5. Sources of the Principle of Participation

group, sources, skills, and knowledge. The sense of involvement depends on identity, homogeneity, trust, and citizenship. The degree of organization is based on the type of organization, its activities, and its organizational structure. Whether the citizens have been asked to participate varies depending on the forms of participation, strategy, and diversity. Whether the citizens’ participation is appreciated is monitored by the extent to which the authority actually listened to the citizen’s advice, the prioritization of public opinion, the feedback and training that participants receive. These variables are in turn associated with a range of facets, which partly served as the basis for the standard questionnaire which is used.

5. Sources of the Principle of Participation

The principle of public participation has been developed in different ways and the most important ones are the development by legislation and the development by policy. I mention here, as some examples, the Charter on Local Government and the Aarhus Convention. The last one has had an enormous impact on Dutch procedures in environmental law. The relevant act is EC Regulation 1367/2006 on the application of the Aarhus Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters to EC institutions and bodies. It enforces the position of NGOs in their possibilities to request an internal review of ‘an administrative act under environmental law’. In addition to this EC Regulation, it might also be interesting to refer to the EC White Paper on European Governance. Curtin and Dekker are very critical of it, especially on the position of NGOs.24 The value of mentioning these laws and policy papers shows how dynamic this principle still is.

(a) Features of the principle of participation General elections can be seen as an aspect of the principle of public participation, but more in the constitutional law context reflecting indirect democracy. But in the administrative law context we also find elements of more direct democracy in which the following three aspects are relevant: who can participate, about what, and at what moment?

The principle of public participation in the administration is allocated according to two features: the people involved in the competence or act concerned, and the stage of the decision-making process. This is illustrated with some articles of GALA: Article 3:10

1. The procedure for the preparation of orders provided in this division shall be followed if this is required by statutory regulation or by order of the administrative authority.

Article 3:13 1. Interested parties may state their views on the application or the draft either orally or in writing, at their discretion. (Article 1:2: 1. ‘Interested party’ means a person whose interest is directly affected by an order.)

24 Curtin and Dekker 2002.

Article 3:24 1. Anyone may submit written reservations to the administrative authority within four weeks of the date on which the draft is deposited for inspection.

The following phases in the policymaking process can be distinguished: policy agenda development; policy development; policy determination; policy implementation; policy compliance; policy enforcement; and policy evaluation. While the steps in the policymaking process can be gleaned from this phase structure, there is a certain degree of overlap between the phases identified. In other words, the distinctions carry no legal significance and are no more than an indication of focus on the activities undertaken by public entities. This does not preclude the possibility that some of the phases will be skipped, whether entirely or in part, when addressing certain policy issues. In short, the distinction is more practical in nature than a legal standard.

(b) Participation models When ordering the various forms of participation, it is not only important to clarify which forms can be distinguished; it is also interesting to know which combinations of these forms appear in the various countries at local and regional levels. It should be determined whether certain forms, or combinations of forms, only occur in combination with certain phases in the policymaking process or whether these forms, whether alone or in combination, occur independently of phases in the policymaking process.

What kind of participation models in terms of the degree of participation can be distinguished, and are these varying degrees of participation related to a specific phase in the policymaking process? The preceding section simplifies the selection of substantively defined forms of participation. As the various forms of participation can have legally significant implications, they are used as the basis for distinguishing between the models.

In the case of the popular initiative, any citizen can take the lead to raise an issue for consideration, but the matter will be handled in accordance with established protocols and procedures, and the government must first explain what their activity entails and what the approach is. This can be qualified as a ‘minimum’ participation model.

In the case of the citizens’ panel, a group of citizens can issue recommendations on a matter submitted to them by the public entity or by someone from among its own ranks. This is a more involved form of participation, as the citizens’ panel issues a recommendation on the matter at hand. Regarding any ensuing obligation and binding effect, community-level participation is definitely comparable and basically involves the same group of citizens. As a result, these two forms can be qualified as average participation, but with community-level participation there is slightly more and broader participation than with the citizens’ panel.

The referendum can—in principle and insofar as the evaluation of the decision is involved—be qualified as a ‘maximum’ participation model, although this is largely determined by the type of referendum involved. It is necessary, however, to take a nuanced approach to the phases of the decision-making process and to non-binding referenda. True maximum participation occurs when a particular group of citizens is authorized to decide for itself on how to spend a community-allocated budget.

Basically, all four forms of participation can be used for the various phases of the policymaking process. Taking into account effectiveness and efficiency, the greatest degree of participation is made possible when opportunities to participate are available