4. CROWDLAW | FRAMEWORK FOR INSTITUTIONAL PUBLIC ENGAGEMENT IN LAWMAKING
This section offers a draft of provisions of a public engagement statute with an explanation and rationale for each. We also compare these provisions to what was contained in the Podemos 2016 original draft.
This is a draft version of the report (dated October 12, 2017) and will be updated in November.
Building on our recommendations, the analysis of 25 global case studies (Appendix I: Case studies), the draft of a public engagement law prepared by Podemos in 2016 (Appendix III: Outline of Podemos’s Draft Citizen Participation Law for the Autonomous Community of Madrid), and comparative analysis of public engagement laws (Appendix IV: Public engagement legal frameworks),¹ we outline draft provisions of a legal framework designed to institutionalize diverse yet manageable participation opportunities at every stage of lawmaking while ensuring that such participation is relevant and useful.
This model is intended to jumpstart a consultation and drafting process for the Assembly and 179 City Councils of Madrid.
This new model draft shifts the emphasis from dictating and defining participation mechanisms a priori to creating the enabling conditions to catalyze participation.
By institutionalizing the power to create, study, and evolve participation mechanisms within the Lab, rather than specifically institutionalizing the mechanisms themselves, the Region can better assess and then adapt those mechanisms to the needs of the public and the government.² By focusing more on creating an infrastructure and culture for participation, the Region can implement existing practices or experiment with new ones yet to be developed. This provides the Region and City Councils more flexibility.
1. Establish the Open Assembly Lab
This section establishes the Lab, sets out the duties of the Lab, discusses the metrics for its success, and creates the obligation to develop participation opportunities in consultation with both legislative staff and the public. Podemos’s earlier draft outlined specific participation mechanisms: Public Policy Conferences, Participatory Discussion Processes, and Public Consultations. But none of those methods were designed with consideration of the needs of the legislative process or how to optimize for new technology. Therefore, rather than dictate the specific method to be employed, this new draft mandates creation of the Lab and the design of new methods for engagement at every stage as well as testing what works.
a. Lab Establishment — The Open Assembly Lab shall have the mandate and ability to pilot new and innovative modes of public engagement in lawmaking. The Lab shall comprise an appointed staff with expertise in the lawmaking practices of the Assembly, new technology, and its uses for public participation. The Lab shall also establish an advisory board comprising global experts, lawmakers and their staff, and a representative sample of the region’s public to advise its work. In lieu of prescribing specific methodologies for public participation in the legislation, the bill should create this mechanism for designing, implementing, measuring, and improving engagement over time.
^ Why? The centerpiece of the proposed bill is the establishment of a unit within the Assembly — the Open Assembly Lab — which will be responsible for the design, implementation and evaluation of public engagement practices. The Lab concept builds on the Governing Body of Citizen Participation outlined in Section III (Article 62) of the 2016 draft law. But in contrast to the earlier draft, which defined specific (and outdated) methods for consultation, this bill would, instead, vest the Lab with the power and resources to design and implement new citizen engagement pilot programs and bind the legislature to use the platforms and practices it designs. This would allow new methods to be tried and tested, going beyond petitions to try out platforms and practices that might be better designed to improve legislation. The Lab would compromise a small full-time staff augmented by local and global know-how.
b. Lab Authority to Bind the Legislature — Following enactment, the Lab will codify the provisions of this bill into a set of draft operating procedures for the Lab to follow in designing and developing crowdlaw pilots, platforms and practices. The procedures will lay out, inter alia, requirements for human-centered design and public consultation, establish metrics, and designate a pilot period for testing any crowdlaw practices. The procedures will be subject to public consultation and consultation with the Assembly’s staff and elected members in order that the Assembly implement the engagement practices developed by the Lab during the pilot period.
^ Why? We want to create a learning process whereby the Assembly enhances the quality and accountability of its lawmaking, which will require committing to the use and evolution of public engagement processes over time. Thus there needs to be some language requiring a commitment on the part of the Assembly.
c. Open Assembly Lab Activities — The Lab shall:
i. Have the power to bind the Assembly to use the mechanisms it develops as part of the conduct of formal lawmaking;
ii. Develop mechanisms to solicit four types of contributions, including: 1) opinions, 2) facts and information, 3) ideas and proposals, and 4) actions and tasks. The Lab shall innovate in the development of consultation mechanisms designed to elicit, where useful, these different types of contributions.
iii. One of those duties would be responsibility for moderating and facilitating engagement.
^ Why? One finding that consistently emerged from our case studies highlighted the crucial importance of moderating discussions during public engagements. Poor moderation can quickly derail the deliberative process and leave participants confused and frustrated. The need for moderation is equally important online and offline. Ireland’s We the Citizens pilot ran successful regional meetings in large part because of the role of skilled moderators. Parlement & Citoyens in France also relied on staff moderators to lead consultations, which helped facilitate discussions. Although volunteer moderators and peer-to-peer moderation enabled by a software platform are also options, some form of facilitation must always be considered. Article 28 § 2 of the draft bill on Participatory Discussion Processes places the responsibility for facilitating discussions on the Public Administration themselves, but it is unclear who is contemplated here. Such lack of precision raises the risk of poor facilitation, which should be the responsibility of the Lab to design.
iv. Design, procure, implement, and evaluate online and offline forms of exchange and communication between institutions and the community;
v. Develop the process for public engagement practices for every stage of the lawmaking process, as set forth in Section 7;
vi. Moderate and curate public engagement mechanisms to ensure high quality and civil participation opportunities;
vii. Conduct trainings and education of the public and lawmakers to improve the workings of public participation in lawmaking; and
viii. Openly publish its training materials and provide assistance to cities requesting advice on their own participatory processes.
^ Why? Different points in the lawmaking process call for additional information. At the outset ideas and proposals about what to include in the draft might be more useful, whereas factual information is needed to improve and validate the draft of a bill. Opinions might be desirable throughout. Finally, the Assembly might need people to go out and gather data about a law’s impact post-passage. What is paramount is to go beyond petitions and “naked suggestions” to elicit input that is useful and manageable.
d. Lab Commitment to Human-Centered Design — When designing participation processes and platforms, whether digital or face-to-face, and whether designed to solicit opinions, ideas, or tasks at each stage of the legislative process, the Lab shall seek to maximize simplicity, clarity, and adaptability of use by the end user and by the Assembly. To ensure that processes and platforms address the needs, objectives, behavior, and capabilities of a wide range of end users, the Lab should conduct human-centered design and solicit the input of both the public and lawmakers to the end of designing participatory mechanisms that improve the quality and efficiency of the lawmaking process The Lab shall produce a written impact assessment articulating the goals and assumptions underlying the final design of any public engagement processes.
^ Why? It is not enough to create an app or a website for engagement. Participation must be designed and managed to be both attractive for the public and useful to the institution of the Assembly. Therefore, there is need for a body with responsibility to manage public engagement and to integrate it into the workflow of the legislature. As Croatia’s engagement law makes clear in Section 4, effectiveness is paramount: “In order to be effective, consultation with the interested public is initiated at a time when it is still possible to influence the drafting of laws, other regulations and acts, that is at the early stage of their drafting, when all options for their improvement and amendment are still open. The procedure for conducting consultations should maintain an acceptable balance between the need for effective enactment of laws and adoption of other regulations and acts, and the need for an appropriate contribution by the representatives of the interested public.”
e. Metrics — The Lab shall define metrics for the success of public engagement and shall evaluate its work against those metrics. Especially because the Lab will work to create more opportunities to participate that are tailored to people’s interests and expertise, metrics shall not be limited to the number of people participating in any one process; metrics shall include measures of the impact of engagement on lawmaking as well as measures of the diversity of participation to ensure engagement by those from diverse socio-economic, gender, religious, ethnic, political, citizenship, and educational backgrounds. Metrics shall measure promotion of the inclusion of inadequately represented voices and interests. The Lab shall revise this non-exhaustive list of metrics regularly and set annual targets, recognizing that successful practices must be evolved and developed over time. The Lab shall be required to report online to the public and the Assembly progress against the principles outlined in the bill on a quarterly basis. It shall be required to publish anonymized aggregate data for download about online participation activities to enable research and improvement.
2. Declare public participation as a right
Participation contributes to the strengthening of democracy and democratic institutions. Participation should promote processes whose design and implementation foster co-responsibility with the public and recognize that every member of the Spanish public has something to contribute.
^ Why? A clear statement of confidence in public’s ability is consistent with the vision and goals of the party and helps set this proposal apart. In addition, however, any legislation could also include a general statement of principles, such as Aragon’s 2015 law on citizen engagement or Bologna’s law on citizen collaboration and the urban commons.
3. Articulate the purpose of participation
The purpose of participation is to tap the intelligence, expertise, and experience of the public, including individuals, civil society organizations, businesses, and civil servants by integrating useful participation into the lawmaking process at every stage to solve problems and improve lives.
^ Why? Participation can have many goals, ranging from fostering deliberation to creating consensus to strengthening social cohesion, thus it is important to articulate the core goal of enhancing governing in order that the law addresses how to integrate participation into lawmaking. Civil society organizations can already establish mechanisms for lobbying parliament and platform creators can launch apps to amplify public voice. Legislation is not needed in order to create a website or ask the public to participate. Rather, public engagement legislation is needed to address the role of the legislative body, ensuring that it adapts its practices to make engagement relevant. Case study research affirms that institutionalized crowdlaw initiatives — e.g. those managed in part by government, or that have guaranteed government review of public input, such as Brazil’s HackerLab, Better Neighborhoods, and vTaiwan — are more successful in soliciting and reacting to public input because the crowdlaw initiative is aligned with existing processes.³ Similarly, India’s MyGov platform has mandated that any Ministry seeking public input must go through the platform (and has registered over 2 million users).⁴
4. Actively foster participation
The Assembly, via the Lab, shall actively take steps to foster engagement and participation by: 1) investing in training and education about how the Assembly makes decisions, its jurisdiction and lawmaking processes; 2) investing in training and education of the public, especially Spain’s youth, about citizenship and public participation, especially in schools; 3) investing in training and education about the new public engagement law; and 4) taking proactive steps to promote engagement by a diverse public.
^ Why? The government will need to take steps to promote active participation, actively involving the public in developing and implementing law. Bologna’s law on public engagement emphasizes training, including in schools, in Title V. Also Articles 60 and 62 of the old draft also called for promotion and outreach of the bill itself, but were thin when it comes to training people about the legislative process. Examples of outreach mechanisms are myriad; for example, in Lisbon, the city government traveled throughout the city with a Participatory Budgeting Bus to help promote PB and offer a chance to participate on the spot. Similarly, Ireland’s We the Citizens program established regional meetings throughout the country to generate a geographically representative sample of participants.
5. Transparency and accountability
a. Legislative Transparency and the Right to Know — Participation is not possible without understanding the process in which one is participating. The public has a right to know in plain language about the deliberations and decisions of the Assembly in connection with specific bills, what is adopted, the intended purpose of any enacted law, and who are the responsible persons (sponsors and signatories), with a clear, plain, accessible language accompanying a statement of the law’s objectives and requirements. All information shall be public, complete, timely, and accessible, subject only to exceptions defined by the legislation in force.
^ Why? Without knowing how lawmaking works, it is impossible for people to participate meaningfully. In a democracy, people have a right to know how legislation is enacted and what is enacted, by whom and to what end to foster accountability. In contrast to Section 4, which addresses the need to train people in how a bill becomes a law in general terms, Section 5 addresses transparency in connection with specific bills. In a final draft, Sections 4 and 5 could be combined. Such provisions on transparency are not uncommon. See Article 6 of Aragon’s 2015 law, for example.
b. Online Publication — The Assembly’s bills and enacted legislation, together with the responsible persons (sponsors and signatories), a summary of every bill, a statement of its intended purpose, and other metadata to be defined by Public Engagement Lab, shall be published online in machine-readable XML and in human-readable form to enable both printing of formatted paper copies and the extraction and analysis of information.
^ Why? If published as open, machine-readable data, legislative information can be analyzed more effectively to enable, for example, finding every place that money is appropriated or every bill that touches on education, or to assess who is introducing the most and the least legislation. The data standards for what information must be included and its formatting should be established by the Lab in consultation with legislative staff, local and global experts and the public.
c. Publish a Calendar of Participation Opportunities — To enable participation, the Assembly shall regularly publish a calendar of all opportunities to participate in machine- and human-readable form.
^ Why? People cannot participate if they do not know when and how to do so.
6. Incorporate engagement at every phase of lawmaking
a. Participation at Every Point in the Lifecycle of a Bill — Participation shall become part of the standard practice of legislating. By offering efficient engagement opportunities at each stage, the public can contribute and the Assembly can receive useful input at the right time. The Lab shall design and test diverse, innovative, and efficient mechanisms for soliciting public input on:
Agenda-setting — when the Assembly decides which issues to take up. This is an opportunity for the public to propose, prioritize and critique problems to tackle. Any process shall define thresholds for required consideration and mechanisms designed to ensure that the public defines problems and provides supporting evidence. Examples of agenda-setting mechanisms include town halls, open innovation, deliberation and ideation platforms, and e-petition mechanisms;
Proposal-making — when the legislative body arrives at the substance of a solution to a problem. This presents a chance to suggest, deliberate upon, and critique proposed approaches. Methods employed should enable citizens to submit solutions, defining practical approaches to problems. Examples of such methods include challenge and ideation processes. Recommended processes should define conditions under which the Assembly must respond to proposals that meet a set of published criteria;
Drafting — when lawmaking bodies memorialize solutions through the writing of legislation. This provides an opportunity to draft collaboratively and to solicit comments, questions, and critiques on a draft. Examples include collaborative drafting and annotation platforms;
Implementation — when legislatures delegate administrative bodies or staff the task of turning law into practice. This presents another chance for participation, where the public can help lay out concrete plans. Examples include co-creation and open innovation processes; and
Evaluation — when parliaments determine the downstream impact, including both cost and benefits, of legislation on people’s lives. This is an opportunity for engagement, soliciting ideas, for example, from the public about how to measure impact and what data to use for that purpose, as well as an opportunity for citizens to monitor the success of the implementation. Examples include monitoring and reporting apps and programs.
^ Why? Current crowdlaw practices generally mimic offline mechanisms such as petitions and referenda as is the case in Finland’s system, which has legislated public initiatives only. Crowdlaw practices are clustered toward the beginning of the legislative process. The 2016 draft, for example, does not describe any engagement processes designed to inform the drafting and evolutions of bills only mechanisms to propose issues, identify solutions and propose new drafts.
b. Offline Engagement — At every stage of the lawmaking process, the Lab shall develop complementary offline as well as online engagement opportunities across a wide variety of channels to ensure inclusive participation. The Lab shall test and assess who is reached via which channels.
^ Why? Available channels for participation should be expanded without sacrificing efficiency. As was the case in British Columbia with the implementation of GovTogetherBC, allowing for participation through as many channels as possible — including phone, mail, email, online, and in person — provides participants with the opportunity to engage in a consultation through the medium most convenient to them. Thus, GovTogetherBC was able to solicit hundreds of thousands of total responses across hundreds of engagements. Similarly, the Participatory Budgeting laws in both Lisbon and Paris broadened the base of involved citizens by ensuring that one could fully participate in the process either through face-to-face meetings or online.
c. Plain Language Instructions — At every stage, the Lab shall publish clear and plain language directions for how to participate, any thresholds or deadlines, how the participation will be used, the timeline for participation, and the anticipated feedback mechanism. The role that the mechanism is meant to play in Madrid’s legislative process must be clearly communicated at the outset of any consultation. The Lab shall also publish clear and plain language directions for the Assembly for how to take feedback on board.
^ Why? Although we have already set forth a requirement to explain how a bill becomes a law and to make the legislative agenda transparent, this provision deals with the requirement to provide instructions about how to participate. We have intentionally omitted the provision in Article 7 of the 2016 draft requiring that all forms of participation be open to all, because we recognize that the Assembly should be free, for example, to solicit the opinions of teachers on a draft bill about education or of residents of public housing for a bill on housing, while creating a separate channel for general input.
As a general rule, successful crowdsourcing initiatives set criteria for who can participate. There is value to preserving flexibility for the Lab to design targeted crowdsourcing opportunities while ensuring nondiscrimination. In the UK Parliament’s Public Reading Stage Pilot, for example, subsequent evaluation found that larger numbers of participants were more likely to reflect interest group involvement than public sentiment thus open engagement is not necessarily the way to guarantee democratic participation.⁵ Second, Articles 18, 26, and 49 (related to Public Policy Conferences, Participatory Discussion Processes, and Popular Initiatives, respectively) of the 2016 draft specify that the support of at least 0.1% of the population is necessary to initiate a citizen engagement mechanism. Although such thresholds can help ensure that public funds are not expended on managing poorly attended consultations and that minorities cannot distort the process of democratic governing, experience also shows that such thresholds can have a chilling effect on citizen engagement. Tuscany’s citizen engagement law, for instance, required that for large scale public works, the assent of 0.5% of the population was needed to trigger a consultation. This threshold was not conducive to consultations. In actuality, the first public consultation did not occur until 2016, following the enactment of Law 46/2013, which automatically initiated such processes for certain large scale public works.⁶ Although the threshold in Podemos’s draft law is smaller by a factor of five, it is also important to note that the Community of Madrid’s population is approximately twice that of the Region of Tuscany’s. In some circumstances, it will be advisable to establish thresholds to avoid plebiscitary governance but, in other circumstances, such as when specific information is needed, participation by small numbers of the right individuals will be preferable to mass engagement. Thus we have left this requirement flexible.
d. Pilots and Experimentation — Because participation must accomplish measurable benefits, the Assembly shall implement and the Lab shall test new participation practices during defined pilot periods that will be used to measure efficacy and improve practices.
^ Why? Given the novelty of online engagement, especially practices that go beyond familiar petitions and town hall meetings, it is important to test what works by piloting new practices as the Bundestag did when it moved the petition process from offline to on or as the British Parliament did when it testing online bill commenting. Experimentation was particularly important to the success of several case studies we examined. Lisbon’s participatory budgeting program, for instance, grew in large part due its flexible design. Similarly, vTaiwan’s independence enabled it to incorporate new and innovative technology into its consultation platform. Embodying a similarly experimental spirit into the Lab and its practices could help generate ideas and creative thinking
In contrast to the earlier draft, which mandated the practices to be used a priori, the Lab should be empowered to run short term pilots of engagement opportunities.
7. Evaluation and testing
a. Surveys — Following every participatory exercise, the Lab shall randomly survey public participants, Assembly members, staff, and those who did not participate to learn how to improve the process.
^ Why? The law should mandate ongoing surveys of participants in the various citizen engagement activities in order to assess the level of awareness in the community about the citizen engagement law, as well as the satisfaction levels of those who participate in the program. In addition and, where practicable, the Lab should survey Madrileños who do not participate as well to understand why. An excellent example of such a survey can be found in the We the Citizens pilot program that was initiated in Ireland: a thorough survey of participants was issued concurrently in order to understand how participants’ attitudes changed over the course of the process.⁷ In contrast, an observed weakness in Paris’s participatory budgeting program is a lack of understanding as to who is participating, which would have helped the city understand whether or not they were successfully engaging with underserved communities.⁸
b. Research and Evaluation — In order to design effective participation opportunities that benefit the public and the Assembly, research is needed to test innovative processes and platforms. The Lab shall collaborate with members of the research community to design and implement research experiments. Research may involve natural experiments to observe how platforms work, who participates, and how. In addition, the Lab shall, where appropriate and practicable, run randomized controlled trials (RCTs) by dividing participants into two groups and presenting them with alternative participation experiences. Such A/B testing could be used to measure different ways, for example, of explaining how to participate to the public to understand what works better. A/B testing and other research results shall be reported on a quarterly basis with upcoming experiments made transparent to the public and the research design published for public comment at least one quarter prior to the implementation of the experiment.
^ Why? A critical component of successful citizen engagement laws is the ability to iterate and experiment. The highly contextual nature of democratic participation means that there is no “one size fits all” solution for civic engagement that can be easily ported from one context to the next; while a range of potentially effective and ineffective designs are available, the precise nature of any system’s implementation will necessarily require fine-tuning. To that end, testing and experimentation are critical to the sustained success of a citizen engagement program; indeed, comprehensive and ongoing evaluations are necessary to know if the law is successful in the first place. To this end, Articles 72–74 of the earlier draft provided for monitoring and assessment of participation activities, the creation of a “Public Participation Observatory” to oversee evaluations of the law, and comprehensive review of the program after five years have elapsed. Given the importance of ongoing evaluation and assessment, we have amended the draft in two ways. First, we outline a non-exhaustive set of metrics (currently listed in Section 2) to be collected from every public participation practice. Second, a five-year reporting timeline is much too long given the ability to do real-time and automated data collection from engagement platforms. Therefore, we propose the incorporation of A/B testing into the implementation of any public engagement practice.
- Gabriella Capone & Beth Noveck
Next posts in the series:
- #5. CrowdLaw | The political context in Spain and elsewhere
- #6. CrowdLaw | Why public engagement? Normative goals
- #7. CrowdLaw | 25 Global Citizen Engagement Case Studies
Or go to the first post in the series and table of contents here.
Footnotes
¹ See Appendix IV. For full texts and supporting materials, please consult this folder (Spain; Bologna, Italy; the Republic of Croatia; the Republic of Finland; the Republic of South Africa; the Region of Tuscany, Italy; the United States; and the Autonomous Community of Valencia, Spain.)
² This generally follows the strategy pursued by the Region of Tuscany, which first instituted the principle of participation in the regional government through Law 69/2007. The law was created through an inclusive, deliberative process, but intentionally did not set out specific mechanisms. Then, Law 46/2013 built on Law 69 and created a permanent legal framework, outlining specific mechanisms for agencies to follow. However, the Lab would enable the Madrid Region to immediately start experimenting with participatory processes!
³ Systems are institutionalized in different ways, and see different benefits as a result. Parlement & Citoyens’s consultations are sponsored by representatives who set a narrow topic for the consultation, ensuring that public input is always on-topic. Better Neighborhoods in Reykjavik guarantees government review of the most popular proposals, and vTaiwan guarantees the review of proposals on which a consensus has been reached — bringing transparency and a rhythm into the process. As discussed, Law 69/2007 institutionalizes the government’s commitment to public participation, laying the groundwork for more specific mechanisms.
⁴ “MyGov User Manual,” Ministry of Electronics & Information Technology (Meity), National Informatics Centre (NIC), accessed July 24, 2017, available at https://www.mygov.in/sites/default/files/Help%20Document.pdf
⁵ Lucy Petrie, Jessica Mulley, “Evaluation of the Public Reading Stage Pilot,” The Scrutiny Unit, UK Parliament (2013), available at https://www.parliament.uk/documents/commons/Scrutiny/SU-PRS-Evaluation-FINAL-June-2013-JNM.PDF
⁶ “The Tuscany Regional Participation Policy, Italy,” Participedia, last modified December 19, 2016, available at http://participedia.net/en/cases/tuscany-regional-participation-policy-italy#_ftnref1
⁷ “Participatory democracy in action — a pilot,” We the Citizens (December 2011): 30–32, available at http://www.atlanticphilanthropies.org/app/uploads/2015/09/We-the-Citizens-2011-FINAL.pdf
⁸ Julie Simon, Theo Bass, Victoria Boelman, and Geoff Mulgan, “Digital Democracy: The tools transforming political engagement,” Nesta (February 2017), accessed June 26, 2017, available at http://www.nesta.org.uk/sites/default/files/digital_democracy.pdf
