1. The field of interest is too narrow and the law in question is too explicit or cannot be understood by most of the participants, let alone the people. Then it is better to abandon the legal process, as the interests of the people are not served, i.e. a new regulation would probably cause a deterioration of legal security or other goods. Concerning Linklaters this means that we do not need a specific draft that tries to preserve the unregulated conditions in the financial markets as far as possible, but we need legislation that protects the people, be it the regular tax-payer or more involved guys like investors. A law that almost nobody understands is probably a law that serves not the general interests, but particular interests of a small lobby. Hence it is unwise to outsource the legislative process to (anyway probably biased) consulting agencies that provide experts for the matter at hand. It is much wiser to either abandon the process because it is not relevant or probably harming to the people or…

2. Consult a much broader audience that features experts from as many sides of the problem as possible. There is a much higher chance that the law reflects the will of the people when all interest groups have a say. This method is often (but unfortunately not always) employed in the legislative process of the EU and also in considerable amounts in the Bundestag, so called “Expertenanhörungen” (no details on that now). Yet an agency like Linklaters does not bring diverse interests together, but cooks its own soup with its bunch of internal experts. This is not democratic, but a Platonic oligocracy. If you want to read up on the foundation, implications and dire consequences of such an oligocracy, I highly recommend Popper’s “The Open Society And Its Enemies”. As important views are not considered in a law crafted by remote experts and, in contrary, such laws may tend to promote certain lobby interests and deteriorate the well-being of the people, such a process is unacceptable in a democratic society. Note: It would be ok if Linklaters was _one_ of many parties voicing their opinion and expertise on the subject in the legislative process, but not when it is the main one or – even worse – the only one.

And no, the ends do not justify the means. Democracy is not a “funny little idea”, but the very foundation of our system.

@Franz
Generally I do not consider outsourcing as a bad practice. I’m with Thomas, saying that the Government does not have to provide experts for each and every special field of law. Involving external expertise has to be considered thoroughly. (And, yes, there was some debate weather drafts have to be written by members of the government themselves, which consider too narrow.)

@E
Those points are no formal catalogue, but what I remember from public law. I don’t have this book at hand at the moment.
Nothing about Linklaters (on the internet) unfortunately.

@Thomas
About the Logo: The idea behind involving external expertise is, that they should provide help, and only help (in order not to violate the due process of law). I think it is likely that the draft might be received differently having the logo on top (psychologically) and circulating around like that it is not likely that the ministry has amended the law (legally). Of course, both are assumptions. Generally I agree, ministries should not avoid to communicate external authorship, I do criticise the way it was communicated as well as missing involvement of internal control.

I hope that parliament or the ministry inherit sufficient expertise to find lobby interests hidden in a draft (generally, in every draft being created with external help). The best alternative – imho – would have been to check the law firm more carefully, maximizing expert knowledge but minimizing chances for conflicting interests.

Good point:

Judge quality by the work done, not by arbitrary assumption about the people who did the work

I can not judge the qualities of the person Jan Endler. Neither in one nor the other direction. I judge about the procedures applied, just as you mentioned.

Is there something in the (corrected) draft that you consider an injustice or preferential treatment of someone?

I did not address substantive law for the reason I wanted to view the case from a formal perspective. I am not firm enough in matters of substantial law. (If you happen to be a lawyer, please comment your opinion about the draft for the Gesetz zur Ergänzung des Kreditwesengesetzes.) Broadly speaking, I consider some formulations of the draft imprecise. The law itself seems to be quite identical to a draft by the Ministry of Finance, which was rejected by CDU/CSU in March.
I think it is important not only to consider the output, but also the way a law is created to minimize risks.

Then, even though the costs are not revealed, as far as I understand, they have been paid from the budget of the ministry of commerce. In my opinion, it is totally legitimate for any minister (even Gabriel – sorry couldn’t resist) to judge over the usage of her/his budget if only the output is right.
Some ministers were quick to say that they would at least have had the emblem of the external agency removed. But that would have been what I consider fraud: Claiming you did something that someone else did for you.
And does the fact that the ministry employs 1800 people guarantee that they have experts on every matter? I don’t think so. Writing a law is certainly much harder than understanding it. And if you think that the ministry (and other ministries and experts from other parties and so on) would not have found some hidden preferential treatment for one of Linklater’s 500 partners and thousands of contractors in their draft, how are they supposed to write the law first-hand?
And can you imagine Jan Endler sitting alone in his room in front of an empty sheet of paper and making up some law? Well, even if you can, it doesn’t work that way. I would be surprised if he wasn’t the leader of a small team of different experts on the topic. Judge quality by the work done, not by arbitrary assumption about the people who did the work (how can we judge the abilities of people we have neither met nor even seen if not by their work?).

Now, my final question is: Is there something in the (corrected) draft that you consider an injustice or preferential treatment of someone?

It’s easy to judge something by the way it’s done and by the people who did it. The circumstances may not conform with some funny little ideas of ourselves how things are supposed to be and then we object to it without bothering to have a look on the matter itself. I would call that prejudice.

ta-ta
E.