Presented in IUCNAEL 2019, Kuala Lumpur

1. Interplay between actors in
legislative drafting – case
study on drafting the
legislation on peat extraction
in Finland
IUCN AEL Colloquium
Kuala Lumpur 2019
Jussi Airaksinen
UEF Law School

2. Background
•Peat has a noteworthy share of energy fuels in Finland
•Peat extraction and burning peat causes and source of
– Loss of biodiversity
– Eutrophication and murking of waterways
– Declining of fish stocks
– GHG emissions
– Air pollution
– Jobs for rural areas
– Domestic energy
– Environmental and social conflicts
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4. Background
• Finnish law drafting in a nutshell (in many cases)
1. Initiative (eg. Government platform)
2. Working group (often some stakeholders are included)
3. First draft
4. Public hearing
5. Govenment proposal that is sent to the parliament
• In the Finnish Law Drafting, after public consultation happens something that is
called ”further drafting”
• Ideally in this phase the ministry officials analyse the arguments stated by
stakeholders in the public hearing and improve the draft further
• There is a reason to believe that in this phase there will happen some interaction
between politicians and lobbyists – however it’s not public nor there are equal
opportunities for stakeholders to participate
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Further drafting

5. Research questions
•In 2014 parliament passed a bill which prohibits peat extraction
where it would significantly cause damage for biodiversity
•In a process where high political intentions are involved, how does
the mental models and discourses of politicians, ministry officials and
lobbyists differ in this particular ”further drafting” process?
•How do the different law drafting actors manage conflicts that are
involved in the process?
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6. Theoretical background and previous research
• The mainstream theories of lawdrafting (ideal models) are relying on the theory of
rational choice
– Eg. Define the problem -> Find out possible solutions -> Assess the impacts of
each solution -> Choose the one that will fix there problem by the most effective
way
– Technocracy
• This is criticised for not taking into account uncertainties and conflicting views. Law
drafting includes politics and inherently human imperfections which affect decision
making and process managing
• According to Radaelli, better regulation and impact assessments are hegemonic
discourses
– Modern, pleasant, active improvement of governance
– Critique for this can be seen as opposing innovations
• According to Pakarinen in Finnish impact assessment documents relating to law
drafting there is a discourse of rationality and expertise
– Contra politics and irrationality
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7. Methods and data
•Semistructured interviews of politicians, officials and lobbyist
– 5 in total
– One was recruited without an earlier contact, others were (former)
colleaques or otherwise previously known by previous contacts
•Critical discourse analysis, content analysis
– Recognizing different discourses, practices and how thing are seen by
different actors
– How does this reflect their position and power dynamics?
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8. Results
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9. Discourse 1: Political control (by ministry
officials)
• What ministry officials are doing is rational. What politicians do is political
(irrational?)
• Power of each actor is derived from their hierachical status in the bureaucratic
process
• Ways of action:
– Officials give their expertice into the process
– When politicians say something, officials follow accordingly
• Top-down power hierarchy
”It wasn’t state secretary or political advisor but the minister who called by himself. It was a ..
Friday night and I was in the office at 8 PM when minister called to tell, what to write and I
wrote”
”It moved to the political level and they [ministers, advisors] drafted the phrasing of the act. It
was given, how it should be, so only possibility is to write the reasoning in the travaux
preparatoires to match the bill.
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10. Discourse 2: Hearing (by ministry officials)
•Stakeholders are heard (but not as partners to negotiate with)
•The impact of an stakeholder actor is defined whether they bring
new and useful information into the process
•The second function of interaction is to gain acceptance from the
key-players
•Ways of action
– Gather information and make a decision
– Convince the key-players
•Top-down power hierarchy
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11. Discourse 3: Negotiation (by politicians)
• Another political party in the goverment forces the minister to negotiate with
lobbyist in order to approve the bill.
• Power-game
• Gaining the acceptance of key-players
• Ways of action: Bargaining with the policy goals and measures
• Rather a network of actors than a hierarchy
• (When I asked about this from the government officials, they said that it would
be seen as unethical even to negotiate with lobbyist)
”Two or three weeks before the proposal was accepted in the government, the minister of
economic affairs said that he’s not going to accept this unless the lobbyist organisation of peat
producers is satisfied in a one way or an other.”
”It satisfied our needs over the threshold that we did not walk out of the government or from the
negotiations. It’s not an absolut, did we get what we want but if we’re not going to take this,
what would be an alternative?”
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12. Discourse 4: Lobbying (by lobbyists)
• The lobbyist did not have a position to negotiate – they were hardly even
heard!
• Adapting to the process
• Ways of action
– Questioning the reliability of the information provided by the other
parties
– Strategically disseminating the information in the network
– Opportunism (eg. Equality-arguments)
• Legislative drafting is rather a network of actors than hierarchy
”I’m sure that not every politician know, how the conservation status (red book) is made.
If a vulnerability of some species is dependent on, do we have 60,000 hectares in the
peat production or not, we don’t think, what happens to these species in Middle-Europe
or further. Are these species in the limits of their distribution area?”
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13. Summary
•It was almost as if everyone was depicting a different process!
•What Pakarinen said of the discourse of rationality seems to apply
to public officials
– However, it does not seem apply to politicians and lobbyists –
underexplored in the field of law-drafting studies
•This might be useful while designing procedures for law drafting
•Further, if you present yourself as a trustworthy and responsible
scholar, it is possible to interview people in very high positions and
discuss politically controversial issues
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14. Thank you for your attention!
jussi.airaksinen@uef.fi
www.uef.fi