PARTICIPATION & ACCESS
Both pressure groups and the public at large should enjoy an open and fair access to public decision-making, allowing for a diversity of input, better policies, and ultimately more representative and trusted democracy.
Lobbying regulations aim to ensure that there is transparency of influence and hence a level playing field for all stakeholders to have the same opportunities to access and influence public decision makers. However, transparency over who has access is not the same as specific measures to ensure access for all. For this reason, citizens and other segments of society such as small and medium enterprises should be provided with specific channels and opportunities to participate in public decision making in a meaningful way.
Public Participation in Decision-making
- Right to participate – there should be a generally recognised right for all groups and public at large to participate in public decision-making, extending in particular to legislative and policy matters, within all levels of governance.
The right to participate is a fundamental part of democracy, and citizens should be able to have an impact on ongoing decision-making processes as well as voting in regular elections.
The right to participate in the making of policies and laws at the level of the European Union and its Member States is enshrined in the Lisbon Treaty, which states 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”.
- Public consultation process – a legal framework should lay out in a law or a group of laws the varied means for public participation in the formulation, implementation, and evaluation of policies and laws, including timeframes and specific mechanisms to disseminate public meeting information, attendance and participation rules, instruments and tools to submit comments and opinion on specific policies.
A legal framework should clearly and precisely lay out the participation rights that citizens have and how these can be exercised. Government bodies should make an active effort to promote public consultations via various communications channels – official bulletins but also traditional and social media - in order to reach as many members of the public as possible.
Practical example: In Finland, the Government Project Register (HARE) provides “up-to-date information on ongoing legislative proposals. On the website, citizens, organisations and other stakeholders can subscribe to press releases by e-mail regarding the progress of specific legislative projects as well as give feedback on the projects.”
There may be some cases in which public participation in a particular process is not practicable because of time-constraints, but this should not be the norm and any derogations from the right to participation should be clearly defined in advance and very strictly applied.
- Equal opportunity – there shall be an obligation on public authorities to provide an equal opportunity for participation to various interest groups and the public at large.
Public officials should be required to ensure that they are consulting with a balanced set of interests and they should make efforts to gather input from sectors that are traditionally under-represented.
- Timely and effective contribution – the public authorities should be obliged to provide an adequate time period for consultation allowing sufficient time for review of the preparatory materials under discussion, and should strive to promote effective participation at the appropriate stage, while decisions are still open.
In order to ensure participation in decision-making, transparency of the drafting process is essential from the beginning and not just at the much later parliamentary stage. A typical negative example of public participation is the still prevalent practice of publishing a draft law only once it is submitted to parliament, and for information only, but without any feedback mechanism for the public at large.1 The UK Cabinet Office has recommended that public consultations be open for at least 12 weeks (see below for more). The European Commission also has a minimum 12-week window for public consultations.
This paragraph draws largely from: Tilman Hoppe, Anti-Corruption Assessment of Laws (“Corruption Proofing”), RCC/RAI publishing 2015, Chapter 2.1.2, pages 33 following, www.stt.lt/documents/soc_tyrimai/Comparative_Study-Methodology_on_Anti-corruption_Assessment_of_Laws_14_11_17.pdf. ↩
- Publication of results – the (written and verbal) views of participants in the consultation process shall be made public, and the authorities should outline how the various views have been taken into account and why.
There should be transparency and accountability over how decisions were taken and which inputs had an impact on the final outcome. Input that is not taken into account should likewise be specified. This allows for the identification of any potentially disproportionate influence on the decision-making process.
- Refusals of the right – the public authorities shall provide a written justification for any refusal of the right to participate, and those excluded shall have options available to challenge and contest that exclusion in a procedure that is expeditious enough to provide for participation in case the refusal is overturned.
Refusals of the right to participate should be duly motivated, proportionate and necessary. Those denied the right to participate should be able to challenge such restrictions.
- Balanced composition – there should be a legal obligation on public authorities to strive for a balanced composition of expert and advisory bodies, representing a diversity of interests and views.
Expert input is often essential in public decision making. Decision makers will not always fully understand themselves highly technical issues such as financial market regulation or bio-technology, and so they rely to a large extent on external experts. Public bodies should also be required to make transparent the parameters, functioning and policy documents considered by the expert groups.1
In parliament, a diversity of experts is usually ensured by internal rules giving all political factions a say in the nomination of experts for formal hearings. With expert and advisory groups for executive or independent bodies, the nomination of their members is often not so clear. Often, such bodies are installed informally and on an ad-hoc basis.
However, in some cases, the procedures for selecting external experts are highly formalised, such as the “European Economic and Social Committee”, a consultative body of the European Union stipulated in the Union’s treaties. Some international organisations such as the World Health Organisation also have explicit general rules on how advisory bodies should be set up.2
See for example www.fda.gov/AdvisoryCommittees, which publishes the following information: “About Advisory Committees: How to become a member of an advisory committee, common questions, and the laws, regulations, and guidances that govern the committees; Committees & Meeting Materials: Committee information, charter, meeting materials, committee roster, etc; Advisory Committee Calendar: Confirmed and Tentatively Scheduled Meetings; Recently Updated Advisory Committee Materials: Meeting announcements, briefing materials, requests for nominations, and other important information”. ↩
WHO, Regulations for Expert Advisory Panels and Committees, Resolution WHA35.10, apps.who.int/gb/bd/PDF/bd47/EN/regu-for-expert-en.pdf; European Union Register of Expert Groups and Other Similar Entities, ec.europa.eu/transparency/regexpert/index.cfm?do=faq.faq&aide=2 ↩
- Disclosure of interests – advisory and expert group members shall be required to disclose their interests and affiliations relevant to items under consideration in advance of any work on the issue.
An example for the disclosure of interests is the European Union’s “standard Commission decision setting up an expert group”.1 Article 4 no. 8 states: “The names of individuals representing an interest shall be published in the Register; /the interest represented shall be disclosed”; Article 11 requires: “at the start of each meeting, any expert whose participation in the group’s work would raise a conflict of interest” to “inform the Chair”.
SEC(2010) 1360 final, Annex II, ec.europa.eu/transparency/regexpert/PDF/SEC_2010_EN.pdf. ↩
- Lobbyist incentives – any lobbyist incentives should be considered with care, so as not to entrench special privilege of organised interests over those of individual citizens.
Some countries provide incentives to lobbyists, such as access cards, invitations, or privileged access to meetings: “A lobbyist entered in the register of lobbyists in the Republic of Slovenia shall have the right to be invited to all public presentations and all forms of public consultations with regard to the areas in which he has registered an interest, and shall be informed thereof by the State bodies and local communities.”1 However, such provisions raise the constitutional question of equal treatment: In principle, citizens should have the same rights as lobbyists, for example they should be able to receive notifications of public consultations in their fields of interests.