Law and Other Things

lawandotherthings.com /2013/05/an-analysis-of-nacs-proposal-on-pre/

Nick May 14, 2013

Robinson Last
week, the National Advisory Council made a little noticed recommendation concerning
what they term the pre-legislative process. The name pre-legislative process is
a bit of a misnomer in that their recommendation concerned how ministries
approach not only drafting legislation, but also drafting rules, or subordinate
legislation.

For
both new legislation, new rules, and amendments to either the NAC recommends
that an executive order be passed requiring all central ministries put into
the public domain for 45 days an announcement that it will be drafting a piece
of legislation or rule. This announcement would not only lay out the essential
elements of the proposed legislation/rule, but give a statement of reasons
justifying the proposal and detail the broad financial implications and the
estimated impact on the environment, fundamental rights, and the lives of affected
people. The Ministry is also required to make the eventual draft legislation
public for 90 days and reach out to the public for consultation. All feedback
received about the legislation/rule must be made public, as well as the
Ministrys response to the feedback.
The
general thrust of the NACs recommendations should be welcomed and are in many
ways long overdue. Essentially, the proposal would add transparency and the
requirement of reason-giving and consultation to all Ministry action concerning
the creation of legislation and rules.
However,
its worth breaking down the justification for doing this for legislation and
rules separately, as they are indeed separate justifications conceptually and
the recommendation concerning legislation is generally considered more
controversial than concerning rules.
Lets
start with rule-making to understand what is going on here. Rules are important
(if anyone doubts this consider how Indian politics would be moving forward
right now if there had been, lets say, different rules created for the
allocation of coal or telecom spectrum). Crores of Rupees are often at stake or
the livelihoods of thousands. Yet, rules are often created under the
guidance of one Minister or even just some top-level bureaucrats. All
rules are technically tabled in Parliament for a vote and there is a committee in
Parliament looking at such subordinate legislation, but even committee members do
not have time to examine most rules in any detail and generally just make sure
that the proposed rule does not violate the constitution.
Every
modern democracy faces this problem. Major decisions are being made through
rules, yet representatives of the people are generally not aware of them. So
what to do? One response globally is to create a requirement (often through an act) that all rules have to be
tabled by
ministries/agencies in advance, justification given, and some degree of consultation
with the public mandated. This creates a double check. Ministries are forced to
publicly think through the reasons they are creating rules. For example, if a
ministry decides it doesnt want to allocate telecom through an auction it will
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have to explain why in advance and cant change its reasons later if such a
decision becomes contested. Secondly, the public can act as an alarm bell for
Parliament, or even others in the Executive, to flag particularly poorly
designed rules. Then, if necessary, Parliament can reject a poorly designed
rule or perhaps the Prime Minister can step in to see that it is changed.
Countries
that have mandates like the ones being proposed for the creation of rules in India
usually find such reason-giving and consultation a step-forward, even if a
limited solution. Those with money (and near the capital) are in the best
position to track rule-making and give input. Diffuse public interests are
often not represented in the rule-making process although environmental and
some civil society groups have proved savvy at shaping the process as well. In
an attempt to overcome these representation problems, in the United States
law firms will sometimes make comments on rules with the public interest in
mind as a pro bono service. In South
Africa, comments are often made by
government created institutions like human rights commissions that attempt to
serve as a proxy for the broader public interest. Still, special interests are
often in the best position to give comments.
The second challenge countries
with such mandates for consultation and reason-giving face is getting the
government to follow the process. For a responsive government, not all rule making should require such long
drawn-out
public input. However, in the US the government has often cited exemptions built into the Administrative
Procedure Act to get around publishing rules in advance even for rule-making that is important (see this GAO
report for more details about how agencies in the US did not follow the pre-publication requirement for about
35% of major rules between 2003-2010).
Reason-giving
for rules i.e. a justification and cost-benefit analysis can seem like a
pure good and step forward. Who wouldnt want rules that hadnt been thought
through? Yet, even here the challenge is finding the balance between meaningful
due diligence and the costs of such reflection. For example, what would
constitute an adequate assessment of the impact of a proposed rule on
fundamental rights? Is it just a bureaucrat thinking about it for a few moments
at her desk and then writing down whatever she thinks? Or would it require an
expensive study from an outside group that included large surveys of the
impacted population? Likely, the answer is somewhere in between.

Given the blurriness of what is effective consultation and reason-giving the

most difficult challenge is enforcement. In particular, what redress do parties
have if they claim the government has not gone through the required process?
Can they go to court? If so, by what standard will a court judge whether
there has been effective consultation or reason-giving, and if the court finds it
has been lacking will the judge actually strike down the rule, even if millions of
people have already relied on it?
Much
of administrative law is about trying to force the state to think in certain
ways taking on board multiple interests and shared values. As Jerry Mashaw has written in one of my favorite
adlaw essays, administrative law is the embodiment of the
enlightenment project the triumph of public reason over cloistered thinking,
prejudice, and arbitrariness. Yet, given the messiness of what constitutes reason and the limited avenues of
influence on the state, it structures a process that can get us only so far.
All in all, the NAC proposal on rule-making is a

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step in the right direction, even if there are many unanswered questions about
enforcement or on the mechanics of implementation. In Part II of this post, I will
discuss the more controversial proposal to have a similar process for the
drafting of legislation by ministries, as well as some reflections on the
proposal to push these reforms through an executive order rather than an act.

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Law and Other Things
lawandotherthings.com /2013/05/an-analysis-of-nacs-proposal-on-pre_16/

Nick May 16, 2013

Robinson In
part I of this post I discussed how the NAC has a new proposal out for changing
the process by which Ministries draft rules and legislation. In the last post I
examined the process proposed for rules: mainly, disclosure that rules are
being drafted, a requirement of reason-giving/justification for these new rules,
and consultation. For rule creation, these requirements have been introduced in
many jurisdictions around the world because Parliament does not have time to
closely monitor all rule-making. As such, these requirements seem like a good
second-best check to create effective, non-arbitrary rules and to add some
legitimacy to a largely undemocratic process.
The
NAC though has also proposed ministries follow the same requirements in
drafting legislation as for drafting rules. Whats going on here? Rules are
created by out-of-touch administrators who never have to run for office.
Legislation is passed and debated by Parliament theoretically the central
citadel in the Indian democratic system. Not only is Parliament the empowered
representatives of the people, but while considering legislation Parliament
often solicits outside comment through standing committees.
Should
this not be enough? Doesnt this provide legislation with adequate legitimacy? Shouldnt
Parliament be in charge of demanding proper justification and reason-giving for
legislation? Indeed, does draft legislation even have to be based on sound
reasoning? After all, legislation unlike rulemaking is often the product of
compromise between different political factions. A vote is enough. No reasons
necessary.
The
NACs draft recommendations state that their proposed pre-legislative process
is not an attempt to replace the legislative Parliamentary process. . . . The
pre legislative process . . . aims to democratize the process of law making in
the country by strengthening the involvement of the citizen in the process of
drafting and enacting legislation, without undermining the role of the
executive or the Legislature.
There
is some merit to this argument. Since most legislation is introduced by the
government, its drafting is generally driven by the ministries. This again puts
bureaucrats in charge (although presumably legislation will usually spark more
political-executive oversight than rule-making). Further, once legislation is
introduced into Parliament it is often difficult to make any fundamental
changes. Then isnt it better to get more voices involved earlier and require
that those drafting the legislation weigh the costs and benefits (on economic
efficiency, fundamental rights, the environment, etc.) of different potential frameworks
for proposed legislation?
Further,
as the Draft Recommendations point out, in the 15th Lok Sabha about
a third of bills were not referred to a standing committee. In 2009, only 16%
of Parliamentary time was spent on legislative business. Given this seeming
breakdown in the Parliamentary process isnt it important to make sure that
participation and scrutiny is frontloaded into the process?
The
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worry is that the pre-legislative process the NAC proposes mirrors too much
what standing committees should be doing. A cynic would say that adding these
steps would unnecessarily slow down the passage of legislation and may even be
a thinly veiled attempt to sidestep Parliament. As mentioned in my last post,
the experience with open consultation in many countries with regards to
rule-making is that it is easily captured by elites (whether corporates or
civil society). Instead of focusing on the pre-legislative drafting process,
creating a more robust standing committee process could be a better use of time
and energy.
If
one does want to focus on the pre-legislative process though it might make more
sense in Indias
case to think about how to get more parliamentary involvement at this earlier
drafting stage. MPs (from all parties) could play an important role in giving
feedback in drafting. Giving MPs adequate funding for a staff, to amongst other
things give comments to ministries on proposed legislation, could enable
backbenchers to have an important role in the drafting process. This seems more
important than ensuring members of the public can comment on draft legislation
before it is tabled in Parliament.
Finally,
one notable aspect of the proposed process is that it would be imposed through Executive
Order. It is interesting that the NAC is not proposing these recommendations
become law through an Act. Perhaps this is simply accommodating the present
political moment when not much of anything is becoming an Act. Perhaps the NAC
thinks it is better to first experiment with different processes before
solidifying anything into legislation i.e. this is new stuff for India,
so lets figure out best practices through experimentation. However, not
putting the proposal into an Act means that even if UPA-II accepts the
recommendations tomorrow, when the next government comes in they can quickly get
rid of them. Even more importantly, especially if these recommendations affect
the legislative drafting process, one would think one would want the legitimacy
of Parliament behind the changes. Finally, an Act would presumably make more clear
what type of review, if any, courts would have on whether Ministries actually
followed the proscribed procedures or whether their implementation would be
entirely reliant on the government of the day.
In
the end, the NACs recommendations are a welcome step in the right direction. The
NAC is still soliciting comment and hopefully their next set of recommendations
and anything adopted by the government/Parliament will be more clearly
justified and detailed, particularly around the pre-legislative process for
legislation and explaining whether, and how, they foresee courts enforcing the
new process. The NAC should also consider what types of exemptions, if any, there
might be for some, or all, of the requirements they propose.

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