What is wrong with the Rules of Ethical Conduct for Lobbyists?

Comply with the requirements

The Law, which came into force on 14 March, regulates the general rules of lobbying in Ukraine. Lobbying is the use of certain methods to influence politicians in order to change the regulatory framework in the commercial interests of business. In particular, the Law outlined the subjects of the relationship, defined their rights and obligations arising from the interaction, and established anti-corruption safeguards. The main one is the so-called Transparency Register, the launch of which directly affects the opening of the lobbying market in Ukraine. We have already predicted that this is unlikely to happen before next year. But before that time, the Cabinet of Ministers has yet to approve the Rules of Ethical Conduct for Lobbyists, a separate regulatory instrument aimed at implementing the legislative principle of ethical lobbying.

The lobbying entity is obliged to strictly comply with not only the laws but also the Rules of Ethical Conduct in its activities, in particular, to prevent conflicts of interest during lobbying and to resolve them if a conflict arises.

In addition, in combination with the principle of professionalism, lobbying ethics stipulates that lobbying entities ensure the implementation of the highest professional standards in lobbying, avoid creating any dependence between the lobbying target (official) and the lobbying subject (business), receiving any promises from the lobbying target regarding the results of lobbying, and lobbying objects ensure equal treatment of lobbying subjects, together with lobbying entities ensure the public perception of lobbying as a positive practice.

Responsibility perspectives

In assessing the legal significance of the Rules, it is worth noting that the Law does not contain a clear regulation of the procedure for bringing lobbyists to liability for ethical violations (as, for example, it is regulated for lawyers). This will obviously provide a wide margin of discretion for the supervisory authority. After all, the Rules will be used by the NACP, which is entrusted with the function of state supervision over compliance with the requirements of the lobbying legislation. 

Thus, according to Article 18 of the Law, the Agency will monitor compliance with the requirements of the lobbying legislation on the basis of information received from lobbying objects, individuals and legal entities, as well as from the media and other open sources, which contains information on the non-compliance of the lobbying entity with the requirements of this Law and, therefore, the Rules. At the same time, anyone can report a lobbyist’s violation of the legislation.

If signs of violation of the lobbying legislation are detected, the NACP will take measures to bring the perpetrators to justice. Ukrainian business knows all too well how this will happen when there is no clear procedure, or it is left to the discretion of the official.

Repetitions with amendments

What do the Rules of Ethical Conduct for Lobbyists look like according to the supervisory authority?

As of today, it is a set of trite truths that the Rules establish requirements for the behavior of lobbying entities and do not apply to legal relations that are not lobbying, and that lobbyists must comply with the rules (Section I of the draft of the Rules). Many general rules on the need to comply with the Law and the prohibition to violate it are enshrined in the text. 

Some provisions clearly go beyond the scope of legal regulation. Although the Rules are supposed to define rules only for lobbying entities, for some reason, the following provisions were also included in the draft: 

• restrictions for clients and beneficiaries (clause 15);
• requirements for clients to make payments to the lobbying entity (clause 22);
• provisions on public control by notifying the relevant state authorities and the media of lobbying violations (Section VIII of the draft).

The Rules also contain provisions that actually duplicate the current Law: Section II of the draft repeats the provisions of Article 4 of the Law on the content of lobbying principles; Section III repeats the lobbying methods set out in Article 6 of the Law; Section VII repeats restrictions on the subjects of lobbying and lobbying entities set out in Articles 8 and 10 of the Law.

The issue of regulating lobbyists’ interaction with other entities (Sections IV – VI of the draft) also has repetitions arising from the rights and obligations of clients (beneficiaries), the subject and object of lobbying. However, it is clear that the project developers were more creative here. 

For example, clause 12 of the draft, which obliges the lobbying entity to avoid disclosure in the media or dissemination in any other way (including via the Internet and social media) of knowingly false information that degrades the honor and dignity of the lobbying object or affects its reputation, is worthy of note. The lobbying entity is also prohibited from using the Transparency Register to disseminate knowingly false information about the lobbying object.

Will this, in practice, lead to a ban on criticism of lobbying targets, which will be MPs, ministers, and other top officials? How will this rule be applied when two groups of lobbyists promote alternative projects? It is clear that the criterion of ‘knowingly false information’ is intended to prevent undue pressure on lobbying entities, but the lobbying entity may well lose interest in continuing its work if it has to prove its case to the supervisory authority.

Inference

In general, it seems that the NACP officials who drafted the Rules did not particularly care about their quality. It seems that the drafters wanted to get rid of the task of writing a certain amount of text as soon as possible. The content of the explanatory note can also confirm this thesis: the need to adopt the act is not justified by substantive reasons but by the requirements of the Law on the development of the Rules and the plan approved by the First Deputy Prime Minister. 

Therefore, we can only hope that lawyers and other professionals who plan to become lobbyists under the new rules will be more careful than the supervisory authority in their approach to the content of the Rules of Ethical Conduct for Lobbying Entities and have provided the NACP with their comments and suggestions. They were accepted until 7 June, and it was promised that a report on the results of public consultations would be published on the agency’s website.

If you need legal advice, please fill out the form below to request it.