by Nicoletta Rangone (Original source: The Regulatory Review)
We all find ourselves living in a time of great exceptions to our normal routines. The COVID-19 pandemic has taken away many of the most common and relevant pieces of our lives. Even those of us lucky to escape illness are stuck in limbo.
The Italian government’s response to the COVID-19 health emergency, and its consequent shock to the economy, has also been an exception to the norm. Are all of Italy’s exceptional legal measures justified and proportional? Have Italian decision-makers chosen the right tools to reach their objectives? Unfortunately, despite policymakers’ good intentions, the measures they have put in place have often clashed with the country’s complex legislative framework, including its traditions of baroque legal drafting, legislative inflation, red tape, the neglect of previous assessments, as well as the lack of coordination across multiple decision-makers.
Baroque legal drafting. In a 1940 memorandum called “Brevity,” the English Prime Minister Winston Churchill recommended writing documents in short paragraphs, saying that “the saving in time will be great, while the discipline of setting out the real points concisely will prove an aid to clearer thinking.” Former Italian Constitutional Judge, Professor Sabino Cassese, has quoted Churchill’s memo to Italian policymakers, reminding them to be clear, concise, and consistent in their writing, especially in times of crisis.
Despite these recommendations, ordinary Italian legislation is verbose and unclear – often referred to as “the dark law,” “the legislative trap,” and “normative metastasis.” The lack of clarity this style infuses throughout Italian legislation only increases creative compliance and litigation. For instance, during the COVID-19 lockdown, an Italian Prime Minister decree included an obscure provision that people were only allowed to meet in person with “congiunti” (relatives). Officials made the provision even more obscure by officially interpreting “congiunti” to include “stable affections.” At the same time, the lack of brevity increases both incomprehensibility and legislative inflation. For instance, the law-decree “Rilancio” of May 19, 2020, counts 266 articles and 7 annexes.
Continue reading the original article on The Regulatory Review.