EPHA welcomes the Commission’s publication of comprehensive consultation guidelines. Smart regulation should mean fair and citizen-centred policy making that brings tangible benefits to the citizens of Europe and improves their quality of life. This involves greater use of evidence-based impact assessment and improving the consultation process.
The aim of the guidelines should be to ensure transparency and representativeness. Publishing consultation responses, as well as explanations of the resulting decisions taken, should be standard practice to ensure the legitimacy and accountability of policy making. Participation of a wide range of stakeholders should also be a top priority as traditionally many groups have been excluded that are most in need of representation. EPHA welcomes the Commission’s efforts, through the Smart Regulation agenda, to address these issues and to strengthen the democratic legitimacy of European policy.
Additions to Consultation Questions
EPHA feels that all essential elements of the guidelines are covered, but welcomes the addition of guidance on the specifics of the consultation questions, including how long they should be, how many should be included, and what kind of technical/lay language should be used. Currently there is no reference to these considerations, and their inclusion would better clarify the process.
Identifying the Audience
The Commission has the responsibility to ensure it is identifying and targeting the right stakeholder, as well as working to obtain their contributions. However, the current listing of four stakeholder groups in the guidelines is flawed, as it assumes the lead service in charge of the consultation knows into which category a given stakeholder falls. It also assumes these services have a firm idea of which organisations and individuals have an interest in an issue, even though there is no way to be sure. In health, this is a major concern as every policy has an effect on health, however health stakeholders are often overlooked. For this reason, the Commission must help and encourage less-easily identified stakeholders to nominate themselves as respondents.
Improving Stakeholder Participation
It is important for stakeholders to be aware of a consultation in order to make the decision to participate. The participation of a number of stakeholders will ensure a representative group of different interests and a wide range of views to be heard. This requires extensive promoting and advertising consultations as widely as possible.
Consultation documents are generally sufficient, although they need to consistently include comprehensive background information, links to the relevant Commission pages, and links to previous studies and related documents.
EPHA commends the Commission’s recent focus upon involving SMEs in the consultation process as they face many barriers, but notes that similar consideration is not given to civil society and NGOS, despite the equivalent resource challenges they also face.
Risk of ‘over consultation’
It is beneficial that public consultations should be proportionate to the scope of the initiatives being developed as it reduces the burden of composing the responses. However, this guidance should consider the case of ‘bigger’ initiatives, where the correspondingly large-sized consultations make the burden on small stakeholders high for the most significant policy proposals.
When appropriate, consultations should be shortened or divided into sections to allow stakeholders to respond in parts or only to parts which concern them directly. In addition, the consultation document should make clear that respondents are not obligated to answer all questions or comment on all features. This would reduce the amount of superfluous input received by the Commission and reduce resource investment required by contributors.
Explaining Limits of Consultations
The guidance document makes some references to the limits of consultations, although sometimes they are unclear as in the case of data collection limits. The guidance should be clear that consultations are most valuable where they are representative, transparent and inclusive. These are factors which are dependent upon the consultation design and execution and its consideration alongside an evidence-based impact assessment.
Analysing Respondents and Providing Feedback
EPHA congratulates the Commission’s approach to provide guidance on how to analyse the results of public consultations in the guidelines. However, the guidelines should ensure that the lead service is aware of the different kinds of responses they are likely to receive from different kinds of stakeholders. For instance, larger organisations and lobbies are likely to have greater resources and so produce more technical and detailed expertise, whilst smaller stakeholders are more likely to take a broader perspective and highlight less obvious concerns or considerations. These different types of response should be equally weighted.
Secondly, step eight of the guidelines distinguishes between facts, data and evidence, on the one hand, and subjective opinion on the other. It is worded to suggest that the latter is less credible, yet the preamble of the guidelines states that public consultations should not be used to collect data that creates confusion. This point should be clarified to note the value of subjective and qualitative input and ensure an equal weighting between contributions.
Often, NGOs and social partners report that they feel their contributions are not taken into account, causing them to decline to participate in future consultations. This damages the legitimacy of the policy making process. In order to correct this issue, EPHA would like to see that feedback to stakeholders is compulsory, timely and comprehensive, and explicitly states the policy option chosen and candidly acknowledge which perspective was given the most weight and why.
Consultation Steps 1-10
The steps outlined are logical and clear for a first round of policy development. However, the guidelines state that a range of policy options should be considered in the consultation process, which limits the amount of space for stakeholders to comment on the different policies and their implications. Provisions might be made for stakeholders to contribute a brief, one-page follow up comment upon a specific policy option that has been decided upon, which would allow for stakeholders to receive additional input on a chosen policy instrument.
Discussing a similar issue, the Staff Working Document which reviewed the consultation process (2012 422) noted calls for the Commission to consult on draft impact assessments – this is logical, as the current process does not allow for follow-up consultation once a policy decision or change has been taken. These two processes should be closely aligned to limit burden.
Individual consultations must be careful not to rely heavily on one particular tool, as access to more involved tools are difficult for smaller, less-resourced, local or even national organisations, and therefore these tools inherently benefit better-funded stakeholders based in Brussels. Although there are solutions such as online access and streaming of hearings, it does not allow for an equally meaningful contribution for those not in the room. The ‘consult and involve’ technique detailed in Annex I is the most inclusive and beneficial approach and should therefore be highlighted as the default approach in most consultations.
Although EPHA understands the decision not to put online the informal, internal translations that the Commission uses, it still creates an issue of transparency as stakeholders are unable to see what has been contributed by others. EPHA suggests these translations be published, but with a clear disclaimer that they are informal, internal documents used purely as a basis for discussing contributions and the issues raised.
Finally, the confusion around data collection should be addressed. There is a conflict between the text in the preamble which states that public consultations should not be used for data collection, and the text of the consultation which states that data collection is a possible objective. EPHA believes the collection of data is primarily the remit of the impact assessment, not the public consultation.