1. Evaluation of reform policies of the Parliament and Government during the period of September 2019 – September 2020 and its compliance with the Toronto Principles (based on the analysis of the Government Program, the plans of the ministries and the adopted/rejected regulatory acts)
Two governments were formed during the year of functioning of the Verkhovna Rada of Ukraine (hereinafter - the Parliament) of the IX convocation. The Program of Activities of the Cabinet of Ministers of Ukraine (hereafter - CMU) of Oleksiy Honcharuk declared state policy-making among its main tasks. It also declared to make every effort to turn Ukraine into a service-oriented state by 2025. In March 2020, the Government of Oleksiy Honcharuk was replaced by the Government of Denys Shmygal. In June, its Program of Activities was approved (although not supported by a parliamentary majority), which identified the improvement of the public administration system as one of the areas for the efficient use of resources for the maintenance of executive bodies. At the same time, despite the rhetoric of supporting the already existing vector of reform, the actions of both the Government and the parliamentary majority could be assessed as "rollback of the reform."
Both governments were practically formed by President of Ukraine Volodymyr Zelensky and were formally appointed by the Parliament in one day without proper discussion and following relevant political procedures. The constitutionally defined influence of the Parliament on the process of forming the Government was also reduced due to the appointment by interim Minister of the candidates who did not receive the support of the parliamentary majority, but whose appointment was supported by the President of Ukraine.
The activities of the Shmygal Government were significantly influenced by the global COVID-19 pandemic, which spread to Ukraine since it assumed the office. For several months, the Government's focus has put exclusively on disease prevention and maintaining the quarantine
In September 2019, the new MPs introduced significant changes to the Law of Ukraine on Civil Service. Most of them undermine the principles of stability and democracy of the civil service institute (in particular, changes concerning the competitive procedure for admission to public service, dismissal of civil servants of category "A", etc.). Thereby, ten secretaries of state ministries have been dismissed under the new Article 87 (on the initiative of the newly appointed Prime Minister or a minister of Ukraine). It is proposed to eliminate this erroneous article by the draft law of June 26, 2020 № 3748. A number of other draft laws have been registered in the Parliament to resolve certain points of the civil service.
The Shmygal’s government, considering its Agenda in the part of good governance, also did not refuse to pursue the public administration reform. It made the first attempts to clarify the need to adopt a comprehensive Law of Ukraine "On the Cabinet of Ministers of Ukraine and Central Executive Bodies" with the participation of experts. The draft of this document was prepared by a working group with participation of the European Union experts in 2018-2019. This issue was not even discussed in the Honcharuk’s Government.
The December resolution of the Honcharuk’s Government enshrined the creation of directorates in all the ministries, not just in the pilot ones. However, the compiled list of directorates did not stand up to criticism: instead of creating directorates that would cover all areas of public policy, and then defining priorities for each of them (CPI), it was planned to create directorates for the specific goals mentioned in the Program of Activities. As a result, the number of the Directorates exceeded the optimal number in 1.5 times, while they did not cover at least 20 important areas of public policy. So far, the Shmygal’s Government has not introdused significant changes in that issue. However, he is systematically increasing the number of ministries cut by the Honcharuk’s government.
The amendments to the current Law on the CMU expanded the powers of the Secretariat of the CMU, and the amendments to the Law on Central Executive Bodies (hereafter - CEBs) added commissions to the types of other central executive bodies. This decision is ambiguous since they are considered to be "independent regulators", which does not provide the same status with other CEBs. However, the definition of commission in this law is absent, although other types of bodies are defined. At the same time, the National Commission for State Regulation in the Fields of Energy and Public Utilities was referred to the CEBs with special status.
Honcharuk's Government approved new CMU Regulations.
According to the Government Report on the Progress and Results of the Implementation of the CMU Program of Activities, a modern civil service personnel accounting and management system – HRMIS – was launched in 2019 in three pilot institutions (National Agency of Ukraine for Civil Service, Ministry of Digital Transformation of Ukraine, Ministry of Finance of Ukraine) and a knowledge management portal that will improve the conditions for professional training of public servants.
The Government has declared the introduction of a check-list system in the evaluation of government draft acts, which should ensure the formation of a standardized system of analysis using policy analysis tools. In addition, the report discusses the implementation of the Methodology for preparing forecasts of the impact of the implementation of acts on the interests of stakeholders and the Methodology for holding consultations with the parties concerned.
The Honcharuk Government’s adoption of the performance, efficiency and quality indicators of civil secretaries and chiefs of other CEBs for 2020, as well as the Government's efforts directed at improving the system of training and professional development of civil servants, can be positively evaluated.
However, the appointment to the civil service on terms of a contract for the period of quarantine, introduced by the Government of Shmygal, received mixed reviews, especially in case it would remain in place after the quarantine.
In the area of administrative services, the key focus is on the issue of their electronification, which is certainly appropriate in view of the established goals of the CMU Program of Activities; however, other important issues are being not resolved. Despite SIGMA's positive conclusion, the Government decided to "refine" the existing, well-drafted bill on administrative procedure. After about six months of constructive work on the bill, the Government submitted it to Parliament in May 2020.
Thus, some steps of the both Governments can be assessed positively, while others are quite controversial and questionable. Both governments failed to systematically and rapidly reform the public administration.
2. Current challenges / issues in the relevant policy area
It is difficult to expect significant positive changes in the reform of the public administration, unless the Prime Minister of Ukraine will take personal care of them. Oleksiy Honcharuk did not prove to be active in that respect. Denys Shmygal also does not show proper initiative in that area. In addition, the COVID-19 pandemic in 2020 objectively hinders the situation.
The CMU Regulations did not fundamentally change the organization of the CMU work, as there was no new law on the CMU and CEBs, the provisions of which should be disclosed and detailed in the Regulations.
Not all of the principles of organization and operation of public administration as defined in the Toronto Principles are adhered to. Thus, most of the changes made to the Law of Ukraine on Civil Service indicate problems of compliance with the rule of law. On the basis of the amendments, dozens of civil servants of category "A" were dismissed.
The principle of the separation of political and administrative powers and positions is at risk. For example, without denying the necessity of the existence of the institute of state secretaries, the amendments to the Law of Ukraine “On Civil Services” eliminated the guarantee of their stability, as well as of all the civil servants of category “A”. In turn, this will adversely affect the principle of political neutrality and impartiality of the civil service, which over time risks becoming a "vassal" of political officials.
In addition, there remains a problem of adequate staffing of the civil service by the necessary level of specialists due to the inappropriate time requirements and the actual tasks of the civil servants in the personnel training system, as evidenced by the responses of the reform experts appointed during 2018-2019.
The experts consider the appointment to the civil service on terms of a contract for the period of quarantine is perceived as a leveling of the competitive procedure, and also raise concerns that such an appointment may be "rooted" in the practice of public administration.
There are problems with adherence to the principle of transparency of public administration bodies for the public, as preliminary public discussions of draft legal acts did not always take place, and the first meeting of the Prime Minister of Ukraine, Oleksiy Honcharuk, with the public took place just before 100 days of the Government's work. Due to the quarantine restrictions, Shmygal's Government does not hold public meetings at all.
In the area of administrative services, the issue of delegation of powers for the provision of a number of basic administrative services to local government and legislative regulation of the payment area for such services is hardly paid attention to. The process of decentralization of civil registration services (DCRS) has been stopped. Instead, the creation of separate departmental offices continues. Due to the disapproval of the law on administrative fees, citizens suffer from illegal payments for some administrative services and community budgets are underfunded by the others.
The Bill on the Administrative Procedure registered in 2018, was submitted to the Parliament by the Government after almost a year of revision, it was adopted in the first reading on September 2, 2020.
3. Recommendations for priority actions in 2020-2021, in particular, for the agenda of Parliament's second session
The Government is recommended to:
- consider the draft law on “On the Cabinet of Ministers of Ukraine and Central Executive Bodies” and submit it to Parliament;
- adopt the Bill "On Amendments to Certain Legislative Acts of Ukraine on Improving the Civil Service" of June 26, 2020 № 3748 and correct regulatory "errors" made in the Law on Civil Service in 2019, which undermined the stability and democracy of the Civil Service Institute;
- review the Strategy on reforming the public administration of Ukraine for the period up to 2021 and to implement it in conjunction with the Concept of optimization of the system of central executive bodies;
- create directorates in all ministries in accordance with all areas of public policy for which they are responsible;
- agree on a plan for competitions to fill directorates among ministries in order to gradually staff them in the order of priority of the revised Strategy;
- continue to reform the Ukrainian School of Governance and the National Academy of Public Administration in order to improve the standards of education and to refocus education services with those of the European Union;
- complete the decentralization of all administrative services, facilitate their implementation in administrative service centres, and regulate the level of payment for administrative services on the level of law;
- adopt the law on general administrative procedure;
- eliminate the reasons for the partial implementation of the reform measures in the previous years and the failure to comply with the deadlines set out in the Toronto Principles in order to prevent non-compliance or breach with the 2020-2021 deadlines, strictly adhere to the principles of organization and operation of executive authorities as defined in the Toronto Principles.