3. Specification of the Concept

increasingly expressing the party’s standpoint rather than their own. Third, a minority does not always get what it deserves due to dominant majorities.

People sometimes speak of ‘legitimacy erosion’, which is explained as a gradual, but fundamental deterioration of the legitimacy of the performance of public administration. Legitimacy refers to the competence of the public administration or representatives to govern.16 Recent research has been conducted to map out the perceived legitimacy of acts associated with the Dutch Ministry of Justice.17 In studying these, the researchers considered it important to first assess issues related to the perceived legitimacy of formal institutions, legal officials, and rules and regulations. In addition, three dimensions of legitimacy were established, which subsequently define legitimacy as: (1) trust; (2) satisfaction; and (3) acceptance.18 According to the study, empirical data does not suggest large-scale erosion but legitimacy is practically affected. Legitimacy of performance is not self-evident, but more often disputed. It should be noted, however, that a relatively small amount of empirical data is available, especially in the social science literature. Finally, the research showed that familiarity among the citizens with certain parts of the judicial authorities is relatively high, while familiarity with other parts is particularly low.

It can be expected that participation leads to more trust, more satisfaction, and more acceptance on the part of the citizens. As a result, the legitimacy of the public administration performance increases. People generally agree that it is sensible to bring the exercise of power as close as possible to the citizens. One way of achieving this involves decentralization in either functional or territorial terms. Territorially decentralized authorities are municipalities and provinces, whilst the functionally decentralized authorities are the public bodies for employment and business. We also see that governing committees have been established within municipalities and provinces with a specific task. Advantages of functional decentralization include the significant influence of stakeholders, increased expertise, and increased participation. However, territorial decentralization also offers substantial advantages as the distance between government and citizens is significantly smaller. Furthermore, public representatives can also be called to account relatively easily and in a direct manner. In short, participation— particularly at local and regional level19 —enables a greater influence for citizens and increases the willingness to cooperate.

3. Specification of the Concept

The focus here is on four forms of participation: (1) popular initiative; (2) citizens’ panel; (3) referendum; and (4) community-level participation. It is essential to clearly describe these four forms and the three policymaking phases: (1) the policy agenda development phase; (2) the policy development phase: and (3) the decision-making phase.

(a) Participation: term, motives, distinctions, and forms Participation has already been defined as active involvement of a group of individuals in a collective process. Within the context of public administration, it refers to the involvement of citizens in the actual or intended actions of administrative authorities

16 Addink and others 2000, 87–8. 17 Weyers and Hertogh 2007. 18 Tyler and Huo 2002. 19 Addink 2009.

and public entities. We have seen that public participation can be motivated by various participation motives.

There have been many successful examples of direct democracy. In villages with less than 200 inhabitants in Spain, there is a community-level participation system called ‘Concejo Abierto’. In this system, the outcomes are indeed binding on the public authorities, because this system is itself the town hall: an assembly where all neighbours speak and decide in a construct with different decision-making mechanisms and required majorities. This system, which also rules in villages with more than 200 inhabitants (if they decide to), is old and traditional in some regions. It is nowadays regulated by Spanish national law20 and even officially recognized in article 140 of the Spanish Constitution.

With regards to participation, another distinction is made between the forms and degrees of participation. Among the four forms of participation considered here, some authors deem community-level participation as the main form of participation. Other forms of participation are also identified here, in addition to or instead of those already mentioned, namely citizens’ panels and public consultation. For the various forms of public participation, there is a sliding scale that reflects the potential degree of participation, divided into informing, consulting, and co-deciding activities. The degree of participation is quantified using certain indicators, including the number of individuals, the duration, the frequency of participation, the level of involvement of individuals, and the extent to which participation influences the process with respect to the issues addressed by the public authority.

(b) A popular initiative A popular initiative involves a citizen entitled to vote taking the lead to make sure that a certain issue is placed on the agenda of a public entity. The initiator must often meet certain conditions for the initiative to be binding and placed on the agenda, such as place of residence and age. In some cases, support from a minimum number of citizens who are entitled to vote is required, or these citizens should have a direct and personal interest. Furthermore, it is sometimes stipulated that popular initiatives are only possible with regard to a kind of predetermined policy area.

Moreover, the proposal must often satisfy additional requirements, including that it must be a clear and written proposal and that it must go through a predetermined procedure. The standard decision-making protocol is followed once the initiative is placed on the agenda of the public entity. Popular initiatives differ from the classic forms of popular referenda in which citizens are asked to approve or reject a particular proposal. In some countries, popular initiative is also implemented at the local level, and some municipal authorities have rules for having popular initiatives in place.

The development of ideas by citizens and renewing policy from outside the administration can provide useful insights to a public institution. The disadvantages include a certain kind of uncertainty as to whether the initiative is actually placed on the administrative agenda and the limited influence of citizens once the initiative has been completed.

20 Law 7/1985, of 2 April 1985, Reguladora de las Bases de Régimen Local and Reglamento de Organización, funcionamiento y regimen Jurídico de la Entidades Locales, aprobado por Real Decreto 2568/1986, of 28 November 1986.

(c) A citizens’ panel Citizens’ panels are usually established by and make recommendations to the public entity responsible for the issue at hand. However, they operate independently of the public entity in question. The panel, whose membership is permanent and often involves a fairly large number of citizens, can be asked for recommendations during various phases in the policymaking process and can make recommendations of its own accord.

Even though the practical implementation differs, we currently see that in certain countries the panel members must answer a questionnaire of at least ten questions per subject. The members are, however, not obliged to complete the questionnaire. As the process is often conducted electronically, only those who have access to a computer can serve as citizens’ panel members. Members usually have a week to complete the questionnaires. As the information processing is fully automated, the outcome is known almost immediately afterwards.

There are several conditions for serving on local level citizens’ panels, including that the prospective member must be a resident of the municipality in question, must be eighteen or over another minimum age required, must be able to go online, and must have a personal email address.

The advantages of citizens’ panels are the availability of a permanent group for recommendations and that, due to their professional guidance, these panels are better at fulfilling the role of a consultant than the traditional advisory bodies. Disadvantages include the permanent character that might cause higher costs and that the development of citizen expertise gives them and the council members a certain status which consequently leads to a certain position of power. The cost of decision-making is usually only a fraction of the cost to society of implementing the regulation.21 If the panel is better at fulfilling the role of a consultant, the absolute cost of the decision is generally less to society. The real problem with council members acquiring a ‘certain status’ is that the panel becomes a skewed representation of society.

(d) Referenda as forms of participation In a referendum, the electorate is asked to vote on a proposed decision of a public entity. A popular referendum originally involved a vote called by the electorate, whereby representative entities were compelled to raise the status of a broadly supported measure to law. This version of the referendum is still applied in Switzerland, where the electorate is asked to approve or reject a legislative proposal made by public representatives. More restricted forms of referenda can be found in several other countries. A popular referendum is currently defined as the right of a minimum number of citizens to take the initiative to propose legislation or make other proposals. Although there are different variations of this form of participation, the proposal is usually put to popular vote in the end.

The referendum has a long tradition in many countries and has therefore reached a more advanced stage of development than most other forms of participation. This is demonstrated by the fact that various forms of referenda can be distinguished. Referenda can be either non-binding or binding in terms of their legal implications. While the vote is decisive in the latter case, the public entity is not bound by the outcome in the former. A distinction can also be made according to legal basis. While a

21 Vucsán 1995, 372.

mandatory referendum is prescribed by procedure, a facultative referendum is initiated at the request of the authorized authorities.

Australia is one example. In Australia, referenda are used to propose parliamentaryapproved changes to the Australian Constitution. For instance, the infamous 1967 referendum transferred legislative powers in respect to indigenous Australians from the states to the Commonwealth government. As such, a positive outcome in a referendum results in a binding obligation on parliament. In that sense, a referendum is an indirect mechanism of compelling the public to participate in a legislative process that could have administrative implications in society. Therefore, it is almost impossible to have a non-binding referendum in Australia.

Furthermore, a distinction can be made according to how the matter is put to a referendum. There are both multiple-choice and single-choice referenda. Multiple-choice referenda do not involve the approval or rejection of a particular proposal like singlechoice referenda do, but rather the selection of one of several alternatives. As identified in the literature, the advantages of the referendum include the expansion of political monitoring and the ability of citizens to have a say in decision-making, as a result of which they become more involved. This has the effect of legitimizing the performance of the public administration. Disadvantages of the referendum include possible abuse by public representatives, the fact that it is not a neutral instrument, and also that the effect often depends on the expertise of the voter. It must be added that is also relevant in the context of other forms of participation and, in a more general way for the concept of democracy.

In the United Kingdom, eleven referendums have been held since 1973. At the time of writing, their present government is currently promising that referendums will be held on any EU treaties transferring sovereignty from the UK government to the EU. However, despite this apparent display of participation, referenda in the United Kingdom are not constitutionally binding due to parliamentary sovereignty. This means that, although an act of parliament may give effect to the result of a referendum, this can be retracted. However, political speaking, to retract an act of parliament is not so easy. Some may argue that referenda could serve as merely an opinion poll rather than a means for active participation for the public. We see the relevance of the participation principle in relation to referenda on BREXIT and the roles of the government and the Parliament in the United Kingdom.

(e) Community-level participation as form of participation Community-level participation can be described as an informal or structured opportunity for individuals and organizations who are not affiliated with public authorities to express their views and thoughts regarding policy principles and policy proposals as well as to engage in debate about these matters with public representatives. This type of participation can take a variety of forms, involving such elements as public hearings, the right to speak during meetings, surveys, and other opportunities to respond to the draft proposal made by the public entity to undertake a certain activity.

A characteristic of community-level participation is that the outcomes are not binding on public authorities. The outcomes of consultation procedures are at times far from encouraging. However, public input is at least theoretically considered beneficial, particularly with a view to exercising due care in the decision-making process. In the Netherlands, the optional uniform public preparation procedure has been