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SCOTTISH EXECUTIVE

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Involving Civil Society in the Work of Parliaments
 
 
Part C: Involving Non-Members in the Work of Parliaments
 
Section 1: Overview
 
Citizen participation mechanisms and social partnerships tend to access the decision-making process at the level of the executive. They are generally involved with informing the policy work of the administration or in the implementation of policy. Very little in-formation is readily available on the involvement of citizens or groups in the work of the legislature. The time-scale, and timing, of this project has made it impossible to conduct a full survey of parliamentary arrangements for involving non-members. This detailed in-formation does not appear to be available in the standard literature on parliaments and the informal mechanisms - such as lobbying - tend to outweigh formal consultation procedures.
 
In an attempt to provide some more specific information in this area, we had to go beyond the 'desk-based' nature of the research brief. We compiled a short questionnaire on the involvement of non-members and endeavoured to find the appropriate parliamentary contacts across Europe. This process was complicated enormously by the fact that all parliaments in Europe were in recess during the time-span of the project and that it was annual holiday time in France, Spain, Italy and Belgium. We have therefore been able to consult with key informants in only Austria and Germany. In order to find case studies of direct relevance to a devolved parliament such as Scotland we also sought out the experience in the Länder. We have attempted to get a sense of the way arrangements function from both the view point of the parliament and that of a key social partner, in this case, the trade union organisation. Their responses are summarised below. Interviews were conducted with:
 
Austria  
Herr Andreas Sprenger Tirol Landtag
Herr Dr Staudiegl Niederosterreich Landtag
Herr Walter Sauer Austrian Federation of Trade Unions (Ö GB)
Frau Putz ÖGB - Niederösterreich
Herr Peter Hofer ÖGB - Tirol
   
   
Germany  
Herr Dr Hans Zinnkann North Rhine Westphalia Landtag
Herr Dr. Beitz Bavaria Landtag
Herr Hans-Detlev Küller DGB-Bundesvorstand
Herr Wolfgang Nettelstroth DGB - Nord-Rhein Westfalen
Frau Christiane Berger DGB - Bavaria
 
Clearly a great deal of further primary research is required in this area in order to compile a complete picture of comparative arrangements for involving non-members.
 
This part of the report begins with the summary of parliamentary arrangements in Austria and Germany drawn from our interviews. We then go on to demonstrate the sort of mechanisms that are in place for encouraging and shaping the direct participation of non-members in the work of parliamentary committees. These mechanisms generally take the form of guidelines that are issued to witnesses appearing before committees. This section closes with a brief discussion of the 'rapporteur' system and its significance in promoting contact with non-members.
 
Section 2: Involvement of Non-Members in the Work of Parliaments Case Studies
 
2.1 Germany
 
1. Are there any formal mechanisms where by the opinions of non-members are considered during the legislative process?
 
There are no such formal mechanisms on either the regional or federal level in Germany. This applies to the preparation of legislation as well as the process in the respective Parliaments.
 
Nevertheless, at a federal level there are some consultation mechanisms. These are the result of a long-term practice, i.e. before any legislation is initiated by the government, the respective Ministry issues a draft and asks organisations and 'interested groups' for their point of view. This may be compared to the British 'Green Paper' system. Seeking these views is often done by invitation to a hearing held in the respective Ministry. For in-stance, during the hearings in the Ministry of Justice or Economy, there are usually 33-50 economic associations present and 1-4 trade union associations.
 
However, the procedure only concerns the initiation of legislation by the executive. There are no such rules for the initiation of legislation by Parliament
 
On the regional (Länder) level the procedure is similar. For example, there are no formal mechanisms in the Bavarian Landtag for the social partners to be heard during the legislation process, except in the Committee for Economy and Socio-political Issues. Occasionally there are formal hearings initiated by the representatives of these committees. These are often organised by 2-3 Committees.
 
Informally, party factions gather information themselves in special faction hearings. Furthermore, it may be the case that the party factions' working groups inform social partners via information visits. However, as these procedures are not formalised there are no statistics available. In addition, one should take into account that during the preparation of a legislative initiative on a government level, there are some hearings with associations. This is laid down in the Bavarian Constitution (Art. 5: Par. 4) and plays a significant role.
 
In North Rhine Westphalia the social partners have the right to present their opinions in oral, as well as in written form, in response to draft proposals and these views are frequently taken into account. Committees can also call for the advice of experts (according to North Rhine Westphalian constitution Art. 31, par. 1), this may include the social partners. If the committee calls for a public hearing they can consult various experts. If 25% of a committee demand such a hearing, it must take place.
 
2. Are non-members ever co-opted onto Parliamentary committees to give specialist advice on legislation?
 
On a federal level an intense consultation procedure usually takes place in the respective Committees after the first reading in Parliament. The committees are autonomous and may call for hearings of social partners. This may even happen for the most important and most controversial legislation proposals. Similarly, a Committee may also decide not to introduce hearings - even if the social partners believe this to be necessary.
 
On the Länder level, Bavaria used to be a special case because of its bicameral Parliament:
eleven seats were reserved in the Senate for the unions and other social partners. The
Senate's powers included the right of veto and the right to pass legislation. However a recent referendum voted for the abolition of the Senate by 1999. From that point on any participation will remain informal and voluntary (and depend upon the party structure). The possible exception will be European Union legislation, specifically EU's structural funds which support the 'bottom-up' process. However, this procedure does not include joint decision-making rights.
 
Otherwise, as in North Rhine Westphalia, specific sub-committees can be established by committees which may invite social partners to hearings for consultation.
 
3. At which point, if any, during the legislative process are interest groups (Trade Unions, Business organisations, pressure groups, voluntary organisations etc.) consulted - before the first reading I second reading I committee stage etc., ?
 
what form does this take:
  • general public invitation to comment upon a proposed bill?
  • public hearings?
  • e written I oral submissions to committees?
  • through access to rapporteurs?
 
At the Federal level interest groups are mainly consulted before the first reading (see Question 1), for their input into the formulation of legislation by the relevant Ministry. If a legislation proposal is adopted by federal government and presented to both the Bundestag and Bundesrat, a consultation procedure with social partners is only possible if Parliament wishes to do so (see Question 2 - public hearings).
 
At any stage, in dependent of the co-operation procedures in readings, the social partner organisations occasionally express their views without a formal invitation.
 
At Länder level, consultation again tends (officially) to only be before the first reading or by invitation to public hearings should a committee deem it necessary. In North Rhine Westphalia the contributions are collected and presented on the basis of questionnaires issued by the respective committees.
 
4. If this process is largely informal then is the degree of involvement by non-members shaped by:
  • the area of policy under consideration?
  • the particular political make-up of the parliament?
 
At the Federal level both are true, though, during the last 16 years of political life in Germany the parliamentary opposition have been able to demand hearings on legislative proposals.
 
In Bavaria the Landtag and unions agree that it depends on the policy area under consideration. However the Parliament admits that the chances of a hearing taking place may depend both on the political importance of the topic and the ratio of the political majority.
 
Similarly in North Rhine Westphalia it depends on the policy area under consideration. A wide of range of institutions may be questioned, since even small party factions have the right to call non-member experts. Informal contacts and working processes exist between various different interest groups, in order to exert influence.
 
5. If non-members are included in the legislation process, is there an equal opportunities programme at work? Do social partners follow an equal opportunities policy?
 
According to the German Federal Trade Unions organisation this is only true of the Trade Unions.
 
At Länder level, selection of social partners for a hearing takes place according to legal aspects and must conform with the law. Special minority or gender issues do not play a specific role, except if it concerns these areas directly. In that case it is commonplace that representatives of women associations are invited to present their points of view on 'women-related' legislation proposals.
 
North Rhine Westphalia's DGB union commented that equal opportunities was playing an increasingly important role in the legislation process, though it is monitored at an executive rather than a parliamentary level.
 
6. Do you have any views about the effectiveness of the consultation process? Is there any examples of the consultation process having an impact upon legislative proposals?
 
The federal consultation processes are usually effective. In the past years, the right to joint decision-making has changed a few legislation proposals after weaknesses in the legislation were pointed out (this was specifically the case with corporate governance).
 
Originally, Trade Unions sought to be part of an Economic or Social Committee on national, regional and local level. These Committees would have the right to present their point of views on any legislation proposals they thought appropriate and a right to initiate legislation . However, these plans have not been realised on the federal level.
 
The effectiveness of these mechanisms at Lander level is hard to measure but undeniably important. According to the Bavarian Landtag:
 
The various hearings are certainly useful for political opinion-making. How-ever, one may not refer to specific success stories, since influence in the prepreparation phase is too important and also unknown. Nevertheless, I think that our political culture - which is based on consensus and agreement - takes into account disapproval and proposals from social partners.
 
However the Bavarian union representative commented that the process was:
 
Not effective, specifically because social partners have no say in the legislative amendments of Parliament.
 
Similarly, the North Rhine Westphalian union spokesperson remarked:
 
The present hearing, specifically the oral one, takes the form of a continuous hearing of one statement after the other. Usually, this leaves no room for a specific dialogue. Hence, the efficiency of this is questionable.
 
2.2 Austria
 
1. Are there any formal mechanisms where by the opinions of non-members are considered during the legislative process?
 
Social Partnership in Austria is symbolised by the four social partnership organisations (Austrian Federation of Trade Unions, Chamber of Labour, Chamber of Economy and the Presidents of the Chambers of Agriculture) which have co-operated in the so-called Parity Commission since 1957. (For more details on Austrian social partnership arrangements see page 44). The Commission is the most important body of decisionmaking for social partners - although it does not meet often, informal consultations between the 'big four' and government take place daily (for instance by telephone).
 
Furthermore, social partners are included in the legislative process via the 'Assessment Procedure' of legislation proposals for government, i.e. proposals are presented to the respective chambers whose point of view is sought in the subject-matter. Many interest associations are members of various committees or other official committees of individual ministries. Hence they are - theoretically - included in the political decision-making process.
 
At the regional level, in Tirol for example, the Constitution states that each legislation proposal, except those laws which need to be dealt with quickly, presented in the Landtag must be subject to an 'Assessment Procedure' (Art.36). This involves those regional Chambers which legally represent those groups (unions, corporations, groups, individuals) that are affected by the legislative proposal. Their opinions are heard - in some cases, the respective representative may write to other interest groups to seek their opinion. The absence of an assessment procedure, however, does not affect the constitutional legitimacy of legislation.
 
2. Are non-members ever co-opted onto Parliamentary committees to give specialist advice on legislation?
 
This is often the case at national level, but it is not always with the social partners, since their top officials are themselves often MPs (also, traditionally the 0GB -the Federation of Trade Unions - proposes the Minister for Social Affairs).
 
There are no 'reserved' seats for interest groups, but the top officials of social partners are usually on party's voting lists. For example the head of the 0GB is an MP for the Social Democratic Party, and the head of the Chamber for Economy (employers) is MP for the conservative Austrian People's party. In this sense, employees make up 4045 of 183 of National Parliament's MPs.
 
In the Lander, committees are also able to consult specialists. This advice is often gained from the social partners as part of the role of the regional Chambers. However, this is only possible case-by-case, since representatives of the social partners may already be in Parliament as MPs.
 
3. At which point, if any, during the legislative process are interest groups (Trade Unions, Business organisations, pressure groups, voluntary organisations etc.) consulted - before the first reading I second reading I committee stage etc., ?
 
At both the Federal at Länder level, consultation takes place before the drafting of the legislative proposal, namely in discussions or within the framework of the assessment procedure after written demand, (see above).
 
4. If this process is largely informal then is the degree of involvement by non-members shaped by:
  • the area of policy under consideration?
  • the particular political make-up of the parliament?
 
At the national level, both are important factors. In addition to the formal mechanisms, there are also informal possibilities of taking part in the political decision-making process. For the success of these interventions, the political complexion of Parliament plays a vital role, i.e. if party X has a majority, then like-minded NGOs tend to be more successful (this is also called 'Column-making' [Versäulung] in Austrian politics). This is, however, not the sole criteria.
 
The area of policy under consideration is important as the four social partner institutions are not solely restricted to the classical areas of social and economic issues, since virtually everything seems to be linked to both these areas.
 
At the regional level both the area of policy discussed and the political make-up of the Landtag is important. Though the effect of either depends on the topic. Niederosterreich it is said by the Landtag to depend on whether an MP initiated the legislation (and sought opinion and advice independently), or whether it is the parties (who seek advice from like-minded partners).
 
5. If non-members are included in the legislation process, is there an equal opportunities programme at work? Do social partners follow an equal opportunities policy?
 
Nationally, for recognised minorities (Slovenes, Croats, Hungarians and Romanies) there are some committees which have a legal basis, which remain at the discretion of the Federal Chancellery. For women (now 'Women and consumer protection'), there is a Ministry for Women which has similar consultative structures.
 
At Länder level this varies. In Tirol there is a Women's Representative office, but generally the Landtag expect and promote all groups to forward opinions at their own discretion. In Niederosterreich, depending on the policy area it may be referred to the women's committee
 
6. Do you have any views about the effectiveness of the consultation process? Is there any examples of the consultation process having an impact upon legislative proposals?
 
For national legislation these processes have been effective. Austria - being neutral until about 1990- has always sought to include all political forces in the social consensus and to satisfy all possible interests. In comparison to Germany, the Austrian system has always been more open and more accessible for NGO's interests.
 
From the domestic politics point of view, the integration of all interests has not always worked, which has led to occasional social instability: e.g. environmental issues: the violent confrontations of the 1980s (between environmentalists, the police and construction workers) at nuclear power stations, or the controversy over the introduction (without the social partner's inclusion) of a new social security system, which, in the end led to new elections in 1995/6 and a change in the head of government.
 
However, there is also currently a debate taking place over whether and how far Austria's EU membership has changed the participatory political system, namely whether this has weakened the strong position of social partners.
 
At Länder level the social partners' input into the drafting process works well in the opinion of both the unions and the parliaments where intensive discussions take place. The results are brought forward to Parliament, so that legislation is usually the product of these discussions. The main aim is to achieve consensus. The final shape of the legislation does however depend on the political majority, but even then the Social partners' views are pushed via their representatives in Parliament.
 
Section 3: co-optees and the experience of local government women's committees
 
The use of co-optees as advisers is a well established practice in local government. Cooptees act as participants in the determining of policy and as a two way channel of information with the wider community.49 Local government women's committees, which were particularly active in the 1980s and early 1990s, made extensive use of the power to co-opt local women into membership in order to include their perspectives in their work. Women's committees drew inspiration from the decentralised democracy of the women's movement.50 They co-opted community representatives who could convey locally identified needs and concerns and experimented with open meetings to draw local women into policy-making process. This was motivated by the desire to change existing conventions of representation and empower women to change the priorities of government. The 'face to face' participation of decentralised democracy became an important element in the practice of women's committees.
 
The co option of 'ordinary' people or representatives of equity groups onto committees can be seen as a democratic measure which allows people who are usually excluded from the policy process to have a voice. Conversely, co-option may be challenged on the grounds that community representatives are unaccountable and unrepresentative. In addition, there are issues about the extent to which such initiatives to increase community involvement in government go beyond tokenism. The strategy of co opting outsiders onto local government women's committees demonstrated a new openness in local politics but was potentially vulnerable to abuse by highly organised groups who were not representative of the local community but were instead promoting the interests of a specific minority or cause. The experience of the Greater London Council (GLC) women's committee is an early and extreme example of the problem:
 
Two Co optees from the notoriously sectarian King's Cross Women's Centre attempted to take control of the committee and had to be voted down by a wide coalition of members opposed to 'bullying tactics' .51
 
Committees varied in terms of selection procedure; in some authorities a relatively closed system of appointment operated, others had extensive systems of public nomination and appointment. Considerable efforts were made by some committees to recruit, train and support women with no experience of public service or community activism. Co-optees (usually called community representatives) had an advisory role, since only elected members could vote on fill' committees and since sub committees and advisory groups, where they might vote, were without decision-making power. However, they had fill' speaking rights and were also permitted to present reports to committee and sub committees. Some authorities initiated co-optee pre-meetings which allowed co-optees to prepare for meetings with the help of council equality officers. Pre meetings also provided opportunities for co-optees to encourage each other and for experienced members to pass on skills and information. Stokes study of the use of co-optees on s committees notes a number of pros and cons. In terms of disadvantages, there was a tendency for community representatives to become 'professionalised' and gaining expertise that rather distanced them from their communities. She also notes issues of incumbency; co-optees tended to serve for long periods of time, and processes of re-selection were less than rigorous. These features raise issues of both accountability and representativeness. Raised expectations of community involvement were sometimes frustrated by the council's other priorities, which raises issues of responsiveness.
 
In terms of advantages, the co optee system gave skills and experience to women about how government works and how they might influence it; it provided a pathway to elected office for a significant number of women; there is evidence that co optees did have some success in influencing the policy agenda; important channels of communication were maintained between committees and communities. Stokes argues that despite shortcomings, the co-optee system produced high levels of responsiveness and accountability and was good democratic practice.
 
Women's Committees were a very small experiment within a resistant structure; they achieved a lot in terms of evolving ways of combining representatives with different sources of legitimation and different forms of accountability.52
 

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