A draft Law on state registration of subjects of lobbying and lobbying in Ukraine (draft law 3059) was introduced in the Ukrainian Parliament in February 2020. It was soon followed by three other draft laws – all with the aim to regulate lobbying. With the exception of draft law 3059-2, all provide too broad definitions of lobbying that may actually cover CSO advocacy as well. This would prevent CSOs to engage with decision-makers unless they register as lobbyists.
Draft law 3059-2 on legal and transparent regulation of lobbying is the only draft that provides a definition of advocacy as well as a specific exemption for public associations (one type of CSOs in Ukraine) from the requirements of the draft law. While the draft law seems like a better option for CSOs, it still creates a number of problems and may lead to negative practices.
Based on a request from our Ukrainian partner ISAR Ednannia, ECNL prepared a short analysis of the compliance of draft law 3059-2 with international standards related to the right to participation and freedom of association and expression. In its analysis ECNL found that a broad definition and approach to interpretation of what constitutes lobbying may affect negatively CSOs by:
- impinging on the right to participation, contained in Article 25 of the ICCPR to advocate for their views and exert influence on the public administration;
- imposing heavy burdens on CSOs which would also restrict their freedoms of association and expression.
It is important to ensure that CSOs advocating on issues which lie at the heart of their charters or attempting to participate in public consultations should be able to do it freely. They should be able to do so without being subjected to the restrictions and heavy sanctions proposed by this law, which is designed for professional lobbyists.
What are the relevant international standards?
- Article 25 of the International Covenant on Civil and Political Rights (ICCPR) states that individuals shall have “the right and the opportunity”, without discrimination and without unreasonable restrictions, to take part in the conduct of public affairs, “directly or through freely chosen representatives”.
- The Human Rights Committee, in its General Comment 25 (57) states that citizens “take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves.”
- At the EU level, Article 11 of the Treaty on European Union obliges EU institutions to “give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action” and to maintain an open, transparent and regular dialogue with representative associations and civil society.
What is the country practice in the EU?
Only 6 EU member states have legislation on lobbying (Ireland, Austria, France, Poland, Slovenia and Lithuania). Hungary also had a Law on lobbying, but it was revoked in 2011. Two other member states have regulated access to their Parliaments in the rules of their parliaments (Germany and Netherlands) but that does not specifically refer to lobbying.
Even in the case of specific lobbying regulation, most of the countries that have lobbying laws provide specific exemptions for all or specific types of CSOs (Austria, Lithuania, Poland and Slovenia). Other countries have implied exemptions by focusing on professional lobbying (against payment).
What are the possible problems of the Ukraine draft law 3059-2?
The definition of advocacy included in the draft law is quite broad. In addition, the draft law lists specific forms of lobbying, most of which could be considered as forms of advocacy as well. Examples of such activities include:
- participation in drafting of legal and regulatory instruments;
- preparation of information analysis products, sociological and other studies;
- participation with prior notice in meetings of elected authorities or their committees; etc.
If the draft law fails to specify that the activities listed in the draft are not treated exclusively as lobbying, then the draft law may violate the right to participation and the freedom of expression and association.
The draft law contains an exemption from its scope for public associations. While this is a good approach, it does not fulfil its purpose in this case as it contains several problems:
- It refers only to limited types of CSOs and not to all CSOs. This may potentially lead to a violation of the principle of non-discrimination.
- It refers to the right to participate in state policy as something that has to be guaranteed by a law and not as international human right that is accessible to all CSOs as part of the ratification of the ICCPR. This may potentially lead to a violation of the guaranteed right to participation.