Lobbying exists in Ukraine. No matter how hard we keep trying to close our eyes and plunge into darkness, it does exist.

Lobbying as the promotion of private interests is a normal practice, but it needs to be properly regulated. After all, some people like legal darkness: where there is no game by the rules, the rules eventually get set up. 

The draft law “On Fair Lobbying” had a good purpose – to establish these rules, because it is a recommendation of the European Commission. However, the reality is that the draft law on lobbying in its current form not only does not “turn on the light” for honest lobbyists, but can also paralyze the work of civil society organizations.

The Reanimation Package of Reforms Coalition, which is the union of 28 leading Ukrainian civil society organizations, explains why the current draft law “On Fair Lobbying” is dangerous, in an  exclusive publication for for Glavkom.

Before the beginning

In recent years, there have been several attempts to regulate lobbying in Ukraine. There is reason to believe that most of them were actually about regulating the work of NGOs or even independent experts, but not lobbyists.

The latest draft law on lobbying was the subject of “public consultations” in November last year at the initiative of the National Agency for the Prevention of Corruption. However, what the NAPC called “public consultations” was actually a sham: the text was published just a couple of days before the discussion; the consultations themselves were more imitation of explanations from the NAPC than attempts to hear others; and most importantly, most of the substantive amendments were not taken into account.

As a result of these “consultations,” 250 civil society organizations signed a statement on the need to ensure transparent, meaningful and inclusive public consultations on lobbying draft laws.

After being finalized by the government and partially taking into account the proposals of civil society organizations, the draft law was submitted to the Verkhovna Rada’s Legal Policy Committee and is being considered by a relevant working group involving MPs, government representatives, the NACP, experts, and other stakeholders.

The adoption of the draft law No. 10337 “On Fair Lobbying” is part of the recommendations of the European Commission and should be an element of anti-oligarchic legislation. Therefore, we cannot delay any longer – we must vote. Another question is: what for?

Any legislation should solve problems, not create them. However, for several months now, dozens of civil society organizations have been trying to solve the problem created by this draft law – to prevent pressure on public associations and even the constitutional rights of citizens.

What is wrong with the updated draft law?

We should note right away that there is nothing wrong with lobbying as a promotion of private interests; it is a normal business practice. A good draft law should create a basis for transparent communication between business (especially large businesses) and the government.

The problem is that the draft law developed by the working group under the parliamentary committee does not contribute to this in any way, even taking into account the point amendments requested by the public.

Businesses are unlikely to gain any benefits from being listed as lobbyists in a special register, while they still have the advantage of being in the shadows. After all, the draft law sets unrealistic requirements for them.

But that’s not even the worst of it – it contains significant threats to civil society.

First of all, there is no clear definition of lobbying. This means that you may be subject to fines or restrictions if the state considers your work to be lobbying.

Next, lobbying, advocacy, and civil liberties are not clearly distinguished, while advocacy or civil rights should not be regulated by lobbying legislation in principle.

Thirdly, there are no sanctions envisaged for the advocacy targets (government officials) for failing to report communication with lobbyists.

Implications for civil society

Every time civil society organizations monitor corruption risks in legislation, expose corruption cases, prepare analytics, organize discussions on certain legislative initiatives, and try to convey the facts of threats to society through certain draft laws, they can be trapped by the NACP at any time and be accused of lobbying.

For civil society organizations, this de facto means the termination of their activities. It also poses great threats to international technical assistance projects, mainly those provided by the EU, the US, and other international partners to public associations.

Here’s an example. You represent a volunteer foundation that helps doctors in the Armed Forces of Ukraine. After a few years of activity and communication with doctors, you see where the state can improve its work, such as changing the standards of pre-hospital care.

You write a letter to the government or parliament, organize a meeting to discuss the need to change the standards… Congratulations, you have been granted a ticket for lobbying someone’s interests, for example, companies that manufacture pre-hospital care equipment. However, in fact, you were acting in the interests of the Armed Forces medics, a separate group of society.

If the draft law on lobbying is adopted in its current version, the decision whether you are engaged in advocacy (i.e., promoting the interests of society without the purpose of making a profit) or lobbying (promoting private interests for profit or certain advantages) will remain at the discretion of the NACP, as well as all the consequences of such a decision.

Instead of a conclusion

Under martial law, when it is obvious that the rights and freedoms of citizens are already restricted (which, of course, meets the requirements of the time), artificially creating additional unnecessary restrictions for public associations and citizens in general can end very badly. Traditionally, oligarchs and pro-Russian forces have not used civil society organizations to promote their interests, but have done everything to discredit the civil society sector in Ukraine.

The draft law did not receive public support from lobbyists, and it also became the object of devastating criticism of the public sector. Did the authors of the draft law fail to predict the negative reaction of the public sector? We hope that the draft law was prepared for the public and at the request of the EU, and not for individuals who still see civil society as an enemy.

The draft law is currently being considered by the Verkhovna Rada Committee on Legal Policy. This is the last chance to adopt the draft law on lobbying (with CSOs’ proposals) and preserve the future of democracy.