considered by the Seimas, and must be approved by the Seimas.
Past practice shows that during this already compressed period, not only the initiatives of political parties, but also those initiated by various institutions, and some of them, which are hidden in drawers, are transferred to the Government program. Such a program becomes large-scale and specifies in great detail what regulation, law or resolution needs to be changed. For example, the Saulius Skvernelis Government Program for 2016 consisted of up to 132 pages. From a legislative standpoint, this is like a “deadly” cocktail where you can find anything.
The paradox is that if any initiative of the government program were rejected after considering the adaptation of the legislative instruments, it would result in the government program not being implemented. But 132 pages is just the beginning. Another “deadly” cocktail is the Government Program Implementation Plan, which must be approved within 3 months by government law. Thus, 132 pages are multiplied in an almost geometric progression and become a plane of almost 1000 measurements. And this translates into 400-580 draft legal acts for each session of the Seimas, not counting government resolutions, ministerial orders, etc.
How to avoid these deadly legislative cocktails? The answer lies in an old Latin saying: he who tries too much does not prove anything (a lot. it does not prove anything, which is too much, it proves). Or, as Martin Luther proclaimed, the fewer words, the better the prayer. Therefore, genius in laconism. The government program should be a program document, which should discuss the main directions of government work, the main initiatives, and the plan for the implementation of the provisions of the government program should be perfectly superseded by other strategic planning documents. A good example is the European Commission’s 2019-2024 policy guidelines, which are only 23 pages long and only identify common ideas and priorities.
Another “deadly” cocktail is the Government Program Implementation Plan, which must be approved within 3 months by government law.
The second problem is related to the procedure and priorities of the Seimas. As the political scientist Alvidas Lukošaitis rightly points out, in the activities of our parliament hyper dominates the activity of adopting legal acts, taking aside the most fundamental duty of the Seimas: the representation of public interests and communication with citizens, as well as without paying enough attention to the activities of parliamentary, budgetary and nomination control.
The principles of good legislation require that legislation be evidence-based. Such evidence can include a variety of independent studies, the results of monitoring and evaluation of existing legislation, and a cost-benefit analysis. The question must also be asked each time, isn’t it worth doing a systematic review of the whole area? Wouldn’t it be possible to systematize and integrate the laws into a whole when many legal norms that regulate similar relationships are transposed into a single act or legal code? Isn’t it worth changing existing restrictions and reducing the administrative burden on citizens and businesses by changing regulation? According to a study of the legislative process conducted by the State Audit Office, only 0.06 percent. The current legislation was evaluated in 2014-2016 and 98 of the 110 state institutions in charge of monitoring legal regulation did not carry it out.
Legislation has a specific cycle: situation study (evidence) – legislative initiative (legislative concept, regulatory framework, etc.) – legislative preparation – adoption – monitoring and evaluation, and again from the beginning. Any violation of this cycle determines the quality of the legislation. Therefore, an initiative cannot begin and end with the preparation and approval of legislation. Yet again paradoxically, it is difficult to imagine a more unfavorable environment for the legislative cycle than the Statute of the Seimas, beginning with the desperate content of explanatory notes, which is “sealed” with tolerance for the sentence “unforeseen consequences” and ending without structure , function or lawyers actively supervising the legislative process. It should be added that the legislative information system is similar to the Excel spreadsheet of the late 20th century, and legislative data is still provided in pdf format, not to mention the futility of the data itself.
It is difficult to imagine an environment more unfavorable for the legislative cycle than the Statute of the Seimas.
But the biggest problem is that this entire mechanism is not linked in any way to the application of legislative principles. Popular words: a statute for you, a legislative framework for you. It is worth noting that when looking at these issues, it is not even worth talking about modern and innovative legislative models: ‘sandboxes’, adaptive or results-based legislation, or ensuring the real participation of stakeholders in the legislative process.
In the 8th session of the Seimas of the 2016-2020 legislature, the Government registered almost half of the draft legal acts, as well as about half of the legal acts adopted were initiated by the Government. Therefore, the government is an active participant in the legislative process and problems related to the quality of legislation cannot be resolved without addressing the quality of legislation at the government and ministry levels.
Changing legislation at the government level has also become one of the simplest and easiest ways to demonstrate problem solving, although it would be more accurate to simulate problem solving.
Unfortunately, the government does not appear to publish any data related to its legislative activities. However, a closer look at the government’s agendas reveals a marked fragmentation, that is, the constant correction and adjustment of legal acts, and the identification of other problems related to the legislative cycle, which are almost identical to legislative problems. of the Seimas. This is the third problem. Paradoxically, proposals to change legislation at the government level have also become one of the simplest and easiest ways to demonstrate problem solving, although it would be more accurate to simulate problem solving. The government and the ministries are in a much more active stage of legislative initiative. The initiatives of the members of the Seimas are more often “punctual”, directed to one or the other, in their opinion, to correct the error. Thus, the executive is the level at which we can successfully discuss systemic reviews of regulatory areas and concepts, leaving the actual drafting of legislation to an institution or experts with the necessary skills.
The quality index of Lithuanian legal regulation in 2019, calculated by the World Bank, has decreased compared to 2014, both individually and relative evaluation, relative to other countries. And sadly, today is far from what was planned to be achieved in 2020 in Lithuania’s progress strategy for 2030. The legislative problems can be illustrated with one of the most important candidates for the list of constitutional laws: the Public Information Law. The law has been amended more than 60 times, and the Seimas of the period 2016-2020, that is, during the last 4 years, 15 times, in 2018 – 6 times, and in 2019 – 4. A new draft amendment to this law was registered in 2020. You are surprised that only one …
Gintautas Bartkus is a lawyer, Associate Professor of Association at Vilnius University Faculty of Law, former Minister of Justice.
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