CC BY
6
Political science no-numnomn
UDC 354 DOI: 10.29013/AJH-21-1.2-31-36
M. W. USHAKOVA, 1
1 Kharkiv Regional Institute of Public Administration of the National Academy of Public Administration under the President of Ukraine, Kharkiv, Ukraine
IMPROVING THE LEGISLATIVE PROCESS AND LEGAL DRAFTING FOR THE BETTER POLICY IMPLEMENTATION IN UKRAINE
Abstract
Objective: This paper addresses the issue of how to improve quality of legislation and policy in Ukraine in the context of implementation of the Association Agreement with the EU, Public Administration Reform and more generally promoting economic growth and prosperity in Ukraine. It aims to identify the main directions of developing legislative drafting procedures and capacity both in the executive system and in the Parliament.
Methods: comparison, generalization, observation, theoretical cognition, the method of analogy.
Results: The essential basic factor of the "European" nature of legislation is the attention to the quality of law, resulting from efficient legislative and policy-making process, which shall be an open and transparent, one where citizens and stakeholders, such as businesses, can contribute, and where decisions are based on evidence of what is likely to work. As a consequence, legislation should not only achieve the purpose for which it was initiated and be realistic in terms of implementation, but also create minimum possible regulatory burdens on businesses, citizens or public administration.
Scientific novelty: for the first time on the basis of the presented methods, the article studies the traditions and recognized practice of good legislative processes of some European countries to generate ideas about methodology and quality of legislative process could be changed in Ukraine.
Practical significance: the main provisions and conclusions of the article can be used in policy making, reform implementation, scientific activities in addressing issues of economic security of the national economy.
Keywords: Legislative process, Legal drafting, Policy implementation; Public Administration Reform; Ukraine
For citation: Ushakova M. W. Improving the legislative process and legal drafting for the better policy implementation in Ukraine// Austrian Journal of Humanities and Social Sciences, 2021, No. 1-2. - P. 31-36. DOI: DOI: https:// doi.org/10.29013/AJH-21-1.2-31-36
Introduction
The formation of a new culture of confidence from the Parliament to the Government and the removal of political barriers for approval of high-quality bills should remain the key task. In this context, the use of the proposals of the European Parliament Mission to
the Parliament on needs assessment, led by Pat Cox, continues to be relevant to the formation of a genuine European culture of decision-making. Similarly, implementation of the OECD Sigma recommendations, especially through the Rules of Procedure and improving practice of their implementation of the Government, is
important. The political goal of Ukraine — to achieve closer integration with the European Union — requires a special concentration ofjoint efforts of the Parliament and the Government on identification of priorities, approval and implementation of related bills. The experience of the EU Member States is interesting for Ukraine in this regard.
Towards new drafting policy documents practice
European Parliament Needs Assessment Mission to the Verkhovna Rada of Ukraine revealed fundamental weaknesses in legislative process in the Parliament, such as insufficient quality of drafts, an excessive number of draft laws provided by Members of Parliament (MPs) instead of the Government, weak coordination between the Parliament and the Government and others. It is therefore no surprise that 43% of adopted laws are amended already in the first year after entering into force. Also, legislative and policy-making process is not of sufficient quality at the Government level [1]. OECD Sigma Baseline Assessment provides almost two dozen of recommendations where the current procedures and capacities need to be improved when it comes to preparing policies and normative acts by the Government [10].
At the same time, there has been a joint determination of priority bills including those submitted by the Cabinet ofMinisters of Ukraine (CMU); joint definition of the agenda of the Parliament so that the draft laws on key reforms are presented for Parliamentary consideration; and holding thematic days in the Wewhere drafts of the same theme, for example deregulation of transport, are considered within a single Parliamentary session. Such practices have made it possible to advance critical reforms devoted to the human development policy including judicial reform, changes to the procedural codes, educational reform, pension reform, medical reform, and others.
These efforts have not eliminated the problem of excessive number of bills submitted by individual MPs, weaknesses in planning of work of the Parliament, and most importantly, did not ensure a significant improvement ofthe quality ofbills. Even worse — through the bills initiated by the MPs and multiple amendments to drafts submitted by the Cabinet of Ministers, legislative drafting in the Parliament often becomes a battlefield of political fighting where the focus on quality of bills is lost.
Besides, in the present legislative tradition, law making suffers a lot from the desire to regulate everything by laws instead of keeping the right balance between laws
and secondary legislation. In reality it leads to overregulation and necessity to spend a lot of efforts to change the norms which are not working because legislators often decide on operational matters of the executive in the law. In the European tradition, operational details of execution of objectives and principles embodies in laws are left to the competence of the executive [3].
Going forward, focus should be put on the quality of regulation and policy making in general. In most EU countries, the quality of regulation normally relates to evidence-based policy making, thoroughly assessing the impact of regulation, ensuring coherence of policies with each other and with the general strategic guidelines, ensuring public consultation, coherence within the system of normative acts, compliance with the EU acquis, clear and understandable language and compliance with nomo-technical standards. It also encompasses monitoring and evaluation of implementation (so-called ex-post impact assessment) with the aim to introduce the necessary improvements. The EU has no specific competences in the administrative sphere but still has a strong indirect impact on the administrative practice in Member States through the administrative standards set in the acquis, the transfer of best practices with EU financial instruments, the promotion of management practices of its own institutions, etc. [7].
Legal drafting should become requires a coherent interaction between politicians and employees of the Secretariat of the Parliament, the Cabinet of Ministers, the Ministry ofJustice and other stakeholders.
Improvement of legislative process and legal drafting as a key contributor to Ukraine's association with the EU
After the entry into force of the Association Agreement, the list of issues where Ukraine and the EU can ensure further convergence has substantially expanded. The agreement offers opportunities for Human Development in Ukraine. However, the realization of these ambitious goals requires the same level of mobilization of the Government and the Parliament as in the case of visa liberalization or food safety legislation, which are examples of such determination and collaboration in action.
To do so, first, there is a need to identify legislative priorities. The Government and the Parliament have adopted an action plan on priority legislative measures in the field of European integration. It contains a list of 57 bills from various areas of the Association Agreement. In addition, some of the 35 Government-identified pri-
ority bills from economic sphere are important for the implementation of the Association Agreement, too [11].
Second, it is necessary to ensure the quality of the bills from the point of view of compliance with the EU law. The history of the successful examples of the legislative work with achievements include visa liberalization and food safety. These successes were based on:
1. Understanding of impact from the implementation of the EU requirements and needed exemptions from the EU law or the introduction of transitional periods for certain rules properly justified by Ukraine's specific circumstances;
2. Good sense of the experience of implementing the relevant EU norms in the EU Member States and especially in countries whose experience is directly relevant to Ukraine;
3. Coherence between norms borrowed from the EU law and the national legal system in terms of terminology used, interaction with other legislative norms, inter alia regarding the competence, structure and procedure of central executive bodies responsible for applying the new norms, etc.;
4. Proper communication of the content of the bill to all stakeholders—MPs, ministers, the EU representatives, business and the public.
This good practice can and should be applied to other spheres and bills, too. One of the proposals of the European Parliament Mission to the Parliament under the chairmanship of Mr. Pat Cox was to approve the law on European Integration, which would help to implement similar practices in the case of all legislation related to Ukraine's association with the EU. It must also be recognized that the efficiency of work in this direction depends not only on the formalization of the rules, but also on the effective practices of legislative process and underlying policy procedures both in the Government and in the Parliament [2].
Improving legal drafting capacity within the executive system as a prerequisite for policy implementation
Most reforms require well-thought legislation. In the EU Member States, legislation normally originates from government initiatives, with only some cases of adopted laws being proposed by MPs. Governments bear by far the biggest responsibility for ensuring quality and coherence of legislation. Carrying out necessary assessments and drafting legislation through the Government route has some significant advantages as it disposes the nec-
essary expertise and data sources as well as a variety of tools, including complex impact assessments, if necessary, stakeholder consultations and coordination mechanisms to ensure policy coherence and quality of drafts.
In addition, legislative decisions are effective only if they are properly implemented by the Government. Therefore, the Government should know clearly whether the legislative decision considered by the Parliament can be properly implemented in real life and based on that knowledge it should inform the MPs.
To realize this capability, the Government shall have in place procedures and capacity to prepare good quality bills in the most efficient way. In Ukraine, a number of requirements for assessing quality of drafts and supplementary material exist, and there are institutions with a mandate to ensure quality — Ministry ofJustice, Secretariat of the Cabinet of Ministers of Ukraine, State Regulatory Service, Ministry of Economic Development and Trade, Ministry of Finance.
However, a simple and effective model of policy-making and legislative processes within the government is still to come. At present, the Government Committees and the Cabinet itself are overwhelmed with technical questions that should have been resolved at lower levels in the civil service while there needs to be more space for policy discussions on crucial issues at Committee and Cabinet level. Besides, adopted regulation is not always sufficiently financed, as the capacity for costing of bills is insufficient.
The Ukrainian decision-making system, at first glance, uses almost all of the toolkit for making decisions, which is inherent in other European states. But the available tools, such as impact assessment, public consultation or costing of drafts, often work only formally [4]. Public administration's ability to provide a thorough policy analysis, to put it into the foundation ofpolitical decisions, and to ensure their approval and further implementation is still low. There is no big tradition of considering alternatives to regulation. All this creates a large demand in society for the reform ofpublic administration in general. For example, according to a survey of businesses commissioned by SIGMA, 39 per cent of Ukrainian business believes that legislation is unclear [1].
The involvement of stakeholders for decision-making is not always the case although there are good practices — for example in business related regulatory reform. When the legislative draft is ready, an internet consultation with the public at large is launched. It allows stake-
holders and the public to submit their comments within a timeframe of 1 to 3 months [6]. These comments are submitted through the executive body's website or the website of the Government's Portal [9]. After closure of the internet consultation, the relevant civil servants will study the comments and amend the legislative proposal where needed. Internet consultation is not only meant for quality control, but also to gain support for the proposal. Obviously, support has already been sought in the initial drafting stages, i.e. before internet consultation, when communicating with major stakeholders. The civil servants try to balance the interests of the various stakeholders. Internet consultation is a wonderful instrument to foster consensus when the results are taken seriously. The aim of such consultation is to map the various interests that are involved early. Therefore a certain 'deregulation' takes place as a result of this process (although lobbying can obviously not be prevented). But in general, the procedures for commenting on draft laws often are formal or mostly focused on technical aspects. There is no single system of announcing new draft bills.
Thus, one of the biggest problems is the lack of effective policy discussions preceding legislative drafting. When the draft laws are already proposed for consultations among ministries, the discussion is mostly about legal technique and not about the problem this legislation intends to address. Or, under the guise of purely legal discussions, real policy compromises are shaped in a non-transparent way. So far, the tradition of developing concepts and strategies only partially has assisted with solving this problem. This situation is further complicated by insufficiently available and systemized policy related data.
As a consequence, the policy of deregulation, which aims to abolish apparently obsolete and unnecessary decisions, has become highly actual. Both the Verkhovna Rada of Ukraine and the executive bodies periodically abolish "outdated" regulations. This has a potential to positively affect the policy implementation in Ukraine.
While addressing the above issues requires multidirectional and longer term and concerted effort of many stakeholders, the main bottlenecks towards improvement of the current situation at the level of the Government include ambiguous Rules of Procedures of the CMU and insufficient enforcement of the rules by the Central Government bodies whose mandates in some cases are overlapping. Methodological requirements are overly bureaucratized and ministries understand them
only as formalities without real understanding of the basic principles of good policy making. There is much overlapping in gate keeping and quality checking by the Central Government institutions. Underlying all these are capacity gaps in terms of legislative drafting and legal approximation to the EU law as well as impact assessment and effective stakeholder consultations.
The Government's plans for changing the culture of decision-making are outlined in the 2016 Public Administration Reform Strategy including modernization of the Rules of Procedure and supporting guidelines and training as well as strengthening ministerial policy-making and legislative drafting capacities through creating policy directorates [1]. Many of its elements are in line with the recommendations of the European Parliament Mission, under the chairmanship of Mr. Pat Cox, to improve the rationale for the bills [3].
Steps to take forward
Among many politicians and officials, there is an awareness of the necessity to improve legislative process, legal drafting and underlying policy-making including through applying relevant practices of other European states. At the Government level, this awareness is already translated into policy commitments and planned action as part of the Public Administration Reform Strategy. There is also a good awareness that improving the current practice is a necessary pre-condition for moving forward in the association with the EU and in order to realize the full benefits it can bring to Ukraine [5].
The next steps should include strengthening of political commitment to improve procedures and their enforcement, capacities and culture of collaboration in policy making and legislative process and drafting. Essential to ensure that all important legislation is based on properly developed policies. High quality legislation cannot be drafted without proper analysis of the problems, options and clear objectives. There should be a better institutional capacity to ensure proper unified and structured implementation of the revised procedures.
At the level of political system and practices, experience from the EU member states should be followed regarding the functioning of coalition governments. This includes defining the crucial role of the government in formulating policies and proposing legislation, ensuring coherence of general political directions, objectives and priorities, instruments and mechanisms for coordination and resolving disagreements.
At the Governmental level, practical and immediate steps could include:
• Adoption of the new CMU Rules of Procedure, in line with the good EU practices and in line with the OECD Sigma recommendations. This will address most of the procedural challenges related to: underlying policy analysis, quality of drafting, roles and responsibilities of institutions in the drafting process, quality assurance. The aim is to introduce a simple and logic architecture without overly bureaucratizing the procedure. An architecture that will direct the policy makers into ensuring all elements of quality before a proposal is formally submitted for the government adoption.
• It is also necessary to make sure that newly established procedures and quality requirements will be properly implemented. This requires effective enforcement by the Central Government bodies as well as supportive methodologies in terms of policy making, legislative process and drafting and EU law approximation. There is a need for systematic training of ministries in application of the tools.
• Range of responsibilities of the Secretariat of the Cabinet of Ministers (SMCU), and respectively also the Ministry ofJustice, Ministry of Economic Development and Trade, State Regulatory Service, should be revised. Options for improving legislative scrutiny and support to drafting shall be identified and discussed including possible establishment of the Legislative Drafting Centre.
• Building the professional capacity and accountability of the government institutions, in particular newly established Directorates in the ministries to initiate, draft and adopt legal acts based on the new procedures and quality requirements.
At the level of the Parliament, the initiatives could include:
• Adoption of the refined version of the Rules of Procedure of the Parliament of Ukraine — in line with Need Assessment Mission Recommendations and promotion of its enforcement. Quality standards for draft legislation should also be aligned between the Government and Parliament.
• Adoption of the Law On European Integration Public Policy, supported by improved methodology for
approximation to the EU legislation and increased role of EU Integration Committee.
• Further development of the legislative workflow also through professionalization, increasing capacity of the Secretariat of Parliament and Committees to assess and draft acts based on the new procedures and quality requirements [8].
Conclusions
Building strong policy-making and legislative capacities in public administration took efforts and time in most European countries. Their experience in improving the quality of Government decision making is valuable in the context of reforming decision-making system in Ukraine and creating stronger legislative drafting capacity towards better regulation. Among many politicians and officials, there is an awareness of the necessity to improve legislative process, legal drafting and underlying policy-making including through applying relevant practices of other European states. Legal drafting should become requires a coherent interaction between politicians and employees of the Secretariat of the Parliament, the Cabinet of Ministers, the Ministry of Justice and other stakeholders.
The main challenges of the legislative process in Ukraine are rather political than technical. As opposed to European practices, most of adopted legislation stems from initiatives by members of parliament, which makes it impossible to maintain the quality level and policy coherence. Therefore, at the level of political system and practices, following experience from the EU member states regarding the functioning of coalition governments should be encouraged. The ministry and the minister should be fully responsible for the quality of proposals submitted to the government procedure and should remain full owners of the proposal from the initiative till the moment of adoption. Special rules should be considered for the Association Agreement-related laws and regulations, in order to ensure priority and thorough compliance check. Renewed procedures should also remove cumbersome technical discussions from the table of the Cabinet of Ministers and its committees, thus opening space for meaningful discussions on key policy issues.
References
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Austrian Journal of Humanities and Social Sciences 1 — 2 (2021) - PREMIER Political science
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Information about the authors
Mariia W. Ushakova, PhD Student in Public Administrationt, Kharkiv Regional Institute of Public Administration
of the National Academy of Public Administration under the President of Ukraine, Kharkiv, Ukraine
Address: Heroiiv Stalinhradu Avenue, 144, kv 106 61162, Kharkiv, Ukraine
tel.: +38 (099) 097-46-97
E-mail: mari.wladimirovna@gmail.com
ORCID: http://orcid.org/0000-0001-8063-2945
