Once these steps are completed, the European Commission meets with the organisers so they can explain the initiative in detail. Within three months, the Commission sets out its legal and political conclusions, the action it intends to take and its reasons for acting (or not). Then the organisers are given the opportunity to present their initiative at a public hearing in the European Parliament. Unfortunately, due to the number of constraints (both legal and practical), only a few initiatives have successfully completed the ECI process from initial registration to Commission acceptance and reply. Out of 50 plus registered ECIs, only three have collected the million signatures required and only one, the Right2Water campaign, led the EU to act. More than 40 per cent of initiatives were rejected by the EU, as they fell outside of its competences to act. What renders the ECI a particularly interesting instrument is its origin. It was put on the EU political agenda by a group of citizen lobbyists led by Carsten Berg. They successfully advocated for its recognition within the Treaty, establishing a Constitution for Europe prepared by the Convention on the Future of Europe and established by the EU Member States in 2001. Despite the decision of EU leaders to stop the negotiation of this treaty, which would have formally added a constitutional value to the EU, it was decided to include the ECI into the subsequent revision of the EU Treaties.
STORY – Stop TTIP
In 2014–15, 3.5 million European citizens signed an ECI – launched by Stop TTIP, an alliance of over 500 organisations – to prevent the Transatlantic Trade and Investment Partnership (TTIP) between the EU and the USA from being implemented. Thought to be the largest petition ever, it was rejected by the European Commission on legal grounds, after which the organisation restyled itself as a ‘self-organised ECI’. The petition continues to gather signatures, and a lawsuit is currently underway to try to overturn the Commission’s decision on the official petition.
STORY – Right2Water
The Right2Water citizens’ initiative became the first ever successful ECI in 2014, after gathering 1.6 million signatures from citizens of 25 different member states. Launched in Ireland, Right2Water’s credo is that access to water is a fundamental human right, and it campaigns to keep water services free from privatisation. The initiative called on the European Commission to propose legislation implementing the human right to water and sanitation as recognised by the UN, and promoted the provision of water and sanitation as essential public services. The EU legislation would require governments to provide all citizens with clean, sufficient drinking water and sanitation. Thanks to this campaign, the EU decided that public procurement rules do not apply when local authorities decide to provide the services themselves.
In the United States, direct democracy is only found at the state and local level. Twenty-four states have one or two mechanisms which allow citizens themselves to vote initiatives into law. The most powerful type is the direct initiative found in states like California and Nebraska. As with all initiatives, direct initiatives are citizen-designed legislative proposals, which other citizens can support by signing petitions. What makes the direct initiative such a powerful tool for citizenry is that after collecting the required number of signatures, the proposal goes directly before all the registered voters of the state for a vote of approval and enactment.
The slightly weaker indirect initiative works in the same way, except that after signature collection the state legislature must approve the proposal before citizens may vote on it. Some states like Massachusetts and Ohio even allow further signature collection to override this legislative veto. Sometimes, American courts exercise judicial review of ballot initiatives and referendums, as with the cases of Hollingsworth v. Perry where the decision was eventually appealed to the Supreme Court. In that case, citizens successfully filed a suit against a ballot initiative banning gay marriage. The case raised questions over whether courts should have the power to review direct democracy campaigns – a debate that also exists at national levels within the EU.
STORY – The California Taxpayers’ Revolt
In the 1970s, California resident Howard Jarvis ignited a movement which came to be known as the ‘taxpayers’ revolt’. Angry with the high tax rate on real estate, he set up a campaign which eventually led to a state-wide referendum on the subject. The vote passed with a near two-thirds majority, and the tax rate was subsequently slashed by 57 per cent with the introduction of Proposition 13 to the Constitution of California. The event, which triggered a similar vote and amendment in the state of Massachusetts just two years later, is a landmark moment in US history.
So citizens’ initiatives are not so much about direct democracy as about the power of numbers to influence rather than compel decision-makers to do what is apparently desired by the majority of voters.
eParticipation
A relatively new and still experimental way of getting stakeholders involved in policy and agenda-setting is through the use of information and communication technologies (ICT).27 Various recent initiatives have attempted to bring citizens and politicians together to develop public policy. The EU’s Demos@Work programme, for instance, seeks to facilitate discussions between civil society and elected representatives in Europe on the harmful effects of smoking. The initiative currently has two pilots ongoing in Catalonia and Lithuania. Another example is the EU’s eCommittee project, which seeks to gather suggestions and questions from citizens in ten Member States and deliver them – through web conferences – to MEPs who are working on environmental protection and climate change. Both of these examples are part of the larger EU eParticipation initiative.
The Administrative Avenue
Not all the policy changes or actions that you lobby for (or resist) will require a change in legislation. As a general rule, if what you want can be obtained from ministries, departments, agencies or other parts of government, you can follow the ‘administrative’ avenue. This is the route to take if you want existing policies to be implemented better (e.g. your LGBT law is on the statute book, but no one is acting on it). Similarly, if you’re complaining about how your elected representatives, their offices and the whole administrative machine treat you (e.g. they don’t respond to your requests), you should follow this avenue. Sometimes you want a given office to take a decision, such as launching an investigation into a company that is mistreating its employees or breaching environmental standards. Other times you need to force an office to disclose a document to the public (e.g. the expenses of your elected representatives).
The administrative avenue does not generally involve elected representatives, but rather focuses on civil servants (often called bureaucrats), who may be politically appointed or career-based. In some cases, you may want to challenge (or threaten to challenge) their decisions before the courts, thereby pursuing the ‘judicial’ avenue.
Virtually all countries recognise that their governmental bodies must act within the law (and the competences conferred upon them), and as a result they are accountable for how they treat their citizens.
The administrative avenue, similar to legislative lobbying, is limited by pre-determined procedures. These establish formal mechanisms ranging from simple requests (e.g. for access to public documents) to review and complaint procedures (e.g. a complaint to the ombudsman).
It is vital to learn about the various procedures that enable you to hold your administration accountable. While they differ from country to country, there are two privileged administrative tools that any citizen lobbyist must know about.
FOIA Requests
Historically, secrecy in politics was seen as inevitable. Yet secrecy has rapidly evolved into one of the most important citizen battles of our time. Efforts to force the authorities to abandon it led to the enactment of transparency and freedom of information laws – also called open records, sunshine laws or, most frequently, FOIAs (which take their name from various Freedom of Information Acts).28 Over 95 countries around the world have some form of freedom of information legislation, with two-thirds of t
hese introduced since the year 2000.29 Quite suddenly, 5 billion people have, at least on paper, gained the legal right to access government information.
As a result, FOIA has emerged as one of the most powerful tools for a citizen lobbyist. It empowers each of us to access information from a public authority in order to ensure transparency and hold decision-makers accountable. FOIA embodies the bottom-up, do-it-yourself approach of citizen lobbying. As stated by the US Supreme Court:
The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.30
Although each country has its own FOIA regulations and practices (and often each agency has its own rules), they share some common features.
FOIAs let you access information held by public authorities in two ways:
public authorities are obliged to publish certain information about their activities (proactive transparency);
members of the public are entitled to request information from public authorities (reactive transparency).
In other words, either the information is provided to us, or we have to ask for it ourselves.
The idea behind FOIA is that people have a right to know about what public authorities do, unless there is good reason for them not to. Disclosure of information is the default.
Moreover, FOIAs tend to be purpose- and applicant-blind. This means that:
you have the right to access official information, regardless of who you are and where you come from;
you don’t need to provide a reason for wanting the information. On the contrary, public authorities must justify refusing to give it to you;
all requests are treated equally, except in a few instances relating to vexatious requests and personal data. In other words, the beauty of FOIA advocacy is that it makes no difference who you are or why you want the information – whether you are a citizen, politician, journalist, local resident, civil servant or researcher;
any information you obtain under FOIA should be treated as if it were being released to the world at large;
public authorities can voluntarily disclose information to certain people, outside of FOIA requests.
FOIAs allow you to gain access to any recorded information held by public authorities, such as data, printed documents, electronic files, letters, emails and photographs. Access is not limited to official documents and it therefore covers drafts, emails, notes, recordings of telephone conversations, other audio and videos as well as CCTV recordings.
They establish a ‘right-to-know’ legal process through which requests can be obtained freely or at minimal cost, with some exceptions.
The major advantage of FOIA advocacy is that you do not need to have legal training or use special forms to file your requests. All you need is a letter (usually an email), and in some countries you can even file your request online. Several independent platforms make it easy for you to prepare, file and track a request. Access Info Europe, a Madrid-based NGO promoting transparency in government, had the brilliant idea of setting up an open platform – AskTheEU.org – that can be used by anyone when filing an FOIA request. Because it is public, once someone files a request anyone can track its progress and eventually gain access to the requested information. And since everyone gets to see the correspondence, people don’t need to ask the same question again. A similar platform, called WhatDoTheyKnow.com, exists in the UK. In Australia, there is RighttoKnow.org.au and in New Zealand, fyi.org.nz. In the United States, a new FOIA Hub was built by the Department of Justice, but the privately run FOIA Machine is more commonly used. Despite its initial ambition, the FOIA machine does not yet allow you to file and track requests to governmental and public agencies worldwide.
A vast proportion of my own citizen lobbying campaigns started life as FOIA requests. We regularly file them both at a national and EU level. Sometimes, we do both at the same time in order to maximise our chances of success. Most of our track record is publicly available on AsktheEU.org to the benefit of anyone interested in obtaining the same document from public authorities.
STORY – Faceless Judges
Considering that some countries hold televised hearings when selecting justices for their supreme courts, there is an astonishing lack of transparency around the selection of candidates for the Courts of Justice of the European Union (‘CJEU’). Every time a judge is to be appointed to the CJEU, a special panel comprised of former judges issues an opinion on the suitability of the candidate. This opinion is not released to the public and is only communicated to the member states. In 2014, my students and I used the EU FOIA to try to get hold of these opinions. We were, however, rebuffed by the Council of the EU (which holds the opinions). In 2015, working with Madrid-based Access Info Europe, we drafted a complaint to the EU ombudsman. Simultaneously, we requested access to the same panel opinions at the national level, via member state access to document regimes (in Poland, Austria, Germany and the Netherlands).
The EU ombudsman told parliament in a statement that transparency requires the EU to ‘be accountable to the citizens that it serves’.
‘Access to information about how the EU and its institutions work is vital for the citizens to trust the EU, and the EU needs the trust of its citizens especially at times when it faces both internal and external challenges,’ she stated.
Pressure from the ombudsman forced the Council of the EU and the special panel (which draft and hold the secret opinions on the candidates to the court) to engage in a careful review of their internal procedures. Finally, in May 2016, the Council released redacted versions of the opinions to us. Not satisfied with the level of information provided, we continue to work alongside Access Info Europe for greater transparency in judicial appointment. A new FOIA request for access to the judicial opinions has been filed, and a new complaint (and potentially litigation) is currently underway.
STORY – Wages Not Wine
After filing a Freedom of Information request, students at the University of Cambridge discovered that 123 members of the staff of King’s College were being paid below the ‘Living Wage’ (the minimum wage deemed necessary to live comfortably in Britain, according to the Living Wage Foundation). Considering King’s College spent £338,559 on wine in one year (with much of it gifted free to Fellows), students decided the college could afford to pay its staff better and campaigned to raise the college wage bill.
The students created a Facebook event, inviting others to come and protest with them outside the college. With student newspapers on their side, the story also received coverage in the national press (the Guardian and the Independent), putting considerable pressure on the college and University more broadly.
In February 2014, the King’s College council voted to increase pay rates to match the Living Wage in their 2014/15 budget. In a further coup, in July 2014 the Telegraph reported that ‘[a]ll members of staff directly employed by the University of Cambridge will be paid the living wage from the beginning of August, in a victory for student campaigners.’
Administrative Complaints and Ombudsman Review
Governments typically provide an administrative complaint procedure, which grants individuals the opportunity to request a review of public authorities’ actions. Anyone can file a complaint and ask public authorities to take appropriate action when there is evidence that an error has occurred, or that action should have been taken in their case.
Administrative review procedures play an essential role in preventing the state from gaining absolute power without constraints, accountability or controls.
As a citizen lobbyist, it is important to know which procedures are open to you because they may prove to be an effective and low-cost tool.
Among the various procedures, the institution of the ombudsman deserves closer scrutiny. Ombudsmen were first created in Sweden more than 200 years ago, and are intended to protect the individual where there is a substantial imbalance o
f power – generally between public authorities and citizens. Since then, ombudsmen have been appointed – sometimes under a different name – in many parts of the world.
The ombudsman is an open and independent public official with far-reaching powers of investigation. Her job is to act as a buffer between the individual citizen and public authorities and to stand up for citizens’ right to good administration and governance.
She is essentially a ‘citizens’ defender’, who handles their complaints. The Spanish translation, Defensor del Pueblo – ‘defender of the people’ – speaks for itself.
Government must respect and promote the fundamental rights of its people, be free from corruption and committed to preventing, in the words of the United Kingdom’s parliamentary ombudsman, ‘maladministration, leading to injustice’.
Ombudsmen go about this mission in a different way from any other complaint-handling institution. They therefore act as an important mechanism in the improvement of public administration. Although their job description varies, it generally has some common features:
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