On the Institute of Ministerial Regulations 21.04.2020


Mg. iur. Andris Vītols
Parliamentary Secretary, Ministry of Justice

The question of the possibility of granting individual ministers with the right to issue regulations that are binding to third parties has been on the agenda since the country regained its independence. Indeed, should any legislation that affects, for example, the appearance of uniforms of firefighters or police officers be considered and agreed by all ministers at a Cabinet meeting? In my opinion, applying the principle of collective responsibility to such regulatory enactments, which are the responsibility of only one minister, is an inefficient waste of time. However, despite the question always “hanging in the air”, the previous governments have not supported this solution.

In February 2020, the Ministry of Justice submitted for public discussion the draft conceptual report "Assessment of the Feasibility of Implementing the Institute of Ministerial Regulations", which was announced on March 26, 2020 at the meeting of State Secretaries. The inter-institutional conciliation process is taking place at time of the publication of this article.

The last in-depth legal study on this issue took place in 2011, when the research on the implementation of the institute of ministerial regulations was carried out by the President's Constitutional Law Commission.  [1]  The conclusions of the study established that amendments to the Constitution would be necessary only if individual ministers were provided with a universal right to approve binding regulations. In cases where a political decision is not necessary, the minister is already sufficiently democratically legitimized to be granted the right to issue normative legal acts - ministerial regulations. Nevertheless, such a proposal did not gain the support of the current and future Latvian governments. In this regard, the conceptual report "Evaluation of the Implementation of the Institute of Ministerial Regulations" submitted by the Ministry of Justice and approved by the Cabinet of Ministers in Part "A" of the meeting of 20 June 2017 (without organizing a discussion) provided that no changes to the existing procedure are required and the ministers should not be granted the right to issue regulations.

With the development of public administration and the change in the understanding in favor of a more efficient and less administrative resource-consuming executive decision-making procedure, this issue has also become relevant in 2020. The global trends of recent years make it necessary for national governments to respond quickly to rapid changes in society. The Covid-19 crisis has led to the use of as yet unused instruments for public administration - the Cabinet of Ministers decides by order on universal restrictions for individuals, individual ministers (regardless of the fact that Section 8 of the Law On Emergency Situation and State of Exception clearly provides that during an emergency situation the decisions are made collectively by the Cabinet of Ministers) are establishing the procedures for the operation of companies in the relevant industry, the Parliament, due to objective reasons, is not able to perform its functions in full and legal scholars ae publicly discussing the necessity of renewing the application of Section 81 of the Parliament - to grant the government the right to issue regulations with the force of law.

Latvia is the only one of the Baltic States in which the Cabinet of Ministers makes decisions binding on third parties only collegially. In Germany, regulations (Rechtsverordnungen) are issued by the central government, individual ministers and state governments.  [2]  In the Netherlands, the parliament delegates the issuance of regulations either to the government or to an individual minister, less often to government agencies.  [3]  In the Eastern European countries - Poland and the Czech Republic, ministers have the right to approve legislation unilaterally.

A similar situation exists in the Scandinavian countries: in Denmark, ministries issue "executive regulations" ( Bekendtgørelser ) if they have been given such a mandate by the parliament.  [4]  In Sweden, regulations ( Föreskrifter ) can be issued not only by parliament and the government, but also by government agencies,  [5]  there is a similar situation also in Finland.  [6]

There have been different arguments - will there be anyone to control the ministers? Will the quality of regulatory enactments decrease, which in turn would lead to undesirable consequences for the state, such as legal proceedings with individuals? In my opinion, the result would be the opposite: ministers should be able to "control themselves" (here I mean both an increase in political responsibility and a greater involvement of officials of the department).

 

Why does the current political leadership of the Ministry of Justice support the introduction of an institute of ministerial regulations?

1. We believe that public administration has changed. In 1993, renewing the operation of the Law on the Structure of the Cabinet of Ministers, the legislator decided on the possibility of making it impossible to delegate regulatory enactments binding on third parties to individual ministers. One of the reasons why it was important for the government decisions to be taken collegially at the time, was the need to reduce the impact of external interests.

Almost thirty years of Latvia's development as a state governed by the rule of law have led to an understanding of good governance. The inclusion of such norms in the legislation that seemed commonplace 20-25 years ago, such us the unconditional transfer of certain public functions to certain economic operators, is no longer even being considered today. Latvia's accession to the European Union and the OECD has brought with it a growth in political culture. Mechanisms are in place to control the activities of political officials. For example, in order to achieve even more significant independence of political persons from potential "sponsors", in 2019 the Parliament adopted amendments to the Law on Political Parties, which envisages a significant increase in state funding for political parties. These amendments are also expected to directly contribute to the soundness and transparency of government decisions.

2. We believe that this opportunity will increase the individual responsibility of ministers to the public and the law. There is a tendency in public administration to make decisions at the highest possible hierarchical level, creating a conflict with the principle of subsidiarity. The heads of subordinate institutions gladly choose to submit important issues for approval at the ministerial level, while individual ministers are often interested in decisions being made by a collective institution - the Cabinet of Ministers. In this way, it is possible, for example, to "divide" the political responsibility resulting from an unsuccessful political decision, while at the same time "softening" it for the minister of the particular sector and the political force he or she represents.

3. We believe that the legal departments of specific ministries (and the public administration in general) employs high-level professionals. As an individual minister assumes full and undivided responsibility for the quality and consequences of his or her regulatory enactment, they would become interested in strengthening the analytical and legal resources of the ministry. At present, all ministries have legal departments, one of the responsibilities of which is to ensure the quality of regulatory enactments. However, according to the regular reports of the Legal Department of the State Chancellery on the quality of draft regulatory enactments submitted to the Cabinet of Ministers for review, it is still low. Undoubtedly, one of the reasons is that when submitting a draft legal act to the State Chancellery, ministers do not pay enough attention to the quality of its legal technique, as it is known that the State Chancellery will draft it in accordance with the applicable requirements. If the quality of the legal technique is raised, the Legal Department of the State Chancellery will be able to pay more attention to the analysis of the core meaning of the submitted draft.

4. We believe that the analytical and legal services of the Parliament have sufficient capacity to carefully and comprehensively evaluate each legislative proposal that will contain a delegation to an individual minister. Even if the theoretical opportunity for ministers to approve regulations will be provided by law, it will still not work unless the Parliament has directly and specifically authorized each minister. Thus, in addition to the legal filter of the executive branch, the final word regarding the authorization of a particular minister will belong to the legislator directly elected by the people. The new arrangements, if approved, will only apply to new laws or amendments to the existing ones, so it will be a considerable time before ministers start approving the rules in practice. It is likely that, at least at the initial stage, the legislator will be very cautious in deciding on such an option, so there are no grounds for concern about a sudden change in the executive's decision-making process.

With individual ministers issuing regulations, the number of documents passing through the State Chancellery would be partially reduced and the saved public administration resources could be used for a more thorough analysis of texts.

Despite the implemented political, methodological and educational measures, the number of regulatory enactments and their amendments has only been growing in recent years. This clearly indicates the need to continue looking for solutions to reduce normativism. Although this is often justified by objective circumstances (such as the current Covid-19 crisis, when both the legislature and the executive branch adopt an extremely large number of pieces of legislation in a short period of time), the trend clearly remains. With individual ministers issuing regulations, the number of documents passing through the State Chancellery would be partially reduced and the saved public administration resources could be used for a more thorough analysis of texts.

We are certain that the abovementioned considerations would bring Latvia closer to out common goal - to make the decision-making process more accountable, efficient, accessible and more understandable to the entire society. If, however, the experts of constitutional law considered it necessary to amend the Constitution for this purpose, we see no reason why, taking into account this general objective, it would not be worth doing so. It should be borne in mind that the Constitution will most likely be amended in the near future anyway in order to restore the possibility of application of Section 81.


[1]  Opinion of the Constitutional Law Commission on the possible constitutionality of the ministerial regulations. Grām.: Valsts prezidenta Konstitucionālo tiesību komisija. Viedokļi: 2008–2011. Rīga: Latvijas Vēstnesis, 2011, pp. 179 - 196

[2] See: https://www.oecd.org/gov/regulatory-policy/45049504.pdf, p. 90

[3] See: https://www.oecd.org/gov/regulatory-policy/44912354.pdf, p 73

[4] See: https://www.oecd.org/denmark/43325733.pdf, p 50

[5] See: https://www.oecd.org/gov/regulatory-policy/45418334.pdf, p. 106

[6] See: https://www.oecd.org/gov/regulatory-policy/45054846.htm

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JOURNAL REFERENCE
Vītols A. Par ministra noteikumu institūtu. Jurista Vārds, 21.04.2020., Nr. 16 (1126), 10.-11.lpp.

 

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