The way in which laws are made today is often no longer up to date. Legislative texts are drafted down to the last detail before any thought has been given to how the actual goal of the law can best be achieved. Questions of practicability and user orientation are the most important cornerstones of better regulation. Those affected have the necessary knowledge about how rules work in practice, what dependencies there are on other requirements, on practical enforcement issues and technical possibilities. Involving this knowledge as early as possible in the legislative process is the real challenge. The legislative process and the process of preparing legislation in the federal ministries is determined by many factors and constraints. More and more often – and also beyond short-term crisis legislation – legislative procedures are characterized by great haste.

Participation Deadlines

The deadlines for the federal ministries for involving other departments are all too often not observed. There are not even formal deadlines for the involvement of those affected and of associations, states and municipalities. It is therefore not surprising that such participation is often treated as a purely formal act by the federal ministries in charge.

Dealing with participation deadlines is of fundamental importance to the question of how the quality and practicality of laws can be improved. Without sufficient deadlines, neither practical nor digital checks are possible and the effectiveness and cost consequences of different regulatory alternatives can only be assessed to a very limited extent. This makes the question of deadlines a central question of good legislation.

Content First, Legal Text Second

Laws are important means to bring policies into life. The quality of laws has tremendous consequences for the effectiveness and practicability of political programmes. In Germany, 80 percent of the bills introduced in parliament are drafted by the federal ministries. Thus, preparing bills and drafting law are an important “business process” of government. Even though the conditions under which policies are formed have changed a lot, the way laws are drafted has remained essentially unchanged since the Federal Republic of Germany was founded 70 years ago.

The negative impact of flawed and rushed consultation procedures on the quality of legislation, in other words on how workable, effective and stakeholder-centred it is in practice, was examined in detail in the NKR report “Content First, Legal Text Second” (“Erst der Inhalt, dann die Paragrafen”). [2019-10-erst-der-inhalt-dann-die-paragraphen] The report recommended a much greater focus on input from practice and openness to different solutions in the legislative process, recommendations that were tested in a project in practice and proved valid. More recently, the “Re-designing the ministerial drafting process” (“Re-Design der ministeriellen Gesetzesvorbereitung”) project run by Work4Germany has explored the issues in more depth and similarly advocated a reform of the lawmaking process. [See: prodjekt-re-design-work4germany] All these suggested reforms are aimed at bringing specialists in legal drafting in the various ministries together with experts with practical knowledge and experience, with other stakeholders, with IT specialists and with researchers. One proposed initiative is “legislation labs”: a place where interdisciplinary teams use causal and process models to evaluate the intended and unintended consequences of various regulatory options and identify suitable solutions.

Practice Checks

A pilot project run by the Federal Ministry for Economic Affairs and Climate Action (Bundesministerium für Wirtschaft und Klimaschutz) has shown that this close consultation with stakeholders from practice does indeed lead to more effective, more efficient regulation and better policy outcomes. The project involved a feasibility check, conducted in direct consultation with the addressees of a particular regulation and with a strong focus on implementation. The check examined legal obstacles to a more widespread use of photovoltaic panels on the roofs of retail premises. In this case, the feasibility check was not part of an ongoing legislative initiative and was therefore not affected by time constraints or other serious political pressures. The check revealed aspects of the regulation that clearly needed to be – and could easily be – changed. Some of those changes have already made their way into legislative amendments.