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International Conference “Improving the Methodology, Practice and Quality of Legislative Process and Legal Drafting”

On September 17, 2018, the International Conference “Improving the Methodology, Practice and Quality of Legislative Process and Legal Drafting” initiated and supported by the Cabinet of Ministers of Ukraine, EU Delegation and EU funded Projects EU4PAR and Association4U. The topic concerned the effectiveness of the legislative process in Ukraine, methods of its improvement and sharing the experience of some of the EU Member States with the aim to get ideas of dealing with the major issues of Ukraine on its way to the legislative approximation with the European Union in the framework of the Association Agreement. 

The discussion was launched by Oksana Syroyid, Deputy Head of the Verkhovna Rada of Ukraine, who pointed out that the inefficient adoption of laws in Ukraine is due to the way of drafting. The government, according to her, is a “hostage” of a model where the President and the Parliament take too active role in initiating legislation.

Ivanna Klympush-Tsyntsadze, Deputy Prime Minister for European and Euro-Atlantic Integration of Ukraine mentioned vested interests and lack of prioritization of the legislation as important problems to adopting laws of crucial importance, such as the current examples of transport or customs spheres. In order to support the implementation of the EU directives into the Ukrainian legislation, special directorates have been created, part of work of which will be centered around the European integration. More policy-oriented discussions on governmental level would harmonise the work on law-making and would stimulate the resolution of technical issues at lower levels, according to Tetiana Kovtun, Deputy State Secretary at the Secretariat of the Cabinet of Ministers of Ukraine. She also highlighted the fact that the Government has to be granted the main role in the law-making process, especially in initiating draft laws.

The panel sessions were accompanied by examples of foreign experience presented by international experts. The Polish example was presented by the Key Expert on legal approximation of the EU Project Association4U Cezar Herma. Having a clear perspective of the EU membership, the Polish experience differs from the Ukrainian one already on that stage due to the question of political consensus. Eighty percent of political elites were for the European integration with a massive support of the society, whereas, as Olga Stefanishyna, Director General, Government Office for Coordination of European and Euro-Atlantic Integration, stated, in Ukraine pushing a European integration law through is harder and needs to satisfy the interests of various parties. The Polish Government dominated the European Integration-related law-making, but still cooperated closely with the Parliament, which guaranteed a strong coordination in approximating domestic legislation to those of the EU. Poland launched annual governmental programs for approximation and the implementation of the laws which were monitored by the Office for European Integration (at operational level) and the Prime Minister himself (at political level). A multilevel system of EU law compliance check of draft legislation was in place long time before the EU accession. This said, haste to harmonize and granting priority status for EU bills was sometimes destructive to the Polish legislative tradition and the quality of the laws adopted.

This is not the case of the legislative drafting process in the Netherlands and Slovakia, where a large emphasis is put on quality control and early consultation of stakeholders to ensure coherent adoption and implementation. The EU4PAR Project expert, former Minister of Justice of Slovakia, Lucia Zitnanska in her presentation of the current law-making system in Slovakia, highlighted the advantage of the legislative process of a governmental draft law: it utilizes the expert capacity of ministries, internal and external impact assessment, public comments procedure and a multi-level quality control. Tetiana Kovtun agreed, that such a practice would produce much better results and that it is necessary for the Ukrainian draft legislation to use proper impact assessment. Remco van Rhee, Professor at Maastricht University, revealing the Dutch experience and system, talked about the integrated impact assessment framework for policy and legislation which would analyze a problem and offer the views of various stakeholders and political parties. The impact on the society is carefully studied, and the policy solutions are shaped in close cooperation with the stakeholders. When talking of the quality of the legislation, the legal proposal has to be assessed in terms of impact on the citizens and businesses, the legal burden, sensitivity to fraud etc. This is something that it not sufficiently paid attention to in Ukraine, according to Tetiana Kovtun. For instance, there is no serious approach to writing the explanatory notes to draft laws, as well as to the regulatory impact assessment of the new legislation.

Katarina Mathernova, Deputy Director-General for Neighbourhood Policy and Enlargement Negotiations from the European Commission, mentioned the lack of trust in the society in Ukraine, including among public institutions. In her opinion, the European Commission can assist Ukraine in countering this issue by helping in technical and political consultations and starting dialogue. This would help gradually reach the system with a balance of powers in the law-making procedure.

The experience of every country on its way to European standards is unique and varies in pace. Ukraine still has a considerable amount of work to do in offering space for political discussion, bringing together divergent political interests, reorientation of the law-making towards citizens’ interest, deregulation, introducing an effective model of policy making and law-making processes, raising trust of the Verkhovna Rada to the Government. All this and other factors are on Ukraine’s path to adopting a model which would enable smooth adoption of laws, including those necessary for Association Agreement implementation and establishing a healthy system of legislative making processes in general.

By Junior Legal/Communication Tetiana Kupisovska
Photo by European Union in Ukraine