Recent parliamentary debates over the law on annuities unclosed serious flaws in the process of legislature – fallacious arguments regarding the practices of annuity-payment in other European countries have been provided in the covering letter of the draft law.The Lithuanian Free Market Institute (LFMI) highlighted potential steps that could be taken to avoid similar misunderstandings in the future and submitted a letter containing recommendations regarding the conformity of the legislative process to the requirements of the Statute of the Seimas (Parliament) and its publicity. The material has been presented to Speaker of the Seimas Viktoras Muntianas, Board of the Seimas, Director of the Legal Department of the Seimas Andrius Kabišaitis, Government Secretary Valdemaras Sarapinas, and Minister of Justice Petras Baguška.
The adoption of legal acts of the Republic of Lithuania must be grounded on correct, clear and publicly available information and arguments. Debates in the Seimas over the law on annuities revealed major drawbacks in the process of legislature – fallacious arguments about practices of annuity-payment in other European countries have been presented in the covering letter of the draft law.
The covering letter of draft amendments to law on the Status of Signatories of the Independence Act (XP-2351) contained incorrect facts. It said that “All European countries provide this type of social guaranties to their ex-parliament members. Our neighbours Latvians and Estonians have resolved social matters of their parliament members long ago by passing special legal acts.” The following conclusions formulated and disseminated by LFMI draws on the material prepared by the Unit for Informational Analysis of the Seimas “Benefits and Pensions for Members of the Parliament in European Countries Paid Upon Completion of their Work and when not Re-Elected to the Parliament.” This material was updated on 20 June 2007 and presents a clear-cut table containing related facts. For instance, in 2004 Ireland narrowed its privileges for members of the parliament who will now start receiving pensions only at the age of 65. In Belgium, the pension to ex-parliament members is paid when they attain 58, in Greece – 60, in Spain – 65, in Italy – 60, in Portugal – 55 (on the condition that the parliament member has been in the parliament for more than twelve years), in Germany – 65 (on the condition that the parliament member has been in the parliament for more than eight years), and in France – 55. Slovakia, Slovenia and Latvia do not have separate pension systems for members of the parliament, while Estonia, starting from 2003, eliminated a system, the same as being proposed in Lithuania, and no longer extends any special privileges to members of the parliament.
The Lithuanian Free Market Institute wants to draw decision-makers’ attention to the steps that would help avert in the future similar misunderstandings, fallacious arguments while adopting laws and discreditation of the Seimas’ standing .
On the conformity of a covering letter to the requirements of the Statute of the Seimas
The purpose of Article 135 Clause 3 of the Statute of the Seimas is to ensure that before considering any draft law, the impact of its implementation on the state budget, the economy and the crime situation has been assessed. This information is important not just to members of the parliament who adopt specific decisions, but also for employees of the Office of the Seimas, journalists, citizens, and public and business agents who are interested in receiving more thorough information about the draft law. The covering letter’s goal is to inform members of the parliament and citizens about the reasons leading to the preparation and submission of the draft and its initiators as well as the negative and positive consequences of the draft law’s implementation on the state budget, the business conditions, corruption and crime situation. The covering letter is a very valuable document of legislature, specifying the circumstances of a legal act’s adoption , the alternatives debated – why one or the other model of legal regulation has been chosen, and what are the most valuable examples of practices in foreign countries. Providing misleading information in a covering letter is not just unethical and intolerable, but also contravenes the requirements for a covering letter set forth in the Statute of the Seimas. In this particular instance, the initiators of the draft law violated Article 135 Clause 3 Item 3 of the Statute by providing incorrect information regarding the current regulation of annuities in other countries.
Inconformity of a covering letter to the requirements of the Statute of the Seimas must result in the submitted draft law not being registered and being returned to its drafters. This inconformity must be treated just like other defects of the technical rules of law-making, which gives reason to the Secretariat of the Seimas Sittings not to register a draft law. For dealing with spiny issues, the Secretariat of the Seimas Sittings may resort to the expertise of lawyers from the Legal Department of the Seimas, while the final decision regarding the registration of a draft law should be taken by the Board of the Seimas.
Improper submission of a covering letter must serve as grounds for not considering a draft law until all circumstances related to the draft law – and, most importantly, the potential effects on the legal, social and economic environment – are provided.
It should be also stressed that incorrect arguments contained in the covering letters are usually not detected as there are no available tools intended for this purpose. For this reason, members of the parliament and society at large may be misled by the basic arguments during the implementation of legal acts. In addition, responsibility for providing evidently incorrect data in the covering letters has not been specified and applied.
On publicity of preparatory documents in the legislative process
Inaccuracies in the covering letters occur also because analyses used for grounding draft laws are not made public and cannot be assessed. Conclusions of the Unit for Informational Analysis of the Seimas are not public and are not attached to the draft laws. Research commissioned by Ministries and later serving as the basis for drafting laws is frequently unavailable to society.
Research, studies and analyses that were financed from the state budget and have served as the basis for a draft law must be attached to, or at least mentioned in, the draft law. All draft laws submitted by the Government go through the stage of a basic or expanded impact evaluation which is aimed at assessing the likely economic and social consequences of the draft law’s implementation – this evaluation must be made public and included in the Seimas’ Internet base of legal documents. Ministries frequently commission various scientific and applied research that later becomes the foundation-stone for their decisions. In 2005 National Audit Office conducted a research on this issue, “Expediency of Scientific Studies Commissioned by Ministries,” and criticised Ministries for not always appropriately selecting the studies’ performers and for not presenting the studies to the public at all times. By the way, the practice when the studies are not publicized engenders even more doubts as to their expediency.
Analyses made by the Unit for Informational Analysis of the Seimas are valuable documents furnishing more detailed information about decisions adopted by the Seimas, analogous foreign practices and other significant aspects of legislature. Good practice of public administration, the principles of publicity of the Seimas’ work and the certitude that the best decisions can be achieved through reasoning and debates make it crucial to publicize all conclusions of the Unit for Informational Analysis of the Seimas. Publicizing these analyses would also result in declining opportunities to trespass on the work of the Unit for Informational Analysis of the Seimas by ordering them to carry out studies not related with legislature. Certainly, the Board of the Seimas should preserve the right to not publicize these analyses in exceptional cases, but such cases must be an exception to the rule.
Therefore LFMI recommends:
1. By the decision of the Board of the Seimas, to publicize analyses conducted to date, and also those that will be carried out in the future, by the Unit for Informational Analysis of the Seimas by posting material on the Seimas’ Internet website.
2. To oblige drafters to specify in a covering letter of a draft law what studies the draft law has been based on if relevant research was done for that purpose. If they draw on the studies financed from public resources (for example, analyses commissioned by Ministries or conducted by the Office of the Seimas), their full texts must be open to the public and accessible.
3. To oblige the Legal Department of the Seimas to furnish evaluation of the conformity of a covering letter to the requirements of Article 135 Clause 3 of the Statute of the Seimas when submitting its conclusions on the compliance of a draft law to laws already in effect, the Constitution and the technical rules of law making.
4. It would be also expedient, at the request of a member of the parliament, to oblige the Legal Department of the Seimas to assess important legal arguments presented in a covering letter (regarding foreign practices, the impact on the legal system, major legal norms proposed in a draft law) that are not directly highlighted in Article 135 Clause 3 of the Statute of the Seimas.
5. A draft law submitted together with a covering letter that contravenes the requirements of the Statute of the Seimas must not be registered and must be returned to its drafters as non-conforming to the form specified in the Statute of the Seimas. Non-conformity to this requirement of the Statute of the Seimas must be treated just as other defects of the technical rules of law-making that provide grounds to the Secretariat of the Seimas Sittings not to register the draft law.
6. The Board of the Seimas must demand that all draft laws submitted by the Government are accompanied by covering letters complying with the requirements of the Statute of the Seimas, related studies commissioned by Ministries and basic or expanded impact evaluations of draft laws.
7. To institute responsibility for knowingly submitting incorrect information in covering letters.