Weekly analytics for 20 — 26 September

The Law of Ukraine “On Law-Making Activity” enters into force, but there is still time for its improvement…

Event

On September 20, the Law of Ukraine “On Law-Making Activity” entered into force. With the exception of certain provisions, the Law will take effect one year after the termination or cancellation of martial law in Ukraine.

Ongoing development of Ukraine’s legal system requires a kind of “law-making encyclopedia”. Therefore, legislative regulation of the system of normative legal acts, organization of law-making activities, definition of principles of normative design techniques and legal monitoring, as well as consolidation of basic terminology is a positive step. This is something Ukraine has been trying to do for 25 years.

The draft Law “On Law-Making Activity” was adopted as a basis back in the fall of 2021, and the experts of the CPLR have already prepared a corresponding analysis of the draft law.

CPLR’s expert assessment 

Compared to the version adopted in the first reading, the law has increased in size, while the content of the text has improved. Furthermore, the legislature took into account some of the proposals by the CPLR, namely:

– article 3 covers in-depth the substance of the principle of the rule of law;

– article 4 takes into account the comments regarding separation of “the Ukrainian people at the all-Ukrainian referendum” as a distinct law-making activity entity, as well as “law-making initiative entity” as a distinct participant of law-making activity;

– The law contains provisions regarding public policy documents, specifying their content and purpose (Article 20).

– Transitional Provisions contain a reference to the foundations of legislation of Ukraine and the decrees of the Cabinet of Ministers of Ukraine, and these provisions take effect on the date of entry into force of the law; there was no corresponding provision in the first reading version.

At the same time, the Law contains many provisions that not only fail to set an example for the entire future law-making process, but also genuinely lack in legal certainty. Below are just some such provisions of the Law that, in our opinion, still need to be revised.

The wording of part 2 of Article 1 – “the effect of this Law does not extend to public relations arising in the process”… is vague, since it is not clear which normative legal acts are not covered by the Law.

Professional self-governance bodies, to which the laws in all democratic countries delegate the right to regulate internal professional issues, have disappeared from the listing of the law-making activity entities. For example, self-governing bodies of lawyers or notaries, which are already functioning in Ukraine, will lose the authority to adopt normative legal acts for the by-law regulation of the functioning of their professions; in the future, dozens of other professional communities will face a similar fate.

Part 1 of Article 21 of the Law defines analytical public policy documents (green paper, impact assessment, white paper, concept note of the draft legal or regulatory act). According to logic and the already established tradition, there should be a concept or strategy that describes the planned reforms of areas or industries and is approved by the Government – whereas the “concept note of the draft legal or regulatory act” is a short working document necessary for the preparation of one specific act. At the same time, part 2 of this article does not list the concept note of a legal or regulatory act as an analytical public policy document that serves as the basis for developing the drafts of primary laws and codes. Thus, certain logical connection is lost: a law should not be developed without a previously adopted political decision. Such important policy documents as concepts and strategies, of which there are several dozen among the Government’s current decisions, are now illegitimate, since they are not mentioned in the Law at all.

In continuation of the same idea, part 2 of Article 24 needs to be supplemented by providing that “the planning of law-making activities is carried out taking into account” … program documents of public policy and the concept of a legal or regulatory act. It is obvious that planning should be carried out with taking into account a broader list of public policy documents. This is especially relevant for by-law regulatory acts, since the development of concept notes for them is not mandatory (Part 2 of Article 27).

Perhaps the authors did not delve deeply into these problems, because the Final Provisions state that all norms related to public policy documents are put into effect 5 years after the entry into force of the Law. This, in turn, makes it not entirely clear, since these norms do not impose an obligation to prepare any new documents, but only describe the policy making methodology, which is already used in many Ukrainian governmental and self-governance institutions.

The provision regarding overcoming a legal gap by applying the analogy of law exclusively by the court (Part 3 of Article 65) seems debatable. It is obvious that not only the courts can face issues relating to gaps in legal regulation; however, the Law does not allow the use of the law/law analogy by executive bodies, local self-government bodies, and their officials.

Part 1 of Article 66 is a telling example of poor regulatory technique. It defines the conflict of legal norms as a contradiction and inconsistency, while the sentences that follow then explain contradictions and inconsistencies through a conflict of legal norms.

It is also surprising that despite martial law, due to which the implementation of the Law is postponed indefinitely, the Parliament’s committees and the Cabinet of Ministers of Ukraine were charged with the difficult task of preparing amendments to the Parliament’s Rules of Procedure, proposals for decrees and foundations of legislation, as well as for codification (recodification, decodification) of legislation within six months from the date of entry into force of the Law. In other words, the time countdown has already started – and it seems that war is not an obstacle.

Thus, the Law “On Law-Making Activity” enshrines a number of legislative novelties and important provisions that are useful and will potentially strengthen the legal system of Ukraine. At the same time, from the point of view of content and technical legal design, the Law needs to be revised and the available time before its implementation must be used effectively.