Institutionalisation of better regulation principles in Estonian draft legislation: the rules of law-making, procedural democracy and political accountability between norms and facts

Abstract

ABSTRACT The impact of legal policy reforms to draft legislation has been a relatively unexplored field in the sociology of law studies. In Estonia, as in other European Union and OECD countries, the interdisciplinary information on social, economic, environmental, security, administrative and budgetary impacts of proposed legislation has to be given in an explanatory memorandum of the draft Act to facilitate the knowledge-based and transparent resolutions of policy controversies. In 1997, the author designed a method for normative content analysis of explanatory memoranda on the basis of Estonian legal rules for the draft legislation (1996), OECD regulatory reform recommendations (1997) and multiple academic sources to explain the gap between constitutional norms and social facts in draft legislation. The methodological framework was designed for the parliamentary context involving democratic discourse, the rule of law, human rights, better regulation and other concepts. The initial aim was to gain an empirical overview of the extent that the initiators of draft Acts follow the law-making rules in information categories of impact assessments, research references, and civic engagement. In 1998–2009 seven follow-up studies and several qualitative case studies were carried out, which indicated the mimetic application of better regulation principles. In 2011, the Estonian Government and Parliament took a step closer to the leading OECD countries launching The Development Plan for Legal Policy until 2018. The latest follow-up study proceeds from a hypothesis that this policy reform has had a positive impact on the work routines of ministries. In addition to the normative content analysis of explanatory memoranda of draft Acts (2012–2015), the results of civil servants’ eSurvey (2011; 2015) and some insider’ observations from different ministries will be presented. The studies show many positive structural changes from 2007–2017; however, the gap between normatively required and factually presented socio-legal information is still remarkable. The institutionalisation of better regulation concepts into the relatively small Estonian governance system has been successful and the post-Soviet transition period should be considered as finished since 2010. This article supports this conclusion, partially demonstrating that many preconditions for the deliberative knowledge-based legal policy are not completed – the institution-building must go on.