EVALUATION OF LEGISLATION

Proceedings of the Council of Europe’s legal co-operation and assistance activities (2000-2001)

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I. EVALUATION OF LEGISLATION – ISSUES AT STAKE

Obligation to evaluate the effects of legislation on the exercise of fundamental rights

Professor Dr. Ulrich KARPEN
University of Hamburg, Germany

Outline of the Presentation

1. Evaluation of laws

1. Budgetary pressure and the neo-liberal philosophy of the “slim state“ as reasons for the evaluation of the effectiveness and efficiency of legal norms.

2. Use of social science methods for evaluating the effectiveness and efficiency of legal norms; effectiveness being understood as conformity of implementation with the intent of the legislator, and efficiency as production of maximum effects with given costs or achievement of a preset goal with minimum costs.

3. Ex-ante, concurrent and ex-post evaluation.

4. Costs for the economy and public administration and effects on individuals.

5. Overview of methods and instruments of evaluation.

2. Effect of laws on the exercise of fundamental rights

1. Sources of fundamental rights – universal, regional and national.

2. Perspective of fundamental rights – participatory rights, defensive rights, sharing rights, objective institutions of social and political life.

3. Indicative, influential and imperative directives and their effect in the field of fundamental rights.

3. Constitutional safeguards for the protection of fundamental rights

1. Obligation to regulate fundamental rights by statutory law as a requirement of democracy. Participation of the general public and experts in the legislative process.

2. Legitimate, transparent and acceptable purpose of law as a requirement of the Rule of Law.

3. Prohibition of interference with core fundamental rights. Obligation for the law to stand the proportionality test.

4. Access to courts, role of the Constitutional court.

Introduction

The aim of all legislative work is to produce relatively good laws, because to produce absolutely good laws means to attain justice and justice is an ideal – we strive for it, but we never reach it.

Analysis of the current state of legislation shows that we are a long way from that ideal.

First of all, we are burdened by too many laws because of the excessive quantity of norms and the proliferation of laws which provoke a lack of transparency – people do not know the law.

Secondly, we produce laws which are far from perfect. We suffer from the insufficient quality of norms, poor style, technical deficiencies and errors in the system of laws.

This rather sceptical diagnosis is based on three observations which upset our good intentions to produce relatively good laws:
- development of society and organisation of the state,
- organization of law making,
- constitutional issues.

Firstly, as far as our modern societies and states are concerned, it is the development of the welfare state, the development of science, technology and ecology that require regulation. Taken altogether, it is the accelerated development of social and economic life which causes over regulation and a flood of laws.

Secondly, the organisation of law making is not in favour of relatively good laws. Laws are not so much the result of a clear decision taken by a restricted number of legislators (committees, parliament, ministers) but rather the product of transactions between great numbers of extra-parliamentary participants. Laws are compromises of interests, coalitions and pluralistic powers.

Finally, there are constitutional problems. Courts detail the law, encouraging the legislator to amend it. This is the problem with the horizontal separation of powers – legislative, executive and judiciary. There is also a complex overlapping of central and local legislators – the vertical separation of powers.

The established doctrine proclaims that, according to the principles of the Rule of Law and democracy, a statutory law, as enacted by the Parliament, is required for most State actions concerning fundamental rights. This principle is clearly laid down in Article 19 of the Basic Law of the Federal Republic of Germany: “In so far as the fundamental right may, under the Basic Law, be restricted by or pursuant to a statute, such statues shall apply generally and not solely to an individual case. Furthermore, such statutes shall name the Basic Right, indicating the Article concerned.“

This principle of the “legality of state action“ is the engine of legislation of the modern “active state“.

In fact, the diagnosis is the following – we have too many laws and deficits in the quality of norms. This diagnosis has three consequences.

First of all, there is too little transparency of the law. The chances of knowing the law are limited. For example, the average citizen in Germany has to obey 3,000 statutes, 8,000 pieces of delegated law, some 85,000 legal provisions in all.

Secondly, this non-transparent and superfluous body of laws leads to the insufficient application of the law. It reduces the possibility for the State to ascertain whether businesses, administrative authorities and individuals really abide by the law. And, finally, from another perspective, there is less acceptance of the law and reduced willingness to obey it.
If such are the consequences of the current situation, the remedy can only be to ensure a smaller quantity and better quality of the law. We must curtail the number and complexity of laws, for instance, by enacting framework laws, purposive provisions and orientation law.
We have to improve legislative techniques by using directives (as in Spain, Austria, Germany and other countries), by teaching drafting skills, by establishing special committees in ministries and Parliament.

Thirdly, we have to improve the effectiveness and implementation of the law by evaluating and following up these laws.

This is why one needs to look into the evaluation of laws, in particular in view of the protection of fundamental rights.

1. Evaluation of laws

Smaller quantity, better quality: This is the goal!

Legistics, the science of legislation, has for a long time dealt with the contents of laws and the legislative process in the ministries and Parliament. Its activities, both in theory and practice, have only recently begun to concentrate on the implementation, efficiency and effectiveness of norms.

There are three reasons for these developments:

First of all, budgetary pressure, which calls for more rational and cheaper laws.

Second, the neo-liberal philosophy of the “slim state“, reinventing government as small government, the State as an agent for the essentials and no more.

Thirdly, the need to improve acceptance and to avoid evasion of laws.

What is evaluation?

Evaluation is the use of social science methods for the prognosis and calculation of the effects of norms, namely the costs of laws. Laws should be as effective and efficient as possible. They should stand the economic rationality test. They should reach a maximum or an optimum.

What is effectiveness?

Effectiveness is the conformity of implementation with the intent of the legislator. The question is whether implementation meets in reality what the legislator wants to happen.
And what is efficiency?

The question is whether the law is cost effective. Does it produce maximum effect with given costs or does it produce a prescribed product with minimum costs?

The question of whether norms achieve what they are intended to regulate seems to be of very great interest. Evaluation is the fastest growing sub-discipline of legistics, where economists, psychologists, sociologists and legal experts co-operate successfully. There is no doubt that, for a law to be effective, the legal rule must be of a high quality and its implementation must be reliably ensured.

Evaluation of laws may be:
- prognosis of costs or ex-ante evaluation,
- concurrent judgement of costs that tries to optimise effects in the legislative process,
- control of costs after implementation or ex-post evaluation.

A comprehensive ex-ante evaluation of the effects of legislation is ambitious, almost impossible. A more limited evaluation of the financial effects of legislation is possible and is becoming standard in European countries and in the United States of America.

Ex-ante evaluation tries to take into account the costs of implementation of the law in enterprises and in public administration and its costs to individuals.

The suggestions for measures to ensure effective implementation and the instruments which are already applied are so numerous that a résumé can mention only some of them, for example:
- law models and simulation of laws prior to enacting, in vivo and in vitro tests;
- hearings;
- enquiries;
- ombudsman;
- check-lists for good drafting;
- revision, consolidation of law;
- sunset legislation.

Most voices are optimistic with regard to a sound evaluation, but there are pessimistic ones, such as the Swiss opinion: “Preparatory games are not useful – life is much too complex“. To give an interesting example: why do French-speaking Swiss obey the obligation to use the safety belt in cars less carefully than their German-speaking fellow citizens? The statute is the same in both regions, it is, however, applied differently.

2. Fundamental rights

The topic of this presentation particularly concerns evaluation in view of fundamental rights. Which fundamental rights do we mean? In fact, there are four categories.

First of all, we mean the universal international body of fundamental rights as enshrined in:

- Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10 December 1948,
- International Covenant on Civil an Political Rights of 16 December 1966,
- International Covenant on Economic, Social and Cultural Rights of 19 December 1966,
- various other international treaties against racial discrimination, slavery, torture, discrimination of women, concerning refugees, stateless persons and so on.

Secondly, there are fundamental rights of regional organisations, for example:

- Convention for the Protection of Human rights and Fundamental Freedoms of the Council of Europe, signed on 4 November 1950, and the case law of the European Court of Human Rights in Strasbourg,
- African Charter on Human and Peoples Rights of 27 June 1981 of the Organization of African Unity,
- American Convention on Human Rights of 22 November 1969 of the Organization of American States,
- Cairo Declaration on Human Rights in Islam of 5 August 1990,
- documents concluded within the framework of the Organisation on Security and Co-operation in Europe, especially the 1989 Vienna Concluding Document,
- fundamental rights as enshrined in the treaties on the European Union and in the case law of the European Court of Justice in Luxembourg.

Thirdly, the catalogue of fundamental rights is normally laid down in national constitutions and, finally, in federated States further fundamental rights are laid down in State constitutions.

The evaluation of draft laws and laws has to take fundamental rights into account from several perspectives:

1. Fundamental rights as participatory rights, namely political rights that constitute democracy:
- rights to vote,
- rights to petition,
- freedom of speech.

2. Fundamental rights as defensive rights or fundamental rights in a “negative“ (defensive) perspective:
- “man versus the state“,
- property rights,
- freedom of vocation and profession,
- freedom of speech and faith, conscience and creed,
- freedom of assembly.
Fundamental rights in this sense are barriers to shield the individual from the illegitimate invasion of his/her rights.

3. Fundamental rights have a “positive“ perspective. Some fundamental rights are rights to enjoy state benefits and to claim state services. They may be sharing rights:
- rights to basic welfare, for example, the state has to guarantee that nobody dies of starvation,
- rights to education,
- rights to be protected by security forces,
- rights to receive information from broadcasting and press.

The notion of this positive perspective of fundamental rights is that it is no longer by the grace of the government that you share these benefits, but you are entitled to them as a citizen because you pay taxes and – even if you do not pay – because you are a human being and a citizen.

All these fundamental rights – participation, negative, positive notion – have been demonstrated from the individual’s perspective, subjectively. But they have an objective facet. They are social, political, constitutional institutions and constitute the structure of State and society.

Freedom of speech and opinion is essential for a liberal, pluralistic State. Freedom of speech is the basis for an open society and democracy. Tell me to what extent you enjoy freedom of speech, and I will tell you to what extent you live in a free State.

Freedom of faith and creed is the indispensable basis for a neutral distanced State. A neutral State has no religion, no ideology. They are important but are to be left to the individual.

Freedom of profession and property rights characterise the economic order of a State, for example, market economy versus state controlled economy.

It is obvious that fundamental rights in this objective institutional sense are important values for the individual and for the self-understanding of the State. The body of fundamental rights characterises society, civil society as opposed to the State and government. In a democratic Rule of Law State respecting fundamental rights, government actions are, in principle, limited, whereas the sphere of individual rights is, in principle, unlimited.

Each State action basically needs to be legitimised by the Constitution which is the basic legal order of the State. The main instruments for legitimising a State action are laws and budget as enacted by the Parliament. Since fundamental rights are a barrier to State action – fundamental rights as defensive rights – or the source of individual claims – fundamental rights as positive sharing rights –, the legislator in the process of law drafting must evaluate the impact of his product on fundamental rights.

Government, by enacting laws, wants to direct human behaviour. Government may do that in several ways with different degrees of intensity, ranging from indicative to influential and, finally, imperative. These measures may cause conflicts with fundamental rights in increasing measure.

The State may want to give information for individual behaviour. State agencies may want to steer by indication. They may warn people that law-studies may be frustrating since there are too many lawyers on the market and no jobs. State agencies may encourage people to take early retirement since there is unemployment, State agencies may inform people on how to protect themselves against Aids. They may indicate that the consumption of bananas is healthy.

This form of indicative guidance does not interfere with fundamental rights. But very often, in order to give information, the State needs to know. The State needs to collect data, and collecting data may interfere with the fundamental rights of individuals to decide by themselves what they want to let the State know about them. There is a basic right of personal data protection.

Collecting information for tax laws, for example, may interfere with this fundamental right. It may be necessary to monitor telephone conversations to combat organised crime and drug trafficking. This may interfere with the fundamental rights of privacy. Exploring the educational and professional priorities of people may be necessary for the State planning of education and higher education. All these State actions require a statutory law which is enacted by Parliament because they may interfere with fundamental rights. Statistical surveys may lead to the revealing of data and secrets of businesses, enterprises and trade and will, therefore, require a legal mandate.

Government may want to go one step further and influence people’s behaviour. This may be influenced in a negative sense, for instance, to reduce smoking, drinking or air pollution by imposing high taxes on tobacco, whisky and cars. Of course, a tax law infringes on the fundamental rights of free exercise of profession, vocation and property. This impact has to be evaluated in advance and needs approval by an act of Parliament.

Influence may be sought in a positive sense. Government may encourage house-building by subsidies, education by scholarships, early retirement by state pensions.

These subsidies enlarge the field of fundamental rights, increase individual freedom and thus do not require a statutory law as such, but, of course, a budget appropriation of Parliament. The tricky problem, however, is very often the equality clause. Why encourage house-building, not flat-building or farmhouse-building ? There must be a sufficient good reason for differentiation. Why give scholarships to foreigners and not to nationals, to poor students and not to rich ones (and who is "poor“, who is "rich“)? Why offer state pensions to those aged 62 years not those aged 59? There must be a good reason.

Enlarging the freedom of one person may curtail the freedom of others and thus a statutory law is needed and the legislator has to evaluate these conflicts in advance, in quality, intensity and extent.

Finally the state may want to direct people in an imperative manner by ordering them:
- to go to school,
- not to kill their neighbour,
- not to sit on the lawn,
- to pay taxes.

It is obvious that it is necessary to evaluate the effects in advance in the period of drafting and concomitantly with the parliamentary process and later on in the period of implementation of the law.

3. Constitutional safeguards

There are constitutional safeguards to guarantee that legislation respects and protects fundamental rights as far as possible.

The basic formula for governing in a democratic Rule of Law State is the following – we enjoy our fundamental freedom by right and not by the grace of the government and any abridgement of our rights needs to be justified and legitimised by an act of Parliament.

There are four instruments which protect fundamental rights in the course of State action and they have to be taken into account in the evaluation of laws. The first is based in democracy, the other three in the principle of the Rule of Law, both of which are cornerstones of fundamental rights and constitutionalism.

Democracy requires that abridgement of fundamental rights is admissible only by and in a statutory law, not in delegated law, not in administrative regulations or by-laws, namely, legal norms of lower level in the hierarchy of law.

Furthermore, it is advisable to let the general public participate as much as possible in the legislative process. This includes organisations, associations and all sorts of vested interests. It is advisable to let experts participate in the process of evaluating a draft as far as this is possible.

The Rule of Law principle requires that the law must have a just, good and legitimate purpose. It must be plausible, acceptable and presented in clear and unambiguous language.

No law must interfere with the core fundamental rights. It is often difficult to say clearly which are core rights and which are not. But very often the proportionality test indicates the borderline. Abridgement of a fundamental right must not be more intensive than necessary to reach a legitimate goal. There are hardly any cases where it is necessary to completely deny a fundamental right of a person.

Finally, it is necessary to control State actions and to evaluate ex-post whether government acts within the borderlines of democracy and the Rule of Law to protect fundamental rights. This could be done by courts, namely administrative courts in individual cases and by constitutional courts, that can evaluate the law in general and decide whether it is constitutional or whether it fails to be so and is, consequently, void.

Conclusions

This paper has presented some ideas of how the protection of fundamental rights could and must be an essential factor in the evaluation of legislation. The ideas are mainly traced down from the Constitution and its basic principles because the Constitution to a certain extent is an ideal and, so to say, reason.

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