How the Hungarian government makes it look like they are asking people for their opinion

By simply looking at the pie chart in the "Audit Report" published in early February by the Antal Rogán-led Government Control Office (KEHI) one might believe that civic dialogue is a well-established and well-functioning practice in Hungary. The government can even boast to the European Commission that it consults with voters on more than 90 per cent of its legislative proposals.

However, one only has to take a step back to see that this seemingly more stringent system of public consultation does not really make much sense. A substantial part of society is excluded from the possibility of consultation by default, as it can only be done by email, via a hard to find interface on the government website. And the government's response to comments is usually 'no modification necessary'. So the cabinet, however much it may advertise it, is not taking its own system very seriously at the moment.

According to a 2010 law, draft legislation prepared by ministers can be commented on by private individuals as well as non-state and local government bodies. Up until recent months, the government didn't even take this seriously enough to at least occasionally post government proposals on a public platform, but the fight for EU funds has prompted some change in this attitude. Last autumn, a state body – the Government Control Office (KEHI), which is part of Antal Rogán's ministry – was tasked with carrying out an annual check on whether ministers are complying with their previously defined obligation to provide an opportunity for the public to give their opinion on proposed legislation.

At the government briefing on 7 July, Gergely Gulyás announced that the Hungarian government had committed to launching a public consultation before passing legislation, and to giving citizens and organizations sufficient time to comment on the drafts. This was then adopted into law in October:

• ninety percent of draft legislation will be submitted for public consultation;
• the speed of legislation will be reduced;
• In addition, KEHI can impose fines for non-compliance.

The Government Control Office inspects the data published in the Hungarian Gazette and on the government website listing the various ministries, under the so-called documents of public interest. In the period audited, which is assumed to date from the audit introduced in October, a total of 682 laws and regulations were issued, but 123 of these did not belong under the law and 154 were "subject to consultation before the audited period" – so they could not be included.

Of the remaining 405 laws, 92 percent, or 373, were published following public consultation, while 32 laws did not need to be consulted on, according to the summary published by KEHI. Thus, the audit found that the legal requirement was fulfilled.

But why is it all pointless?

The truth is, that with one exception, the more than a hundred public consultations that have been concluded so far have had no substantive consequences. The only exception is the draft called "Hungary's Green Public Procurement Strategy 2022-2027", which is described in the summary of the public consultation as follows: “The expert suggestions made in the comments have been largely accepted by the proposer and have been incorporated into the draft.”

However, more than 110 of the 120 summaries of public consultations posted on the government's website by the beginning of February had been marked with the brief statement: "no substantive comments were received" or "no opinion was received".

What they do not say, however, is how many comments they believe were not substantive, or even what they consider to be substantive. There are also some counter-examples, where the report states from where and what comments were received. But here too, without exception, the suggestions were met with rejection, saying that the "proposal is contrary to the purpose of the legislation" or that the matter "falls within the competence of Parliament". Some of the rejections in these government summaries argued that the proposed legislation "is implementing a government decision", so there is nothing for the responder to do here.

There are several problems with the current system for monitoring public consultation. The most significant is that KEHI is not an independent body: it is overseen by Antal Rogán, the Prime Minister's Chief of Staff, and is therefore effectively under the control of the Prime Minister. If this office fines ministries, then effectively one hand of the State is punishing the other.

Moreover, there are no consequences beyond the fine if new laws are passed in violation of the rules. Not to mention the fact that consulting with professional organizations and the wider society continues to be bypassed.

Anti-corruption NGO, K-Monitor also commented on the brutal figures and the results recently published by KEHI, noting that while the figures look nice, they are heavily embellished by the fact that all the laws about the renaming of the counties (LINK) were subject to public comment. The simple reason for this is that technical changes need to be consulted on.

K-Monitor also "tested" the consultation process: in two out of three cases, their comments received the aforementioned "no amendment necessary" response. They also received the reply stating that "the proposal is implementing a government decision".

The proposal on the Hungarian ratification of Finland's and Sweden's accession to NATO, which has been pending for more than half a year, was not put on the agenda of Parliament for a long time on the grounds that the "social consultation" on the issue was ongoing. In this and several other consultations it is stated that as a result of these consultations, even "the entire content and form of the attached draft may be amended", but this has not happened so far.

No consultation on the truly important things

The required public consultation, i.e. the consulting of the public, does not generally cover legislation that may be adopted under a special legal regime. There has been no shortage of these in Hungary in recent times, and the government has taken to using them to regulate matters that have nothing to do with the "state of danger" due to the war in Ukraine that is now in force. For example, the emergency has been used as an excuse to simplify dismissing teachers, and fixing the official fare for taxis by decree has also been necessitated by the war in Ukraine.

The lack of genuine social consultation is perhaps best illustrated by the summer reform of the law on small businesses: the government pushed the proposal directly affecting hundreds of thousands of people, through Parliament in just two days, and there was no possibility for any kind of social dialogue.

Governing by emergency decrees has become so pervasive that, according to a recent summary by HVG, by the end of January this year a total of 167 legal provisions justified by "the war" had appeared in the Hungarian Gazette, and including government decrees and decisions with other emergency references, the number of laws justified by reference to at least one, but usually several, sources of danger is nearing three hundred. The article also pointed out that, since autumn 2015, there has been a persistent pattern of legislation made possible by the recurrent declaration of crises and emergencies under various headings (migration, epidemic, health, energy, war, humanitarian), i.e. the government has been revising laws and issuing government decisions citing emergency powers.

But it is not only the decrees or legislations passed during a state of danger that catches the eye upon closer inspection. Among other things, decrees issued by the Prime Minister and the Governor of the Central Bank cannot be subject to consultation, nor can state subsidies, payment obligations, budget figures, EU subsidies, or draft legislation on the creation of organizations and institutions. The list does not end here, as

no consulting is necessary on legislation that "serves the protection of Hungary's interests" in matters of defense, national security, finance, foreign affairs, conservation of nature, environmental protection or the protection of heritage.

However, laws, government regulations and ministerial decrees that fall outside this not insignificant scope may be subject to consultation.

Transparency International has previously commented that the proposal on social consultation which the government published in the summer calling it a "measure designed to help reach an agreement with the European Commission", was a sham. For public participation in lawmaking, Transparency argues, genuine governmental will and much stronger guarantees would be needed.

The international rights organization noted that there has been a tendency in the past to bypass mandatory public consultation: government plans have been set before Parliament in the form of individual motions, thus bypassing the rule stipulating consultation – this is how, for example, the Equal Treatment Authority (Egyenlő Bánásmód Hatóság) was abolished back in the day.

Consulting with the government isn't so easy

The implementation of the consultation is a ministerial task stipulated by law. There are three types of consultation, of which, based on recent experience, the government prefers to use "general consultation", which can currently be done through the government website kormany.hu, by going to the subpage of the ministries. At the time of writing, consultation is ongoing on some proposed drafts, such as the government's proposal to exempt battery factories from spatial planning rules.

But the consultation document is not so easy to access online:

• one must first visit the government's website for ministries, kormany.hu;
• once there, select the menu item "data of public interest" (közérdekű adatok); then
• select the relevant ministry in the search field, where after searching for draft legislations, the files will appear. And then, the draft legislations that are currently under consultation should also appear; it is from here that
• the public can send their comments or suggestions to the email address indicated.

The page usually contains a short summary of the draft legislation put forward for consultation, the text of the draft legislation itself, the explanatory memorandum and, where available, the impact assessment. Comments should be sent to the provided address by the marked deadline.

With this not-too-simple method, practically anyone can start a public consultation. The minister must draw up a summary of the comments received, which, by law, must be published on the website along with a list of those who submitted the comments.

At the end of the first period under review by KEHI, the authority also published data on how many infringements had been committed by each ministry:

Eight of the ministries did not wait for the required deadline for comments on 24 pieces of legislation, and there were also instances where publication was omitted altogether. For this, the ministries concerned were sanctioned with a fine of approximately 24 million forints.

Under the relevant regulation, KEHI can impose fines of between one million and one hundred million forints. For example, the Ministry of Interior failed to meet the deadline for nine pieces of legislation and was fined eight million forints. But the Ministry of Energy (formerly the Ministry of Technology and Industry), the Ministry of Justice and the Ministry of Culture and Innovation also made mistakes.

We also contacted the Ministry of Justice, the Prime Minister's Office and the Ministry of Regional Development headed by Tibor Navracsics, who is also responsible for EU funds, to ask how they perceive this new, stricter system of public consultation.

We also wondered why a more accessible, simpler interface for public consultation was not made available, and we also asked whether this system, in this form, could facilitate agreement with the EU. At the time of writing, no response had been received from either place.

Earlier, we had also contacted the Ministry of Finance to ask how many responses they had received to the consultations they had published, or whether there were any proposals that had been amended after consultation. We have not received a reply to this request either.