Strasbourg, 25 October 2016 CDDG(2016)20
Item 4.2 on the agenda
EUROPEAN COMMITTEE ON DEMOCRACY AND GOVERNANCE
(CDDG)
DRAFT GUIDELINES ON CIVIL PARTICIPATION
IN POLITICAL DECISION-MAKING
For adoption
Secretariat Memorandum
prepared by the
Directorate of Democratic Governance
Democratic Institutions and Governance Department
 |
Introduction
The draft Guidelines that follow (see Appendix) have been prepared by a Working Party established by the CDDG at its 2nd meeting on 28-29 September 2016.
The Working Party met twice: on 26-27 April and 28-29 September 2016. At its second and last meeting the Working Party had an informal exchange of views with the Bureau members, on the basis of the provisional results of its work.
As requested by the Working group and the Bureau, the Secretariat finalised the draft guidelines on the basis of the written submissions by the members of the working group. The draft guidelines appear in appendix to this document.
The Secretariat also submitted the draft Guidelines to the Directorate of Legal Advice for the assessment of conformity with Council of Europe standards (this is normal practice for documents to be adopted by the Committee of Ministers).
Issues to be discussed by the Committee
In order for the CDDG to examine and adopt the Guidelines at its present meeting, the Bureau identified the following issues which merit further reflection by the committee.
a. The purpose of the guidelines on civil participation in political decision-making is to strengthen democracy by involving disconnected groups in politics and society thus addressing a concern raised by the Secretary General in his 2015 State of democracy, human rights and the rule of law Report. According to the Secretary General, certain “... conditions compound the disconnect many individuals feel towards their political system as well as to other communities and society at large. […] The Council of Europe will now step up [its] support to member states as [it] seek[s] to build and maintain strong democracies which command public confidence, encourage participation and promote mutual respect among their members.”
b. Civil participation is part of an effectively operating democracy. Are the guidelines explicit enough on :
o How civil participation relates to representative democracy?
o How it affects the relationship between individuals and their elected representatives?
o How it contributes to transparency of decision-making and to holding accountable those who are legally responsible for taking decisions?
c. The guidelines refer to the right to participate. Shall they
o Refer to existing Council of Europe standards?
o Define this right?
o If they define this right, specify who has the right to participate?
d. The guidelines are addressed to member states’ governments (public authorities). Should they spell out more clearly
o How to disseminate and observe the guidelines?
o How to create an enabling environment for effective civil participation?
o How to put civil participation into practice, possibly including examples?
o The extra burden in terms of resources to be made available by the authorities for civil participation?
e. The majority of the Working group held the view that civil participation does not entail co-decision. The Working group agreed however that a form of civil participation exists which is more than access to information, consultation and dialogue. Does the part on “active involvement” reflect this well?
Lastly, the Committee should also give consideration to the status of the Guidelines once adopted. As the draft, once approved by the CDDG will be submitted to the Committee of Ministers which requested that they be drawn up, it would seem logical that the Guidelines be also adopted by it.
Timing and modalities for further consideration
Following the CDDG meeting and in the light of comments made, the Guidelines would be revised by the Secretariat and disseminated to all CDDG members within four weeks (by 20 December 2016).
Should delegations submit further remarks or proposals (by 15 January 2017) the Bureau will review the text and possibly resolve remaining issues.
A final (revised) text will be issued to all CDDG members by the end of January 2017 for approval by “silent procedure”.
Early February 2017, the Guidelines thus approved will be submitted to the Committee of Ministers for adoption.
Action required
The CDDG is requested – having regards to the issues raised above, in particular under points a. to e. – to examine the draft Guidelines on civil participation in political decision-making with a view to their approval and presentation to the Committee of Ministers for adoption in conformity with the suggested modalities.
APPENDIX
Draft Guidelines
on Civil Participation in Political Decision-Making
The European Convention on Human Rights does not explicitly define a right to participate in political decision-making. Such an entitlement, however, is at least implicitly present there - through the guarantees provided for the exercise of the rights to freedom of assembly, of association and of expression. Exercised together, these rights are a fundamental part of the checks and balances that ensure the successful functioning of democratic institutions.
Participation by all individuals and groups of civil society in decision-making at all levels of government is one of the prerequisites for the proper and improved functioning of democratic society and for guaranteeing democratic security. It allows for open dialogue on critical issues, resulting in better decisions by the authorities and improved governance. Civil participation is all the more important today when, in many countries, democracy is in crisis. Civil participation complements and supports representative democracy. Citizens who feel that they have a say in the general policy debate and in everyday decisions, are more likely to accept the decisions and, more generally, to trust their elected representatives.
It is therefore crucial that individuals and non-governmental organisations (NGOs) are involved in the conduct of public affairs and feel empowered to do so.
A number of Council of Europe texts aimed at creating an environment for civil participation already exist such as Recommendation CM/Rec(2001)19 on the participation of citizens in local public life, Recommendation CM/Rec(2003)3 on balanced participation of women and men in political and public decision-making, the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS 207), Recommendation CM/Rec(2007)14 on the legal status of non-governmental organisations and the 2009 Code of good practice on civil participation in the decision-making process. A list of the most directly relevant Council of Europe instruments is appended to the present document.
The guidelines laid down here seek to address the clear need for guidance based on good practices and on key Council of Europe and international standards, including fundamental principles such as gender equality and non-discrimination. They present the scope and definitions, conditions and principles, prerequisites, and levels and modalities of civil participation as well as essential elements to ensure civil participation in practice. The guidelines address the manner in which public authorities can interact in a meaningful manner with individuals, NGOs and civil society at large.
The Committee of Ministers calls on member states to ensure that the guidelines are widely disseminated and observed by all relevant authorities. It further encourages member states to provide in national legislation and practice formal safeguards and mechanisms for ensuring meaningful and effective participation.
1 Representative democracy is part of the common heritage of member states and is the basis of the participation of citizens in public life at national, regional and local level. As set out in CM/Rec(2001)19, participation of citizens is at the very heart of the idea of democracy.
2 Representative and participatory democracy are complementary and the right to civil participation in political decision-making should be guaranteed to all individuals, NGOs and civil society at large.
3 The purpose of these guidelines is to strengthen and to facilitate civil participation in the political decision-making process in member states.
I. Scope and definitions
4 Participation in political decision-making processes should be ensured at all levels of government (local, regional and national) and of governmental cooperation in relation to decisions by both the legislative and executive branches of power.
5 For the purposes of these guidelines, the following definitions are used:
5a Civil participation is active involvement in processes where public authorities aim to develop, adopt, implement and evaluate a policy document, strategy, law, regulation, or in any process where a decision is made that affects the public or a segment of it. Civil participation in decision-making processes is distinct from political activities in terms of direct engagement with political parties and from lobbying in relation to business interests.
5b Non-governmental organisations are voluntary self-governing bodies or organisations established to pursue the essentially non-profit-making objectives of their founders or members as set out in Recommendation CM/Rec(2007)14. They may include, for example, voluntary groups, non-profit organisations, associations, foundations, charities, as well as geographic or interest-based community and advocacy groups.
5c Public authorities are government and administration, legislative bodies and natural or legal persons in line with the Council of Europe Convention on Access to Official Documents (CETS 205).
II. Conditions and principles
6 Conditions for meaningful civil participation include:
6a The respect of human rights and fundamental freedoms, the rule of law, adherence to fundamental democratic principles, political will, favourable legislation, clear procedures, shared spaces for dialogue and cooperation and long-term support and resources for a sustainable civil society.
6b The creation and maintenance of an enabling environment by member states encompassing policy, law and implementing practice guaranteeing individuals and NGOs freedom of association, freedom of assembly, freedom of expression and freedom of information.
6c The recognition and protection of and support for the role of civil society in a pluralist democracy and its functions as advocacy and monitoring bodies of public affairs as well as in building a diverse and vibrant society.
6d Recognition of the contribution by human rights defenders and “whistleblowers”, effective measures by member states to protect, promote and respect them and to ensure respect for their activities in accordance with the Declaration of the Committee of Ministers on Council of Europe action to improve the protection of human rights defenders and promote their activities (6 February 2008) as well as with Recommendation CM/Rec(2014)7.
7 The actions of public authorities at different levels and of NGOs and civil society at large should be based on the following common principles:
7a Participation in terms of providing, collecting and channelling views of individuals, directly or via NGOs, as input to the decision-making process;
7b Respect for the independence of NGOs in their actions and regarding their aims, decisions and activities, even when opinions differ from those of the authorities;
7c Respect for all actors as the basis for honest interaction and mutual trust;
7d Openness and transparency, providing access to all information, except where classified for reasons clearly specified by law or restricted for reasons of data protection in line with the relevant Council of Europe Conventions[2] ;
7e Timeliness in providing adequate information in due time at all stages allowing for early participation and substantive input into the decision-making process;
7f Accountability at all stages in providing information and explanations on decisions taken;
7g Responsiveness in order to provide proper and timely feedback on the contributions and recommendations from civil society and ensure a real impact of participation on the decision-making;
7h Non-discrimination and inclusiveness in respect of all individuals, NGOs and civil society so that all voices, including those of the less privileged and most vulnerable, are heard and taken into account in an impartial manner;
7i Gender equality and equal participation in order to achieve balanced participation of all persons, women and men alike from all groups including those with particular interests and needs such as young people, the elderly, people with disabilities, minorities, etc.;
7j Accessibility must be guaranteed through clear language and ease of use of participation solutions on any device and must work for people with disabilities;
7k Responsibility for the decision ultimately lies with the public authority that has the democratic legitimation.
III. Prerequisites for meaningful civil participation
8 Civil participation provides a platform for a genuine exchange of opinions and enriches the decision-making process ensuring that real public needs are met.
9 Civil participation should be guaranteed by an appropriate and transparent legal or regulatory framework as well as procedures and instruments to encourage and support broad and meaningful participation. Any limitations and restrictions should be clearly prescribed and narrowly defined in full respect of the European Convention on human rights and fundamental freedoms.
10 All phases of decision-making such as agenda-setting, drafting, decision, implementation, monitoring, evaluation and reformulation should be open to civil participation in full respect of the principles of representative democracy.
11 Public authorities should plan and provide for the appropriate internal administrative services as well as the resources to enable meaningful civil participation.
12 Public authorities should provide regularly updated, accessible and comprehensive information about the decision-making process and its contents as well as the process of participation by developing plans for consultation. These should clearly state the objectives, actors, timeline as well as the process that will be conducted and methods used.
13 Civil participation can take various forms, off-line and on-line, and should not be limited to one modality.
14 Public authorities should decide on the best method of consultation, but remain flexible and adjust the approach in order to solicit wider input, including from marginalised, disadvantaged and other vulnerable groups
15 Public authorities should make good use of appropriate opportunities offered by new information and communication technologies such as infographics and social media to facilitate civil participation.
16 Public authorities should avoid adopting decisions unless meaningful civil participation has taken place in line with the legal or regulatory framework.
17 Comprehensive and effective complaints procedures, access to justice and redress mechanisms need to be made available in the event civil participation in the decision-making processes has not been conducted in accordance with the regulatory framework or has been denied.
IV. Forms of civil participation
18 Member states should have in place appropriate legal or procedural provisions to ensure effective civil participation through: information, consultation, dialogue, as well as active involvement in accordance with the Code of Good practice on civil participation in the decision-making process.
19 Forms of civil participation may vary in function of the phase of the decision-making process.
Information
20 Access to information is indispensable for genuine civil participation.
21 At all stages of decision-making all relevant information should be presented in a timely and accurate manner in clear and easily understandable language for all and in an appropriate and accessible format in accordance with open data principles.
22 Public authorities should provide the widest possible access, both off-line and on-line through platforms and websites, to key documents and information. This should be accessible without undue administrative obstacles and, in principle, free of charge.
23 Key information for decision-making processes should be recorded and may include, as applicable, announcements of public events and opportunities for consultation, feedback and petitions, contact information, agendas, minutes of meetings, background documents, submissions made by third parties, and legal and policy advice.
24 Awareness-raising campaigns should be conducted to promote possibilities for civil participation and ensure the widest possible access.
Consultation
25 Consultation allows public authorities to collect the views of civil society on a specific policy or specific topics within the framework of an official procedure and to adopt an evidence-based approach in discussing the formulation, implementation and evaluation of policies and decisions.
26 Consultation can be carried out through various models and tools such as meetings in person, public hearings, focus groups, surveys and questionnaires, digital tools (for example, single landing consultation webpage or online platform and social media).
27 Public authorities should provide publicly available feedback on the outcomes of the consultation which should include information on the reasoning for accepting or rejecting contributions.
28 The legal or regulatory framework should prescribe reasonable deadlines for submitting input for each draft of the document.
29 Use of expedited consultation procedures for policy-making should be allowed only under exceptional circumstances and should be duly motivated.
Dialogue
30 Dialogue is a structured long-lasting and results-oriented process, which is based on mutual interest in exchange of opinions between public authorities, individuals, NGOs and civil society at large on a broad range of issues or on a specific policy issue.
31 Public authorities, NGOs and civil society at large should consider establishing different platforms as a permanent space for dialogue and participation. Such platforms may include regular public hearings, public forums, multi-sectoral councils or similar structures.
32 Public authorities are encouraged to ensure that the terms of reference of the permanent structures, elected officials and/or ombudspersons allow for meaningful contribution to dialogue and include diverse public representation.
Active involvement
33 Active involvement refers to civil participation of individuals, NGOs and civil society at large in the political decision-making process where public authorities have established opportunities for the co-development or co-drafting of documents, policies and laws, including participative budgeting. These may include joint working groups or committees.
34 Strategic partnerships may be established for the implementation of decisions.
35 Where joint working groups or committees exist, public authorities should adopt clear processes and transparent criteria for representation of individuals, NGOs and civil society at large considering previous expertise and public contributions on the relevant subject matter.
V. Ensuring meaningful civil participation in practice
36 Member states should ensure to the maximum extent possible compliance with the above guidelines at all levels of decision-making.
37 Member states should adopt domestic rules and any additional measures that are necessary to ensure that the authorities responsible for the implementation of these guidelines for civil participation have the capacity and access to the tools and resources to ensure meaningful participation.
38 Member states are encouraged to further increase understanding and ensure harmonised implementation of participation mechanisms by different bodies. This can include developing user-friendly guides, brochures or other tools, both off-line and on-line.
39 Member states are encouraged to provide for regular awareness raising and training for public servants and civil society representatives on the practical application of these guidelines and of national level legislation.
40 The role of coordinating bodies for developing and carrying out civil participation processes should be clearly defined, emphasised and supported.
41 Framework agreements for cooperation can support interaction, participation and partnerships between public authorities and civil society.
42 Additional resources, such as grants, administrative services and other goods or services, can be provided so that participants can be engaged in a meaningful manner.
43 Civil society is encouraged to communicate and disseminate information about opportunities for participation and to help facilitate input by a wider stakeholder group and by the general public.
44 Civil society and in particular watchdogs and whistle-blowers are invited to contribute to monitoring and assessing the implementation of civil participation laws and regulations.
[1] The preamble has been submitted to but not discussed by Working Group. It will need to be revised in the light of the final version of the Guidelines.
[2] Council of Europe Convention on Access to Official Documents (CETS 205) ; Convention for the Protection of Individuals with regard to Automatic Processing of official Data and its additional Protocol (ETS 108 and ETS 181).