CrowdLaw: Transparency and Participation

On March 13-17, 2018 The GovLab brought together two dozen crowdlaw experts from around the world to collaborate on developing new ways to include more and more diverse opinions and expertise at every stage of the law- and policy-making process. The convening was held at the Rockefeller Foundation’s famed Bellagio Center in Bellagio, Italy. This post is the second in a series of blog posts from the crowdlaw conference participants.

bellagio-conf

A session in progress at the CrowdLaw conference at the Rockefeller Foundation conference center in Bellagio, Italy

In this session on ‘Transparency and Participation’ at the Bellagio conference on Crowdlaw: People-Led Innovation in Urban Lawmaking (March 13-17, 2018), we discussed whether participation depended on more transparency and whether transparency could be counter-productive to more engagement. I had the pleasure of speaking and moderating a conversation with:

  • Mukhelani Dimba, Open Government Partnership
  • Julia Keutgen,Westminster Foundation for Democracy
  • Hélène Landemore, Yale University
  • Veronica Seguel, Chamber of Deputies Chile

Transparency is instrumental for participation and for accountability. But in order to delve into the linkages between transparency and participation with discernment, it is necessary to clarify the concept of ‘transparency’. Transparency is the immediate visibility for citizens of all policy related aspects. It is the contrary of opacity but is can be compatible with a certain closure. It is more demanding that publicity. It can help citizens to engage in policy, be instrumental to accountability and be educational and transformative for citizens. Transparency helps citizens to know and understand whether their government is protecting their rights and delivering on public services. It can range from total transparency to partial transparency. In some cases, partial transparency has been used by governments and parliaments to justify certain decisions. But when transparency is only partial, it cannot be expected to deliver good outcomes as citizens voice their opinion without having the full picture.

Transparency and participation should be regulated by law, including through Freedom of Information laws and the rules of procedure of parliament. In Brazil, for instance, the rules of procedure of parliament state the obligation for citizens to participate in committee hearings. That being said, there is not a single legal provision of transparency that could grant access to full access to information. Even when regulated by law, the utopian possibilities of transparency as a means to inclusiveness, universality and transformation, are simply not borne out in reality. For instance, today there is no evidence that Freedom of Information laws on their own have dramatically improved government transparency, responsiveness and accountability.

Transparency mostly operates in circumstances of high inequality. In these circumstances, having more transparency does not mean that there are better dialogues between government/parliaments and citizens. In this sense, transparency can lead to more inequality and elite capture because only those who have access to resources and the information are able to participate. Ultimately, participation rests on access to information. Where there are information asymmetries, only voices and interests of the resource rich are audible.

Transparency should be accompanied by civic education and procedural language of government and parliament should be translated meaningfully to citizen to enable meaningful their participation. Participation channels should be linked to citizen’s interest on a single issue rather than party politics. In Chile, for instance, the parliament has developed an online tool “Ley fácil” (easy law) to make the law understandable for ordinary citizens (https://www.bcn.cl/leyfacil).

Transparency is not always the most efficient way to improve a legitimate participatory process and can be very time consuming. Some scholars have even gone further and argued that it has a counterproductive effect on democracy. Even if relative transparency is achieved, there are questions regarding the quality of participation (who participates and how, with what degree of sincerity) and the quantity of participation (how many people participate). This is for instance the case in Chile, where public hearings organized by the parliament are mostly attended by men with a legal background and living in the capital and the voices of other stakeholders are not being heard.

Transparency makes compromises between representatives more difficult. When discussions are transparent and public, it can harden negotiating positions and make it difficult for elected officials to compromise. Citizens are mostly in favour or against a single issue, while legislation requires compromises and trade-offs between single issues. The more trade-offs are involved, the more trade-offs are required the more difficult it is to have full transparency of the negotiation that led to the compromise. Finally, too much transparency coupled with a lack of understanding of parliamentary/governmental processes, for instance disclosure of donations, can have a dampening effect on participation and lead to increased lack of trust in the institutions and its systems.

In the end, participants agreed that transparency is the ideal default principle, with instrumental value, but should be compatible with exceptions. It should not in itself represent a judgement of democracy.

*Julia Keutgen is ‎a Technical Advisor at the Westminster Foundation for Democracy (WFD)