Outsourcing legislative responsibility? An explorative study on purchasing legal advice in the German law-drafting process.

VerfasserStreb, Sebastian

1 Introduction

In 2009, a letterhead of the international law firm Linklaters was found on a draft version of the Law Amending the Banking Act. (2) At the peak of the banking crisis, the Federal Ministry of Economics and Technology hired the private firm to write the draft bill. The writing of draft bills, however, used to be considered as a core function of Germany's ministerial administration (Mayntz 1985: 183f; Machura 2003). Thus, a harsh political dispute emerged on the benefits and boundaries of purchasing legal expertise through public bodies. A law firm which also represents investment banks was considered to be unable to write an impartial draft bill on the regulation of bank insolvencies (Suddeutsche Zeitung 2009a). Being accused by the left party (Die Linke) of pursuing clientele politics, the responsible minister justified the purchase of legal advice with the lack of in-house expertise (Bundestags-Drucksache 16/14133 [2009]: 1), which in turn urged the president of the union of civil servants (Deutscher Beamtenbund) to complain about continuous staffing cutbacks in the federal administration (Suddeutsche Zeitung 2009b).

The Linklaters case might be a good example for the dynamics of political scandals, but more than that it points out to the issue of mandating private firms in the law drafting process. This topic has so far received little scientific attention and therefore raises at least two questions: First, what is the difference between purchasing legal advice and related phenomena such as outsourcing and policy advice? Secondly, what are the potential dimensions of the political dispute over the use of such practices in the federal law making process? In trying to answer the first question, this study suggests a preliminary theoretical conceptualisation of the phenomenon. Drawing on research on policy advice and contracting out, purchasing legal advice in the law drafting process will be characterised by its specific purpose, i.e. the formulation of draft bills, and the contractual relationship between private law firms and the federal bureaucracy. As regards the second question we seek to identify the underlying dimensions of political conflict that are linked to potential causes and consequences of purchasing legal advice.

In order to enrich and consolidate the debate on purchasing legal advice with the so far limited available empirical evidence, the empirical analysis takes a rather unconventional approach: First, we conducted an anonymous postal-survey among the participants of a symposium on legislative outsourcing. (3) Secondly, we use ministry-specific information taken from the federal government's answer to a minor interpellation (Bundestags-Drucksache 16/14133 [2009]) and minister-specific data for an analysis of the frequency of purchasing legal advice for 15 federal ministries from 1990 to 2009. The data is not representative, nor is it suited to test the validity of the theoretical conceptualization. Yet, it provides first preliminary evidence on its plausibility and the potential political dimensions of purchasing legal advice.

The following section reviews the contracting out and policy advice literature in order to derive a first conceptualization of purchasing legal advice. Afterwards we describe the analytical approach, data, and methods and present some explorative empirical evidence. Finally we summarise the study and discuss its further implications.

2 Towards a Conceptualization of Purchasing Legal Advice

2.1 Purchasing Legal Advice and the Regular Process of Federal Law-Making

In order to gradually develop a first conceptualization of purchasing legal advice, it is purposeful to begin with a presentation of the more regular process of federal law making in Germany. The basic rules of the legislative process are set out in the Basic Law (Art. 76-78; 82) and the Joint Rules of Procedure for the Federal Ministries (Gemeinsame Geschaftsordnung der Bundesministerien, GGO). According to Article 76 of the constitution, bills may be introduced to the parliament (Bundestag) by the federal government (Bundesregierung), by the federal council (Bundesrat) or from the floor of the parliament. Draft bills that are introduced by the federal government and a substantial share of draft bills introduced by the parties of the government coalition from the floor of the parliament are prepared and written by ministerial staff (Mayntz 1985: 183f; Machura 2003). The federal government accounts for about two-thirds of all introduced draft bills. In the legislative period 2005-2009, for example, it introduced 59 per cent of all draft bills; the floor of the parliament introduced 29 per cent, including the parties of the government coalition; and 12 per cent of the bills were introduced by the federal council (Deutscher Bundestag 2010). (4) Hence, in practical terms, it is not the parliament but the ministerial bureaucracy that is the centre of the formulation of draft bills. (5)

The initial decision to prepare a draft bill lies with the minister. The minister charges the appropriate section of the ministry with the preparation of the first version, the so-called Referentenentwurf. However, it would be wrong to believe that ministries are exclusively waiting for an instruction of their ministers before getting active. In contrast, it is part of their mission to observe and reflect the political and social debates within their area of responsibility so that they can offer solutions to a political problem whenever it is required (Busse 2010: 225). Thus, although ministers may initiate the writing of draft bills, this is mostly based on the initiative of the ministerial bureaucracy.

In the following phase there exist various forms of external involvement in the preparation of the draft bill (Dohler 2010: 5). For example, the ministerial administration collects scientific policy advice, e.g. from federal agencies, research institutions, and advisory bodies (Ismayr 2008: 395). Besides, there are different forms of cooperative law making. According to [section]47 GGO, draft bills are to be developed in cooperation with the Lander and national associations of local authorities as well as central and umbrella associations and expert communities if their interests are affected. The actual decision on which of the associations and expert communities are informed and which of these groups are invited to contribute their expertise lies with the responsible federal ministry. Finally, once the responsible section of the ministry has gathered the necessary information it formulates the Referentenentwurf.

In this ideal-typical process the formulating of draft bills constitutes a core function of Germany's ministerial administration (Mayntz 1985: 183f; Machura 2003). The literature on the German ministerial bureaucracy clearly shows that the majority of draft bills is prepared by the ministries' sections, thus being the backbones of legislative policy-making. In this regular process of federal law-making, the use and role of private law firms in the preparation of draft laws is not recognized. As a matter of fact, it is neither codified in laws and regulations nor has the "outsourcing" of law making until recently (Battis 2009; Kruper 2010; both from the perspective of legal studies) been the subject of academic interest. As a consequence, one is inclined to conclude that the purchase of legal advice presents a novelty in the federal law-making process. However, before hastily qualifying the purchase of legal advice as a new phenomenon, it makes sense to look for a conceptualization that could be based on existing concepts.

2.2 Purchasing Legal Advice and the Related Phenomena of Outsourcing and Policy Advice

For the conceptualization of purchasing legal advice in the law drafting process, we relate it to apparently similar phenomena, namely policy advice and contracting out. The conceptualization is organized around three fundamental questions: First, what type of good or service is provided (content)? Secondly, who are the purchasers and the providers (agents)? Thirdly, how is the relationship between the purchaser and the provider organized (relationship)?

Content: First, how does the purchase of legal advice differ from the goods and services that are part of the literature on policy advice and outsourcing? Although during the last 15 years the research on policy advice grew rapidly, there exists no coherent definition. While "Politikberatung" was for a long time understood exclusively as the institutionalised delivery of scientific expertise to political decision makers (cf. for example Murswieck 1994; Krevert 1993), during the last few years the term has undergone a considerable broadening, including not only institutionalised policy advice and political consulting for example during election campaigns, but also public affairs and lobbying (Losche 2006; Falk et al. 2006; Siefken 2010). Generally speaking, policy advice concerns the provision of context-specific policy expertise. In contrast, contracting out refers to a "business arrangement between a government agency and a private entity in which the private entity promises, in exchange for money, to deliver certain products or services to the government agency or to others on the government's behalf" (Kelman 2002: 282). The contracting out literature focuses on the delivery of goods and services formerly provided and/or produced by the government (e.g. water supply, electricity, waste disposal, etc.).

The content of the purchase of legal advice concerns the full or partial formulation of a draft bill. It is evident that purchasing legal advice is qualitatively different from the outsourced production and delivery of consumer goods and services. In particular, it is difficult for the contractee to assess the quality of legal advice (Gilardi and Braun 2002; Lane 2005; Miller 2005). Thus, contracts on purchasing legal advice in the law...

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