Outsourcing Legislative Responsibility? an Explorative Study on Purchasing Legal Advice in the German Law-Drafting Process

Article excerpt

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). …