Explanatory Note as a Potential Tool in the Fight Against “Legislative Spam” and the Practice of Foreign Parliaments

In most European countries, the Government holds broad legislative powers and is the main initiator of draft laws due to the availability of resources and expert staff. In Ukraine, however, most draft laws come from Members of the Parliament, which are usually of poor quality due to non-compliance with the requirements of law-making techniques and the absence of any rational justification for the need for legal regulation.

The problem of “legislative spam”

The low quality of the draft laws submitted to the Verkhovna Rada of Ukraine is also indicated by the fact that a significant number of registered draft laws are related to amendments. The submission of a large number of draft laws of this type indicates insufficient and poor-quality preparation of the primary regulatory act and the continuation of the practice of “patching holes” instead of developing effective framework legislation based on the “from start to finish” principle.

The Report and Roadmap on the Reform of the Verkhovna Rada of Ukraine prepared in February 2016 contains recommendations for improving the work of the Parliament, which were subsequently adopted by a relevant Resolution. Among the recommendations related to the quality and quantity of draft laws initiated by MPs, the following are worth highlighting: 

1. Only draft laws that meet the requirements of the Verkhovna Rada’s Rules of Procedure and are accompanied by a reliable explanatory note and financial and economic justification can be registered (Recommendation 3).
2. The VRU Secretariat should thoroughly analyse each proposed draft law to avoid duplication (or contradiction) with existing national legislation. Registration should be denied if the draft law does not comply with the form and requirements set out in the Rules of Procedure (Recommendation 4).

According to the Rules of Procedure, a draft law registered and included in the agenda of a session must be sent for scientific examination in preparation for the first reading and for legal examination and editorial review to the relevant structural units of the Verkhovna Rada Secretariat in preparation for all subsequent readings.  

Thus, factors such as the large volume of draft laws submitted by MPs, their low quality, and the insufficient resource capacity of the Verkhovna Rada Secretariat create “legislative spam”. Although the spam is “legislative”, however, legislative initiative is not limited to the submission of a draft law to the Parliament. The Rules of Procedure require the legislative initiators to submit other supporting documents, including an explanatory note. It is this document that should help MPs and the public become familiar with the main purpose of the draft law and its key provisions. The explanatory note itself can help solve the problem of “legislative spam”. According to the Rules of Procedure, the explanatory note should include:

1. Justification of the need to adopt the draft law, its goals, objectives and main provisions, and its place in the legislative system.
2. Justification of the expected socio-economic, legal and other consequences of the law after its adoption.
3. Other information necessary for the consideration of the draft law. 

According to established practice, the sections (parts) of this document are typically titled as such. However, the established requirements are often only met de jure, with just a few sentences used for justification, and the unit responsible for registering draft laws only conducts a formal check of the explanatory note or other supporting documents According to Article 92 of the Rules, a draft law or other act must be rejected for registration if it is submitted in violation of the requirements. . Instead, the need to prepare explanatory notes in clear and understandable language, together with the need to align them with existing policies, will either reduce the number of submitted draft laws (as authors will be able to assess the priority of their own draft law at this stage) or enable the Secretariat of Verkhovna Rada to reasonably reject submitted draft laws on the grounds of non-compliance with the criteria. 

But what exactly should be included in a well-prepared explanatory note? Let’s look at the experience of other countries.

International experience

The experience of the Ukrainian parliament regarding the mandatory submission of explanatory notes is not unique. The requirements for submitting supporting documents to a draft law, including mandatory submission of explanatory notes (memoranda, explanations), are outlined in the rules of procedure An internal document regulating the procedures of a foreign parliament may be called a 'Standing Order' or 'Rules and Procedures'. Hereinafter, the more common term 'regulations' is used in reference to such documents. of many parliaments, for example, in:

1. Parliament of New Zealand (explanatory notes).
2. The Estonian Parliament (explanatory memorandum).
3. The Turkish Parliament (justification).
4. to the lower house of the Spanish parliament (explanatory memorandum).
5. German Bundestag (explanatory memorandum). 

A similar practice exists in the lower house of the Czech Republic. Thus, every draft law must be accompanied by an explanatory report analysing the current state of legal regulation and explaining the need for the new legislation in general and regarding its specific provisions. Each explanatory report must also include a description of all anticipated economic and financial consequences of the new legislation, especially those related to the state and regional budgets, as well as an assessment of the draft’s compliance with international treaties and the Czech constitutional order.

The rules of procedure of some countries set more detailed requirements for supporting documents and explanatory notes for government initiatives. For example, the Rules of Procedure of the Greek Parliament specify that every draft law must be accompanied by an explanatory note, which should contain the reasons and purpose of the proposed changes. Government proposals must also include an impact assessment report and a report on public consultations held. In certain cases, such as when the Government has declared the draft law urgent, a short evaluation report may replace the impact assessment and a public consultations report. The Rules of Procedure in Portugal also contain different requirements for government draft laws: a descriptive memorandum must be submitted detailing the social, economic, financial and political situations to which the project relates, information on the benefits and consequences of its adoption, and a list of current legislation in this area. Additionally, governmental draft laws must be accompanied by research, documents and conclusions with justifications, as well as the positions of the authorities consulted by the government during the adoption process.

In Bulgaria, a draft law submitted by a parliamentarian must also be accompanied by a document explaining the reasons for the need to adopt the draft law and a preliminary impact assessment, which must be conducted according to a methodology set out in a separate annex to the Rules of Procedure. The preliminary impact assessment must identify: the grounds for the legislative initiative, the stakeholders involved, cost-benefit analysis, expected changes in the structures of administrative bodies, information on the need to amend other regulatory acts, and details on how the draft will contribute to the principle of equality. 

An extensive list of requirements for an explanatory note is also set out in the Rules of Procedure of the Seimas, the Lithuanian parliament:

1. The reasons for the development of the draft, the tasks, and the objectives of the prepared draft.
2. Names/titles of the initiators of the draft law (institutions, individuals or representatives authorised by citizens) and individuals responsible for drafting the law.
3. The current legal framework governing the issues addressed in the draft law.
4. The proposed legal provisions and expected positive outcomes.
5. The results of the assessment of the expected impact on legal regulation (provided that such an assessment should be carried out during the development of the draft law and its results are not provided in a separate document), potential negative consequences of the adopted law, and measures to be taken to avoid these consequences.
6. Information on the impact of the adopted law on crime and corruption.
7. Information on the impact of the law’s implementation on business conditions and business development.
8. Information on the place of the law in the legal system, legal acts that must be adopted, and existing legal acts that must be amended or repealed after the adoption of the proposed draft.
9. Information on the compliance of the draft law with the requirements of the Law on the State Language, the Law on the Legislative System and the evaluation of the definitions used in the draft law and terms related to the definitions in accordance with the procedure established by the Law on the Terminology Bank and legal acts adopted to implement the Law.
10. Information on the compliance of the draft law with the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the documents of the European Union.
11. The names of the authorities that must adopt the legislative acts, if necessary for the implementation of the law, and the timeframe for their adoption.
12. The amount of funds from the state, municipal budgets and other state funds that will be spent or saved during the implementation of the law (estimates are provided for the next year and the following three years).
13. The assessment and conclusions of professionals obtained during the development of the draft law.
14. The keywords of the draft law necessary for inclusion in the information search system, including concepts and sections of the Eurovoc thesaurus.
15. Other justifications and explanations that the initiators consider necessary. 

1. A comparative version of the submitted draft amendments to the law or any other legal act to be adopted by the Seimas, which reflects the essence of the changes proposed by the draft, unless the submitted draft is a new version of the law or any other legal act to be adopted by the Seimas.
2. An itemised table of equivalence demonstrating the equivalence of the EU legal acts being implemented and the draft law, if this draft law implements the legal provisions of the EU acts.
3. The results of the assessment of the expected impact of the legal regulation, if such an assessment is to be carried out when drafting a law or any other legal act to be adopted by the Seimas and its results are not reflected in the explanatory note. 

The draft law, if necessary, is accompanied by a draft law on the procedure for implementing this law. The draft law is also accompanied by drafts of other legal acts that must be adopted by Seimas, which amend or repeal existing legal acts and must be adopted after the submitted draft law comes into force.

The Rules of Procedure of the Parliament of North Macedonia state that a draft law must be accompanied by an introduction and an elaboration. The introduction should contain an assessment of the state of the sector proposed to be regulated by the law and the reasons for the need to adopt the law, information about the goals, principles and main provisions of the draft law, an assessment of the financial impact of the draft law for the state budget, an assessment of the financial resources required to implement the law, and whether the law imposes material obligations on specific entities. In addition to these points, the submission may also include an overview of the rules of other legal systems and the compliance of the draft law with EU law, information on gender equality compliance, a list of other laws that need to be amended or adopted to implement the law, and an impact assessment. The explanation should contain an explanation of the content of the provisions of the draft law, their interconnection and the consequences of the proposed provisions.

The future of Ukrainian explanatory notes

The requirements listed above for explanatory notes should in no way be seen as a limitation of the constitutional right of parliamentarians to legislative initiative. All the norms mentioned earlier in the context of international experience were established by the parliament itself. That is, the established requirements do not restrict the legislative initiative, but, on the contrary, through self-regulation, the parliaments of these countries have simply defined the order and procedure for exercising this right.

Ukrainian Members of Parliament have also already established new rules for the preparation of draft laws and supporting documents (although they may not have realised it yet). For example, according to the Law of Ukraine “On Lawmaking” adopted in 2023, the results of the assessment of the draft law’s impact on social relations will become a mandatory part of the explanatory note to the legal act. In addition, some legal acts will need to develop concepts that will outline the basic principles of regulating social relations and reflect the results of analytical studies. These changes will come into effect one year after the termination or cancellation of martial law in Ukraine.

Such conditions for submitting draft laws will, firstly, help MPs, stakeholders, the media and citizens to understand the purpose and content of the proposed regulatory act. A well-prepared explanatory note with an impact assessment and evidence of the relevance of the problem, explaining the main provisions of the draft law in plain language, will greatly simplify the processing of the draft law by parliamentary departments and committees. Secondly, explanatory notes are already used to determine the purpose of regulation at the stage of law implementation, for example, when considering cases by courts of general jurisdiction and the Constitutional Court of Ukraine. Thirdly, if the implementation of the law involves expenditures from the state budget, the inclusion of a financial and economic justification in the content of the explanatory note will help the subjects of legislative initiative to comply with the principle of a balanced budget. 

Certainly, the mere existence of requirements for explanatory notes is not a sufficient safeguard against legislative spam. The unit of the Verkhovna Rada Secretariat responsible for registering draft laws should have sufficient human and material resources to refuse to register draft laws in a timely and reasonable manner, including those with poor supporting documents. Such a unit should not be subject to political pressure, for example, to refuse to register draft laws authored by opposition factions or, conversely, to register draft acts of the coalition even if they do not meet the established requirements. If these conditions are met, then Ukraine will have a real chance to overcome “legislative spam”.