Why is the National Audit Office also interested in the law-drafting process?

In early autumn, the European Court of Auditors (ECA) arranged a seminar in Brussels where it provided an overview of how the EU legislation should be applied at local level. The challenges arising from the implementation of the EU law with direct impact on the Member States were also discussed at the event. I took part in a panel discussion as a NAOF representative because NAOF is one of few audit institutions that have audited the drafting and implementation of the EU legislation from the national perspective.

Why do the audit authorities reviewing central government finances take an interest in the drafting and implementation of legislation? The quality of legislation is closely connected with the use of public funds because public spending is primarily steered by legislation. Moreover, legislation may also play a key role as an instrument guiding central government finances. Effective use of public funds depends on how laws are drafted and applied in practice. Shortcomings in the law-drafting process may mean higher costs for central government finances.  Since 2018, the National Audit Office has been focusing on the quality of legislation as one of its audit themes.

The way in which the national margin of manoeuvre permitted by the directives is applied is particularly important when EU laws are implemented. In an audit report published in 2017, NAOF drew attention to the fact that the national margin of manoeuvre  and how it has been used are often only indirectly stated in Government proposals.  This may make the law-drafting process less transparent. Directives may also be implemented as part of the process of reforming national regulation. This in turn may make it less clear which of the reforms are in accordance with the minimum requirements set out in the directives and which of the laws are part of the implementation of the national policy.

The Government proposal to amend the Firearms Act (HE 179/2018), which was recently debated in Parliament, is an interesting example from the perspective of the drafting and implementation of the EU law.  It is one of the latest legislative proposals submitted to Parliament with the purpose of implementing an EU directive.

The introduction of the Firearms Directive has been justified with the need to prevent the misuse of firearms by criminals.  The directive was prompted by recent terrorist attacks. The interesting question is how effectively criminal activities can be combated with regulation containing a large number of technical specifications.

Substantial changes were made to the Firearms Directive during the drafting stage.  As a result of successful lobbying during the drafting process, most of the issues important to Finland were incorporated into the directive.

The time reserved for submitting comments on the Government’s draft proposal was unusually short and the Chancellor of Justice also drew attention to this. However, substantial changes were made to the Government proposal on the basis of the opinions submitted during the comments stage. This shows that by being active participants in the law-drafting process, stakeholders can have an impact on the quality of the legislation.

According to the legislative process guide, stakeholders’ views on implementing the changes should also be heard if substantial revisions have been made during the drafting process. However, this was not done in this case, at least not openly.

The situations where the national margin of manoeuvre is applied are extensively and thoroughly described in the Government proposal submitted to Parliament. At the same time, the solutions in which Finland has taken a tougher approach than what is laid down in the directive have attracted less attention. In the final analysis, without making direct comparisons between the Government proposal and the directive, it is fairly difficult to say which of the solutions are based on national discretion.

It is quite unusual that under the new Firearms Act, a licence will be required for a large number of items that are now freely available. This provision is based on the directive and a six-month transition period will apply. Illegal possession of these items will also become a firearm offence. Such items may also be held as memorabilia and decorations by people who are not active in shooting sports.

Under the Government proposal, the new act should enter into force as soon as possible. It is clear that information on the changes should be extensively disseminated before the entry into force of the act. Otherwise, the legal processes focusing on the assessment of criminal intent may create an unnecessary administrative burden.

It is also fairly unusual that, as laid down in the directive, the new act states that licences granted after a specific period must be reviewed. A situation where licences already approved and the items acquired on their basis will be subject to reconsideration, may pose a challenge to the protection of legitimate expectations granted under administrative law.