PUBLIC PARTICIPATION IN DECISION-MAKING PROCESSES.

Participation in decision-making processes means a possibility for the citizens, civil society organizations (CSOs) and other interested parties to influence the development of policies and laws which affect them. The importance of engaging the public in these processes is increasingly recognized by EU institutions, CoE and national governments. They have identified several benefits of participatory processes. Specifically, participation can help towards:   

• Creating fair policies/laws reflective of real needs enriched with additional experience and expertise;
• Facilitating cross-sector dialogue and reaching consensus;
• Adopting more forward and outward looking solutions;
• Ensuring legitimacy of proposed regulation and compliance;
• Decreases costs, as parties can contribute with own resources;
• Increasing partnership, ownership and responsibility in implementation;
• Strengthening democracy - preventing conflict among different groups and between the public and the government and increasing confidence in public institutions.

Values and Principles of Participation

In regulating the procedure for consultation institutions and organizations in Europe have highlighted several principles which guide the process. Some of those include:

• Commitment;
• Recognition of rights and responsibilities;
• Access and clarity of information;
• Continuity (ongoing);
• Proper structure (coordination);
• Publicity;
• Transparency;
• Openness and consideration;
• Objectivity and equal treatment;
• Resources;
• Sufficient time;
• Accountability for the process and result;
• Acknowledgement and feedback;
• Evaluation, etc.

The values that these principles aim to promote have been summarized well by the International Association for Public Participation as Core Values for Public Participation:

1. Public participation is based on the belief that those who are affected by a decision have a right to be involved in the decision-making process.
2. Public participation includes the promise that the public's contribution will influence the decision.
3. Public participation promotes sustainable decisions by recognizing and communicating the needs and interests of all participants, including decision makers.
4. Public participation seeks out and facilitates the involvement of those potentially affected by or interested in a decision.
5. Public participation seeks input from participants in designing how they participate.
6. Public participation provides participants with the information they need to participate in a meaningful way.
7. Public participation communicates to participants how their input affected the decision.

In addition to flagging the benefits it should be noted that ensuring participatory law making processes has own challenges too.

1. Governments may be pressed by deadlines to adopt certain legislation.
2. It may not be clear who to consult or engage; or how to do it.
3. Participatory processes are costly; they require investment in organizing meetings, writing comments, providing feedback.
4. The political context may not be supportive of public involvement.
5. Those who participate may not have enough understanding of the issues at stake.

The standards enshrined in the documents adopted on level of EU and in different countries aim to minimize the effect of those challenges and to pave the way for more effective participatory law making processes. Therefore, when developing the appropriate standards for participation in one country it is important to consider not only the opportunities, but also the challenges that surround it so that appropriate mechanisms are adopted to address and circumvent them.

European level

The participatory approach of making policies and laws on level of EU and its member states is enshrined in the Lisbon Treaty. Specifically, article 10 prescribes that: “Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.” Further, article 11 provides that:

1. “The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.
2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.
3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent.
4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.”

Principal Issues Concerning Participation in Law Making

The documents adopted on European level and in different countries address a wide range of issues relevant for the participation of the public in decision-making processes.

What are the different levels of participation? Participation can be viewed as a continuum of interaction between government and the public which ranges from informing and listening at one end, to implementing jointly agreed solutions at the other; and in between there is dialogue, debate and analysis. All stages of the process (preparation, drafting, adoption, implementation, evaluation) should be subject to public participation to ensure better laws. This is also highlighted by the EC Principles and Minimum Standards: “The quality of EU policy depends on ensuring wide participation throughout the policy chain – from conception to implementation”. Since there are different stages in of law-making processes the intensity and form of participation will vary depending on the stage of the process.

International documents and country specific regulation recognize the following levels of participation:

(1) Access to information: Access to information is the first, basic and important right which is underlying the whole process of participation. Whilst it means that the government informs the public about its plans and the types of documents it wants to adopt at the beginning of the process, it also highlights  the right of the public to have access to all information (e.g., drafts, comments and reasoning) throughout the process. The access to information is a right regulated in specific laws. While at this level there is no need for intensive interaction between the government and the public, the government should not apply measures which would prevent the public from receiving the information crucial for the process.

(2) Consultation: Consultation is a form of participation where the government invites the public to provide its opinion, comments, views and feed-back on a specific document. Whilst the issues on which the public is consulted are defined by the government, this process should also allow for the public to express opinion on other issues contained in the draft. Consultation can be organized with a broader group of participants from the public. It is a reactive way of participation – the public becomes involved because the government requests this. However, this is not to say that the public cannot request to be consulted. Indeed, it should act and remind the governmental bodies about the need to be asked to comment on laws which will affect them.  

(3) Active engagement through dialogue and partnership: Active involvement (partnership) in law making means collaboration and jointly undertaken responsibilities at all stages of the decision-making process (agenda setting, issue identification, drafting, decision and implementation). It is the highest form of participation; it may be described as a situation where the representatives of the public share a seat at the table with the government representatives. The initiative can come from both the sides. Whilst there should be an agreement about the common goals of the process, those involved from the public should be able to retain their independence, and to advocate and campaign for the solutions which they want to see adopted. Dialogue is as an active form of participation. Indeed, dialogue is prerequisite for collaborative relationship. It requires “a two-way communication built on mutual interests and potentially shared objectives to ensure a regular exchange of views.” The dialogue is an underlying form of a collaboration which is built around a specific issue of interest and should lead to commonly agreed outcomes.  

Framework for public participation

To ensure that the essential contributions of CSOs are enshrined in the political decision-making process without discrimination, an enabling environment is required. Conditions of an enabling environment include:

• the rule of law,
• adherence to fundamental democratic principles,
• political will,
• favourable legislation,
• clear procedures,
• long-term support and resources for a sustainable civil society and
• shared spaces for dialogue and cooperation.

These conditions allow for a constructive relationship between NGOs and public authorities built on reciprocal trust and mutual understanding for participatory democracy.