On March 23, 2018, the USAID RADA Program conducted, at the conference hall of the Verkhovna Rada of Ukraine, a parliamentary discussion entitled “Ways to Improve Legislative Process Quality. Is there a Need for a Law ‘On Laws and Legislative Activity’?”
The event was aimed at finding out the opinions of the key stakeholders on improving legislative process quality and at identifying the subject of regulation of a law on laws and legislative activity.
The timeliness of the discussion on drafting and approving the Law “On Laws and Legislative Activity” results from a number of legislative process problems, the main ones being as follows:
- low-quality legislation;
- violation of the routine procedures in the legislative process;
- low level of interaction among the holders of the right to legislative initiative in the legislative process, etc.
The legal framework of the modern Ukraine is characterized by intensive creation of regulatory acts. Increasing the quality of laws requires establishing unified rule-drafting standards for all holders of the right to legislative initiative. To unify the requirements related to rule-making and draft law submission and to make them more specific, work has been going on in Ukraine for more than twenty years to draft and approve the Law “On Laws and Legislative Activity.” The first attempt to adopt a legislative act addressing that problem was undertaken back in 2001; it failed, however, since the President vetoed the law. Later, a number of Draft Laws of Ukraine “On Normative Legal Acts” were developed (Nos. 1343-1 of January 21, 2008, 5199-VI of September 6, 2012) and then the consideration of the issue was terminated.
- What problems should be resolved by the Law?
- Low quality of draft laws (lack of balance and presence of legal conflicts), approval of new laws that are at odds with existing laws, violation of systemic relationships between laws and bylaws;
- The flow of draft laws being submitted to the Verkhovna Rada of Ukraine exceeds the Parliament’s capacity to process them (so-called “legislative spam”);
- Inadequate proportion between legislative initiatives and laws (according to the Civil Network OPORA, as of December 2017, 11.08% of the bills submitted to the Verkhovna Rada of Ukraine had become laws during the three years of the current convocation);
- Insufficient coordination between the Verkhovna Rada, the Cabinet of Ministers, and the President in the legislative process;
- Low level of public involvement at the stage of developing draft law content;
- Haste on the part of the holder of the right to legislative initiative when preparing and drafting the most important legal decisions.
- What the law on laws and legislative activity is meant to address?
The Law must:
2.1 establish unified requirements regarding rule-making technique for all holders of the right to legislative initiative;
2.2 specify an exhaustive list of requirements regarding the supporting documents for a draft law. It is deemed expedient to regulate the submission of White Papers for a bill; these must include:
- definition and analysis of the problem the law is meant to resolve and the aim of preparing the draft;
- alternative ways to address the problem;
- substantiation for the expediency of the chosen alternative;
- risks associated with adopting the draft law;
- law effectiveness indicators for its possible assessment at the policy revision stage.
2.3 provide more specific requirements regarding examination of submitted draft laws;
2.4 formalize the criteria and requirements regarding conduct of a financial feasibility study of the draft law;
2.5 regulate the grounds on which the President of Ukraine can refer an adopted law back to the Verkhovna Rada of Ukraine for repeat consideration;
2.6 regulate engagement of and consultations with stakeholders at the stage of determining draft law content;
2.7 set up technical requirements for the form in which a draft law must be prepared.
- Principles for the operation of the legislative triangle (the MPs, the Cabinet of Ministers of Ukraine, and the President)
In addition to the principles of legislative work that establish the general rule-making principles (constitutionality, systematicity, social expediency, certainty of definitions, balanced modalities, etc.), worthy of separate mention are principles for interaction among the holders of the right to legislative initiative in the context of drafting a law as a state policy tool.
- The principle of systematicity requires that all holders of the right to legislative initiative should take into account objective factors related to state policy implementation when drafting a law in the process of working out a state decision. For example, in case of submission of a draft law by an MP the latter must necessarily take into account at the stage of rule-drafting whether the proposed bill will be in line with the Government’s Action Program; clarify the state of current policy in respect of the subject of regulation, etc.;
- The filter principle. The Law should provide for mechanisms for interaction, in the legislative process, among the holders of the right to legislative initiative under a system aimed at filtering out low-quality bills;
- The principle of balance, which provides for engaging the Parliament, the Head of State, and the Government in the law-making and legislative processes in line with the responsibilities assigned to them under the system of checks and balances. For example, the Law of Ukraine “On Laws and Legislative Activity” must balance the role of the Head of State in the legislative process, in particular through provisions (1) obliging the President of Ukraine to clearly formulate the grounds and the necessity for assigning top priority status to draft laws; (2) specifying that the President can only assign top priority status to bills personally submitted by the President; and (3) specifying that the President is free to assign top priority status to draft laws at any stage of the legislative process.
- Should the Rules of Procedure of the VR of Ukraine regulate the legislative proposal, or should they only regulate the procedures for draft law passing through the Verkhovna Rada of Ukraine?
The Rules of Procedure of the Verkhovna Rada of Ukraine are a codified legislative act regulating parliamentary procedures on the basis of the Constitution of Ukraine, by elaborating its provisions. The functions and powers of the Verkhovna Rada of Ukraine are established by the Constitution of Ukraine, whereas the Rules of Procedure regulate the way in which they are to be exercised as well as the peculiarities of mutual relationships, in this connection, with other state bodies. The Rules of Procedure are an internal act regulating the Parliament’s activities and the range of holders of the right to legislative initiative includes not only the MPs of Ukraine but also the Cabinet of Ministers and the President; therefore, based on legal logics, the requirements relating to rule-making and law-drafting should be regulated by the Law “On Laws and Legislative Activity” while the Rules of Procedure should specifically regulate the procedure for the passing of draft laws through the Parliament.
- Law effectiveness indicators
The main objective of the Law “On Laws and Legislative Activity” is to resolve the problem of low-quality legislation. To identify the extent to which the adoption of the Law has been successful as a legislative process quality enhancement tool, a number of assessment criteria must be established.
The implementation of the Law “On Laws and Legislative Activity” must result in:
- decreased amount of so-called “legislative spam”;
- adoption of laws that are appropriate for implementation by the Government;
- achieving the aim for the making of the law (which can be seen from an analysis of the problem and from the rational indicating that the proposed normative legal regulation is indeed an adequate way to achieve the aim) as a state policy tool.