In the Parliament they have made another attempt to legalize lobbying in Ukraine. Why should we regulate what  is not regulated in every country of the world, and what to do to protect lobbyists from allegations of corruption? ‘Zakon i Biznes’(‘Law&Business’)Periodical addressed this to Oleksandra Pavlenko, one of the alternative law drafters, ex-First Deputy Minister of Health, Managing Partner with Pavlenko Legal Group.

“Even oligarchs are now willing to compete openly”

– Oleksandra, a group of independent parliamentarians  have recently registered with the Parliament a draft law No. 5144 ‘On Lobbyism’. It is not the first attempt of People’s Deputies to legalize external influence on law-making procedure in Ukraine. As you have mentioned before it is better to have nothing than the documents proposed. Has your opinion changed since then?

—  I would not analyze this particular legislation because we are now submitting an alternative one developed by the expert community. I take a stand for the law, but if it is unprofessionally made, we will better understand how to work without it. The process appears to be similar to that with the mediation, which does exist in Ukraine despite the lack of the regulation.

The legislation you are talking about seems to have been registered just for creating image for certain persons who are aware that the key product has been already developed and supported by the European Community. Notably, we have won the approval in Brussels. Thus, the case is about the attempt of a group of People’s Deputies to draw attentions to them before the major alternative document has appeared in the Parliament – that is it!

— In most countries lobbyism is not within the scope of legislative regulation. Why should Ukraine get involved in regulating such relations?

— We were discussing this issue with the Europeans. In countries where there occurs a transition from behind-the-scenes political process to transparent ones rules are required. It means the country’s and parliamentary system’s self-establishing as a phenomenon. In our country we got used to breaking the rules. As a result, everything happening has been politicized and led to the parliamentary turmoil.

Basic changes across sector-wide legislation cause political debate. Professional competence takes a back seat to politics as it always goes. Expert opinion is getting lost in this whirlpool which leads to the lack of changes, or if any occur, they are unnecessary for the sector.

Without the rules of civilized sector-wide and economic lobbying people start to live with politics in mind. However, the latter cannot exist by itself. Playing politics may only give rise to a wave of latent corruption which would not be efficient for the industry interests.

Other countries can afford such law unavailability, as they have historically out-rooted such procedures. Therefore, everything is relatively transparent there. In our case, on the contrary, rules are required and will be announced.

– But we already have the anti-corruption legislation. Is it not enough?

–  Establishing the National Anti-Corruption Bureau as well as the Prosecutor’s Office special attention to the corruption risks – all these sound fine, but how one can recognize them when the Parliament works with experts in a random way when a Committee session, allowing for the publicity, is attended by whoever? I would like to understand whose interests are represented by certain people at such meetings or on TV. Once these people fall under the hold of the law on lobbying, they will evaluate their actions and objectivity of the information they provide. Otherwise, Ukraine will be in danger of getting drowned in the wave of populism that could sink professional expertise. Remarkably, that is exactly what is now evidenced.

As soon as this field has been regulated, no one will dare to trample it. Today, there is no one to supervise it and anyone can say that he does what he wants. It is because there is a lack of regulation. And being asked about professional interest one may keep silent.

Lobbyists will have an Agreement providing Customer’s data, and they will have a Register which makes it possible to trace their entering into the profession. It would structure the movement around the Parliament and the Cabinet.

— The line between lobbying and corruption is rather thin. Today it is the system of influence, whereas tomorrow it is a sweet-heart-deal. What will help to tell one concept from the other? What if a lobbyists’ activity in Ukraine becomes dangerous during our present day combating corruption?

— Those who will take the risk and officially announce themselves in this niche, are going to experience difficulties for the first couple of years. I spoke about it at the conference 4 years ago already. There were a lot of critic comments then. It was for the first time that we allowed ourselves to say this as the Law Firm having been involved, among many others, in GR-projects for a long period already. At the Event we were criticized by nearly everyone but a week later two other Law Firms announced GR-practice on their websites. It was rather indicative because it is impossible not to recognize what is already in place and, besides, it is quite logic for legal activities, and we are not afraid of stating that.

We work at the intersection of ‘Jurisprudence – Law – Politics’ industries. It is impossible to create sectoral legislation in the country using political instruments but without business applying for. There should be a link between them. After withdrawing from the Government I am fully aware of the fact that it is not able, without communication with the business, to generate a new layer of laws and regulations. Otherwise, it will be a total crackdown because the post-Soviet state (as historically established) acts ether according to fiscal principle and only collects without giving anything in return, or on the principle of sanction government that always have claims against business.

There should be a dialogue established between the power and business, and it should be held professionally with being aware of both parties’ rules. For these purposes people are required who understand how both parties work. Lawyers, especially those who have already practiced this school, like no others fit for this role. It is also important to be very close to political processes historically as we are, when you know how these or those processes have reached the present mark and which personalities have been already engaged in specific subject matters for many years. We are speaking about the creation of new regulations, new resolutions of the Cabinet of Ministers, ministry orders and draft laws. Notably, we have been managing such projects since 2004, that is why we understand the regulations and procedures and we know how not to break them. By the way, much of what the Government is doing now is risky in terms of the regulation. If lobbyists having legal background are working at a particular resolution they will never allow it to pass through the Cabinet in breach of the regulation. It decreases the risk of lodging a complaint against the sector and a specific customer.

A lobbyist has two key objectives – to ensure that business and government have agreed at the ideological level and that they put the same meaning in the concepts and then write it down on paper with further promotion. And at this point the lawyer’s skills as a negotiator and expert in the letter of the law becomes crucial, of course. We intend to introduce the rules not to have matters settled with money-packed suitcases.

“I want this very regulation in place.” As a rule, it is the desire of one tycoon who is a monopolist in the market. It cannot be this way in case of lobbying: we battle for sectoral interests. Lobbying does not take an individual inquiry as the the subject matter which would give an advantage to either one or the other party in the market.

In the civilized world lobbying work with a group of interests as it was in the case with the law on telecommunications when in our country the sector called off the claims to the competitive players in the market. As a consequence, a law appeared that regulated the market and set out the competition rules.

As a matter of fact, business wants to play by the rules because it does ensure stable growth. Ukraine is sick and tired of behind-the-scenes games in business. Now even oligarchs are willing to compete openly, so the most suitable moment has occurred for lobbying.

“Lobbyist should stand beyond political ideologies and have access to all of them as an expert”

– What skills and personal qualities, in your opinion, should a lobbyist possess? How are such requirements to be prescribed in the law?

– When lobbying laws, qualification is desirable, but making such requirements for lobbying activities by way of legislation is the same as making requirements to what a top manager should be. Such things can not be prescribed in the law. It is a matter of success. We all work, but someone is somewhat more successfully than others.

First of all, a lobbyist should have experience of going through the power corridors. He should have lived through this ‘ins and outs’ rather than just knowing how it works. And the matter here lies in the core of building the processes but not in the connections. Many good ideas are now launched through the wrong channels of promotion and in the media false messages are put. They sound reasonably and objectively, people understand them, but it does not lead to any result. When you withdrew from power, you know where you should exert pressure and where you have to move on ‘soft paws’. These are the skills of a negotiator, an official civilized democratic system officer multiplied by the experience and regular assessments of political trends.

Today you can make a bid for one fraction, tomorrow – for another, within the same project. In addition to sensation of the political field, the lobbyist must stand beyond ideology and be able to call on anyone as  an experts who is trusted.

While in power it was crucial to me to maintain the image of a lawyer and not to become a career politician. Where the politics starts,they turn a blind eye to the rights. Still the lawyer’s-in-power success is based on his ability to hold negotiations from the objectivity and legal system standpoint. If to play politics, lobbying will turn into lobbyism which will further turn into corruption.

There is a need for regulatory-wise literacy in terms of legal procedures and media relations. First, public opinion is normally formed, and only then the idea gets into power corridors. Especially if it is so radical that they will not dare to have it brainwashed at once.

After withdrawing Ministry of Health I recall the pharmaceutical market – it is rather hard, but when we were talking over sectoral interests, the opponents sat down at the table and agreed on the method of control with us and between themselves. Business in Ukraine is tired of ‘political championship’. Here is one to have run up, and now he appears before the Parliament owing to someone else and so he has the desired regulation. Next time another one could make it and the entire market knows that while the VR is sitting it is this player who has the advantage in the market.

Now the trend is such that corruption in this sense would retreat. At the same time lobbying provides tools for the expert community whom those in power will have to listen to. The experts will have legitimate participation in the committee meetings, they will speak in accordance with the regulation, and their statements will put into shade those People’s Deputies who promote some matters intended for one person. Now the committee meetings are held so that the experts stand up and say the obvious things while the People’s Deputies close their eyes at it and vote differently just because from the legislative standpoint they are not obliged to listen to the expert opinions, they are not afraid of voting against the logic of the expertise as well as the logic of particular sector of the economy, no one controls them in terms of the essence of their work nor of the form.

— What will make them listen? Is it the new law?

– It is that what we have provided in the project and what is not in the document you asked about at the beginning – first of all, these are changes made into the Regulations of the Verkhovna Rada. Lobbyists will be able to apply for their presence at the committee sittings, and they will be obliged to be listened to.

Now the committee chairs may keep silent about adequate expert opinions even just not announcing them at the meetings. Thus, a parliament member gets in the grip if goes against the expert opinion while enforcing obvious stupidity for someone‘s benefit. Or else somebody votes just at a friendly request to vote but not for the industry expertise, which, by the way, in accordance with our idea, will integrate with the draft law posted on the Parliament’s website. A people’s deputy pressing the button will understand that perhaps tomorrow he will not have to prove and clarify his position before the society.

— How will the dialogue between business and power be held?

– A group of people will support this dialogue on the same day in expert opinions, submitt them to the Parliament, the Cabinet, impose resumes on any project resolution which in fact would allow its adoption or, on the contrary, allows adoption of it alone. That is legal job.

Today, if someone wants to rush a resolution, he quietly apply to where he finds relevant, obtains the opinion of some dubious expert, and then here you are – the resolution has been made but real experts have been left behind. When during the committee sitting, for example, some boys and girls involved in some grant structures, stand up and say things that a competent and self-respecting expert never allows himself to say, the question arises: where do these dubious people come from? They have a budget but no expert level. Furthermore, they perform on TV channels and radio and destroy normal regulation in its embryo. Now we have nothing to tell them, but as soon as the new legal regulations appear, we can raise the question about the quality of the expert opinions proposed and find out who they work for.

It is not always that power can assess the level of expertise nowadays when that one wins who shouts more and can get into the office. However, it should not and would not be this way. I am absolutely convinced that the majority of such public figures will not get registered into the lobbyist register since it involves responsibility and grants will help them no longer.

“Consulting companies of particular sectors will be able to promote themselves in the new market”

– Under the terms of the draft law No 5144 the Ministry of Justice should create a single register of lobbyists, the latter paying not only for the registration, but also for the confirmation of the corresponding status. What is your assessment of this proposal?

— I do not support the way taken as a basis in this legislation. At the very beginning of lobbying introduction this radicalism will not lead to anywhere. Such things as official keeping the register by the Ministry of Justice and payment of registration fee will push the experts away from entering the services market. We are not obliged to regulate what so far has not received the greenlight from the country.

In the draft law we prescribed maintaining the Register by the Parliament itself. The body that is to be structured in the context of working with lobbyists is, in the first instance,the Verkhovna Rada. There are regional authorities and local authorities but, if all of them is brought into operation at once as is commonly the case in the rest of the world, we will make a chaos in which we will splutter. That is why first we propose to approach the Parliament as a basis to keep the Register of lobbyists who decide to officially announce itself on the application basis and without any payment so far.

To be included in the register the persons who meet the registration criteria, will be officially providing information on the company, its founders, and later – on the profitability of the lobbying activity.

They will receive the official access to the Verkhovna Rada and the opportunity to become recognizable in the lobbyists’ market. At the same time they will be able to continue working in consulting, have the same SICs for the purposes of taxation, and ger registered as a company. Thus, from the point of view of business, the basis of their activities, including the legal form, will not change.

We have envisaged the profile up-date in the Register once a year. Therefore, if the company decides to cease to act, it may simply not apply for again. The areas of interest may be also specified in the Register. This is the way consulting companies of particular sectors will be able to promote themselves in the new market.

We discussed with Transperency International European office the way we will introduce a Registry, and they advised to do without any compulsive things: the declarative principle is applied, and no sanctions are imposed if a person is not included. It is the first step and it should enable to filter those who really want to work in the profession off ones who prefer to remain in corruption field. In a few years sanction will be imposed for working without registration, but if to do it immediately, no one is going to get registered.

You may see what rules strengthening in the Bar and Notary Office led to. To make a decision it is not enough to be in the profession – you must have a certain experience in it, and rightly so. Still, only those who really want to do it will remain, of course.

— Many lawyers today have gone into power, and there is constant debate in the media on such persons’ conflict of interests. Is it necessary to settle a similar issue in the law on lobbying allowing for the fact that lobbyists may also land up their positions in power structures?

– Our draft law is in strong compliance with current legislation. I, for one, this year will not be able to work as a lobbyist in the sector I held the post of the Deputy Minister. Our law has clearly defined methods lobbists use in their work. They, in particular, involve drafting and publication of proposals for legislative instruments, participation in drafting documents in the Parliament, liaison within the Verkhovna Rada and its officials. That is, telephone calls, postal notices that when printed out and when required may serve as evidence of legal or illegal lobbying practices. Should you comply with these practices (the law provides a comprehensive list), there will be no claims made on you.

Speaking about the reverse way, the officer falls within already existing anti-corruption legislation, and, believe me, such person, even without our protective mechanisms, is already at gunpoint, so the risks are minimal. These involve either electronic declarations or purging inspections or criminal cases if any.

However, if it comes to putting at risks reputation of a company that, for instance, is involved in lobbying while its managing partner went among those in power, then there are no legislative answers. It is a matter of morals.

I solved this issue when I decided to go into power – withdrew from the Board making a statement that for the period of my being in office, my company will not carry out any project somehow related to the area where I was to perform my new duties. Now it can be settled through compliance, internal corporate policy working towards it.

ZiB, KATERYNA BUTOVCHENKO