A few weeks ago, news surfaced that the Ministry of Justice had commissioned a law firm to draft bills for the Gender Equality Act and the Equal Treatment Act. Outsourcing the drafting of legislation or other fundamental government functions to the private sector is hardly new; it's a fairly common practice. However, this approach leads to the erosion of institutional expertise, reduces the transparency and credibility of state actions and increases costs.

Drafting legislation is a core responsibility of ministries. Under the Constitution, lawmaking is a fundamental function of the state and should not be delegated to private entities. Only public authorities can ensure the protection of public interests, which requires maintaining transparency throughout the process and avoiding conflicts of interest. Otherwise, the legitimacy of laws and public trust in state activities are undermined.

Yet, a glance at ministry document registers or public procurement records reveals numerous examples of outsourced legislative drafting under various guises, such as "mapping the legal framework" or "impact analysis." Even constitutional compliance reviews are increasingly outsourced.

Drafting legislation and conducting the necessary analyses demand a deep knowledge base and an understanding of the state's context. If the government cannot manage these core functions, one must question what its agencies are meant to accomplish. There are also concerns that independent civil servants' work is sometimes replaced with commissioned work, masking vested interests.

The issue arises particularly when outsourcing entire tasks. Procuring specific skills or expertise not required daily within the government is entirely reasonable. However, the growing reliance on outsourcing often stems from chronic resource constraints in the public sector. Many agency leaders face difficult decisions, unable to secure adequate funding or attract skilled personnel. Outsourcing is sometimes supported by EU structural funds, which have been plentiful. This has allowed governments to patch holes in their operations through external services amidst persistent budget cuts.

About a decade ago, EU funds were used to pay bonuses to ministry staff. Public procurement records from that time reveal examples of work contracts signed with ministry officials for tasks already part of their job descriptions. While this practice was unethical and violated public service principles, it at least developed and retained expertise within the public sector. Now, expertise is sought from private firms, leaving the public sector without essential skills and knowledge over time.

For instance, a few years ago, a public tender titled "Mapping the legal framework for launching a nuclear program and updating the Nuclear Energy Act and its explanatory memorandum" was announced. While this is a specialized area where public sector expertise is understandably limited, law firms don't have nuclear energy experts readily available either. Developing the necessary networks and managing such projects could greatly benefit the state sector.

By outsourcing, the public sector skips this learning process. If Estonia aims to become a nuclear energy-developing country, it must have the requisite expertise within its institutions. Continuous reliance on outsourcing leaves the state dependent on private firms, requiring additional external support for every subsequent task.

In the long term, costs balloon as ministries maintain staff but outsource significant work to the private sector. Arguments that ministries' legislative burdens are too great to handle internally should prompt reconsideration of the overall workload. If ministries struggle, perhaps those tasked with implementing and adhering to legislation are also overwhelmed.

Although this commentary focuses on legislative functions, numerous other core and support activities are outsourced. Demand inevitably creates supply, and sometimes the reverse occurs. The state should be grateful for private sector support, but such dependence is not in the public interest. The state must preserve the knowledge and skills needed to fulfill its core constitutional functions, ensuring transparent and reliable operations that align with the Constitution.

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