Legislative fever. A set of symptoms

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The complexity and volatility of regulations has for years been identified as one of the main barriers to the country’s development. Instability of the law was the most frequently indicated obstacle in conducting business activity, particularly in the study of the economic moods of the sector of small and medium-sized enterprises.

In a published report by Agnieszka Dudzińska Ph.D. under the title “Legislative fever – a set of symptoms”, WEI and Nowa Konfederacja draw attention to the weakness of Polish legislation and propose methods of treatment that focus on the causes and not the symptoms themselves.

To illustrate the scale of this phenomenon, one ought to refer to the official data of the Sejm (lower chamber of the Polish Parliament). In the years 1997-2015, the Sejm passed 3622 acts, so on average approximately 200 laws were passed annually. The Polish overproduction of laws translates into the number and volume of provisions coming into force in a given period. This is not due to the size of our country, because in case of Germany – a nation of 83 million – the legal volatility index is over 20 times lower than in Poland. A large number of laws cannot be explained by systemic transformation, as indicators place us far ahead of other countries in the region, which, like Poland, had to adapt to the change in the political and economic system, as well as to the requirements resulting from membership in the European Union.

A significant number of new legal acts does not necessarily have to be a sign of instability, yet it is an indirect indicator of the quality of regulations. Amendments often constitute remedies for interpretation problems that arise in practice. The defective law must therefore be supplemented and amended.

It is worth answering the question whether the quantity and the variability of the regulations is a problem per se, or rather an expression of adapting the law to a rapidly changing reality. In view of the chaotic legislative process and the government’s lack of control over its own projects, it should be recognised that frequent and partial amendments worsen the quality of the law, not only compromising the stability of the main solutions, but also increasing the opacity of the whole process.

This instability combined with the chaotic and fast mode of implementation of changes along with the anonymity of actual authors lead to an imbalance of opportunities both in articulating social needs and in influencing the shape of solutions. In the sphere of economic activity, small and medium-sized enterprises, first and foremost, suffer from these phenomena, as they do not possess the resources the large players do. This in turn puts into question the principle of competition.

Treating the weaknesses of the legal system involves actions on various levels. The simplest are actions concerning the law-making technique itself, but their effectiveness may be limited by institutional conditions.

Apart from the obvious demand to comply with the “Principles of legislative technique”, one could also indicate a few possible adjustments in the scope of legislation methods in the Sejm. To improve the quality of acts, preventive control of projects is necessary as well as the expansion of scope of the Legislative Council’s activities – the advisory and consultative body to the Prime Minister and the Council of Ministers. The improvement of the quality of the law can also be achieved by introducing the requirement to evaluate the acts after a certain period of their validity. Depending on the assessment, it could serve as the basis for initiating an amendment. Another important postulate concerns also the need for systematic and full documentation of the subcommittees’ operations. No less important is the need to fully document the contents and authorship of all amendments. The harmonisation of requirements regarding the presentation of draft justifications and regulatory impact assessments, as well as public consultations, would be beneficial and has repeatedly been proposed.

The full and unabridged report is available here for download (in Polish).

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