Speed is the only principle in the Bulgarian legislative process that is observed one hundred per cent. This is what Tony Dimov, Doctor of Law, who has been observing the production of laws in the country and monitoring their quality for years, tells “Trud”. In his view, this production is so abundant and short-lived that even its producers do not know it. “It happens,” he says, “that members of parliament only find out what rule they have created when it has to be changed.”
Mr Dimov, two years have passed since the Law on Normative Acts (LNA) obliged the legislator to carry out an ex-ante impact assessment of the provisions it composes or amends, and also to consult experts and citizens on the need for them. Has the expectation that this would stop members of parliament from making garbage out of paragraphs and sub-paragraphs been justified?
The regulatory reform introduced by the LNA in 2016 will be slow and difficult. It will be years before its beneficial effect shows. Because in our country there is no culture of the rule-making process, nor any motivation to improve it by collecting data. It seems that those in power have no need to prove to their voters that they carry out legislative activity in the interest of society as a whole. More than once, behind the haste or behind the collective (ir)responsibility of the state bodies, parties or groups proposing regulatory measures lies a private interest they pursue that differs from the public interest. A big surprise for me and my colleagues at the Center for Regulatory Impact Assessment was the National Assembly’s initial refusal to comply with the requirement to hold public consultations on bills within 30 days. For us this is incomprehensible, inexplicable. The central state body through which the sovereign is represented does not want to consult its voters when taking the most important decisions! It deprives itself of this process, which is meant to give its acts openness, legitimacy, publicity! Why? Public consultations are an easy and effective generator of the scarcest commodity in our country – people’s trust in the authorities. Is parliament’s rating so high that it needs no more public trust?
Obviously that is not the explanation
I explain this phenomenon by the haste in rule-making. Haste has become an unwritten principle, and the only one observed 100% in the Bulgarian legislative process. When they have no objective answer to the question of what requires the adoption of one law or another, legislators pull out the argument that the dynamics of social relations require quick decisions. There is another phenomenon that surprised us – the elementary way in which those in power circumvent the Law on Normative Acts by “applying” it in inverted commas. Everything is public – every draft law with its explanatory memorandum and impact assessment is published online – and we did not imagine that anyone would dare to prepare assessments on a conveyor belt, by copying, by copy-paste. But this is what happens: the same assessment, with bare phrases and expressions empty of content, is stuck onto all sorts of drafts.
Is that why every newly adopted law in the National Assembly is amended at least once within 6 months – either before it is voted or after?
Good impact assessments should lead to better regulation. Formal and fake assessments are worse than having none at all. Through them, those in power who are influenced by private or group interests can mislead us into believing that a legislative proposal is badly needed and urgent.
Can you give concrete examples of how the Law on Normative Acts is circumvented?
I will give you extracts from the monitoring we carried out from the end of 2016 to the end of 2017. I quote: “The need for this legislative initiative is obvious – the problems with the non-market nature leading to high fuel prices in Bulgaria are not from yesterday.” This is part of an impact assessment for the Draft amending and supplementing the Value Added Tax Act, submitted by members of parliament from the Reformist Bloc. Tell me, where does the “obviousness” come from? And if the problems are “not from yesterday”, are they from the day before? And what objective justification does this assessment contain at all? Here is another quote – from a draft by members of parliament from “Volya” amending the Civil Procedure Code: “The group interested in the adoption of the legislative initiative is the whole of society. Guaranteeing the rights of both debtors and creditors and ensuring easier access to justice is in the interest of the whole public, since for one reason or another a citizen is a party or may at some point turn out to be a party to proceedings under the CPC.” What is the expression “for one reason or another a citizen is a party or may turn out to be a party to proceedings under the CPC” supposed to mean?
What?
This expression is meaningless. It sounds like mockery – not of the expert part of Bulgarian society, but simply of its literate part. Listen to another text: “The bill will contribute to improving the business climate and overcoming the so-called grey sector in agricultural production.” This is part of an assessment of the Food Act submitted by BSP members of parliament. An assessment should not contain declarations of this kind; it must show with data who the “grey sector” is and exactly how the “improvement of the business climate” will be achieved. Shall I give you more examples
Give one more?
“After the adoption of the amending law to the POSA, an improvement, and in certain cases an easing, of the legal regulation is expected, as well as a shortening of the time limits for the supervisory authority to rule in some administrative proceedings.” The quote is from a draft amending and supplementing the Public Offering of Securities Act, submitted by a group of GERB members of parliament. What exactly does “easing of the legal regulation” mean? It is not clear. And who needs these declarative phrases? They have no place in assessments!
And the assessment of the draft amendment to the Commerce Act? The amendment that aimed to stop company owners from avoiding paying social security contributions and salaries by transferring shares to third parties.
This bill for “tackling modern slavery”, as it was advertised, turned into a bill on “how to make life bitter for business”, which is not very sweet anyway. To avoid harsher words, I would say that this is an emblematic example of bad regulation and an ill-conceived rule. We introduce a requirement to certify certain circumstances, which blocks the right of every owner of company shares to dispose of them freely. But we do not provide for how this certification will be carried out. And once the legislative blunder is a fact, we leave its addressees to sort things out as they see fit. And the refusals from the Registry Agency begin.
And what about the amendment to the Criminal Code under which any company manager could, after an unfortunate deal, bear criminal liability for a corruption offence?
We studied this proposal specially. It attempts to greatly extend the scope of the so-called “corruption offences”, but it clearly contradicts that concept. The eating away of the state – that is the basic meaning of the word “corruption”. It covers acts by persons vested with power who do or refrain from doing something in exchange for benefits not due to them. And here again we were surprised! If we assume that there are over 300,000 commercial companies in our country and each has a manager, it turns out that over 300,000 persons are potentially affected by the amendment to the Criminal Code in question. Yet within the 30-day period for public consultation at the Council of Ministers not a single opinion was submitted on it. How do we explain that?
I don’t know.
– In my view, it is due to a lack of trust in the system. People do not believe that if they take part in the consultations anyone will listen to them at all. This is a symptom that they are deeply disengaged from everything that happens in rule-making. Including what concerns tackling corruption at the higher levels of power. We fail to apply effectively the law on corruption offences to tens of thousands of persons at the higher levels, yet we extend its scope to hundreds of thousands. Will that solve the problem of corruption? And solving it is a priority for our country. Because of it, the country has been under long-term monitoring, which continued even during our EU Presidency – unprecedented in the history of the EU! We are something like a bedridden member of the Council of the EU who has been under constant observation by other Member States for 10 years. And suddenly we had not only to get out of bed but also to chair the Council, set its agenda and propose remedies, although it is common knowledge that we ourselves have not recovered. There is something very hypocritical in this situation. The cause lies not only with us but also with the Union. In my view, when, because of Brexit, Bulgaria had to take over the rotating presidency early, we should have declared that, being under monitoring, there was no way we could do it. We should have put the question like this: either the monitoring is lifted or we refuse to hold the presidency. But that is another topic; let us return to legislation.
I heard you on television talking about “normative inflation”. What does that mean, other than that the rules change very often?
Normative inflation is similar to economic inflation, except that it is linked not to printing devalued money but to producing illegitimate regulatory measures, from which follows the principle “as you impose them on us, so we will observe them”. A huge number of normative acts are adopted in a short time, “by the kilo”. Moreover, the legislator itself cannot keep track of what it has adopted and what must be observed, and by the time it finds out, it changes. Normative inflation leads to fragmented, overlapping and unclear legislation, which causes a loss of trust in the system that produces it. A vicious circle is created: abundant legislation – legal nihilism – non-compliance with laws – ineffective law enforcement.
What kind of people write the impact assessments of laws?
They are the best experts, who carry out assessments using the most indisputable scientific methods. And they must be people aware of their responsibility for the future of the state. Because the quality of the rules we observe or not determines the quality of our lives. Just as failure to observe traffic rules leads to accidents.