5.1 Introduction
Swiss law contains a certain number of rules concerning the lawmaking process. In this framework, the federal administration has developed an impressive practice in lawmaking which has been progressively established in specific guides and enshrined in law. The aim of this chapter will not be to present all the lawmaking, but will instead focus on the pre-parliamentary phase during which the federal administration has to act.
Before coming into force, a federal
law goes through four phases:
pre-parliamentary, parliamentary, referendum
, and implementation
. Swiss are generally quite familiar with the parliamentary phase of the legislative
process; debates in the two chambers of the Federal
Assembly are well covered by the media
during each of its four annual sessions. By contrast, the pre-parliamentary phase remains relatively unknown if not confidential (Sciarini
2011). Yet it is during this phase that the draft legislation
submitted to parliament is negotiated, and this partly determines its future fate. The federal administration
plays a major role in this phase, which is why it is worth devoting attention to this preparatory phase when addressing public
administration and the lawmaking process at the federal level. To make it more explicit, the dossier on the revision of the Federal Data Protection Act (DPA) will be used to illustrate the room for maneuver available to the federal
administration, and more specifically to the federal
offices.
1
Chronological logic is used first to describe the preparatory phase, which focuses more on the process than on organizational issues. Next, we present the supporting material (reference documents) that governs this process, and discuss the limits of their accessibility. Then we contrast how the federal authorities portray the objectives of the pre-parliamentary phase with the results of studies by legal scholars and political scientists. Finally, we examine an underlying issue, namely what is at stake in terms of power in the pre-parliamentary process.
5.2 The Stages of the Pre-parliamentary Process
In federal
law, there are several categories of legal
instruments. The major ones are laws and ordinances; only the first are considered, as they have to be adopted by the legislature. Moreover, in Switzerland, laws (Art. 164 Federal Constitution, abbrev. as Const.) can be subjected to an optional referendum
(Art. 141 Const.). In terms of competencies, because it involves preparing a legislative act at the level of law, it is the responsibility of the
Federal Council, the national executive (Art. 181 Const.), to direct the pre-parliamentary phase. This is different if the impulse for the law comes from a parliamentary or cantonal initiative
, a rare situation—less than 20%—that will not be considered here (Art. 181 and 171 Const.; Art. 7 Government and Administration Organisation Act (GAOA); Federal Office of Justice
2014: 100).
We draw here on the many federal guidelines which govern the pre-parliamentary process (for a particularly critical stance, see Jochum and Ledermann
2009: 92), and follow the chronological development: the design of the legislative project (Sect.
5.2.1), the preliminary draft and its explanatory report (Sect.
5.2.2), and the external consultation
on the preliminary draft and finalizing the bill (Sect.
5.2.3).
5.2.1 Designing the Legislative Project
It is at the beginning of the first, conceptualizing, phase that the necessary information for analyzing the problem is collected and a project organization is set up. The scope of knowledge needed depends on the structure of the project, understood as the organization of the project. The choices here are, on the one hand, a function of the staff resources and expertise of the office in charge, and on the other hand, the likelihood of finding a sufficient consensus. In other words, the more complex and politically sensitive the problem is, the larger the group that prepares the project.
Overall, three variants are possible. The first is an internal working group, which presupposes the federal administration has the necessary knowledge. The second is a joint working group, in particular, committees composed equally of federal and cantonal representatives, formed when the latter are particularly concerned. The third, in exceptional cases when specialist expertise seems needed, is a group of experts from outside the administration. The most common is the joint working group, which brings together interdisciplinary skills. Nevertheless, lawyers are very evident in these different types of working groups.
The conceptual phase allows for the construction of a base of knowledge on which the draft law and the explanatory report—called the ‘message fédéral’—later rest. It is based on a material lawmaking approach whose goal
is to improve the ability of the law to act on social reality (Flückiger
2008). One can see this as a problem-solving cycle with three stages: defining the problem (by analyzing its causes and its dynamic), determining the objectives
(describing the desired future state by prioritizing the objectives
to be achieved), and deciding on the instruments to use (presenting the variants in conjunction with the various instruments of action available to the government, and roughly assessing them before selecting which to use) (Jochum and Ledermann
2009). Depending on the circumstances, this iterative approach can be repeated at each state of the pre-parliamentary process.
The problem-solving cycle culminates in drafting an outline of a normative act which summarizes—in the form of theses or guiding principles—the material lawmaking approach, without yet expressing it in the form of a normative text. The following sketch also provides variants to the chosen solution (Art. 141 of the Law on Parliament). It is during the conceptualizing phase that the federal administration can best develop its room for maneuver or be at its most creative.
The DPA case: Almost 20 years after it came into force (on 19 June 1992), it was clear that the Swiss data protection law was outdated, superseded by technological and societal developments and the new requirements under
European law. Based on an
evaluation carried out by an interdisciplinary research group (Büro Vatter
2011
), the
Federal Council instructed the Federal Department of Justice and Police to revise the law
(Federal Council
2011
). The
Federal Office of Justice, which was responsible for this dossier, established a working group composed of representatives from the
federal administration, the
cantons, the universities, as well as from consumer protection and economic interest groups. They drew up a report – incorrectly entitled ‘Outline of a Normative Act’ – which described the basic axes of the revision, the form of the normative act, the general regulatory structure, its normative density, and a timetable for
implementation (Federal Office of Justice
2014
). In fact, no outline will ever be drafted, despite the directive calling for it by the Federal Office of Justice, probably in order to avoid consulting the head of the
department again. Instead, the Swiss Institute of Comparative Law was asked to provide expert reports on how data protection is organized in various countries (Germany, France, Italy, the Netherlands, Poland, Sweden, the UK, Finland, Slovenia, Spain, and in Argentina, Japan, New Zealand, Singapore, South Korea, and the U.S.) and what powers data protection authorities have in these countries. Contracts were also given to the Universities of Applied Sciences in Zurich and Lucerne to analyze the jurisprudence and literature on the cost-benefit ratio in the area of data protection.
5.2.2 Preparing the Preliminary Draft and the Explanatory Report
The outline of a normative act, which summarizes the main political and legal features of the proposed bill, is now transformed into a text, the draft bill. This is where formal legal
rules, in particular those governing structuring, are crucial. The original drafting language is most often German, with a parallel French translation. Depending on the available resources
, the text is drafted in parallel in two official languages but often in just one. Italian is the poor relation in the federal
administration and is generally only a language of translation rather than of formulation.
The DPA case: The working group was composed largely of French-speakers, so the draft data protection law was formulated originally in French and then immediately translated into German. This is exceptional.
Once the draft is prepared, its potential effects are evaluated. According to the letter of the law, this includes speculation about ‘the consequences the project, if carried out, will have on the finances and the status of the personnel of the
Confederation, the cantons and the communities
, the modalities proposed and their financing, the impact it has had or will have on financial
planning, and the cost/utility evaluation
of the proposed measures’; ‘the economic, social and environmental consequences of the proposed project and its effects on future generations’; and the foreseeable ‘consequences the project will have on equality between men and women’ (Art. 141 (2)(f, g, and i), Federal Act on the Federal Assembly). However, the
Confederation limits this type of study, called a Regulatory Impact Analysis (RIA), to an economic analysis (Federal Department of Economic Affairs
2013). In undertaking these prospective evaluations
, the administration seeks to improve the preliminary draft and the explanatory report which comments on it.
The DPA case: After having read the ‘outline of a normative act’, the
Federal Council instructed the
Federal Department of Justice and Police to formulate a draft law together with three other
Departments
, and together with the Federal Data Protection and Information Commissioner.
On behalf of the Federal Office of Justice and of the
State Secretariat for Economic Affairs, a private firm conducted an RIA (PWC
2016
). According to its conclusions, it is necessary to legislate, in particular due to the evolution of law at international and European levels. The RIA also showed that from the point of view of firms operating in Switzerland, the preliminary draft would significantly affect those companies with medium or high exposure to data protection law. With respect to international competition, companies would nevertheless benefit from Switzerland maintaining its status as a country with an adequate level of data protection. Those concerned would benefit from a strengthening of their position.
The first part of the explanatory report of 21 December 2016 on the preliminary draft federal
law (on the total revision of the data protection law and on the modification of other
federal laws) places it in its national and international contexts, discusses the
objectives of the revision (adapting Swiss
legislation to technological developments and integrating changes in European
regulations), provides a comparative study of relevant laws, and addresses
implementation issues. Another section addressed the new standards, commenting on them article by article. Finally, the various financial, economic and social consequences on the IT sector are evaluated. The report also addresses various legal issues, in particular the constitutionality of the preliminary draft in terms of case law, compatibility with international agreements, and the form of the draft act.
5.2.3 Consulting About the Preliminary Draft and Finalizing the Bill
The
consultation process marks the beginning of opening up the pre-parliamentary process. The addressees are organizations which do not belong to the federal
administration. Federal judicial authorities are only consulted on projects which affect their own processes or organization (Art. 11, Federal Ordinance on the Consultation Procedure). The cantons, the political parties, local authorities’ associations (cities and
communities), and those circles interested in drafting
federal laws are also involved in the
consultation, one which is supposed to take into consideration all the interests at stake. This is a key instrument of
cooperative federalism
(Federal Council
2004) which allows NGOs to contribute to the formation of public opinion and help establish whether a project of the
Confederation is ‘materially correct, executable and likely to be accepted’ (Art. 2 (2), Federal Ordinance on the Consultation Procedure).
The drafts of federal laws are generally open to consultation, though the federal administration can waive this (Art. 3a, Federal Act on the Consultation Procedure). This takes place in principle over a period of three months. The federal administration drafts the final report, which presents and weighs the expressed opinions. If the Federal Council approves the bill and the preliminary report, it is sent to the Federal Assembly. This marks the end of the pre-parliamentary phase and the beginning of the parliamentary process.
The DPA case: As part of the consultation process, which lasted a little over three months from the end of December 2016 to the beginning of April 2017, the Federal Department of Justice and Police invited 65 organizations – in particular the federal courts, the cantons, the political parties and various interested organizations – to give their opinions about this proposed bill, while 164 other actors, unasked, also provided input. The Department received 222 statements, 176 from relevant circles (Federal Office of Justice 2017: 5). On 10 August 2017, the Federal Office of Justice published a 79-page summary of the results of the consultation process, laying out the main points (an assessment of the need to legislate and a general assessment of the preliminary draft), along with details on the opinions about specific articles. On September 15, 2017, the Federal Council received the 247-page report about a federal law to revise the federal data protection act (as well as about modifying other federal laws), along with a draft bill which contained 67 articles (Federal Council
2017: 6565).
5.3 Reference Documents and Their Accessibility
Being familiar with a process internal to the administration implies having access not just to the legal instruments that define it abstractly, but also to the files of the preliminary legislative procedures which are in process or are completed. The few normative texts can be found in the classified compilation of Swiss law. Anyone who wants to obtain information on the pre-parliamentary process can readily find the many texts meant to guide the administration in its work—constitutional norms, laws, ordinances, and directives—on the webpages of the federal administration. On the one hand, the documents concern the phase which has external effects, meaning the consultation process (Art. 147 Const., Federal Act and Federal Ordinance on the Consultation Procedure), and on the other hand, they are related to information provided to the Federal Assembly by the Federal Council which defines the content of the explanatory report, which the second addresses to the first (Art. 141 Federal Act on the Federal Assembly).
The Swiss
Confederation did not enact a ‘law of laws’ forcing a legislator to follow a methodical approach in drafting
legislation (Flückiger
2008). However, numerous directives guiding the administration can be found on the respective websites. Thus, the
Guide de législation (Federal Office of Justice
2007) and the three modules (law,
regulations, and parliamentary initiative
) which complement it as well as the
Directive sur la présentation d’esquisses d’acte normatif may be found on the website of the Federal Office of Justice. The
Directives sur la technique législative and the
Aide-mémoire sur la présentation des messages du Conseil fédéral are available on that of the Federal Chancellery. These texts provide step-by-step guides for the administrators responsible for carrying out the internal procedures. There is thus a mass of information, the largest part of which comes from the good practices of the
federal administration. The practice of consultation
, for example, is an old tradition which was codified by a
Federal Council directive on May 6, 1970, about the preliminary process for
legislation (Federal Council
1970: 1003). This was reinforced by a
Federal Council order on June 17, 1991; the Law on the Consultation Procedure was only first passed in 2005.
Documents about each draft bill in the pre-parliamentary phase are as readily accessible for the procedures in progress, though only once the external consultation
has begun. Electronic
records are more or less well-organized; they are provided as a function of the care various offices
give to their own webpages.
The DPA case: The ‘strengthening data’ file of the Federal Office of Justice is particularly well-documented. One finds in it a summary of the political and legal motivations for revising the law and of the preliminary steps taken, the reports from the experts, the documents made available for consultation, the positions taken and the results of the consultation, along with the preliminary report and the bill.
It would be fascinating to add information to this layer of legal and technical information, about what is at stake, in terms of power, at the heart of government. However, Federal Council deliberations are not public (Art. 21, GAOA), nor are the documents it produces. Indeed, despite a Copernican revolution—which has made it a priority to have transparency outweigh secrecy in the access to federal government documents—the Federal Council does not fall under the scope of this law. In the case of documents relating to co-reporting procedures—the final stage of negotiations between the heads of departments which precedes the Federal Council’s decision—they too evade the principle of transparency (Art 8 (1–4) Freedom of Information Act).
The reason for this is that a collegial authority must be able to remain silent about how it reaches its opinions and makes its decisions
in order to present a united front to the public. The public is deprived of knowledge about the clash of ideas, the political conflicts, and the alliances formed within the executive—certainly for good political reasons—and does not know what the real power issues are that are at stake. It is thus doubtful that the Federal
Council might one day risk opening the door of its ‘federal chalet’
2 to allow a [Bruno] Latour interested in the Swiss political
system to research and publish a work entitled ‘The Making of Swiss Law: An ethnography of the
Federal Council’.
3 As for the negotiations which take place in the
offices and in the working groups in which preliminary drafts and legal projects are conceived, they remain secret. They thus evade the rules of the democratic game which is played during parliamentary debates.
5.5 Decrypting the Power Issues
We now focus on the question of who has decision-making power, in a material sense, within the domestic legislative process. It can be considered from two perspectives. First, it concerns the relations between the executive—the Federal Council—and the different levels of the federal administration (head of department, offices and general secretariats). Second, it is about the designation of the leading office of a given project.
The
Federal Council functions according to two principles: collegiality (all its members collectively assume responsibility for governing), and the departmental principle (each member heads one or more
departments) (Auer et al.
2013: 54). In this configuration, the federal
administration,
hierarchically subordinated to the
Federal Council, is not considered as an organ of the state.
As the chronological presentation of the process highlighted, such an organization has an impact on the power game that is played. The executive, meaning the government relying on a public
administration is subdivided into
offices and agencies, reigns supreme over the first phase of the
legislative process. It is here that the major legal and political
decisions about a given project are taken. These
decisions will only later be submitted, in the form of a bill, to the Parliament
. As we have focused here only on the preliminary phase, we must leave aside the very important question of the horizontal balance of power between government and parliament
throughout the legislative
process (Sciarini
2015). The question which concerns us here is the vertical
distribution of power between
Federal Council, the departments
, the
offices of the
federal administration, and the general secretariats of the
departments. We will approach this from the top down.
In the context of implementing federalism
, where the federal executive is transferring the power to implement
federal
law to the cantons, the ‘pre-legislative’ phase is important from the point of view of political power. Nonetheless, this power is largely delegated to the federal
administration. Though the Federal
Council certainly has the right to make decisions
, which it makes use of at each stage of the pre-parliamentary process, it in fact exercises its power in the form of a right of veto over the
decisions made by the federal
administrative offices
rather than making collegial decisions
within the Council. Indeed, everything is played out, in a formalized
decision-making process, called the interdepartmental co-report procedure, prior to the Federal
Council meeting, which is to say in the meeting of the department
heads to prepare a joint interdepartmental report (Art. 15 GAOA and Art. 5 Ordonnance on Government and Administration Organization; Müller and Uhlmann
2013: n. 147–150).
The first step is consultation
at the level of the federal offices
inside the
departments. This makes it possible to gather proposals and amendments, and establish whether the relevant office
will accede or resist. In a second step, the dossier goes back to the heads of other departments
. They can express their disagreement in a report addressed to the head of the responsible department
, who can in turn take a position in response to it and to the reports submitted by other departments
. A last round of replies from the departments
to this response is also possible. These reports, signed by the heads of departments
, are in fact prepared by the federal offices
(Mader
2001: n. 45), and are the veritable ‘backbone’ of the
federal administration (Grisel
1984: 213); they play a major role in the decision
of the
Federal Council.
4 Unlike the
Federal Councilors, the heads of federal
offices, managers of domains, or heads of units (Mader
2006) are not subject to re-election. Because they define the principal orientations, they exercise major and lasting influence over the procedure and the bills.
The general secretariats of the departments are also a locus of power. Serving as general staff, they assist the heads of departments in performing various tasks (Art. 143 et seq. GAOA). However, they benefit from having a different position. They are certainly closer to the head of the department than to the heads of the offices and can intervene at the highest level, at the end of the process. On the other hand, they no longer influence the important points which have not previously been considered in the federal offices internally.
At the very beginning of the preliminary procedure, the new legislative project is assigned to one federal office. Although this decision falls within the material competence of the Federal Council, it is not the result of a political negotiation, on a case-by-case basis, between the Councilors. It is based instead on regulations it has enacted about how the seven federal departments are (to be) organized, establishing such distribution according to subject (e.g., based on the areas of expertise of the various offices). These offices are supposed to organize themselves in such a way that they can assume their respective legislative responsibility.
In fact, they have very different human resources
available to produce quality legal texts. Some, such as the
Federal Office of Public Health or the Federal Office for the Environment, have legal services
with many employees, or even quality assurance systems. Others, by contrast, do not even have positions for lawyers. In such cases, lawyers from the Federal Office of Justice or the Federal Chancellery provide assistance. In this context, the internal legislative
process begins in decentralized ‘workshops’ which bring together various skills and resources
. In a Weberian sense, the administrative system ‘delineates spheres of competence and powers’ and ‘prioritizes functions’.
5
Federal offices enjoy considerable power in making proposals during the pre-parliamentary phase. They are certainly subordinated hierarchically to the head of the department, as well as potentially subject to a Federal Council veto as it decides about each stage of the process, most especially in starting the consultation process (Art. 5 Consultation Procedure Act). Though responsible for the organization of the project, they nevertheless have an impact on the integration of knowledge and the extent of consultation in the drafting of bills.
Compared with other offices
, the Federal Office of Justice enjoys important prerogatives, which has earned it the label of being the ‘juridical conscience of the administration’ (Mader
2006: 3). It guarantees control over the quality of draft laws, carries out legal assessments, and enacts an important part of the directives and formal legalistic guidelines. It also provides training for
federal law clerks. This
office has, in effect, designed and implemented a complete training concept—something found rarely even among Swiss university law faculties.
Ultimately, while it is formally a power of the
Federal Council, it is the federal
offices and even the general secretariats which exercise power over the pre-parliamentary process (Mader
2006: 7). This means
a strengthening of public administration
relative to the executive, so much so that some describe the federal
administration as ‘the fourth power’ in the state (Häfelin et al.
2016: n. 1698). Of the relevant offices
, the Federal Office of Justice enjoys a particularly powerful position, a situation not without its problems. Indeed, the control of the preventive control of compliance with the law by an office
raises questions of independence. Author of numerous bills—20%, the office
also happens to be the relevant office
for the subject matter as well as the locus of preventive control, which could lead to conflicts of interest. It is therefore not surprising that, in response to a postulate, the Federal
Council issued a report in which it declared itself satisfied with the status quo, while also advocating some modest optimization measures. It is thus perhaps not surprising that the
Federal Council also opposes
judicial review: if introduced, it could guarantee oversight by an organ of the state which would be independent of the government
and parliament
(Federal Council
2010).