The Legislative Process in the Defence Sector: A New Study by ALI

The legislative process is a legally prescribed procedure for passing a law, which consists of a series of logically defined stages. As in any other area, the legislative process in the defence sphere is planned and based on strategic and defence-planning documents developed following the inauguration of a newly elected President: the National Security and Defence Strategy of Ukraine and the documents drawn up to implement and build upon this Strategy.

However, the full-scale war affects the content of legislative proposals, since they now concern not only planned changes aimed at reforming the defence sector, but also urgent responses to security challenges.

Focus and Methodology of the Study

The purpose of this study is to track the features, challenges and problems of the legislative process in the defence sphere.

For this, we examined legislative work in this area within the framework of the general procedures defined by legislative acts: the Constitution of Ukraine, the Rules of Procedure of the Verkhovna Rada, and the Rules of Procedure of the Cabinet of Ministers of Ukraine, which regulate current processes of preparing draft laws. The study also analyses the Law of Ukraine ‘On Law-Making Activity’, the entry into force of which will have an impact on the legislative process.

The analysis is based on desk research of publicly available information (legislation, decisions of the Constitutional Court of Ukraine, academic articles, analytical studies, media publications, and so forth), as well as in-depth semi-structured interviews with representatives of the Ministry of Defence and the Secretariat of the Verkhovna Rada. The particular features of law-making in the defence sphere and the challenges facing government legislative initiatives are examined through the example of four government draft laws.

What Characterises the Legislative Process Specifically in the Defence Sector?

Several key actors are involved in the legislative process in the defence sphere — the President, Parliament, Government, NSDC, the Ministry of Defence, and the General Staff.

In practice, however, the preparation and adoption of decisions, and the interaction among all these actors, vary considerably. When their positions are aligned, politically motivated decisions — or those dictated by the demands of the moment — are prepared, adopted and brought into force quickly. In the absence of consensus, however, even the most urgent decisions may be delayed at any stage.

This model of interaction affects all processes — reflecting both gaps in normative regulation and systemic problems in legislative practice.

1. Lack of a clear systemic approach to planning work and adhering to plans. The situational formation and adjustment of the agenda, as well as legislative ‘spam’, lead to inefficient use of Parliament’s resources, delays in the consideration of draft laws, and sometimes to the loss of their relevance.
2. Uncertainty and the limited effectiveness of the pre-draft stage hamper the formation of high-quality legislative initiatives.
3. Insufficient transparency and openness of the public consultation process prevent the collection of feedback from stakeholders.
4. Difficulties in the passage of draft laws in Parliament can result in their prolonged delay or in amendments that alter the original purpose of legislative initiatives.
5. Fragmentary analysis and use of impact assessment tools. This deprives the legislative process of an evidence base and of clear indicators of the effectiveness of a decision, limits the ability to anticipate the possible consequences of its adoption or rejection, and reduces the quality of communication among participants in the legislative process.
6. Certain provisions of the Rules of Procedure of the Verkhovna Rada are ‘dead’ or simply do not function properly (for example, the third reading, most of the deadlines, or the requirement to prepare supporting documents for certain types of laws). Instead, living parliamentary practice creates hybrid procedures and mechanisms not provided for by the Rules of Procedure.
7. Violation by the President of the constitutional deadline for signing a law adopted by Parliament, or the use of the veto, which causes delays in promulgation and entry into force. Some laws do not receive the President’s signature at all and, in effect, remain suspended in a legislative vacuum, without the possibility of implementation.
8. Lack of effective mechanisms for monitoring the implementation of adopted laws and for retrospective impact assessment, which complicates their enforcement and the understanding of their effectiveness.

A cross-cutting problem of the legislative process is the absence of effective communication and coordination among its participants, and the lack of political will, which at times becomes an obstacle to the adoption of decisions that are timely and well-founded.

Recommendations

Ukraine is gradually approaching the point where it needs to rethink the entire legislative process and introduce the concept of a ‘from start to finish’ legislative cycle through amendments to the Constitution and the laws of Ukraine. In view of martial law, constitutional amendments are a matter with an uncertain outlook. Yet it is critically important to introduce fundamental principles and rules that must be followed during the planning, drafting and adoption of legislation, in order to modernise the legislative process in line with actual practice.

• Adapt the legislation on law-making to the policy cycle. This will make it possible to adopt decisions that are reasoned, consistent and effective.
• Establish uniform requirements for all law-making actors regarding the preparation of draft normative legal acts and draft laws.
• Strengthen the role of the Government in the legislative process. This is an important step towards ensuring the systematisation, effectiveness and evidence base of public policy. As the key centre of policy formation, the Government is responsible for the development, coordination and implementation of public policy in all spheres and has the necessary resources to justify policy on the basis of evidence.
• Change approaches to communication and coordination among the key participants in the legislative process in the defence sphere, at every stage.

All this will make it possible to achieve an optimal balance between the quantity and quality of legislative initiatives, which is especially important not only under martial law but also during post-war recovery.

Further details on each point, the problems and recommendations can be found in the new study by the ALI.

The study was prepared within the framework of the project ‘Parliamentary Accountability of the Security Sector in Ukraine’ (PASS Ukraine), which the Agency for Legislative Initiatives is implementing jointly with the Parliamentary Centre (Canada), in cooperation with the Verkhovna Rada of Ukraine and with the support of Global Affairs Canada under the Peace and Stabilization Operations Program (PSOPs). The PROTECT2 project, funded by the Department of National Defence of Canada, contributed to the development of certain provisions of this document.