The Pre-parliamentary Phase in Lawmaking: The Power Issues at Stake

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.

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).

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.

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.

The political organs of the Confederation are in agreement over the two objectives of the pre-parliamentary process. On the one hand, it is meant to contribute to the quality of the law (Sect. 5.4.1); on the other, it is meant to encourage political acceptability in the parliamentary phase and subsequently in the referendum phase (Sect. 5.4.2). After briefly describing the means the authorities put into practice to achieve these objectives, we contrast them with critical studies written by legal scholars and political scientists (Sect. 5.4.3).

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).