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KLRI Conference 2019 Ex ante-evaluation in Switzerland from a Legal Perspective Felix Uhlmann Seoul, June 19, 2019 Prof. Dr. Felix Uhlmann 1 Table of Contents I. Importance of Ex ante-evaluation II. Legal Sources of Ex ante-evaluation 1.

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Prof. Dr. Felix Uhlmann

KLRI Conference 2019 Ex ante-evaluation in Switzerland from a Legal Perspective

Felix Uhlmann

Seoul, June 19, 2019

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Felix Uhlmann 2

I. Importance of Ex ante-evaluation II. Legal Sources of Ex ante-evaluation

1. Political Rights (Art. 34 Const.) 2. Duty to Evaluate (Art. 170 Const.) 3. Dispatches on Bills (Art. 141 Parliament Act)

III. Standards of Ex ante-evaluation IV. Related Instruments

1. Consultation Procedure 2. Ex post-evaluation 3. Experimental clauses

V. Synthesis

1. Independence 2. Holistic Approach

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I. Importance of Ex ante-evaluation

Example: "Marriage Penalty"

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I. Importance of Ex ante-evaluation

Example: "Marriage Penalty"

Swiss Supreme Court Decision of April 10, 2019* It is necessary to examine whether the Federal Council has informed the voters in detail about facts which were exclusively available to the Federal Administration and thus falsified the information situation in the referendum on 28 February 2016. The faulty or incomplete information concerns three points. First, the number of two income marriage couples affected by the marriage penalty was wrong. The voters also did not know that the figure of 80,000 was based on an estimate. Finally, they also did not know that the figure referred to data from 2001 that had not been updated.

* 1C_315/2018, 1C_316/2018, 1C_329/2018, 1C_331/2018, 1C_335/2018, 1C_337/2018, 1C_339/2018, 1C_347/2018

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I. Importance of Ex ante-evaluation

Example: "Marriage Penalty"

Swiss Supreme Court Decision of April 10, 2019* According to the federal authorities, the correction raised the number of two income couples affected by the initiative from 80,000 to 454,000. The original number was thus more than

quintupled. […]

[T]he figure of 80,000 was used to underline the insignificant nature of the cases affected by the initiative in relation to the expected costs […] The federal referendum of February 28, 2016 on the popular initiative "For marriage and family - against the marriage penalty" is repealed.

* 1C_315/2018, 1C_316/2018, 1C_329/2018, 1C_331/2018, 1C_335/2018, 1C_337/2018, 1C_339/2018, 1C_347/2018

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I. Importance of Ex ante-evaluation

Criticism of the Swiss Federal Audit Office

Projections in Federal Council dispatches Evaluation of the prospective impact assessments conducted for legislative projects

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I. Importance of Ex ante-evaluation

Criticism of the Swiss Federal Audit Office

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II. Legal Sources of Ex ante-evaluation

Constitution

Only applies in cases of referenda and popular initiatives

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II. Legal Sources of Ex ante-evaluation

Constitution

No specification whether ex ante or ex post
Vagueness
Lack of consequences

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II. Legal Sources of Ex ante-evaluation

Parliament Act

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II. Legal Sources of Ex ante-evaluation

Parliament Act

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II. Legal Sources of Ex ante-evaluation

Parliament Act

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III. Standards of Ex ante-evaluation

SEVAL

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III. Standards of Ex ante-evaluation

SEVAL

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III. Standards of Ex ante-evaluation

SEVAL

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III. Standards of Ex ante-evaluation

SEVAL

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IV. Related Instruments

Consultation Procedure

Much older tradition than evaluation

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IV. Related Instruments

Consultation Procedure

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IV. Related Instruments

Consultation Procedure

Consultation and ex ante-evaluation

Which information from consultations is valid, i.e. valid and

not biased?

In what areas do we expect valuable information?
Is consultation a test of acceptance?

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IV. Related Instruments

Ex post-evaluation

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IV. Related Instruments

Ex post-evaluation

Ex post- and ex ante-evaluation

When is ex ante/ex post evaluation more appropriate?
Combination?

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IV. Related Instruments

Experimental Clauses

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IV. Related Instruments

Experimental Clauses

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IV. Related Instruments

Experimental Clauses

Experimental clauses and ex ante-evaluation

Experiments if ex ante-evaluation is not sufficient?
Experiments to ease political resistance?
When is legislation itself an experiment (and should be

evaluated ex post)?

How are ex post-evaluation and experimental clauses linked

to each other and to ex ante-evaluations?

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V. Synthesis

Independence

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V. Synthesis

Holistic Approach

Ex ante-evaluation as part of larger legislative process

What is the crucial information legislator should know

(targeted approach)?

What will be known by public consultation (which has to be

conducted anyway)?

When should an ex ante-evaluation take place

(once/multiple times; before/after public consultation)?

Which information is better provided by ex post-evaluations

and/or experimental clauses?

Which assumptions of ex ante-evaluations should be

KLRI Conference 2019 Ex ante-evaluation in Switzerland from a Legal Perspective

Felix Uhlmann

Seoul, June 19, 2019

Table of Contents

I. Importance of Ex ante-evaluation II. Legal Sources of Ex ante-evaluation

III. Standards of Ex ante-evaluation IV. Related Instruments

V. Synthesis

Example: "Marriage Penalty"

Example: "Marriage Penalty"

Example: "Marriage Penalty"

Swiss Supreme Court Decision of April 10, 2019* According to the federal authorities, the correction raised the number of two income couples affected by the initiative from 80,000 to 454,000. The original number was thus more than

[T]he figure of 80,000 was used to underline the insignificant nature of the cases affected by the initiative in relation to the expected costs […] The federal referendum of February 28, 2016 on the popular initiative "For marriage and family - against the marriage penalty" is repealed.

Criticism of the Swiss Federal Audit Office

Projections in Federal Council dispatches Evaluation of the prospective impact assessments conducted for legislative projects

Criticism of the Swiss Federal Audit Office

Constitution

Only applies in cases of referenda and popular initiatives

Constitution

Parliament Act

Parliament Act

Parliament Act

SEVAL

SEVAL

SEVAL

SEVAL

Consultation Procedure

Much older tradition than evaluation

Consultation Procedure

Consultation Procedure

Consultation and ex ante-evaluation

not biased?

Ex post-evaluation

Ex post-evaluation

Ex post- and ex ante-evaluation

Experimental Clauses

Experimental Clauses

Experimental Clauses

Experimental clauses and ex ante-evaluation

evaluated ex post)?

to each other and to ex ante-evaluations?

Independence

Holistic Approach

Ex ante-evaluation as part of larger legislative process

(targeted approach)?

conducted anyway)?

(once/multiple times; before/after public consultation)?

and/or experimental clauses?

reassessed by ex post-evaluations?