Special digest! Public consultations: effective and of high quality or mandatory and ubiquitous?

In this issue of our digest, we will analyze the draft bill On Public Consultations. It can either enhance the participation of Ukrainians in decision-making on both national and local levels or make the process of public consultations too formal and turn it from the tool of democracy into a device for slowing down decisions on urgent matters. We think that mechanisms of citizens’ engagement should work effectively, so here is our detailed analysis of this important draft bill.

Status: the Committee is preparing the bill for the second reading.

Voted for the bill in the first reading: 262 MPs total. Servant of the People — 188, Opposition Platform — For Life — 2, Batkivshchyna — 12, For the Future — 8, Trust — 11, Holos — 15, European Solidarity — 19, independents — 7.

Who is affected: Ukrainian citizens, legal entities, citizen groups, government bodies, and local governments.

Draft bill in a nutshell:

• Defines who is obliged to organize and conduct public consultations. The list includes:
• the President, the Verkhovna Rada, ministries, and other central executive bodies
• Secretariat of the Cabinet of Ministers, local offices of executive bodies, government bodies of the Autonomous Republic of Crimea
• local governments
• collegial bodies (the National Commission for State Regulation of Energy and Public Utilities, other collegial regulatory bodies)
• the National Bank
• other bodies, companies, enterprises, and organizations that represent the state or are owned by it.
• Defines who may be recognized as stakeholders:
• Ukrainian citizens, foreigners and stateless persons who are in Ukraine on legal grounds
• public associations, trade unions and their associations, creative unions and their associations, charitable and religious organizations
• associations of local self-government bodies, population self-organization entities
• non-profit associations, business entities and their associations, employer organizations and their associations, self-regulatory organizations.
• Prohibits making decisions without public consultations for decision-makers listed above. There are several exceptions: administrative enactments, acts on internal procedures of these decision-makers, and urgent issues that have to be addressed immediately (like the introduction of martial law or emergency state)
• Provisions that public consultations may be held in the following formats:
• online consultations where a consultation document is published on some online platform
• public hearings where the document is discussed at roundtables, sessions, conferences, focus groups, meetings, etc.
• internet and video conferences
• targeted consultations where the document is sent to stakeholders to collect their positions on the matter
• Obliges to publish reports on consultation results.

What is right:

• if the bill is adopted, overall engagement of citizens, businesses, and NGOs in decision-making will improve
• guidelines defined by the bill for public consultations will allow to unify procedures and requirements on conducting public consultations by all policy-making bodies.

What is wrong:

• public consultations will be conducted on resolutions already drafted by government bodies, not on concepts of future resolutions. Thus, the real impact of consultations on final decisions will be mostly insignificant
• the requirement to conduct public consultations before adopting most regulatory acts makes decision-making for government bodies formal and tedious. Under such conditions, it will be hard to make decisions on pressing matters quickly
• not all decisions are supposed to be accompanied by public consultations. For example, small changes can be made without consultations if they are of minor importance for stakeholders. However, consultations will be mandatory for almost all decisions and thus will slow the process down in cases where consultations were redundant
• government bodies and local governments will have to hire more staff to conduct public consultations, so there will be more spendings from the government budget and local budgets
• the bill de facto makes it impossible to conduct consultations under the condition of anonymity. As a result, many stakeholders will be afraid to criticize draft resolutions or provide real feedback
• the bill is not compliant with other laws, in particular, with the Rules of Procedure of the Verkhovna Rada. For example, alternative draft bills may be submitted within 14 days while public consultations are to be held for 15 days. Under such conditions, it will be hard to draft an alternative bill that is actually based on consultations’ results.

Alternative solution:

• make public consultations mandatory only for issues concerning human rights and freedoms, complex changes to national and local policies
• allow consultations under the condition of anonymity
• hold consultations at the earliest stages possible (while a concept of future decision is still a draft) and not when a draft resolution is already submitted for consideration.

What’s next: the Committee on State Building, Local Governance, Regional and Urban Development has to prepare the bill for the second reading, and then the Verkhovna Rada will vote on it.

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