Consultation is a policy instrument geared towards stakeholder engagement in the formulation of primary and secondary legislation. As a procedure, it ensures certain categories of actors can access draft proposals, examine the evidence produced by government or regulators and provide comments. Consultation, for example, oblige governments and regulators to carry out certain actions by giving citizens and companies’ rights to be notified, to comment on proposals, to know how comments are handled, to receive feedback, etc.
By doing that, consultation should improve on the accountability of public administration through procedural steps that increase transparency and public participation. By doing so, transparency and the level playing field should reduce pathologies of policy formulation, including corrupt practices to exercise influence in rule-making.
It really depends on how consultation is designed. In a recent article, we examined this theoretical mechanism in the EU-28 to test the claim that different configurations of consultation’s design features impact the levels of perceived corruption in the country. To do so, we have been working with an international team of 40 administrative lawyers, and for each country of the EU-28, we identified the legal base of consultation procedures in force as of 2018 and retrieved text in original language and in English translation to analyse it.
We seek to understand which particular combinations of rules in the consultation process can affect the perceived level of corruption, and to do so we rely on the IGT detailed in the table below.
|Position||Identify positions/roles to be filled by actors (individuals or collective)|
|Boundary||Regulate eligibility of actors to occupy positions|
|Choice||Specify actions that actors must, must not, or may undertake|
|Aggregation||Discipline actions or decisions that require the aggregation of two or more actors (e.g. rules about independent oversight)|
|Information||Identify channels and modes of communication/ exchange of information between actors|
|Payoff||Assign benefits and costs – for example reward and sanctions – to specific actors relative to following distinct courses of actions|
|Scope||Identify required, desired, or prohibited otucomes of the action situation|
We find that in countries where there is combination of social capital with the simultaneous absence or weakness of access and choice rules, we can notice low levels of perceived corruption.
We find that in countries where there is combination of social capital with the simultaneous absence or weakness of access and choice rules, we can notice low levels of perceived corruption. Countries with such a profile are Austria, Belgium, Denmark, Germany, Ireland, Luxembourg and the Netherlands. For a subset of the same countries (Austria, Belgium, Denmark, and the Netherlands), we also find that social capital with a light proceduralisation can bring to the same levels of low perceived corruption.
If in reverse, we look at perceptions of high corruption, we found interesting insights on what design features specifically imply perceptions of high corruption. In Bulgaria, Croatia, Greece, Hungary, Lithuania, Romania, and Slovakia, we find a stark indication of the limits of formal rules. Despite good coverage of consultation rules, wide access conditions, and stringency of the prescribed actions and information to be released, in the context of low social capital, rules on the books have no bite.
We find a situation in which high perceived corruption occurs despite high social capital and a relatively strong consultation design. Such combination exists in Malta and Spain, both countries with high corruption values in our dataset. Malta exemplifies the pervasive impact (beyond party politics) of clientelism which remains a ubiquitous feature of that system. Spain similarly has an embedded and multi-faceted corruption challenge which renders social capital far less potent than in northern European countries.
Finally, we find a situation like Finland’s configuration that shows the positive combined effect of high social capital and complete, formalized consultation procedures.
Impact and policy implications
Consultation procedures that ignore payoffs and aggregation do not signal a strong commitment of the government towards robust input from a vast array of interests.
These results corroborate the incomplete design expectation. We did not find payoff rules that introduce rewards and sanctions. Aggregation rules are also absent. Consultation procedures that ignore payoffs and aggregation do not signal a strong commitment of the government towards robust input from a vast array of interests.
This happens also in presence of strong access and choice conditions, meaning that openness and procedural stringency are not enough to improve perceptions of a clean, non-corrupted decision-making environment. In fact, the quality of consultation is monitored only in rare cases in the EU and often in the context of the review of the impact assessment – which means that ‘when things go wrong’ there are no checks or sanctions.
Design can also be incomplete, in a broader perspective, because consultation interacts with other procedural regulatory requirements (freedom of information and impact assessment, in particular) that may be absent or poorly designed. We suggest that future research should explore this ecological angle by examining how consultation interacts with other regulatory reform tools.
For policy-makers, we have three important implications for consultation procedures influencing the level of perceived corruption: