There is a real questioning to be done on the role of law in participatory democracy
Thursday, June 25, 2020
While participatory democracy mechanisms are multiplying on the territory, the law that frames it remains less known and little studied. Yet it raises structuring questions.
How can we imagine laws that protect the people involved while allowing democratic innovation? Is there not a risk that the framework will render certain mechanisms inoperative (as was the case for petitions)? Do local authorities have the legal competences to carry out participatory democracy? How to guarantee the principles of inclusion, impartiality, equality...? Should we wait for the creation of laws or be at the forefront?
[Camille Morio (https://www.linkedin.com/in/camille-morio-80386ba0/?originalSubdomain=fr), a research professor at Science Po Saint-Germain-en-Laye, is one of the few specialists in participatory democracy law in France. She provides a valuable analysis of the sector's challenges and opportunities.
Elements that speak volumes about our democratic system and culture.
Welcome to "The Voices of Democracy" by Fluicity; the interview series that explores the views and territorial issues of our democracy in motion.
Can you introduce yourself and your background?**
Camille Morio, specialist in participatory democracy law
I am a teacher-researcher, specializing in the law of participatory democracy. I defended my PhD thesis in public law in Grenoble in 2018. I also worked on a report on open data and on the relationship between administrations and citizens, and on a recommendation report commissioned by the commune of Grenoble, whose mayor was Eric Piolle.
The city wanted to set up a right of interpellation of the elected officials by the citizens. They were asking for advice and academic expertise on the subject. I was the jurist of the report and that's where I got my foot in the field of participatory democracy law: a universe in its own right, still not very well known. And it deserves to be, because the democratic stakes are high!
After my thesis, I was recruited as a lecturer in public law at Science Po Saint-Germain-en-Laye. I work as a teacher-researcher between Saint-Germain and Grenoble, and I continue to specialize in the law of participatory democracy.
You recently published "The Practical Guide to Local Participatory Democracy", which deciphers the various participatory mechanisms that can be mobilized by local authorities. Why did you feel this clarification was necessary?
There has been a great deal of participatory news in recent years, and again recently: the Great Debate, the Climate Convention, but also the multiplication of participatory budgets, online participatory platforms at both national and local levels... However, I realized that there was no support that brought together all the legal rules that govern the use of participatory democracy.
There was therefore first of all a need for accessibility. For the citizens; to know the tools and the choices available to them. But above all for practitioners. With the multiplication of local initiatives, there was also the multiplication of litigation. When we analyze court decisions and jurisprudence, we realize that most often, this results in annulment or censure. I felt it was necessary to take stock of the situation for future initiatives, and to provide practical advice. **It is a tool to help in the decision **.
In recent years, initiatives (especially local ones) have been carried out without reference to the law, without asking the question of which law or code was being used. There is a real question mark over the role of law here. Can making laws end up blocking initiatives and imagination? But there are also consequences to not making laws, because the law is a guarantee for the people involved. This fundamentally questions the place of law in relation to participatory democracy.
Finally, the issue is militant. The legal framework is still insufficient and this book was a way to highlight it and propose points of improvement.
An example of a participatory process that would need more legal framework or that, on the contrary, suffers from it?
Two of many!
To begin with, the petition to request the holding of a local consultation: it is reserved for voters, and has only an advisory value. The local executive who receives it has no obligation to put the petition on the agenda, and the local assembly has no obligation to organize the consultation. Moreover, this petition is subject to unattainable thresholds: in a commune like Rennes, for example (about 115,000 registered voters), the request must be signed by 23,000 voters. In a department like Essonne (about 782,000 registered voters), the request must be signed by 78,000 voters... for a more than uncertain outcome! **There is a form of hypocrisy in consecrating rights that are rendered inoperative at the same time.
Another example: **The important thing here is to secure what is already being done. Today, communities do not wait for authorization to [organize a participatory budget] (https://get.flui.city/blog/elaborer-un-budget-participatif-commune-conseils/). However, in France there is a fundamental principle in law, which raises questions: the principle of negative incompetence. I translate! An administrative authority does not have the right to delegate its decision-making power, nor to create devices that give power directly to citizens! This is however the case in the majority of participatory budgets, where projects are voted by citizens and implemented with them.
It would take a legislative intervention to act that in some cases, like the participatory budget, the local authority can delegate a portion of its power, under certain conditions. As it stands, there is a legal vacuum** and this may discourage communities and elected officials!
This being the case, some consider that the law is their limit, while others believe that it is necessary to go beyond the rule, to be at the forefront and make the law evolve. This remains a personal decision.
There is a form of hypocrisy in enshrining rights that are rendered inoperative at the same time.
Is it not always the case that regulations are put in place after the innovation, as is often the case with technological innovation?
The law is always a little late. Simply because the legislator is not omniscient and cannot foresee everything. However, there has been a development: the Code of relations between the public and the administration, which came into force in 2016. It contains a very interesting article that covers all initiatives of public authorities that do not fit into the frameworks predefined by the law. It is a recognition of the fact that we have the right, as an administrative authority, to invent new devices. This is important! It sets out written and legal principles that tend to guarantee the proper conduct of participatory processes. These are common sense principles that had never been explicitly codified before: impartiality, equality, reasonable time to participate, etc. There has been a real step forward with this article, which has had a broad scope. It covers many different cases without the need for the law to go into the details of each mechanism.
Do you see today other opportunities and other obstacles to the implementation of local participatory democracy?
As an obstacle, our French-style decentralization! Today, local authorities are in an in-between situation. They do not have the competence of their competence. They do not have the right, as we have seen, to give a share of power to their citizens! Why not give them a margin of freedom on this issue? We could use devices such as experimentation, which would make it possible to carry out a test, to have the opportunity to choose the power they want to give to citizens. Its development would be a way to remove one of the brakes on participatory democracy.
Today, the territorial authorities do not have the competence of their competence.
Another obstacle: Our administrative and political culture. We still have a rather stato-centric way of thinking, both on the part of elected officials, agents, and citizens themselves. The administration and elected officials are supposed to be able to do everything, and do it well, while citizens are still relatively passive. This mentality is quite entrenched and hinders the development of participatory democracy. We do not know how to communicate well between these spheres! We don't know how to express our ideas well, nor receive those of others or simply recognize them. There is a real challenge in exchanging arguments, in verbalizing.
And a need, also, to recognize that everyone is legitimate to have ideas about a cause.
We don't know how to communicate well between citizens and institutions! We don't know how to express our ideas well, nor receive those of others or simply recognize them.
Several sociological and political science studies have revealed that participatory approaches are still perceived as elitist and that the least socio-economically and socio-culturally endowed publics are more difficult to mobilize. How to address this problem?**
I will answer you as a jurist to begin with. First of all, there are the general principles of law that apply: principle of equality and prohibition of discrimination. More specifically, for participatory democracy, the law does not impose an unattainable objective on communities, requiring them to have a representative sample in all cases. That would be unrealistic! We are more concerned with an "obligation of means": the community must ensure that all people are able to participate. Today, we are on a balance position from a legal point of view.
For participatory democracy, the law does not require communities to have a representative sample. That would be unrealistic!
But obviously the law is not everything! A real professional field is developing around the elaboration of original devices, likely to attract such or such public, to make things more fun or to reinforce the feeling of legitimacy. These innovations should be encouraged, as long as they remain within the legal framework mentioned earlier (equality, impartiality etc.).
And then, we must also clarify what is at stake: why do participation? On what? How far is the community willing to listen to the opinion of citizens, or even to "do with" them? I am thinking here of the principle of accountability. As a citizen, one wonders if one's opinion will be heard and considered. If I speak in an empty box and nothing happens behind it, it is of no interest.
As a citizen, you wonder if your opinion will be listened to and considered. If I speak in an empty box, it is of no interest.
**You participated in a project that mixes democracy and scientific measurement: the "Participometer". This tool aims to measure the participatory dimension of the programs of candidates for the 2020 municipal elections according to specific criteria. Tell us about it.
It is indeed a question of analyzing campaign promises according to a method that encourages objectification and allows comparisons.
We start with a questionnaire of about 100 questions, which assesses the ability of participatory promises to address 5 issues :
- the quality of deliberation,
- the scope of the areas in which participation is committed to,
- decision-making, or at least the likelihood of decision-making,
- and how citizens' initiatives are themselves taken into account.
These 5 main criteria are then applied to 6 devices: citizens' assemblies, petitions, votes, participatory budgets, public meetings (which includes digital platforms here) and consultations of intermediary bodies.
All this gives a numerical indicator, which can be interpreted by everyone. Knowing that we also take into account the legal dimension; there are two different scores depending on whether or not we go further than the law allows.
Originally, the idea came from inhabitants of Grenoble who were very involved in participatory democracy. They asked us to put participatory democracy on the municipal agenda and in the public debate. We worked **in a collaborative way between researchers and citizens in the testing of the grid, its dissemination etc. A very interesting action research project!
Why did you think it was important to have this scientific approach?
It is indeed the scientific approach that counts and not a binary judgment: good or not good! The idea was to propose an element of objectification of the debate, an information among others.
We have observed the emergence of many lists calling themselves "citizen", without knowing exactly what this means, nor being able to sort out those that seem credible or less so. Even the more "classic" lists claim to be more participatory.
We wanted to make an effort to educate:
- by highlighting the factors of good participation, according to what we know from the research,
- by giving voters an additional key to analysis. Each person then interprets it as he or she sees fit, according to his or her approach to what participatory democracy should be, in this case in a municipality.
For the moment, we are evaluating promises. But we also have in mind the idea of transforming this tool into a tool for evaluating what has actually been achieved. In the medium term, the idea would be to comparison the results of the program version of the participometer with the results of the actual program version of the tool.
We also want to help candidates to better evaluate their campaign promises according to what is finally effective or not. Moreover, some lists have spontaneously sent us their program to measure their results; an approach that I personally find very constructive!
We want to help the candidates to better evaluate their campaign promises according to what is finally effective or not.
You participated in the creation of a new degree**"Influence and advocacy" at Sciences Po Saint-Germain **for actors in the social and solidarity economy. What was the goal of this degree?
We wanted to re-establish a balance: to give the keys, tools and weapons often used by large organizations to actors who are not heard from very much, even though they are very active and have projects that are just as legitimate.
And to transmit them in a way that is consistent with their values: transparency, ethics, etc. These actors also claim the idea of collective, of citizen mobilization: they bring an indispensable complementarity to participative democracy.