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Governance: Public consultation data

The following indicator is under consideration for this pilot edition of the Barometer: To what extent do relevant laws, regulations, policies, and guidance provide a basis for collecting and publishing data generated through and about public consultation on rulemaking?

Feedback on draft Global Data Barometer Indicators

You are looking at a draft indicator to be included in the expert survey of the Global Data Barometer. Between now and May 10th we are inviting your feedback on this indicator and the elements it contains. You can provide your feedback by (a) completing the feedback form below; or (b) adding in-line annotations.

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You can share your feedback on the Governance: Public consultation data indicator here, or make use of Hypothes.is annotations

Show/hide supporting questions

Existence

  • What is the nature of the framework?
    • No framework exists
      Supporting questions: In the absence of a strong legal framework, are there alternative norms or customs that play this role in the country? If so, please explain how. If there are draft laws or regulations not yet in force, but that would provide a more robust framework in future, please provide brief details here.
    • A framework exists but lacks full force of law
      Supporting questions: In the absence of a strong legal framework, are there alternative norms or customs that play this role in the country? If so, please explain how. If there are draft laws or regulations not yet in force, but that would provide a more robust framework in future, please provide brief details here.
    • A framework exists and has the force of law
      Supporting questions: Please identify the framework(s) you have assessed (e.g. name of law(s) or regulations)

Elements

Part 1: Provisions for updates, structure, and openness.

  • The framework requires that relevant documents are published and maintained as a docket or collection in conjunction with the specific law or regulation. (No, Partially, Yes) Relevant documents here might included, for example, notice of intent, justification, proposed law or regulation, supporting documents, final law or regulation.

  • The rules/guidance require that data is regularly updated. (No, Partially, Yes)

  • The rules/guidance support the collection of structured data. (No, Partially, Yes)

  • The rules/guidance support publication of open data. (No, Partially, Yes)

Part 2: Provisions for definitions and fields.

  • The framework requires the publication of notice of intent in advance of public consultation processes. (No, Partially, Yes)

  • The framework requires the publication of proposed regulations. (No, Partially, Yes)

  • The framework requires the timely publication of a full set of public comments generated through public consultation processes. (No, Partially, Yes)

  • The framework requires reasoned responses to be published alongside comments. (No, Partially, Yes)

  • The framework requires the publication of final regulations and justification. (No, Partially, Yes)

  • The framework requires the publication of challenges to laws and regulations that have undergone public consultation processes, as well as their results. (No, Partially, Yes)

Extent

  • How comprehensive, in terms of jurisdiction, is the coverage of the laws, regulations, policies, or guidance assessed for this question?
    • They cover one or more localities, but there are many other localities without such rules/guidance, or with rules or guidance of a lesser quality.
      Supporting questions: Which locality does this framework cover?
    • They cover one or more localities and are a representative example of the kind of rules/guidance that can be found for all, or most, localities.
    • They provide national coverage.

Definitions and Identification

Public consultation processes are key foundations to the open information and data flows that data for public good builds upon. Here we investigate the transparency of a country's public consultation processes, with regard to both the data these processes generate and data about the performance and administration of these processes.

This indicator examines public consultation processes for executive rulemaking, including regulations, bylaws, and rules, sometimes known collectively as secondary legislation. The indicator is based on the presence and strength of legislation, regulations, or policies that govern whether:

  • Comments generated through public consultation processes are collected and published.
  • Notice of comment, justification, proposed policies, supporting documents, and final drafts are collected and published as dockets.
  • The responses of public officials are collected and published alongside relevant comments.
  • Information about challenges to regulations that have been passed, the grounds for challenge, and the results of challenges are collected and published.

Note: Countries may also use public consultation processes in conjunction with parliamentary legislation or proposed projects, particularly extractive projects with likely environmental impacts. If your country doesn't use public consultation processes in conjunction with regulatory matters, but does for projects or parliamentary legislation, please explain this briefly in the free text justification and assess here the framework that applies to project-based or legislative public consultation.

If there are multiple forms of public consultation processes in this country—for example, applicable to different executive agencies or operating at national and sub-national levels—please explain this briefly in the free text justification and assess here the most common domestic form.

If there are significant differences in how you would assess other common forms of public consultation, please explain briefly in the free text justification.

Starting points

  • Sources:

  • Search:

    • For recent updates to public consultation laws in the country; around the world, this is an area of increasing legislation.
    • For examples of current notices of proposed legislation and comment periods, which may mention frameworks that require later publication.
    • For news articles that mention public consultation; in many places articles appear in connection with extractive projects, indigenous sovereignty, or both.

  • Consult:

    • Experts in administrative law.
    • Legislators.
    • Journalists who specialize in the affairs of executive agencies.

What to look for?

Look for evidence that can answer the following questions:

  • Is the framework for public consultation provided for in law, through regulation, or through policy?
  • Does the framework require that an agency or ministry provide drafts of proposed rules to members of the public in advance, or does it only require agencies or ministries to provide the formal proposed rule? How are these versions published and archived?
  • Does the framework require that comments generated through the public consultation process be collected and published? Are restrictions or redactions applied to this; for example, around publishing personal identifying information associated with comments?
  • Does the framework require that reasoned responses from public officials be collected, published, and archived alongside relevant public comments? Or are responses published and archived separately—or not at all?
  • Does the framework specify that information about challenges to rules that have gone through public consultation practices, such as the number, grounds, and results of challenges, be collected and published?

National and sub-national considerations

In some countries public consultation processes have been established by individual states, regions, or cities.

To assess countries where public consultation processes are organized sub-nationally, researchers should select the strongest examples of sub-national practice, and then indicate whether this is an outlier or an example of widespread practice.

Fundamental to democracy is the authority of the public and the involvement of the public in the act of governing, through voting as well as other forms of political participation. Public participation is well-recognized under international law as a fundamental human right, articulated in detail, for example, by the UN OHCHR in Guidelines for States on the Effective Implementation of the Right To Participate in Public Affairs (2018). Increasingly, as the OECD’s 2020 Innovative Citizen Participation and New Democratic Institutions: Catching the Deliberative Wave details, such political participation includes public consultation in law- or rulemaking processes. Public consultation in law- or rulemaking aligns with SDG 16.7, and is a component within Transparency International’s decision-making dimension of political integrity.

As with right-to-information frameworks, public consultation frameworks fundamentally govern flows of information between members of a public and public officials, generating a stream of data as they do. Similarly as well, it's important to collect and publish data on the performance and administration of public consultation practices both from a transparency standpoint and to assess their efficacy.