Statement on the need to ensure transparent, meaningful, and inclusive public consultations on the draft laws on lobbying

On November 6, the National Agency for Corruption Prevention (NACP) made public on its website a draft law “On the Integrity of Lobbying and Advocacy in Ukraine” and draft Amendments to the Code of Ukraine on Administrative Offenses regarding violations of legislation regarding lobbying and advocacy (from now on, these will be referred to as the draft laws) and initiated public discussion on the matter.

Both drafts were prepared without the involvement of civil society organizations. As a basis, they used an earlier draft law, “On Integrity of Lobbying in Ukraine,” which had significant flaws and was sent for examination to the Council of Europe to assess its compliance with international standards. The comments provided by the Council of Europe were not corrected when these new draft laws were finalized.

Under pressure from CSOs, NACP launched public consultations on November 10th and 23rd. However, these consultations were formalities, appearing to not be genuine. For example, participants insisted that civil society organizations working for social change should be exempt from the law. However, these proposals were not taken into account without any justification. And, on the day of the last discussion, the NACP submitted the draft laws to the Cabinet of Ministers of Ukraine (CMU) for further submission (if approved) to the Parliament.

Having analyzed the drafts submitted by the NACP to the CMU, we see that most of the Council of Europe’s comments on the NACP’s original draft law were not considered and were not accounted for in the updated version of the draft law. The NACP changed the name of the original draft law by adding the concept of “advocacy” to lobbying, removed several provisions that had received positive assessments from the Council of Europe (for example, regarding the responsibilities of officials in relation to lobbyists, etc.), and supplemented the text of the draft law with several questionable or unclear provisions – some of which contradict the Constitution of Ukraine, international standards, and best practices for lobbying. Some of these new provisions were not discussed during the public consultations (e.g., the ban on lobbying for constitutional amendments, etc.).

The draft laws cover not only lobbying but also advocacy and the exercise of constitutional rights and freedoms by citizens. The authors of the draft law claimed that it was in line with European standards. However, in a number of countries, lobbying laws explicitly provide that the activities of CSOs related to the public interest, as well as the activities of citizens when exercising their constitutional rights, are not regulated by lobbying laws. The draft laws prepared by the NACP explicitly consider advocacy a form of lobbying. According to the submitted drafts, to carry out advocacy, CSOs must voluntarily register with the Transparency Register and annually publish “general information on each subject of advocacy and on the sources of funding for advocacy in a general form.” Contrary to the positions expressed during public consultations, the NACP’s desire to preserve the rules on advocacy regulation can only be seen as a desire to create a springboard for further pressure on public associations and create conditions for restricting the activities of public associations.

The draft laws 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 drafts provide for administrative liability for violations in the field of lobbying but do not specify who should impose the penalties. Therefore, in practice, the proposed sanctions will not work. Lobbyists are not granted any additional rights beyond those already provided by the current legislation. Contrary to international standards and best practices for lobbying, the draft does not impose any obligation on officials to disclose information about their contacts with lobbyists. The rules of conduct for lobbyists and the rules of advocacy will 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 drafts’ 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 regulating lobbying activities as part of its de-oligarchization action plan.

At the same time, the European Commission believes that such a law:

1. Should comply with European standards;
2. Should be the result of an open and inclusive discussion with a wide range of stakeholders (including civil society organizations), including broad public consultations;
3. Should not restrict the legitimate activities of civil society organizations and should not create a disproportionate administrative burden for such organizations.

The draft laws submitted by the NACP to the Cabinet of Ministers and the discussion process do not meet any of these three recommendations. Even though the draft laws are positioned as anti-oligarchic, the proposed language does not address the issue of political corruption and non-transparent influences on decision-making. However, they can block the work of civil society organizations, make it difficult to engage their expertise, and engage them in developing necessary changes to legislation. CSOs, charities, and volunteer initiatives that have become reliable partners of the state 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 and acting in the public interest.

In this regard, we call for:

1. The Cabinet of Ministers of Ukraine:

   • To return the draft laws submitted by the NACP for further improvement and to ensure that the NACP holds further meaningful, open, and inclusive consultations on such drafts by the end of 2023. Such consultations should result in bringing the draft laws in line with international standards, taking into account the recommendations of the Council of Europe and participants of previous and future discussions, in particular, with regard to the removal of the reference to activities of CSOs and to advocacy from the scope of these lobbying laws;
   • To submit the draft laws revised by the NACP to the Parliament no later than March 20, 2024, if they are brought in line with European standards and the provisions of the drafts take into account the previous recommendations of the Council of Europe and stakeholders’ proposals.

2. Verkhovna Rada of Ukraine:
   • To immediately adopt in the second reading and as final the draft Law of Ukraine “On Public Consultations” (Reg. No. 4254 of October 23, 2020), which will include provisions on mandatory public consultations on draft laws submitted by MPs of Ukraine.

List of signatories:
1) Kharkiv Human Rights Protection Group
2) Human Rights Centre ZMINA
3) Transparency International Ukraine
4) Civil Network OPORA
5) Reanimation Package of Reforms
6) Centre of Policy and Legal Reforms
7) Ukrainian Independent Center for Political Research
8) Anti-Corruption Headquarters
9) Centre for Democracy and Rule if Law (CEDEM)
10) NaUKMA School for Policy Analysis
11) CHESNO Movement
12) ISAR Ednannia
13) Internews Ukraine
14) Human Rights Platform
15) Agency for Legislative Initiatives
16) NGO Civil Holding GROUP OF INFLUENCE
17) Civil Society Institute
18) International Renaissance Foundation
19) StateWatch
20) Anti-Corruption Research and Education Centre
21) DEJURE Foundation
22) NGO Legal Hundred
23) Ukrainian Centre for European policy
24) NGO “Against Corruption”
25) Institute for Economic Research and Policy Consulting (IER)
26) NGO “Together Against Corruption”
27) Digital Security Lab Ukraine
28) Cedos
29) ILI Anti-Corruption Center
30) Odesa regional organization of the VGO “Committee of Voters of Ukraine”
31) Institute of Euro-Atlantic Cooperation
32) NGO “Donbas SOS”
33) NGO “CrimeaSOS”
34) CF EAST SOS
35) Centre for Economic Strategy
36) DiXi Group
37) International Charity Foundation “Caritas Ukraine”
38) Ilko Kucheriv Democratic Initiatives Foundation
39) IREX
40) Charity Foundation Stabilization Support Services
41) Institute Respublika
42) Foundation of Regional Initiatives
43) “Eidos” Center for Political Studies and Analytics
44) Institute of Mass Information
45) NGO “Detector Media”
46) Kharkiv anticorruption center
47) Committee of Voters of Ukraine
48) Regional Press Development Institute (RPDI)
49) Ukrainian Legal Advisory Group NGO
50) NGO “WOMEN’S ANTICORRUPTION MOVEMENT”
51) Institute for Economic Research and Policy Consulting
52) UA LIBERATION MOVEMENT
53) National Union of Cinematographers of Ukraine
54) UKRANIAN PUBLIC ORGANIZATION «OFFICE OF COMMUNITY DEVELOPMENT»
55) Foundation of Local Democracy
56) Centre of United Actions
57) Expert group OWL
58) Media Initiative for Human Rights (MIHR)
59) Association of public advisers of Ukraine
60) New Europe Center
61) ‘Center for Innovations Development’
62) HealthRight
63) Youth organization “Plast – National Scout Organization of Ukraine”
64) Chernihiv European
65) NGO Kremenchuk informative elucidative centre European Club
66) Kaniv Organization of Persons with Disabilities “Renaissance”
67) Parents for vaccination
68) Advocacy center “LIFE”
69) EasyBusiness
70) Ray of Hope Tsentr
71) Kharkiv Institute for Social Research
72) Donetsk Institute for Social Research and Political Analysis
73) NGO ANTS
74) Social Action Centre
75) “Volyn Institute of Law”
76) NGO “Institute of reforms and innovations”
77) Volyn Institute for Support and Development of Public Initiatives
78) NGO “Association for Support and Development of Association of Co-Owners of Apartment Buildings and Bodies of Self-Organization of Population”
79) Centre of environmental initiatives Ecoaction
80) NGO Brainstorm
81) NGO “Debate federation of Ukraine”
82) Regional Public Charitable Foundation “Law and Democracy”
83) NGO Nashe Podillya
84) Dniprovsky Center for Social Research
85) NGO “Mykolaiv City Development Fund” (FDM).
86) LGBT HUMAN RIGHTS NASH SVIT CENTER
87) CUAMM Doctors with Africa
88) ALLIANCE.GLOBAL, Public Organization
89) Coalition “On the Contact Line”
90) CHARITABLE ORGANIZATION «CHARITABLE FOUNDATION «CARITAS ZAPORIZHZHIA»
91) P0 “LGBT Association ‘LIGA’
92) PUBLIC ORGANIZATION “LUHANSK REGIONAL ORGANIZATION “SOLIDARNIST”
93) NGO ‘Analytical & advocacy center ‘Lviv Regulatory Hub’
94) «UA group»
95) Synergy Pro NGO
96) Public organization “Cultural Fortress”
97) NGO “KOMROZ”
98) Syla Liudei
99) Public organization “Leisure center for children with disabilities “Dyvosvit”
100) NGO “MINZMIN”
101) Fond ” EKTA INATIATIVA”
102) PO “Joy to live”
103) NGO “Autism. A Unique Universe”
104) public organization “Equality in Action”
105) PO “Tribun”
106) Civil organization HROMADSKY DIM
107) NGO “Grunt”
108) NGO HUMAN RIGHTS ORGANIZATION “RIGHT CAUSE”
109) “Our revival – Donbass Ukraine”
110) First line, Helping to leave
111) Non-governmental organization «Democratic Initiatives Incubator»
112) Sumy reform platform
113) Studio of Public Women’s Initiatives
114) Charity organisation “Cristian medical association of Ukraine ”
115) NGO “Center for international cooperation and project implementation “
116) NGO “Megasocium”
117) All Ukrainian initiative “Active Community”
118) NGO “DYC “DOBRO”
119) NGO “Revival and Development Association”
120) Civic organization “Dobrochyn Centre”
121) All-Ukrainian NGO “Association for Community Self-Organization Assistance”
122) NGO “National Education Association”
123) Fight For Right OPD
124) «Moya zhraya»
125) NGO “Youth space of Drohobych”
126) NGO “Liki Control”
127) Chernihiv Centre for Human Rights
128) NGO UMIND
129) Protection of Civil Liberties Union
130) Civic initiative of Lugansk region
131) NGO “Ambassadors of Education”
132) NGO “Pulmonary Hypertension Ukraine Rare Disease Association”
133) Ngo Country of free people
134) NGO Odesa Institute of Social Technologies
135) Public organization “Workshop of Active People”.
136) NGO “Association of Mothers and Wives of Ukraine’s Defenders”
137) NGO New Druzhkivka
138) Ukraine Children’s Action Project
139) NGO “Neskoreni”
140) “Save Peace In Ua”
141) NGO PROSTIR MOZHLYVOSTEI
142) Plato
143) NGO Center for social and business initiatives
144) NGO Ekoltava
145) Black sea center for political and social research
146) NGO Environmental Club Eremurus
147) Local Economic Development Agency of Yavoriv
148) NGO Ecoclub
149) NGO “Center of Investigative Reporting “The Power of Truth”
150) Razom We Stand
151) CF “Children with haemophilia”
152) Center of civic education “Almenda”
153) NGO “Dia-Zen”
154) NGO Social Initiative “City of the Sun”
155) NGO Association of relatives of political prisoners of the Kremlin
156) Charitable organization Boyarka Community Foundation
157) NGO “Center for Sociopolitical Studies and Public Initiatives “STATUM”
158) ICO “Environment – People – Law”
159) Crimean Human Rights Group
160) Institute of peace and common ground