Discussions around lobbying bills have been going on for years. However, since the NACP presented its draft law that would regulate lobbying, this issue has received special attention. The lack of transparent and full consultations with civil society, equating advocacy with lobbying, ignoring the amendments of the Council of Europe… 260 civil society organizations united and issued a statement calling for the draft law to be revised and returned for discussion.

On December 13, the Cabinet of Ministers of Ukraine submitted an updated draft law No. 10337 on lobbying to the Verkhovna Rada. This was announced by Olha Stefanishyna, Vice Prime Minister for European and Euro-Atlantic Integration of Ukraine. According to her, “the revisions take into account the key proposals of the coalition of NGOs.”

Is this really true? Yulia Kyrychenko, member of the Board of the Center of Policy and Legal Reform, co-chair of the RPR Coalition Board, and Olga Piskunova, an expert of the Center, analyzed the issue. 

DRAFT LAWS ON LOBBYING – WHAT WENT WRONG?

Legislation on fair lobbying is one of the requirements of the European Union for Ukraine’s further integration into the EU. According to the developers of the controversial draft law, the National Agency for the Prevention of Corruption, the lobbying market exists now, but it is in the shadows, which creates corruption risks. “After every election, we throw away people who can legally and transparently represent the public interest of various business and social groups because there is no regulated lobbying market. And business associations currently have no regulated mechanism to lobby for their interests. The document is intended to change this by establishing clear rules of the game”, – explained NACP Chairman Oleksandr Novikov in early December.

On November 6, 2023, the NACP published on its website the draft Law “On Fair Lobbying and Advocacy in Ukraine” and the draft Law “On Amendments to the Code of Ukraine on Administrative Offenses on Violation of Legislation in the Field of Lobbying and Advocacy” and initiated their public discussion.

Both drafts were prepared without the involvement of civil society organizations on the basis of an earlier draft law “On Fair Lobbying in Ukraine.” The latter still had significant shortcomings and was sent to the Council of Europe for examination. Its comments were not taken into account. 

Later, the NACP initiated public consultations on November 10 and 23. However, these consultations were formal. Participants insisted that civil society organizations that advocate for social change should be exempted from the law. Without any substantiation, these proposals were not taken into account. The authors of the draft law claimed that it was in line with European standards. However, in a number of European countries, lobbying laws explicitly provide that the activities of public organizations related to the public interest, as well as the activities of citizens to exercise their constitutional rights, are not regulated by lobbying laws.

In addition to effectively equating advocacy with lobbying, the Council of Europe’s amendments to the previous draft law were not taken into account either. Moreover, a number of provisions that were generally positively assessed by Western partners (for example, regarding the obligations of officials to disclose information about contacts with lobbyists, etc. Instead, they supplemented the text of the draft with a number of dubious or extremely unclear provisions, some of which contradicted the Constitution of Ukraine and international standards.

As a result, 260 civil society organizations called on the Cabinet of Ministers to return the draft law to the NACP and hold transparent, inclusive, and meaningful public consultations.

And here is the updated draft law No. 10337 – is it a victory for civil society? 

A VICTORY FOR CIVIL SOCIETY?

According to Yulia Kyrychenko, member of the CPLR Board and co-chair of the RPR Coalition Council, many of the amendments were taken into account: “From the point of view of civil society, it has become much better. The consolidated proposals of civil society were largely taken into account. The main thing is that advocacy was removed from the subject of regulation of the law, and only the definition of advocacy remained. This is a sustainable European practice.”

This opinion is confirmed by the CPLR expert Olha Piskunova: “The provisions that exclude advocacy from the scope of the Law on Fair Lobbying can already be called positive. Both ways of influencing policy makers are similar in terms of methods, but differ in many other ways. This draft law also lays down the principles of lobbying, which in the future will allow developing ethical norms and rules of fair lobbying.”

Advocacy, according to Kyrychenko, is one of the main forms of civil society activity, and this should include a certain amount of freedom. “In my opinion, the right to advocacy is part of the right to freedom of association. It is good that this was taken into account”, – the expert adds.

In her post, the Vice Prime Minister also noted that it is now clear that the subject of lobbying cannot be a court decision, a decision and opinion of the Constitutional Court of Ukraine, an act of declaring general or partial mobilization, declaring a state of war and concluding peace at the request of the President of Ukraine, using the Armed Forces, and other changes that threaten national security. Yulia Kyrychenko emphasizes that it is good that more exceptions to the law on fair lobbying have been made: “I used to be very shocked by the fact that it was forbidden to advocate and lobby for changes to the Constitution. These were completely unconstitutional norms, because the only source of power in Ukraine is the Ukrainian people. The Constitution is a constituent agreement, and the Ukrainian people have the right to establish, for example, the constitutional order.”

Thus, most of the CSOs’ amendments were indeed taken into account. However, there were some pitfalls.

A PITFALL IN THE DRAFT LAW

There is room for improvement even in this improved draft law. First of all, it is worth returning to the definition of lobbying.

Yulia Kyrychenko emphasizes: “There is no linkage of lobbying to commercial interests. It needs to be clarified to make it clearer what is lobbying and what is advocacy. In my opinion, there should be a distinction in the purpose of the activity: advocacy is about the public interest, lobbying is about money.”

“In the course of further work on the draft law, it is important to improve its key concepts, first of all, a clear distinction between lobbying and advocacy”, – agrees another expert of the Center, Olha Piskunova. She adds: “It is necessary to create favorable conditions for further registration of lobbyists and minimize possible loopholes for shadow lobbying.”
After the Cabinet of Ministers, the draft law will be sent to the Parliamentary Committee on Legal Policy and Justice. Currently, they are waiting for the creation of a working group to finalize the draft law. 

WHAT ABOUT THE EU?

The European Commission’s opinion mentions lobbying in the part about anti-corruption policy and reducing the negative influence of oligarchs. Therefore, the draft law on fair lobbying should be considered as part of the anti-corruption and anti-oligarchic reforms. “The main problem that the future law should solve is to make the decision-making process of public authorities more transparent and reduce the level of political corruption”, – explains Olga Piskunova.

This block includes two more draft laws – on public consultations and on the code of ethics for MPs.

Currently, the law on public consultations is in the parliament in the first reading. According to the experts, it needs to be expanded, namely, to add a requirement for mandatory public consultations to parliamentary laws. Currently, this is done at will, which means that parliamentarians can promote sensitive bills without public discussion.

The second project in this set of laws is about preventing negative influences and self-regulation in the parliament. This is the Code of Ethics, which was registered on December 31, 2022, and it has not yet been finalized.

So, in this European integration track, we have three draft laws: on lobbying, on public consultations, and on the Code of Ethics. Then this direction of our European integration policy will be sustainable, and the issue will be closed. In the meantime, we welcome another victory for civil society. Improving the lobbying law is not only about civil society protecting itself, it is also about the ability to implement reforms without which our EU membership and recovery process will be impossible.

“Lobbying in Ukraine: How not to ruin the civil society sector and fulfill the EU requirement” was published with the support of the European Endowment for Democracy (EED). Its contents do not necessarily reflect the official position of the EED. The information or views expressed in this material are the sole responsibility of its authors.