On November 6, 2023, the National Agency on Corruption Prevention (NACP) published on its website the Bill on Integrity in Lobbying and Advocacy in Ukraine and the Bill on Amendments to the Code of Ukraine on Administrative Offenses regarding Violation of Legislation in the Field of Lobbying and Advocacy (hereinafter – the Bill), and initiated their public discussion.
Both drafts were prepared by the NACP without the involvement of civil society organizations on the basis of an earlier bill, “On Fair Lobbying in Ukraine”, which had significant flaws and was sent to the Council of Europe for examination to assess its compliance with international standards. The comments provided by the Council of Europe were not incorporated when the bill was finalized.
Following pressure from civil society organizations, the NACP initiated public consultations on November 10 and 23. However, these consultations were of a formal, rather imitative nature. For instance, the participants insisted that civil society organizations that advocate for social change should be exempted from the scope of the law. However, these proposals were not considered without any justification. Moreover, on the last day of the discussion, the NACP submitted the bills to the Cabinet of Ministers of Ukraine for further submission (if approved) to the Parliament.
An analysis of the drafts submitted by the NACP to the Cabinet of Ministers of Ukraine suggests that the vast majority of the Council of Europe’s comments on the original version of the NACP draft were not considered in the revised versions. The NACP changed the name of the original draft, adding the concept of “advocacy” to lobbying, excluded from a number of provisions that were generally positively assessed by the Council of Europe (for example, regarding the obligations of officials to disclose information about contacts with lobbyists, etc.), and supplemented the text of the draft with several dubious or extremely unclear provisions, some of which contradict the Constitution of Ukraine, international standards, and best European practices in the field of lobbying. Some of these new provisions were not discussed during public consultations (e.g., the ban on lobbying for constitutional amendments, etc.).
The bills apply not only to lobbying but also to advocacy and the exercise of citizens’ constitutional rights and freedoms. The authors of the bill claimed that it was in line with European standards. However, in a number of European countries, lobbying laws explicitly provide that the activities of civil society organizations related to the public interest, as well as the activities of citizens to exercise their constitutional rights, are not regulated by lobbying laws. However, the bills prepared by the NACP actually consider advocacy as a form of lobbying. According to the drafts, in order to carry out advocacy, civil society organizations must voluntarily register in the Transparency Register and annually publish “general information on each advocacy subject and on the sources of funding for advocacy in an arbitrary form.” The NACP’s desire to preserve the rules on advocacy regulation contradicts the positions expressed during the public consultations. This can only be viewed as a desire to create a platform for further pressure on civic associations and to create conditions for restricting the activities of civic associations.
The bills also prohibit lobbying for amendments to the Constitution of Ukraine and legislative changes that “threaten national security” or contradict the principles of international law. These provisions do not comply with the principle of legal certainty and are atypical for lobbying legislation in European countries. The bills also provide for administrative liability for lobbying violations but do not specify the authority to impose such penalties. Therefore, in practice, these sanctions will not work. Lobbyists are not granted additional rights beyond those already provided for by the current legislation. Contrary to international standards and best practices in lobbying, the bill does not oblige officials to disclose information about their contacts with lobbyists. The rules of conduct for lobbyists and the rules of advocacy are to be determined by the NACP, which will monitor compliance with these rules. This turns the NACP into a “judge in its own case” and creates a conflict of interest in the institution’s activities. This list of the bill’s shortcomings is not exhaustive.
The annex to the European Commission’s interim decision on Ukraine’s accession to the EU, published on November 8, 2023, emphasizes the need for Ukraine to adopt a law on the regulation of lobbying activities as part of its de-oligarchization action plan. At the same time, such a law, in the opinion of the European Commission:
must be in line with European standards;
should be the result of an open and inclusive discussion with a wide range of stakeholders (including civil society organizations) and broad public consultations;
not provide for restrictions on the legitimate activities of civil society organizations and not create a disproportionate administrative burden for such organizations.
The bills submitted by the NACP to the Cabinet of Ministers of Ukraine do not meet any of these three recommendations in terms of their content and the process of their discussion. Although the bills are presented as anti-oligarchic, the proposed mechanisms cannot address the issue of political corruption and opaque influence on decision-making. However, they can obstruct civil society institutions’ work, making it difficult to engage their expertise and develop the necessary changes to legislation. Civil society organizations, charitable foundations, and volunteer initiatives that have become reliable partners of the government in promoting democratic reforms and countering Russia’s armed aggression will effectively be deprived of their key function of being the voice of those whose rights they protect in communication with the authorities and speaking out in the public interest.
In view of this, we call on:
1) The Cabinet of Ministers of Ukraine:
to return the bills submitted by the NACP for revision and ensure that the NACP conducts further meaningful, open, and inclusive consultations on such bills by the end of 2023. Such consultations should result in bringing the bills in line with international standards, taking into account the recommendations of the Council of Europe and participants in previous and future discussions, in particular, with regard to the exemption of civil society organizations and advocacy from the scope of regulation of lobbying bills;
to submit the bills revised by the NACP for consideration by the Parliament no later than March 20, 2024, provided that they are brought in line with European standards and that the provisions of the bills take into account the previous recommendations of the Council of Europe and proposals of stakeholders;
2) The Verkhovna Rada of Ukraine:
to urgently adopt in the second reading and as a whole the Bill “On Public Consultations” (Reg. No. 4254 of October 23, 2020), which will include provisions on mandatory public consultations on bills submitted by MPs of Ukraine.