ministries need help: "Legislation outsourcing legislation Outsourcing is "in some cases made the award of legislative drafts to an outside" , formulated by the President of the Federal Bar Association (BRAK), Axel
Filges , in an interesting essay. The discovered associations
talk Blogger Dirk Günther . "
legislation Outsourcing - a new profession for lawyers? "is the title of a lecture in September 2010 at the Institute of Legislation and the Constitution at the Humboldt University of Berlin, which now is in the
BRAK messages appeared.
"outsource" What state and local governments do not now everything IT, real estate, cleaning, canteen, printing, fleet, technical maintenance, communications, consulting, financial, personnel and security services, various things of general interest. And the welfare state is on us to outsource government to do in the charities and the voluntary sector much of what is actually a state responsibility. Everything will understand, but also to focus on core management skills, motto: Do what you do best, outsource the rest. The idea followed by many countries, the OECD says the outsourcing rate in the developed world for 20 years at around 45% (
OECD Government at a Glance 2009 ). Where outsourcing of simple procurement to privatization public enterprises last.
Until now, however, at least in Germany agreed that all Sovereign is taboo. Leave bills appear quite sovereign. And if that is not a core competence of ministries, then what is not? The question is important. Rightly, there was heated debate in recent years about the practice of some ministries, the draft law firms can ("law firms") to write as Linklaters and Freshfields. The watchdog organization LobbyControl thinks this is highly problematic and deals with the phenomenon in its
Lobbypedia . However, it should
we remain cautiously despite the criticism. The administration gets - as well as companies and NGOs - to the Adviser for many projects home. Advice is legitimate and often useful. Why not also in bills?
As the government pass legislation
internal procedures "organized is largely up to them. If you take a legislative initiative, it does so anyway as a formal cabinet decision. The Ministry has its individual design, as always, he came about to bring, through the Cabinet. If this happens, the entire government takes responsibility for it.
outsourcing, however, was previously not an issue for most ministries or only a marginal phenomenon. BRAK-chief Filges has a parliamentary paper (
Ds. 16/14133, response to an inquiry ) out after only participated in 61 laws 1990-2009 external consultants. Alone, 36 of which are the responsibility of the Ministry of Environment, ten more from the consumer protection ministry. The first she paid a 3.6 million for professional fees, the second EUR 2.1 million. Financially, it was no big deal: about 6 million euros (some data missing) were paid for consulting fees - in two decades. Moreover Filges notes that different advisers conceded, not just law firms.
Filges is not as adventurous, the ministries in principle to recommend the outsourcing of production laws. He sees the support rather than in individual cases , the exception, not the rule: only recommended "for urgent action" if "short-term no sufficient human resources with practical knowledge and experience" are ready. And is legally not a problem. "As long and as far as the officials of the Ministry review these templates third party for independent and can recommend the political house line as suitable proposal"
gray area between advice and advocacy Filges involved " Complete outsourcing ministerial activities to external parties. What legislation, outsourcing, according Filges not is: - (a) lobbying and submit it to the outside interests in comments on a draft, which then flow - here called Filges but not too common practice for stakeholders to contribute in advance all the passages ;
- (b) the temporary employment of external consultants in order to help in the legislative process in the Ministry itself and
- (c) advice of impartial, independent experts - which says Filges realistic
"in Putting this to the separation of experts, stakeholders and interested parties, but hold out little. (...) can The stakeholders are the one who has the most expertise, ie expert stakeholders is . Although the boundaries blurred between these people are, all have one thing in common that they only participate in the decision to prepare an existing bill, but not in the decision itself is true here also the boundaries between a decision independent of a entscheidungspräformierenden and decision effectively replace advice fluently. But expert Advice is nonetheless usually a forward already by shape policy created Ministry draft, seen once on the run-up guidance on whether a regulatory requirement. "
The legislation outsourcing, so Filges," no expert discourse refers to the Ministry instead of the property, adequacy of home design . Rather, the creation of a Ministry, where the draft from his hand and delegated to a third party or a law firm. "
He noted that the distrust of the public is justified by the fact that such cases have mostly after the fact became public. Since then lying near a doubt, whether the contract with a political Creative will was provided, so in addition to the issue to target and content sufficiently identified or whether the law firm
a blank contract with the motto "Just think of something" was issued .
material and personnel overburdened ministries The ministries need help to show Filges convinced. The officers had often different and better things to do and are often overwhelmed in the case. "
The line ministries to respond because of the complexity of the rules matter no longer able to use their own human resources in a timely manner to newly emerging problems. The reason for this is . Not in the widespread prejudice that lacked the officials there in the necessary motivation, "he the Justice Department cites as an example: 513 employees, including approximately 100 lawyers, were just complex enough for high regulatory matters
A flexible staffing increase is as a rule. impracticable. Since was "beneficial, selective additional external expertise to consult, as this permanent staff hold 'quoted Filges the federal government.
may be the most economically justified. But the rub lies in the power of a design consultant who can write the entire draft. "Negotiations are what is on the table lies, "it says. Filges says:
" Who will prepare a draft, so in fact determined the scope of the subsequent decision making. The discussion revolves around the design. Why the draft is silent threatens to sink into oblivion, if not the unspoken is currently the focus of an interest group. A convincing upcoming draft so easily leads to that is hasty only argued about wording and details get suitable alternatives from view. The lead in a design could quickly become a question of power. Who writes, remains . "
Sure, the officials and the political head of a department need to consider what they received from their advisers. They have the well-understood self-interest is only a draft on the way to bring that is technically sound and not the house fool. However: "
Compliance with this audit requirement is of course to outsiders should not really be controlled and the cause more mistrust, the less the later the government draft of the origin of the draft law firm is different," says Filges.
The advantage of the lawyers He now is interested in outsourcing as a legislative task for lawyers. He points out, however, that this is also a new profession for other consulting firms is, especially in complex environmental law, with its intermeshing of scientific knowledge on the one hand and the right knowledge on the other.
In any case, he looks destined Lawyers for the task - not only as specialists in standard form and questions, but as experts who have mastered the material. And attorney consultant team consisted of professionals for short term and accepted piece support staff. They are fast, flexible, effective.
"They are not involved, because they would dominate the legislative technique better than ministry officials, but because of years of referral more familiar with clients affected the substantive problems of the legal matter as it one of the desk - in theory - could be active ministry official. Legislative technique - just like a legal command is formulated technically clean - the staff better control legislation in ministries usually as lawyers, as they are daily familiar with the matter. The shortcomings of the ministry administration, therefore, usually in the substantive law because the ministry officials are not concerned with the specific impact of a law or amendment. They are more theorists (or once were in the past judges) and then possibly get into trouble with, if the Judges specific inputs or petitions to her. The lawyer, however, is every day with the specific legal problems of clients employed, which causes a particular law. He is therefore able to describe the problems and to lead in a legislative solution "
conflicts of interest and transparency as a solution The Horse's Mouth. Conflicts of interest. Filges cheating is not the question around. He identifies the problem that the public interest may be affected, because the lawyers, the interests of its client base from business and industry might have in mind. Filges says However, this
experience with other clients was so now the main reason why firms would be involved . This was also only a "
abstract-general role conflict . As long as the ministry now using another firm client in the dispute are, lies a conflict of interests does not. "The legislative advocate a different mandate shall perform than the conventional consulting a lawyer."
After all, admits Filges: "The danger of balancing the interests of the permanent advised clients against the interests of the concrete legislative plan once advised sovereign power can not be denied. "
The solution: the greatest possible transparency. example, in the form of a mandatory disclosure of the earlier relevant client relationships. Or at least, without giving client names, disclosure, how many counseling and litigation, has a similar legal matter they dealt with in a period of time before placing the order (eg five years).
" instructing law firms for legal preparation must be made public, secrecy is out of place here. are also the subject matter and scope of the ministerial order shall specify that the professional public interested check critical, whether the policy have been complied with or is it not made yet on some key points the course different. This is also also said that the political objective of a draft regulation must necessarily out of politics, so here come from the ministry. The law firms will be used as an expert with a specific order. You can and should therefore not engage in the policy-making will itself. Only a political objective, the Ministry may review the foreign design to determine whether this was complied with. "
Disclosure of fees will Filges quite" sensitive "with respect to the . Disclosure of operational and business secrets, but he thinks that it is not harmful to competition if the total fees would be published - it is so let see anything about individual performances and sensitive operational and financial details. His diplomatically worded "question whether the principle of transparency should not lead to making the appointment of external third party to require the consent to the publication of the total fee" may be understood as a plea for it.
who spreads the blanket of silence over the "financial benefits" provides, "in the political and legal-political space again and again [for] distrust in the objectivity and independence of the legatee, who like the conjecture still be unjustified. "
Conclusion All in all a thoughtful, self-critical for BRAK and surprisingly honest article.
central message to the law firms and the rest of the consultancy scene: Legislation outsourcing can develop as a business only if we produce more political acceptance. And that is only with transparency and a few other rules and sensitivity to legitimate criticism. fact is, however, that law firms that regularly for the government work, are becoming increasingly attractive because of their contacts as lobbyists for companies and associations. No wonder other lobby consultants - such as advertising agencies and political consulting companies - this competition is very critical to see
. And fear that the lawyers withdraw from invoking attorney-client privilege onto the transparency obligations, as happened at the EU lobbyists register and there were complaints from the
German Association of Political Consultants (degepol) and numerous watchdog organizations.
Unfortunately the public debate on the subject now silted up. Roland Schimmel, a professor at the Fachhochschule Frankfurt am Main, which has recently in the
Legal Tribune regrets "because some questions remain open, the legal profession representatives and senior ministry officials in their own right can not answer:
- Are The few relevant rules are actually in the bylaws made by the federal institutions or to professional ethics of lawyers?
- the Federal Court is the only appropriate supervisory body?
- If speed of the legislative process and cost optimization Characteristics of good legislation?
- is to drag the border to unwanted lobbying really that selective?
Although the rebellion has now vanished, remains a stale aftertaste. The idea must be to reconstruct the legal scholars of the future of the motives of the legislature from the files of a law firm, is the idea of a democratic and therefore transparent legislative process right away. "
mold drilled in the proper wound.
SPD initiative to outsource
The "networkers" of the SPD parliamentary group in December 2010, an application
"More transparency dare - to give lobbying a framework" , which also refers to the legislative outsourcing. In a "
law on the representation of interests before the German Bundestag and the federal authorities (IntVertG) " should include a code of conduct for ministers, a "transparency of title" in the rules of procedure of Parliament and government, and a lobbyist registry, the use of external consultants by Federal Ministries be regulated. Here, the Social Democrats also refer to the recommendations of the Federal Court of 25 March 2008.
"Important and required external expertise "should not be lost." In particular areas in which are subject to complex technical, legal and economic framework for the work of federal ministries, which require expertise that is essential for the proper performance of specific tasks, "they say.
The networker request however: - regular public debates in the Bundestag on the reports of the Federal Government on the use of external persons in the federal administration;
- publication of reports on the Internet;
- analogous to an EP initiative each bill a "legislative footprint " attached, ie information "if and done what external people make a significant contribution in the drafting of the bill have"; secure
- review by the Budget Committee;
- that these functions are not carried out by external staff:
- Lead the formulation of draft laws and other legislative acts,
- management duties and functions in leading sectors in the Federal Ministry
- supervision of the nominating body,
- public procurement and
- functions specific business interests of the nominating body touching;
- status as an external employee without exception clear in all official internal and external contacts is to justify
- and documented, why einWissenstransfer necessary and what specific skills are needed
- the selection of external employees is designed to be open, by which the deployment is done properly known, and the Federal Ministry of professional competence and potential contribution to knowledge transfer has been observed;
- remains a use for more than six months duration of the exception.
It is hoped that 2011 will be more talked about that seriously. Some new rules are necessary.
references - Filges, AC (2010). Legislation Outsourcing - a new profession for lawyers? BRAK Communications, 41 (6), 239-253. Online at http://www.brak-mitteilungen.de/media/77818_brak0610_druckdatei_low.pdf
- About the Conference told the Frankfurter Allgemeine Zeitung: (. 2010, 28.9) Jahn, J. . Even the law is sometimes called "outsourced" . Frankfurter Allgemeine Zeitung.
- This also Schimmel, R. (2011, 27 January). Legislative Outsourcing: The dogs bark, the caravan moved on. Legal Tribune online
- Hipp, D. et al . (2008, August 17). Lawyers: The laws Whisperer. Federal Economics Minister Guttenberg is coming under fire because he was a law made by a large design firm. But that is now common practice. The mirror , 68-70.
- Battis, U. (2009). Outsourcing of bills? Journal of Legal Policy (ZRP) 7, 201-203
- break, D. (2010). Outsourcing legislation - legislation by lawyers? state and local government (AFR) 11, 502-503.
- Giesberts, L., Ostermann, M. & Viehmann, H. (2010, February). Participation of lawyers in the legislative process? Pro / Contra. German newspaper Richter 2, 42-43.
- Kloepfer, M. (2011). Legislation Outsourcing - The preparation of draft laws by lawyers. NJW 3, 131-134.
- Krüper, J. (2010). Lawfirm - legibus solutus? Legitimacy and rationality of the internal legislative process and the "outsourcing" of bills. Juristenzeitung (JZ), 655-662.
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