Public Consultations as Part of the Legislative Process

State policy is a complex of measures by the public authorities addressing a certain social problem in order to reach a balance of interests of the interested parties (stakeholders). State policy is primarily a process of goal setting and goal achieving focusing on the resolution of a certain problem underlying the adoption of such policy. However, for each social problem there are groups of individuals / interest groups that it directly affects: stakeholders; and so the purpose of state policy is to balance their interests. No state policy decision should be approved without consideration for stakeholders’ interests, for that would lead to social instability.

The state policy cycle includes the following stages:

  • The problem (its formulation from the stakeholders’ viewpoint and definition of its key characteristics: sharpness, scale, etc. At this stage, a Green Book should be written[1]);
  • The agenda (at this stage it is decided what problems are more important/urgent to be addressed;
  • Policy making (the policy maker identifies, while consulting with the stakeholders, the options available for eliminating/alleviating the problem as well as the risks/consequences of introducing some or other measures to address it);
  • Choice of policy (at this stage, the best option for addressing the problem is chosen and a White Paper for the draft law is drafted[2]);
  • Policy planning (development of a plan of further activities: the budget, a plan of measures to inform the stakeholders and the public, etc.);
  • Policy implementation;
  • Evaluation (the policy maker assesses the extent to which the problem has been resolved);
  • Deciding on follow-up actions (a decision is taken on what to do next).

One of the specifics of state policy is the possibility to resolve a certain social problem by using means and instruments at the disposal of the state authorities. An instrument of this sort is the law. The law is a means not only of legalizing a certain chosen political course but of legitimizing it as well.

However, at present the law is not always an effective means of implementing state policy on account of its unenforceability. This situation stems from a number of reasons:

  1. Lack of consultations with the stakeholders at the stage prior to “rule-making”: what the legislator/policy maker presents for discussion with the stakeholders is not the actual problem or a way to address it, with the necessary explanations and rationale, but an already drafted act; this considerably narrows the field for discussions. And so alternative approaches to addressing the problem are not analyzed; what is even worse, however, is that they are not even articulated as such;
  2. Poor quality of explanatory notes underpinning draft laws (lack of information on the problem, no justification for choosing this particular option for addressing it, no financial feasibility section (“no need for a financial feasibility study”), etc.);
  3. “Legislative spam”: submission to the Verkhovna Rada of too many low-quality bills, making the work of the Parliament chaotic and substantially decreasing its quality;
  4. Partial fulfillment of oversight functions by the Parliament. The Parliament’s oversight functions are aimed not only at providing instruments for ensuring a balance of powers of the branches of government but also at supervising decision-making; in particular, in the case under review, overseeing the enforcement of laws (pursuant to the Rules of Procedure of the Verkhovna Rada of Ukraine and the Law of Ukraine “On the Committees of the Verkhovna Rada of Ukraine,” the Parliament’s Committees are tasked with a number of responsibilities related to the fulfillment of their function of analyzing enacted bylaws elaborating legislative provisions). No attention is given to managerial or financial difficulties; effectiveness of law enforcement as a way to resolve a particular social problem; impact of draft laws on stakeholders’ interests; case law on application of relevant provisions…

At present, stakeholders’ involvement in the rule-making process takes on the following forms: participation in nationwide discussions; citizens’ petitions to holders of the right to legislative initiative; committee and parliamentary hearings; possibility to participate in auxiliary bodies and working groups.

As we can see, what the stakeholders are invited to discuss is not the problem or the possible ways to address it and the likely impacts but a ready-made document: a draft law. This situation substantially narrows the vision of the problems, resulting in low quality of the approved decision.

It is important to go from discussing draft normative acts to discussing the social problems that they are meant to resolve/alleviate. In many cases, the implicit problems are not the ones specified in the draft law or in its supporting documents. Therefore, stakeholders must be consulted with at the stage of identifying the problems to be dealt with.

Hence the question: How can public consultations be implemented as a mandatory element of the legislative process?

At present, the issue of institutionalizing public consultations with stakeholders is being discussed in the expert environment. It involves certain strengths and weaknesses.

 

Strengths

Weaknesses

  • higher public awareness of the decision-making process
  • legitimation of decisions being made
  • a binding provision for the holders of the right to legislative initiative is likely to result in it being seen as a guideline
  • insufficient resource capacity of the holders of the right to legislative initiative for conducting public consultations

 

There are three possible ways for statutory regulation of public consultations for the holders of the right to legislative initiative:

  1. As part of the Rules of Procedure of relevant institutions

The requirement for holding public consultations and the procedure for conducting them can be introduced in the Rules of Procedure of certain administrative bodies at the stages preceding detailed elaboration of the norms (identification of the problem, consideration of various ways to address it, forecasting their impacts, selecting the best option, developing policies), as well at the stages of policy assessment (has the problem been resolved; if so, to what extent?) and policy review (what are the next steps of this policy?). For example, the Rules of Procedure of the Cabinet of Ministers of Ukraine can specify forms of interaction between ministries and stakeholders at the stages of problem identification and policy development (stakeholders propose / ponder on possible ways to address the problem), namely:

  • the procedure for identifying the stakeholders;
  • the requirement for maintaining an internal register of stakeholders;
  • the forms for communicating/consulting with the stakeholders are to be determined by the policy maker, since, in view of problem specifics, it is up to the policy maker to determine the subject (issue) to be discussed and the ways for obtaining feedback from the stakeholders;
  • the requirement that the stakeholders’ opinions and arguments regarding proposals for addressing the problem must be reviewed; etc.

The Rules of Procedure of the Verkhovna Rada of Ukraine regulate not only the organizational aspects of the Parliament’s operation but the legislative process as well; therefore, the following provisions can be embedded in it:

  • public consultations as a prerequisite for registering the draft law at the Parliament;
  • holding of public consultations with the stakeholders at the second reading stage of the draft law (introduction of amendments);
  • possibility to initiate a nationwide discussion of a draft law based on the results of its second reading consideration, etc.

For the President, it is necessary to add a provision on holding public consultations in the Statute of the Administration of the President of Ukraine.

  1. Adoption of a separate Law “On Public Consultations”

On December 27, 2917, the Cabinet of Ministers of Ukraine submitted to the Verkhovna Rada Draft Law No. 7453 “On Public Consultations.”

In the draft law, it is proposed that all the holders of the right to legislative initiative, local self-government bodies, executive bodies, bodies of power of the Autonomous Republic of Crimea, etc., be required to conduct public consultations.

Furthermore, the said draft law proposes that the above authorities be legislatively required to implement planning and publish in advance information on laws being drafted; hold consultations at all stages of formation of state of regional policies, addressing local issues, and drafting of acts; comply with the procedure for conducting public consultations specified by the proposed draft law; and report on the results of the consultations.

At present, the draft law is pending in the Committee on State Building, Regional Policy and Local Self-Government.

  1. As part of the Law “On Laws and Legislative Activity”

On December 12, 2017, the USAID RADA Program held a conference “The Role of Parliament, the Government, the Head of State, and the Public in Enhancing Legislative Process Quality” where an Analytical Note was presented that proposed preparing and submitting to the Verkhovna Rada of Ukraine a Draft Law of Ukraine “On Laws and Legislative Activity” as a top priority piece of legislation (providing in particular for unified requirements regarding draft law design and structure, the ways in which legal norms should be presented in a draft law, etc.).

In particular the Law should provide for:

  • unified rule-making standards for all holders of the right to legislative initiative;
  • an exhaustive list specifying requirements for draft laws’ supporting documents.

It is deemed expedient to regulate the submission of White Papers for draft laws, which should include:

  • a definition and analysis of the problem to be addressed by the law and the purpose of its drafting;
  • alternative ways to address the problem;
  • a rationale for the chosen option;
  • the risks associated with the adoption of the draft law;
  • law effectiveness indicators for its possible evaluation at the stage of policy reassessment.
  • More specific requirements regarding examination of submitted draft laws.
  • Formalization of criteria and requirements for the project’s feasibility study.
  • Regulation of grounds on which the President of Ukraine can refer an adopted law to the Verkhovna Rada of Ukraine for repeat consideration.
  • Regulation of involvement of and consultations with stakeholders at the stage of determining the content of a draft law.

In the context of holding public consultations, a law should include:

  • A requirement for holding public consultations at all relevant stages of state policy formation for all the holders of the right to legislative initiative;
  • A requirement for holding public consultations at the stage of policy assessment, so as to determine the effectiveness of the law as a means for addressing a particular social problem, and for justified proposals on making subsequent amendments and additions to its text (this will also be facilitated by the submission of White Papers at the point of draft law registration)
  • A provision on free choice of the form in which a policy maker can conduct consultations.

Conducting consultations with the stakeholders is a prerequisite for adopting a balanced state policy decision; they should be made an integral part of the lawmaking process and of assessing legislative quality.

 

[1] A Green Book is an analytical document aimed at initiating public discussion and starting the process of consultations on a certain subject. The Green Paper should include an analysis of the problem, its causes and consequences.

[2] A White Paper is an analytical document describing the Government’s objectives and operating logic in a certain sector of state policy; it is created for open discussion of the issues with the public and the stakeholders and for subsequent implementation of the chosen policies by the executive authorities. White Papers are published as executive documents and can include a brief version of the draft law in question.