Analytical research “Anti-corruption expertise of draft laws: effectiveness of practical implementation”
There are three bodies, which are responsible for the implementation of anti-corruption expertise in Ukraine:
- Ministry of Justice (since 2010);
- Committee of the Verkhovna Rada of Ukraine, whose scope of responsibility includes fight against corruption (since 2013);
- National Agency for the Prevention of Corruption (since 2015).
However, in Ukraine this tool is quite new, the mechanism of its implementation is not widely open to the public, the results and their justification are not widely known.
By compiling data from these three institutions, we were able to identify 83 draft laws that have been analyzed using the instruments of anti-corruption expertise by all three of those bodies. The results showed uneven detection of corruption factors in the draft laws:
· 79.6% (67 out of 83) of the analyzed draft laws received no recommendations from any institution. 66 of them received positive opinions from the Ministry of Justice and the Verkhovna Rada Committee, while NAPC did not give its opinion.
· 16 draft laws (20.4%) received comments with reservations (on corruptogenic factors or other reservations about the non-compliance with anti-corruption legislation). In 10 of them, only the Committee identified the risks; in 1 – only NAPC, in 1 more – only the Ministry of Justice.
Basing out analysis on not only quantitative indicators or their comparison, we studied the systemic (internal) problems and complications that impede the effective implementation of anti-corruption expertise by each body.
In addition to the analysis of the regulations of these institutions, we conducted 6 anonymous interviews with persons who work / worked in each of them and were directly involved in the implementation of anti-corruption expertise (those interviews were conducted not only with representatives of management, but also with ordinary employees).
The results of the study demonstrate that anti-corruption expertise can be an effective preventive mechanism for combating corruption. However, its current use by the authorities authorized to conduct it is ineffective.
In addition to recommendations to each body, we offer concrete steps to remedy the situation. The implementation of such steps
a) will not require significant budgetary resources and;
b) if there is political will – does not require significant time to implement.
- The use of anti-corruption expertise is hindered by the lack of a mechanism that delivers the impact of negative conclusions drawn from the results of the expertise. In particular, this concerns the lack of consequences for the draft which, according to such expertise, contains corruptogenic factors. Such a mechanism should be developed by amending the laws “On Prevention of Corruption”, “On the Rules of Procedure of the Verkhovna Rada”, resolutions “On Approval of the Rules of Procedure of the Cabinet of Ministers of Ukraine” and implemented by the means of specially developed
- Being the least productive in conducting anti-corruption expertise of all the bodies we analyzed, we believe that NAPC should be the most active in the implementation of this function, due to the fact that both the Verkhovna Rada Committee and the Ministry of Justice are more susceptible to various influences and do not have such impartiality in decision-making compared to the
- None of the bodies is authorized to carry out anti-corruption expertise of draft laws before the second reading, although at this stage the draft law may undergo significant changes due to proposals and amendments. Therefore, most of the resources should be directed to solve this issue.
- In our opinion, full implementation of the anti-corruption expertise function is possible with the involvement of specialized experts who will work exclusively (or almost exclusively) on expertise in their specialized fields as well as with holding mandatory consultation with members of the public who are specialists in the field or have relevant experience.
- An updated methodology for conducting anti-corruption expertise should be developed, taking into account the already existing experience and best recommendations. This methodology should be as simple as possible (in order to apply and refer to it when writing the conclusions of the anti-corruption expertise). It should also have a clear structure and should not contain excessively detailed rules.