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THE UNITEDTHE STATES,AND UNITED KINGDOM THE REGULATORY ANDLEGISLATIVE PROCESSESIN THE LAW OF THE PUBLICCONSULTATION IN
In REPUBLIC OF SOUTH AFRICASOUTHREPUBLIC OF
partial fulfillment of the requirements for fulfillmentof the thedegreepartial of Supervisor: Professor Michael Hamilton DepartmentLegal of Studies Central European University Doctor of Science Juridical By Budapest, Hungary Živilė StubrytėŽivilė Submitted to Submitted 2014
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CEU eTD Collection through deliberation and participation public consultativewhi obligations legal facilitating existing of the Africa capable South and are UK frameworks the US, the in that suggests dissertation The i through democracy representative of representative democracy and rights, participatory asparticipatory theirimpact onregulated industries. rights aswell of enforcement of differences and similarities the determine to areas regulatory particular chapter fourth and third the respect this In general. in public the or individual an on decision the of impact the and matter subject the as factors such on predetermined are obligations consultative of scope and nature the that reveal analysis res The deliberation. and participation ideal for criteria the benchmark a as taking transformations are necessary. consultative existing de the investigating in worth opportunities is it that observation an with concludes It institutions. representative of transformation for advocate which democracy, participatory more and responsive, lessintrusive regulatorygovernment. professional decision in individuals interested by participation meaningful how examine to decision and policy government in consultation public for opportunities T The thesis aims to contribute to the existing debates about transforming transforming about debates existing the to contribute to aims thesis The c final and fifth The consultation public of law of developments the investigates chapter second The prov chapter first The he thesis he eurmns o decision for requirements cision under what conditions consultative obligations can remedy the flaws flaws the remedy can obligations consultative conditions what under seeks to determine the effects of the role of law when framing the the framing when law of role the of effects the determine to seeks - ch reinvigorate democracy. representative .
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hapter determines how different l different how determines hapter ntroduction of participatory and deliberative mechanisms. mechanisms. deliberative and participatory of ntroduction ds dtie acut f hois f eieaie and deliberative of theories of account detailed a ides ABSTRACT - aes o od ulc oslain enable consultation public hold to makers
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CEU eTD Collection Ig The expected. have process of opportunities tolearn fromthe best, thediverse theopen. and set the right and criticism constructive with me provided who Lubbers Jeff Professor for gratitude my owe overcome to impossible obstacles as seemed this of beginning very the from support encouragingwords, challenging for their thought lo much how for understanding, without even acceptance their for brothers my to Thanks contributions. financial and support tone tothe hns o y eoe prns o ter nls lv, nesadn, moral understanding, love, endless their for parents beloved my to Thanks The journey was longer than I thought it would be, but I have learned more than more learned have I but be, would it thought I than longer was journey The the all for community, its and University European Central to Thanks his for Hamilton Michael Professor supervisor my to indebted helplessly feel I writing. ACKNOWLEDGMENTS
etting to the finish line was line arewardetting tothe finish initself. gr m gig to going I am nger journey, and guidance through what sometimes sometimes what through guidance and journey, , for keeping the bar high and pushing to excel. to pushing and high bar the keeping for , s, for beingme. just s, therefor study.
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CEU eTD Collection Consultations 3. Public in Specific Regulatory Areas 2. TheLaw Consultation Public Emerging of Government Deliberat1. Public INTRODUCTION ACKNOWLEDGMENTS ABSTRACT ProceduralFairness Strictness oftheRules andthe 3.4. TamingBroad Regulatory of Discretion theTelecommunications the Authorities with Policies Consultation 3.3. Public asFurthering aMeansfor Telecommunications Regulatory 3. Competition 3.1. RegulationProtection Telecommunications: Interests in ofConsumer of and Promotion Law Different2.5. The Consultation: Similar Requirements Public of Contexts, 2.4. Opportunities for Particip Public toConsultation2.3. The Government’s Commitment inthe UnitedKingdom 2.2. ‘Obligationfacilitate to Africa’s participation’ South under 2.1. Opportunities toParticipatethe United inRulemaking States ofAmerica in Rebuttal 1.6. EnhancedOpportunities for Participation Public and 1.5. WhyGovernment Rights Participatory Needs Representative 1.4. Definingand theMeaningfulness ParticipationDeliberation of Ideals1.3. The and Deliberation ofParticipation 1.2. Revitalizing Representative GovernmentDeliberation through Participation and 1.1. Relevance the and Contribution Research its of Methodology Choice ofJurisdictions Thesis Outline 2. Consultative Obligations Telecommunications2. Consultative of RegulatoryAuthorities Conclusions 2.5.3. 2.5.2. Disclosure of asProper aPrerequisite 2.5.1. Oppo Conclusions 1.5.5. Supplementing Rights ofFreedomInformation the and ofExpression Freedom of Enhance Accountability Governmental 1.5.4. Over Decision 1.5.3. Alienation offrom thePublic Politics inRegulatory1.5.2. Unprofessionalism Government 1.5.1. Democrac Influence1.4.5. and Respect 1.4.4. Reasoned Debate Inclusiveness1.4.3. Representation and 1.4.2. E Informed1.4.1. Debate ......
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articipatory Conclusions 5.2.3. TheInstitutional Duty ofOpenness: Pr ProcessesConsultative 5.2.2. RequirementsDecision for ProcessesConsultative Imposition5.2.1. of lic Consultations lic Consultations in Specific Regulatory Areas - makers and Interested andmakers Parties
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Democracy isRecognizedof a Country’sConstitutional as Structure? aPart
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A.D LegitimacyProblems,” Its and State Regulatory “The Majone, Giandomenico JurgenHabermas, Nikolas Rose, and Miller Peter 1 ) Mansbridge et al., “The Place ofSelf Place “The al., et Mansbridge er’s lack ofprofessionalism andthe unresponsiveness, issue ofover , 1999, 1 1999, ,
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; Anne Shepherd and Christi Bowler, Christi Bowler, and Anne Shepherd decision , Oxford University Press, 2000 Press, University Oxford , West European Politics West European potnte fr public for opportunities , Harvard University Press, University Press, Harvard , - n em of terms in mak - regulation. regulation. s
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are a are and ; se JohnS.
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CEU eTD Collection Decisionmaking,” 8 http://centers.law.nyu.edu/jeanmonnet/papers/99/990501.html#fn0 Law, of School NYU at LawJustice and Economic Internafor Center Monnet Jean the States,” the United from Rulemaking Community 7 http:// Rulemaking,” index Democracy Act: Sy Political the in Law Decisionmaking,” 6 http://faculty.virgi 5 of ar local of producer manufacturers, consumers, as (such actors of variety a especially by processes fairness the in assist actually achievement of incentives and constraints legal whether assess to aims thesis This etc. accountability, government legitimacy, solving, problem efficient openness, of values the might intervention law’s Nonetheless, process bydomination affairs national security. or were deliberation and participation
Jim Rossi, “Participation Run Amok: The Amok: The Run “Participation Rossi,Jim European for Lessons Constitution: ofPowers inSeparation a State Administrative “The Bignami, Francesca Agency Deliberative for Participation ofMass Costs Amok: The Run “Participation Rossi,Jim “Against Deliberation,” Sanders, LynnM. decision ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4094&context=flr es ‘only to’ ‘only ,
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Northwestern University Law Review Law University Northwestern Review Law University Northwestern such ers as experts and preservers of the public interest and the emerging concept emerging the and interest public the of preservers and experts as ers
to the affected the to stem
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many instances a single decision or policy has diverse effects on effects diverse has policy or decision single a instances many
Fordham Law Review Law Fordham
parties and of avoiding the capture of public public of capture the avoiding of and parties 6
serving as a gateway for their influence in influence in their gateway for a as serving initially excluded from excluded initially Costs of Mass Participation for Deliberative Agency Deliberative for Participation ofMass Costs Political Theory Political instead instead
be hoped to offset such deficiencies and forge instead instead forge and deficiencies such offset to hoped be
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David David the law has largelyepiphenomenal.the law been , Vol. 92, 1997, 92, Vol. , 1997, 92, Vol. , Other tensions arise concerning the initial role role initial the concerning arise tensions Other Fontana, “Reforming the Administrative Procedure AdministrativeProcedure the “Reforming Fontana, , Vol. 74(1), 2005, 2005, 74(1), Vol. , - , Vol. 25(3), 347; 370, 370, 347; 25(3), Vol. , mak ers or as a cause of regulatory delays. regulatory of cause a as or ers
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ih mo hich Donald N. Zillman N. Donald A.Baudrier, decision /citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.202.4868&rep=rep1&type=pdf . 10 e poie te ot utbe ecmr aant hc t ass te existing the assess to which against benchmark suitable most the provides del
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Independent Regulation and Telecommunications Performance in Developing Countries Developing in Performance Telecommunications and Regulation Independent teps o eov tee esos xoe rne f nelig questions, underlying of range a expose tensions these resolve to Attempts In order to explore the law of law the explore to order In if deliberation and participation public that show to aims thesis the Ultimately,
Regulation and Public Interests: the Possibility of Good Regulatory Government Regulatory Good of Possibility the Interests: Public and Regulation r a fclttr o pbi particip public of facilitators as ers
7 et al et , , 118 ISNIE Conference ISNIE - mak , Human Rights in Natural Resource Development: Public Participation in the in Participation Public Development: Resource Natural in Rights Human .
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Voice and Choice: Opening the Door to Environmental Democracy Environmental Doorto the Opening Choice: and Voice Francesca Bignami, “The Administrative State in a Separation ofPower inSeparation State a Administrative “The Bignami, Francesca -
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CEU eTD Collection Press, University Goodin, E. Robert 1984; Press, California Newof a University Age, for Politics Strong Participatory Democracy: Barber, Benjamin Uni Oxford Contestations, Critics, Liberals, Beyond: and Democracy Dryzek,Deliberative 2009; 1996 Press, MIT 25 Review Law University Young 24 international gradually the 1980s, petition. to right the or referendums as such democracy direct public the t while a quite For decision Relevance ofthe perspectives. constitutional and legal from individuals for role enhanced the of account comprehensive treatises. scholarly and cases Pro public parties easing of terms in offer to have public in participation for que further answer to helps
Jurgen Habermas, JurgenHabermas, Or “Legal A. Whytock, Christopher bably, the principal limitation principal the bably, Carole Carole Pateman, , which have powerful economic or political power, political or economic powerful have which , policy and - mak on ter a it plc dcmns lw ad vn osiuin a wl as well as Constitutions even and laws documents, policy into way their found ideas of ensuring ce ensuring of ideas participation
ing processes have long been long have processes ing fntoait approach functionalist A Public Public well. as acknowledged be should employed methods the of limitations The treaties ; Joshua Cohen, Philosop ; Cohen, Joshua
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Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy and Law of Theory Discourse a to Contributions Norms: and Facts Between Research and its Contribution its and Research decision he common perception common he .
Participation and Democratic Theory Democratic and Participation participation, deliberation and involvement by individuals in government in individuals by involvement and deliberation participation, . The terms of participation, involvement, deliberation and consultation and deliberation involvement, participation, of terms The .
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rtain roles for roles rtain ing? ing? However, igins, Functionalism, and the Future of Comparative Law,” theofComparative Future and Functionalism, igins,
the tensions between facilitating participation of the of participation facilitating between tensions the
of the research the of hy, Politics, Democracy: Selected Essays, Harvard University Press, University Press, Harvard Essays, Selected Democracy: hy,Politics, - mak
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CEU eTD Collection 2001. 28 Law, of School NYU at Justice Lawand Economic Regional and International for Center Monnet Jean the States,” United from the Consti ofPowers Separation a in State Administrative Decisionmaking,” 27 Rights Review Law Human European 2011; Press, 26 problems ofthe regulatorystate. justice. and fairness procedural of requirements requirementsfor structuring in law of role the emphasize to aims research this viewed), is it perspective whose or ineffective detrimental, acknowledging cont significantchanges Europe and theUS. inboth 2001. to back dates US the and Europe in participation for opportunities potential the on either heavily relying usually fashion piecemeal a in consultation public of law the eit are treatises legal existing The consultation. public of law the asjurisdictions they are now. nev have
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Mendes, Mendes, er been as widely employed in political and legal contexts across various various across contexts legal and political in employed widely as been er f atcptr rights participatory of Rory O’Connell, “Towards a Stronger Concept of Democracy in the Strasbourg Convention,” Convention,” Strasbourg the in ofDemocracy Concept Stronger a “Towards RoryO’Connell, Yet, there is there Yet, This Participation in European Union Rulemaking: A Rights A Rulemaking: Union European in Participation
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There was an inherent distrust inherentdistrust There an was of how decisihow of , eds. Richard Tuck and Michael Silverthorne, Cambridge University Press, Press, University Cambridge Michael Silverthorne, and Tuck Richard eds. ,
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The Foucault Effect: Studies in Governmentality: with two Lectures by and an with Interview an and by Lectures two with Governmentality: in Studies Effect: Foucault The ing ing m Since the times of Hobbes when government was understood as performing only performingonly as understood wasgovernmentwhen Hobbes of times the Since was there traditionally Thus, , ly a play University of Chicago Press, 1991, 87 1991, Press, UniversityChicago of any - mak Foundations of Public Law Public of Foundations eae ls ad es mte o rln truh irrhcl authority hierarchical through ruling of matter a less and “less became seen as exercised primarily to control almost every aspect of a person’s life. In life. person’s a of aspect almost every control to primarily as exercised seen . 50 48 more powers than they used to hold. Most scholars agree that agree scholars Most hold. to used they than powers more
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attention. One attention. Edward L. Glaeser and Andrei Shleifer, “The Rise of the Regulatory State,” State,” Regulatory the of Rise “The Shleifer, Andrei and Glaeser L. Edward
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2. 2. 2. The reasons for regulatory reform have been similar similar been have reform regulatory for reasons The According to to According euaoy gnis r nt rsn i al ils f cnmc n sca life. social and economic of fields all in present not are agencies Regulatory rd University Press, 1999, 9 1999, Press, University rd ,
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only more only and in South Africa even more recently, since for the most part of the 20 the of part most the for since recently, more even Africa South in and Governance Regulatory Law and Policy: Cases and Materials Cases and Policy: and Law Regulatory
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See also, also, See - titutional Implications titutional Regulator , LEXIS Law, 1998, 21; 21; LEXIS Law,, 1998, Administrative Law and Regulatory Regulatory and Law Administrative , pert agency is most relevant in relevant most is agency pert ed , Strategic Partnerships for StrategicPartnerships , nformation the , Vol. 89, 2004, 373 2004, 89, Vol. , type of authority typeof Count s. West European Politics West European Politics West European y Management Indicators, Indicators, Management y - - Dietmar Braun and Fabrizio Fabrizio and Braun Dietmar 763f regulati government. almost ing the Cost of Red Tape Tape Red the Cost of ing , Chapter 2 “Why 2 Chapter , - 4e4e oods) and those to thoseto and oods) , eds. Dawn Oliver et Dawn, Oliver eds. on
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Sidney A. Shapiro and J. Tomain, Tomain, J. and A.SidneyShapiro al. et Armstrong Mark Giandomenico LegitimacyProblems,” Its and State Regulatory “The Majone, Giandomenico Giando Colin Scott, “Privatization and Regulatory Regimes,” in Michael Moran et al., al., et Michael Moran in Regimes,” Regulatory and “Privatization Scott, Colin See also Jeffrey L. Harrison et al., al., et also L.See Harrison Jeffrey - 19. menico Majone, “The Agency Model: The Growth of Regulation and Regulatory Institutions in the the in Institutions Regulatory and Regulation of Growth The Model: Agency “The Majone, menico on of a particular sector through, for example, for through, sector particular a of on ,9.
ilns electricity, airlines, For a more comprehensive account on history of regulation in the US see the in ofregulation history on moreaccount a comprehensive For John Braitwhaite John te US, the n
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Oxford University Press, UniversityOxford Press, Majone, “The Regulatory State and Its Legitimacy Problems,” LegitimacyProblems,” Its and State Regulatory “The Majone, 62
1997, 2, 1997, Formore o
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electronic communications witnessed communications electronic was among the first first the among was : Cases and Materials :Cases and reduction of prices for the services the for prices of reduction , Edward Elgar, 2008. Elgar, Edward , , electronic
h ubel o so of umbrella the grounded West European Politics West European Politics West European eds., eds., 63 , LEXIS Law, 1998, 265 Law,1998, LEXIS ,
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of how a government with a with government a how of other scholars have accused have scholars other and - making mechanisms, the the mechanisms, making
evaluati the participatory and and participatory the needed ensuring more open more ensuring , public
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Political Science Political of participatory and deliberative democracy of being too unrealistic, and therefore and unrealistic, too being of democracy deliberative and participatory of democracy tend to agree upon is the requirement of requirement the is upon agree to tend democracy
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willing to be involved in public in involved be to willing hois of theories informing individuals about individuals informing requirements European Journal of of Journal European 134
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meaningful by demonstrating by meaningful only by the actual of influence only by the ethods: A Framework for Evaluation,” Evaluation,” for AFramework ethods: Deliberative Democracy: Essays on Reason and and Reason on Essays Democracy: Deliberative and Reason on Essays Democracy: Deliberative , on n te ennfles of meaningfulness the and own s 55, 55,
ty and its Limits and ty are likely to likely are , (CCT 41/07) [2008] ZACC 10; ZACC 10; [2008] 41/07) (CCT , sible. 169
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CEU eTD Collection 174 Democracy and Law of and 1984; Press, California 173 Values Human and Technology, 172 Cl see theby rules, affected the individuals and theinstitutions pub of processes non are affairs. w be ifwould participation for opportunities who proper provided individuals competent and responsible as regarded are people) lay (i.e. public the of members democracy, deliberative and participatory of theories the all to according First, me worth are which assumptions several on based are democracy deliberative meaningful termsgoalsestablished. in ofachievingforwere particular which they the consultative that ensure to how is here issue real the Indeed, participation. meaningful for conditions predicate the identifying of terms in prescriptive be to difficult is Non processes. and opinions. and views public make should which institutions, government requirementsforof list elaborate rather aprovide co be will suggestions their how to as participants of approval the advance in acquire should arendon Press, 1996, 1996, Press, arendon
nsidered and finalnsidered outcome. whatthey could onthe impact have Carole Pateman, Pateman, Carole generally, See, Evaluation,” for AFramework Methods: “PublicParticipation Frewer, LynnJ. and Rowe Gene decision 173 decision - participatory and citizens have no opportunities to get involved in any of the the of any in involved get to opportunities no have citizens and participatory
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See, for example, Denise Vitale, “Between Deliberative and Participatory Democracy: A Contribution on Contribution A Democracy: Participatory and “Between Deliberative Vitale, example,Denise for See, rl h gvrmn ad od t conal rte ta datn dcsos n policies. and decisions drafting than rather accountable it hold and government the trol gnwopruiisfrpriiain n o)mitiigtemaiguns of meaningfulness the maintaining (or) and participation for opportunities new ng Philosophy Social Criticism Social Philosophy All these assumptions seem to be borne out by critiques of representative representative of critiques by out borne be to seem assumptions these All The processes of regulation, privatization and contracting and privatization regulation, of processes The 175
assumption about the competence of the members of the public, does public, the of members the of competence the about assumption
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For instance, in environmental matters it is it matters environmental in instance, For Potchefstroom Electronic Law Journal Law Electronic Potchefstroom , Vol. 40(6), 1997, 1997, Vol. 40(6), ,
ublic participation participation ublic procedures are inevitable is law and public institutions are to achieve to are institutions public and law is inevitable are procedures
and Fair Procedures Fair and - mak 6 , ,137.
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182 as a guarantee a as 726, 179 It also highlights how the opportunities for public for opportunities the how highlights also It , Clarendon Press, 1996, 1996, Press, Clarendon , 1996 Press, Clarendon , 1996 Press, Clarendon , , Hart 2010, Hart , Publishing,
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Stephen Stec and S. Casey S. Stephenand Stec The Future of Representative Democracy Representative of Future The 181
According to Galligan, procedural justice procedural Galligan, to According
wl a poeue ae nerl in integral are procedures as well s (PER), Vol. 2, 2008, 12; 2,12; 2008, Vol. (PER), - 122, 122, as 176 Galligan, Galligan,
of procedural fairness procedural of
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deemed to be insufficient. For example, Peter Miller Miller Peter example, For insufficient. be to deemed there
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Democracy , The MIT Press, 2000, 54 2000, Press, , MIT The
Constitution of the Republic of South Africa, Africa, South of Republic ofthe Constitution also 242.
public iuto weey lce rpeettvs are representatives elected whereby situation
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deliberations have the potential the have deliberations o represent o been addressed by theorists theorists by addressed been , 209 -
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Robert Baldwin and Julia Black, “Really Responsive Regulation,” Regulation,” Responsive “Really Black, Julia Baldwin and Robert Braithwaite, John AyresIan and the Microanalysis and Synthesisof Discourse, The LegalProcess, New “The L. Commentary, Rubin, Edward the Microanalysis and Synthesisof Discourse, The LegalProcess, New “The L. Commentary, Rubin, Edward JurgenHabermas, C Can AngryCitizens: “Twelve MatthewBostwick, Jurgen Habermas, Habermas, Jurgen , 15/2007, 4, 10, 10, 4, 15/2007, , ities t ities 215 Political Science Political
argues that argues o the regulated industries, has received some attention in the field of regulatory regulatory of field the in attention some received has industries, regulated the o Harvard Law Review Law Harvard Review Law Harvard aems otns ht ept eeto mechanism election despite that contends Habermas The issue of of issue The The common suggestion by the above mentioned theories is solving the lack of of lack the solving is theories mentioned above the by suggestion common The , , 341 this
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CEU eTD Collection Papers 275 2009, Press, University 274 Union Governance,” 273 310 1839, Bowring, 1996, Press, 272 Regimes,” 271 http://www.iilj.org/courses/documents/2008Colloquium.Session4.Stewart.pdf Governance,” as values 270 such against weigh to difficult are participation public of implications resource deliberative and participatory the with times all at weighed be not could resources these resources, other the regulatedwell asas totheregulators. industries Black and Baldwin participation.” accommodate to practices working of and restructuring procedures potential administrative the and engagement organising of terms in both implications, governmen in individuals of involvement that argues Smith instance, For time. and finances of terms in costly be could participation openness recognized is under of openness with accountability links and policy governmental of openness eleme main the of deliberation. one considered of is side Publicity publicity the is accountability and deliberation public between link in present becomes which it, a is there that suggests Bovens, by defined as accountability decisions. the of effects possible the
Robert Baldwin and Julia Julia Baldwin and Robert GrahamSmith Rich example,for See, Regulatory Polycentric in Accountability and Legitimacy Contesting and “Constructing Black, Julia Regulatory in Global Disregard Problemof the and Participation, “Accountability, Stewart, B. Richard , Oxford University Press, 2002. UniversityOxford , Press, , 15/2007, 14 15/2007, , ard B. Stewart, “Accountability, Participation, and the Problem of Disregard in Global Regulatory in Global Disregard Problemof the and Participation, “Accountability, Stewart, B. ard Regulation and Governance and Regulation 97 (referring to Jeremy Bentham “Of Publicity,” in “OfPublicity,” Jeremy (referring97 to Bentham Discussion Draft January 2008 January Draft Discussion 2008 January Draft Discussion hl ehne opruiis o priiain eur cran iaca and financial certain require participation for opportunities enhanced While aty te rtc epes hi cnen ht h opruiis o public for opportunities the that concern their express critics the Lastly, , Democratic Innovations: Designing Institutions for CitizenParticipation for Institutions Designing Innovations: Democratic - , 312. Amy Gutmann and DennisThompson and Gutmann Amy http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1033322
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Section Section Adler, Michael Adler, Michael
of public participation and deliberation. For example, how to strike a proper balance balance proper a strike to how example, For deliberation. and participation public of 1.2. Revit 1.2. Government Regulatory to Representative From 1.1. fairs, moreover the proponents of these theories suggest a framework for assessing for framework a suggest theories these of proponents the moreover fairs,
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bailii.org/ew/cases/EWHC/Admin/2011/217.html Borough Council Borough , 1988, ,
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for Public Participation at 335 ) v Secretary of State for Education for State of )Secretary v
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International Level
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Convention on Access to Information, Public Participation Decision in Participation Public Information, to Access on Convention example,Robert for See, Rights Political Civil and on Covenant International Political Civil and on Covenant International Henry J. J. Henry o h cnet f h rgt and right the of content the to overnments overnments patory Democracy and the Right to Free, Prior and Informed Consent to Development,” Development,” to Informed Consent and Prior Free, to Right the and patory Democracy 77; 131 Steiner, “Political Participation as a Human Right,” Right,” Human a as Participation “Political Steiner, ment , -
132. See also, also, See 132. decision
ulc participation public “to take part in t in part take “to In “to vote and to be elected at genuine periodic elections periodic genuine at elected be to and vote “to , Oxford University Press, 2001, 2001, UniversityOxford Press, , the the - 339 Level , Vol. 27, 2009, 27, 2009, Vol. , of the countries who are parties to the Covenant, Covenant, the to parties are who countries the of
entered into force 30 October 2001 October 30 entered intoforce , (Aarhus Convention), (Aarhus , Given the Given environmental field, field, environmental ’ - 340 mak –
McCracken, “ McCracken, and Effective?” Effective?” and http://www2.ohchr.org/english/law/ccpr.htm http://www2.ohchr.org/english/law/ccpr.htm
Although under the Covenant the right to political participation is is participation political to right the Covenant the under Although Jeremy Waldron, Jeremy n poess o pbi participation public for processes ing , Vol. 12, 2010, 1515, 2010, 12, Vol. ,
he conduct of public affairs, directly or through freely chosen chosen freely through or directly affairs, public of conduct he 570; 570; atcptr dmcay i evrnetl matters. environmental in democracy’ participatory CCP vague formulation of the right to participate in in participate to right the of formulation vague
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The United Na United The Jens Newig and Oliver Fritsch, “Environmental Governance: Governance: “Environmental OliverFritsch, Newig Jens and
Rio Declaration Rio “ Rights Principle 10 of the United Nations’ United the of 10 Principle Participation: The Right of Rights,” of Right The Participation: onmental Policy and Governance and Policy onmental 232 9898025651e004bc0eb?Opendocument , - , adopted by UN adopted , 2200A Resolution Assembly by General UN adopted ,
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guara 338 in ntuet s now is instrument torture, right to life to right torture, Jeremy Waldron Jeremy
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Rory O’Connell, “Towards a Stronger Concept of Democracy in the Strasbourg Convention,” Convention,” Strasbourg in the Democracy of Concept Stronger a “Towards RoryO’Connell, Making Policy Inclusive and Open Fostering Gap: the Mind Making Policy Inclusive and Open Fostering Gap: the Mind ofthe 4 Paragraph Article 4 on Ope on government institutions should should institutions government
the decision n and Inclusive Policy Making, PolicyMaking, nInclusive and 345 a right to be heard. be to right a
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lo h Erpa Cut f ua Rgt (CH) o oe xet has extent some to (ECtHR) Rights Human of Court European the Also Another example at example Another
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to getinvolved inconsultative T http://www.unece.org/env/pp/acig.pdf strive e ebr tts f h Aru Cneto have Convention Aarhus the of states member he - 288
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most co most
Kingdom policy and and policy , 24 September 2007, See also, Rory O’Connell, “Towards a Stronger Concept of Concept Stronger a “Towards RoryO’Connell, also, See September 2007, , 24
mmon approach is that of establishing minimum legal requirements requirements legal minimum establishing of that is approach mmon ,
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heir ontexts, here is a clear a is here 349 decision view
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the Food Standards Act 1999, the Act Standards 1999, Food the the , Vol. 3, 2006, 281 3, 2006, Vol. , S imilar inclusiveness of likely of inclusiveness - mak trend towards the the towards trend n processes. ing Tysiąc v. Poland v. Tysiąc an individual’s ;
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Jeffrey S. Lubbers, Lubbers, JeffreyS. that intended “Congress thatheld Court also The Council Defense Resources Power Natural Nuclear v. Yankee Vermont and Others Africa of South the Republic of President v Others and Network Alleviation Poverty f the main problems for the courts is that they cannot impose any additional additional any impose cannot they that is courts the for problems main the f
Court, Court, hr ae aiu wy i wih ebr o te public the of members which in ways various are There , in South Africa, , inSouth the the
’ (within the boundaries of reasonableness) in choosing the ways to comply to ways the choosing in reasonableness) of boundaries the (within ’ 0 (6) BCLR 520 (CC) (24 February 2010), February 2010), BCLR(6) (CC)(24 0 520 ulc participation. public A Guide to Federal Agency Rulemaking Agency to Federal Guide A vague uy o fcltt pbi involvement.’ public ‘facilitate to duty
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South language of the APA made it possible for the courts to interpret to courts the for possible it made APA the of language
, 435 U.S. 519 (1978),546 at 519 U.S. 435 , African Constitutional Court Constitutional African the Constitutional Court held bodiesenjoy Court that the legislative the Constitutional
in a broad manner, which would favour the participants’ the favour would which manner, broad a in The particular way of consulting (with whom, when, when, whom, (with consulting of way particular The tl reta still
(citing
the discretion of the agencies and not that of the courts be ofthe be courts not that and ofthe agencies discretion the 352
Doctors for Life International v Speaker of the the of v Speaker LifeInternational for Doctors n rcie dsie h dcso b te US the by decision the despite practice, In in wide discretion concerning consultative consultative concerning discretion wide in , American Bar Association, 2006, 469 2006, Association, AmericanBar the APA the Para 56, 56, Para , 2006 (12) BCLR 1399 (CC), (12) BCLR1399 2006 , .
milarly prominent role in developing developing in role prominent milarly , 435 U.S. 519 (1978) 519 U.S. 435 , . 353 350
Vermont Yankee Nuclear Power Power Nuclear Yankee Vermont Indeed decision 67
(2)(CCT73/05A)[2006] ZACC (2)(CCT73/05A)[2006]
I - te US the n 68 , , as will be illustrated be will as , - mak ol raie the realize could ,
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146
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CEU eTD Collection “Introduction,” 1998, Press, Affairs Public and 356 355 Professor to Responses 354 APA a have who respond Consultation on Practice stakeholders of groups particular to consultation limit not atinterested least ensurea or individuals to wide of interests. representation all thevarious The possible. as broad public of ideal The that. do to opport that demands deliberation and participation when and processes consultative in involve to whom decide to need authorities government the decisions, and policies proposed on comments to 2.5.1. Opportunities ensuring and representative, consultation. meaningful overall inclusive, public different of analysis processes. consultative existing of character participatory and deliberative de meaningful of criteria process, of architects as only “not act and should lawyers state, regulatory in Meadow, justice to according example, For observed. are fairness procedural of values the that way a such in deliberation and participation for sufficient ensure to is then law of role the rules, procedural of
See, for example,for See, Section See Ca rrie Menkel rrie the but should be designed to seek views from those who those from views seek to designed be should but euaoy gnis r rqie t “ to required are agencies regulatory 1.4. Defining the Meaningfulness of Participation and Deliberation and Participation of the Meaningfulness Defining 1.4. particular interest particular Given the understanding of public participation and deliberation as a central part part central a as deliberation and participation public of understanding the Given Generally the legal ac legal the Generally fo opportunities ensure to order In - , Vol. 35(1), 20 35(1), Vol. , Meadow, “The Lawyer’ “The Meadow, Robert E. Goodin, “Enfranchising All Affected Interests, and Its Alternatives,” Alternatives,” Its Interests,and Affected All “Enfranchising Goodin, E. Robert Carrie Menkel Carrie
steps of consultative processes reveals the difficulties of the law in in law the of difficulties the reveals processes consultative of steps 14. Comment
liberation and participation are used as a benchmark to measure the the measure to benchmark a as used are participation and liberation establishes that consultative processes “ processes consultative that establishes decision
07, 40, 51; and and 51; 40, 07,
- in Meadow,” Meadow,” -
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the new policy or change in policy in change or policy new the s Role(s) in Deliberative Democracy: A Commentary by and and by ACommentary Democracy: in Deliberative sRole(s) on a Proposed Decision or a Policyon ts guarantee opportunities for broad participation, and do and participation, broad for opportunities guarantee ts r ae xetd o ihr lo priiain f all of participation allow either to expected are ers
bu Deliberative Nevada Law Journal Law Nevada t
as architects of participatory democracy.” participatory of architects as give unities for public participation should be as as be should participation public for unities Democracy te ebr o te ulc o make to public the of members the r neetd persons interested . , Vol. 5,347 Vol. ,
For instance, t instance, For , ed. Jon Elster, Cambridge University CambridgeUniversity Elster, ed. Jon ,
would be affected be would and meaningful opportunities opportunities meaningful and should be open to open be should
;
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he British Code of of Code British he n opportunit an 355
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CEU eTD Collection EWCA 1139 Civ [2007] 361 P Comparative Governance: Environmental in Judiciary 360 (Admin) Government Local and Communities for State of Secretary The v Campaign Bard The 2005, 359 at: available 358 http://usgovinfo.about.com/library 357 medical and doctors representing associations several with consulted selectively Secretary proposals. the on consulted were doctors those Kingdom United the in stay to origin Indian of doctors some changes orto involve toexclude. processes, consultative the structure to how and consult to that is reasons the of One outset. Environmental in Consultation Public of Matters. Law The on 4 Chapter in explored is matters in individuals of involvement broad Convention.” Aarhus the of 9(2) Article in meant as interest’ ‘sufficient a a acquires and concerned’ ‘public becomes the of member she or he process, participation the entered has someone “once that approach matt environmental to related example, e delivering in role a play to opportunity the have which the instance, for participation, for opportunities broader ‘public’. is participation the that ensure to is legislatures making.” rule the in participate
See generally See eds., R.Peterson, Alexander and Kotze LouisJ. in Netherlands,” “The JonathanVerschuuren, Development Sustainable Delivering 1: Statement Policy Planning (a)of(1) the 118 (a) and (1) 72 (a), (1) Sections59 Act Procedure Administrative http://ww states , 15, (emphasis added) added) (emphasis 15, , ,
In practice, t practice, In which altered the scheme of employment of foreign nationals, made it impossible for impossible it made offoreign nationals, employment schemeof altered the which http://www.info.gov.za/documents/ that: “[t]he outcomesaffect fromthat: “[t]he planning w.communities.gov.uk/documents/planningandbuilding/rtf/planningpolicystatement1.rtf In the UK, in 2005, the Home Secretary changed the changed Secretary Home the 2005, in UK, the In R(Bapio Action) v Secretary of State for the Home Department Home the for State of Action)Secretary v R(Bapio
he opportunities for everyone might be more limited than it seems at the the at seems it than limited more be might everyone for opportunities he
http://www.bailii.org/ew/cases/EWHC/Admin/2009/308.html , 5 U.S.C., 2000, §553 (c) (emphasis added) (c) (emphasis added) §553 2000, U.S.C., 5 , /bills/blapa.htm 360
357 h ise hte tee s mr lbrl prah towards approach liberal more a is there whether issue The
decision Under South Africa’s Constitution the only requirement for requirement only the Constitution Africa’s South Under decision constitution/1996/index.htm
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Although not required under any statute, thestatute, any under required not Although ffective and inclusive planning inclusive and ffective ing process concerning the environmental the concerning process ing ahs Convention Aarhus everyone Plannin , Wolters Kluwer, 2009, 62. 2009, Kluwer, Wolters , , Office of the Deputy Prime Minister, Minister, Prime Office Deputy , ofthe and they are free to choose wh choose to free are they and 358
oe ttts sals even establish statutes Some g Policy Statement Policy g
, and , anymore, however, none of of none however, anymore, , [2007] EWHC 199 (Admin); EWHC 199 [2007] , mirto Rules Immigration everyone , [2009] EWHC 308 308 ,EWHC [2009] wih mes the embeds which ,
must thereforemust
.” The Role of theof Role The 359
in the UK the in
Another
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83
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CEU eTD Collection Civ1139, 366 Civ1139, 365 Civ1139, 364 Civ1139, 363 Civ1139, Bapio the of 362 members on impact’ ‘adverse an had changes the that found instead rules. the of implementation ‘forewarning’ a as served have would claimants the to opportunities consultation allowing that and protection,’ earn to remote and speculative ‘too held party court, of because ‘interested’ are they which in policies and decisions to changes about consulted be would they that expect legitimately could groups fairnes procedural of principles the to immigrant the put the to amendments the under suggested as permits work concerning resourcesgoal ofa inpursuit practicinginthe UK].” as [of doctors and energy time, committed have who those of respect “in consultations hold to required of principles the claimants, the to According changes. proposed the adopting before organization their consulted have should government the that arguing changes the challenged origin, Indian of trainees and doctors trainees.
R(Bapio Action) v Secretary of State for the Home Department Home the for State of Secretary v Action) R(Bapio R(Bap Department Home the for State of Secretary v Action) R(Bapio Department Home the for State of Secretary v Action) R(Bapio Department Home the for State of Secretary v Action) R(Bapio with those bewith those likely to
because of, f of, because where where io Action) v Secretary of State for the Home Department Home the for State of Secretary v Action) io 362 26 (citing23, 24 19 38
-
27 T The government responded that the claimants the that responded government The h camns ee ore ta the that worried were claimants The
he nisiuini to is institution an rts Ascain f Physici of Association British R(Baker) v Devon County Council, Council, County Devon v R(Baker) doctors into worse situation than situation worse into doctors or example, or
affected. 366
a
make a make rcdrl ares n poeua lgtmt expectations legitimate procedural and fairness procedural h cut h court, The certain 365 s and legitimate expectations, the individuals and their and individuals the expectations, legitimate and s
benefit decision, which decision, wvr dsged ih h gvrmn, and government, the with disagreed owever, [1995] 1 All ER 73, 88 1 All[1995] 73, ER
n o Ida Origin Indian of ans being withdrawn, a consultation needs to be be to needs consultation a withdrawn, being ‘some ultimate benefit’. According to the the to According benefit’. ultimate ‘some
before. new and more stringent requirements requirements stringent more and new , [2007] EWHC 199 ( EWHC 199 [2007] , (Admin);EWHC 199 [2007] , (Admin);EWHC 199 [2007] , (Admin);EWHC 199 [2007] , (Admin);EWHC 199 [2007] , could have have could , which could have affected the the affected have could which , 364
relied on relied
The court found that according that found court The - 363 9) Immigration Rules Immigration
the ‘benefit’ the
an adverse effect on a on effect adverse an BPO representing (BAPIO) Admin);
[2007] EWCA [2007] EWCA [2007] EWCA [2007] EWCA [2007] [200
which was which 7]EWCA
would 84
CEU eTD Collection Civ1139, 371 Civ1139, 370 1139, Civ EWCA 369 Civ1 368 Civ1139, 367 some waygovernment’s decisions. by requi earlier explained as which fairness, procedural of principle the of approach limited rather a represents consult to duty of scope the of interpretation Such affected’. adversely and directly ‘most those only consult to decision court held that an apply rules the whom to individuals other than rules the to changes the by affected more were BAPIO of members that establish not could court legislator.” a of role the assuming without furnish cannot requires and how. consult decide whomto on the affected’, directlyadverselyandwith respect ‘most otherwise dutyemerge those only to could of sector or group interest identifiable an affect consultation of duty general consult. to the duty law of common broadness the of because enough itself, of not, was impact adverse of fact the that for opportunities association.
R(Bapio Actio R(Bapio Department Home the for State of Secretary v Action) R(Bapio B Department Home the for State of Secretary v Action) R(Bapio Department Home the for State of Secretary v Action) R(Bapio
duty is too general to be imposed by the courts and instead, it is the legislature who shouldthe legislaturewho is it instead, and by courts imposed the be general to too duty is
R(Bapio Action) v Secretary of State for the Home Department Home the for State Secretaryof v Action) R(Bapio 139, 139, - 47 47 43 42 mak seiiiy hc te ors cnend s hy r wt de with are they as concerned courts, the which “specificity
367 ers is rather broad and in the absence of statutory of absence the in and broad rather is ers hs i the in Thus,
n) v Secretary of State for the Home Department Home the for State of Secretary n)v the codn t te or, h cagd mirto rqieet afce the affected requirements immigration changed the court, the to According 44
Indian doctors to pursue the pursue to doctorsIndian - 47 government wasgovernment under theclaimants. noobligation toconsult
Bapio in relation to proposed measures which are going to adversely to going are which measures proposed to relation in
The court acknowledged that “common law could recognise a a recognise could law “common that acknowledged court The res consultation out of respect for those who are affected in affected are who those for respect of out consultation res
case the court confirmed that the discretion enjoyed by by enjoyed discretion the that confirmed court the case 369
According to the court, imposition of a duty to consult a to duty of court, imposition the According to ir career in the UK. the careerin ir society.” , [2007] EWHC 199 (Admin);EWHC 199 [2007] , (Admin);EWHC 199 [2007] , (Admin);EWHC 199 [2007] , (Admin);EWHC 199 [2007] , , [2007] EWHC 199 (Admin); EWHC 199 [2007] , 368 d who were also not consulted, the consulted, not also were who d
370 However
ic i te urn cs, the case, current the in Since prescriptions they are required required are they prescriptions The
, the court held that such that held court the , court went on to explain to on went court veloping principles, principles, veloping
371 [2007] EWCA [2007] EWCA [2007] EWCA [2007] EWCA [2007]
[2007] [2007]
85
CEU eTD Collection http://www.bailii.org/ew/cases/EWCA/Civ/2008/755.html 376 http://www.bailii.org/ew/cases/EWCA/Civ/2008/755.html 375 http://www.bailii.org/ew/cases/EWCA/Civ/2008/755.html 374 http://www.bailii.org/ew/cases/EWCA/Civ/2008/755.html 373 http://www.b 372 not did claimants. the on impact focused’ and ‘pressing whether determine ‘secondary case ofprocedural legitimateexpectation,’ be should claims these Laws, Justice Lord to according schemes. compensation Assessor Independent difficult. more which process changes recovery the with dissatisfied were claimants the of All a justice, of miscarriage of law justice. g Independent The specificity which wouldallowtodetermine the courts and enforce lacks and law, common the under concept developing a still is consult to duty the that is reasons main the of One them. with consultation of lack the challenge to difficult individua interested consultation of practice prior a or promise clear a is vrmn t te seset cee o compensation of schemes assessment the to overnment
R (Bhatt Murphy) v Murphy) (Bhatt R v Murphy) (Bhatt R Murphy) (Bhatt R v Murphy) (Bhatt R v Murphy) (Bhatt R 372 have such an such have
ailii.org/ew/cases/EWCA/Civ/2008/755.html The claimants were several law firms, with an established an with firms, law several were claimants The In the UK, in the absence of statutory requirements for consultation unless there unless consultation for requirements statutory of absence the in UK, the In Broadness of Broadness
Assessor v The Independent The Independent The Independent The Independent The Independent The h cags o h msarae f ju of miscarriage the to changes the impact on the on impact should have consulted them before adopting the changes to the the to changes the adopting before them consulted have should 374
, where ,
the ic tee a n pir rms o practi or promise prior no was there Since
duty to consult was an issue in issue an was consult to duty s well as individuals, alleged individuals, as well s
373 Assessor, Assessor, Assessor, Assessor, Assessor, a challenge was brought to brought was challenge a claimants; a claimants;
hy ae rud that argued have They
[2008] EWCA Civ 755, 49, 56 49, EWCA 755, Civ [2008] 56 EWCA 755, Civ [2008] 56 EWCA 755, Civ [2008] 1 EWCA 755, Civ [2008] EWCA 755, Civ [2008] lso
376
the court dismissed the case on the ground the on case the dismissed court the The judges found that found judges The 375 it. it.
meaning thatthe
tc compensation stice analyzed
victims of miscarriage of justice of miscarriage of victims
the 26 o vcis f icrig of miscarriage of victims for
the the changes introduced by the the by introduced changes the - - - 57, 57, 51,
ertr o Sae and State of Secretary case -
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d te compensation the ade practice in the field of field the in practice of court would havecourt to R e f consultation, of ce
the proposed rules proposed the
(Bhatt s ol fn it find would ls
schemes had a a had schemes Murphy) v Murphy) the 86 .
CEU eTD Collection http://www.bailii.org/ew/cases/EWHC/Admi 383 http:/ 382 http://www.bailii.org/ew/cases/EWHC/Admin/2011/217.html 381 http://www.bailii.org/ew/cases/EWHC/Admin/2011/217.html 380 http://www.bailii.org/ew/cases/EWCA/Civ/2008/755.html 379 http://www.bailii.org/ew/cases/EWCA/Civ/2008/755.html 378 http://www.bailii.org/ew/cases/EWCA/C 377 informal. rather was communication a but parties, the between dialogue ongoing an only not focused.’” and ‘pressing indeed was claimants five the onconductdepartment’s past the of impact“the establish that to claimants the departmentand England. in schools secondary refurbishing and rebuilding at aimed program national a for funding the autho as test the of the steps in determined the follow to order In applied. actually was expectations legitimate S of Secretary domain issue an as considered not was duty such of broadness present downthe casecould narrowed have compass. specific and narrow the within it be to broad design duty statutory of absence broad. too being consult to duty the of
R (Luton Borough Council) v Secretary of State for Education for State of Secretary v Council) Borough (Luton R Education for State of Secretary v Council) Borough (Luton R Education for State of Secretary v Council) Borough (Luton R Education for State of Secretary v Councils) Borough (Luton R v Murphy) (Bhatt R v Murphy) (Bhatt R v Murphy) (Bhatt R /www.bailii.org/ew/cases/EWHC/Admin/2011/217.html rities, were rities, such a duty a such . 381 Thus,
es Second, the judge looked at the actual communication which exis which communication actual the at looked judge the Second, I tablished by the courts the by tablished aohr ae as cnenn te bec of absence the concerning also case, another n
ae o Education for tate a ‘
potentially affec potentially ifrn apoc ws dpe in adopted was approach different The Independent The Independent The Independent The Bhatt
by themselves. themselves. by
case, first, the judge assumed that the claimants, who were local local were who claimants, the that assumed judge the first, case, to consult, to
Asse Assessor, Assessor, iv/2008/755.html ted
Ltn Borough (Luton A , n/2011/217.html the judges cannot overtake the role from politicians politicians from role the overtake cannot judges the ssor, ’ unless the factual circumstances of a certain case ‘ case certain a of circumstances factual the unless 383 ccording to the judge, the duty to consult is itself too itself is consult to duty the judge, the to ccording
by the proposal from the executive government to stop to government executive the from proposal the by 377
[2008] EWCA Civ 755, 59, 59, EWCA 755, Civ [2008] 59, EWCA 755, Civ [2008] 58 EWCA 755, Civ [2008] oevr te liat hd eti expectations certain had claimants the Moreover, Similarly, like in BAPIO, the court held that in the in that held court the BAPIO, in like Similarly,
’ scope of theclaimed duty toconsult. scope 378
h or ed that held, court The
) 380
[2011] EWHC 217 (Admin), 93, 93, (Admin), 217 EWHC [2011] 93 (Admin), 217 EWHC [2011] (Admin), 217 EWHC [2011]
[2011] EWHC 217 (Admin), 217 EWHC [2011] 382
the case
lso in the exchange of emails the the emails of exchange the in lso According to the judge, there was there judge, the to According hc is which wee h ts o procedural of test the where , (uo Bruh oni) v Council) Borough (Luton R - 59 , the none of the facts of the of facts the of none outside outside uy o osl, the consult, to duty ted between the between ted the 2, 2, 379 - 94, 94,
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Grand Canyon Air Tour Coalition v Federal Aviation Administration Aviation Federal v Coalition AirTour Canyon Grand Louisiana Warren, KennethF. (c) 553 Lubbers, S. example,Jeffrey for See, R (Partingdale Lane Residents' Association) v Barnet London Borough London Barnet v Association) Residents' Lane (Partingdale R (emphasis added) (emphasisadded) courts have been consistent consistent been have courts ) , 740 F.2 740 ,
on in dealing with the comments. the with dealing in on presented” rel
of
evant and significant and evant Administrative Procedure Act Procedure Administrative Federal Land Bank Association v Farm Credit Administration, Farm v Bank Land Association Federal Administrative Law Review Law Administrative d 1177, 1188 (D.C. Cir. 1984) (cited in Phillip M. Kannan, “The Logical Outgrowth Doctrine in in Doctrine Outgrowth Logical “The Kannan, M. in Phillip (cited (D.C. 1984) Cir. 1188 1177, d For example, in the US, the US, the in example, For Ideally, http://www.bailii.org/ew/cases/EWHC/Admin/2003/947.html is 482 See also also See
Administrative Law in the Political System Political the in Law Administrative received
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484 , Westview Press, 2004, Press, Westview , US and the UK have developed rather developed have UK the and US K
enneth Warren explains that it is the is it that explains Warren enneth s el s n eurn aece to agencies requiring in as well as
by responding to those comments those to responding by (FAA), 154 F.3d 455, (D.C. Cir. 1998), 1998), Cir. 455, (D.C. F.3d (FAA),154
Generally, agencies enjoy wide enjoy agencies Generally,
Council
336 F.3d 1075, F.3d 336 d to consider each and every and each consider to d ,
American Bar Association, Association, AmericanBar (emphasis added) added) (emphasis whether the co the whether
[2003] EWHC 947 (Admin) 947 EWHC [2003] to of ation
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232.
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1080 1080 (citing nsultation nsultation
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CEU eTD Collection http://www.berr.gov.uk/files/file47158.pd 492 http://www.berr.gov.uk/files/file47158.pdf 491 http://www.berr.gov.uk/files/file47158.pdf 490 (2003) 403, U.S.App.D.C. 357 489 488 (2000), 487 (D.C.Cir.1990). 1188 1179, F.2d Agency,907 Protection Environmental v Congress Mining American 486 Africa South of Republic the of President involvement public th into weaved was it nevertheless Constitution; the ‘significance’and shouldbe applied. interpreted exercise.” consultation i the Unlike from learnt was “what of account an provide to as well as comments” “significant the writing in summarize to required are authorities public British the under where ishighly attechnical. thematter or stake specific agency’s an to defer necessarily not. are which and relevant are comments which determine rule. proposed the rule,” proposed [the] in change “ which comments, to respond and consider to agencies require consideration. co stake. at comments
mns r ‘relevant’ are mments Criterion 6.4. ofthe 6.4. Criterion ofthe 6.4. Criterion ofthe 6.4. Criterion example,for See, KennethF. Commission Communications Federal the v Worldcom MCI Louisiana 765 765 n the US, the British courts have not yet considered how the principle of of principle the how considered yet not have courts British the US, the n
British British Federal Land Bank Association v Farm Credit Administration, Farm v Bank Land Association Federal Warren, Warren, In South Africa, South In established also is comments of ‘significance’ or relevance of criterion The
In determining determining In Louisiana Federal Land Bank Association v Farm Credit Administration Farm v Association Bank Land Federal Louisiana oe f rcie n oslain 2008 Consultation, on Practice of Code Code of Practice on Consultation on Practice of Code Consultation on Practice of Code Consultation on Practice of Code Administrative Law in in Law Administrative s led mnind i te S gnis r lf wt dsrto to discretion with left are agencies US the in mentioned, already As y h cutys osiuinl Court Constitutional country’s the by T he real challenge for agencies agencies for challenge real he
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the requirement to consider the comments is not explicit under explicit not is comments the consider to requirement the ‘relevance’ and ‘significance’ and ‘relevance’ 486 decision concerning the relevance of received materials, even even materials, received of relevance concerningthe decision significant
or which or f
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n teeoe ae o e ie adequate given be to have therefore and , the Cabinet Office, July 2008, theJuly , 2008, CabinetOffice, theJuly , 2008, CabinetOffice, the , CabinetOff
hri, Matatiele (herein, “
cha (FCC), cntttoa olgto t facilitate to obligation constitutional e , Westview Press, 2004, 232. 2004, Press, Westview , 489 and l lenge
209 F.3d 760, 341 U.S.App.D.C. 132, U.S.App.D.C. 132, 341 760, F.3d 209 I . ors s eiig hc o which deciding is courts
ice, July 2008, July 2008, ice, . of comments of 488 n the the n 490 the
336 F.3d 1075, F.3d 336
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aail Municipality Matatiele 2 ) te ot African South the , 12, 12, 12, , the courts would courts the ,
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CEU eTD Collection ht 496 1991 41, Vol. McGarity, O. Thomas also See 495 http://www.saflii.org/za/cases/ZACC/2006/26.html 97, (Matatiele 2), August 2006), (CC)(18 BCLR(1) 47 2007 ZACC26; 494 97, 2), (Matatiele 2006), August (CC)(18 BCLR(1) 47 ZACC 2007 ZACC26; [2006] 12 (2)(CCT73/05A)[2006] 493 comply to agencies require not does it decision, final the reaching before comments the consider to agencies requires APA the while during made comments the with comply to consult public that, of proof written provide meaningful participation. of scrutiny courts’ the for evidence consultation the from exercise.” learnt was what of light in taken been have decisions what out set su a and exercise consultation the to responded who of summary a “provide to required is government purpose.’ and basis of ‘statement the in them include and participants comment and notice of part as US, the In so. did actually they that evidence some provide to have also but participants to beotherwise, the du policies and decisions their shaping in these consider in involved “l that held Court Constitutional tp://www.berr.gov.uk/files/file47158.pdf
Criterion 6.4. ofthe 6.4. Criterion Lubbers, JeffreyS. Municipality Matatiele Others and Africa South of Republic the of Others President v and Municipality Matatiele http://www.saflii.org/za/cases/ZACC/2006/12.html mmary of the views expressed to each question … [t]his feedback should normally should feedback [t]his … question each to expressed views the of mmary 496 - 1992, 1400. 1992,
ennfl ways meaningful In practice, practice, In While While s lutae blw tee ttmns n smais ev a te ore of source the as serve summaries and statements these below, illustrated As A Guide to Federal Agency Rulemaking Agency to Federal Guide A Code of Practice on Consultation on Practice of Code decision
v President of t of President v ty to facilitate wouldhave publicparticipation ty nomeaning.”
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- ( emphasis added) emphasis mak , the Cabinet Office, July 2008, theJuly , 2008, CabinetOffice, only public consultation. For instance, in the US the in instance, For consultation. public er’s compliance with the requirements of of requirements the with compliance er’s , American Bar Association, 2006, 376 and 60. and 60. 376 2006, Association, AmericanBar . have to consider the input made by by made input the consider to have ” 493
(2)(CCT73/05A)[2006] ZACC 12 [2006] [2006] ZACC 12 (2)(CCT73/05A)[2006] eferendum and they and eferendum
According to the Court, “[w] Court, the to According inputs inputs
f the of 495
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Duke Law Journal Law Duke are not obliged obliged not are 494
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CEU eTD Collection at 1153, 2008, 76, Vol. Requirements,” Act Rulemaking Procedure Administrative with Compliance 501 Transitions,” in “Presidential Power Requirements,” Treasury to Responding Remedy: Mind,” Open Administrative the 5.co.uk/uploads/docs/section5/JRconferencepaperConsultation.doc 500 499 Authority Health http://www.bailii.org/ew/ 498 1( Vol. 497 concerning instance, challenge For consideration.successful of requirement the fulfill to order in process consultation could bedisqualified decision the or invalidated be may rule final the mind’ ‘closed a had agency the if US, made. were that comments the account into take to and consider to has institution of mind ‘receptive’ does necessarily not that th imply that fact sole the reveals cases the of analysis following the as however, consultation, public during received for requirement a of absence outcome. final the influence least at changeor would input their that guaranteed not are participants whereby a mandate positive consultees’. from the procedure. comment
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One of the main critiques of consultative processes is that it could be in be could thatit is consultative processes of critiques One themain of George Washington Law Review Law Washington George the require could courts the UK, the In in courts the Also - 33; 33; , [2001] QB 213, 108, QB 213, [2001] , mak 499 Jonathan Auburn, “Consultation,” Conference Paper Conference “Consultation,” Auburn, Jonathan , “The Internet and Citizen Participation in Rulemaking”, Rulemaking”, in Participation Citizen and Internet “The , 37
Kristin E. Hickman, “A Problem of Remedy: Responding to Treasury’s (Lack of) (Lack Treasury’s to Responding ofRemedy: “AProblem Hickman, E. Kristin criteria decision ned tee s h dfiut o esrn maigu priiain n the in participation meaningful ensuring of difficulty the is there Indeed, rs oe’ id means mind ‘open’ er’s ,
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- R (Coughlan) v North & Devon North v East (Coughlan) R have mak Kristin E. Hickman, “A Problem of “Aof Problem KristinHickman, E. - P033,%20Coglianese.pdf 60 - George Washington Law Review Law Washington George I/S: A Journal of Law and Policy ofand Law Journal A I/S: mak and and - er’s discretion. discretion. er’s 61, 61, developed Jack M. M. Beermann,Jack r t re to ers
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R (Cran) v Camden London Borough Council Borough London Camden (Cran) R v Boro London Camden (Cran) R v Council Borough London Camden (Cran) R v Council Borough London Camden (Cran) R v Council Borough London Camden (Cran) R v l). 508
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R (Medway Council (Medway R Council (Medway R Transport for State of Secretary v Council) (Medway R Transport for State of Secretary v Council) (Medway R Council (Medway R Transport for State of Secretary v Council) (Medway R r a gniey pn o aig no con al h ipt md. o inst For made. inputs the all account into taking to open genuinely was er me a powerful tool in the hands of participants whose comments were not considered in considered not were comments whose participants of hands the in tool powerful a me claimants representing several county councils challenged the government’s proposed proposed government’s the challenged councils county several representing claimants d mind’ when it did not include the issue of Gatwick airport’s capacity in the the in capacity airport’s Gatwick of issue the include not did it when mind’ d nte cs wee h ise of issue the where case Another hl rlac o the on reliance While decision f State of ) v Secretary of State for Transport for State of )Secretary v Transport for State of )Secretary v Transport for State of )Secretary v -
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514
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Grand Canyon Air Tour Coalition v Federal Aviation Federal v Coalition AirTour Canyon Grand Administration Aviation Federal v Coalition AirTour Canyon Grand Air Canyon Grand Ac Overflight Parks National The Administration Aviation Federal v Coalition AirTour Canyon Grand
arized and responded to in the statement of basis and purpose of the rule. the of purpose and basis of statement the in to responded and arized - aig rcs b rsodn t toe omns ht r rel are that comments those to responding by process making McLouth Steel Products Corp. v. Thomas v. Corp. Products Steel McLouth decision
opportunity for comments, which means that the agency’s the that means which comments, for opportunity At first, the court the first, At the is first The the Congress under the under Congress the 518
case Tour Coalition v Federal Aviation Administration Aviation Federal v Coalition Tour - mak 522
notice and comments procedure comments and notice from the US the from n that and er seems to be willing to consider the inputs made by the participants, the by made inputs the consider to willing be to seems er 521
t of 1987 t of
confirmed rn Cno Ar or olto v eea Aviation Federal v Coalition Tour Air Canyon Grand the . Grand Canyon Overflights, Overflights, Canyon Grand
In “ , Public Law , 100 Public Overflights Act Overflights gny mu agency 1996
the link betwee link the , 838 F.2d 1317, C.A.D.C., 1988, at 1323 at C.A.D.C., 1988, 1317, F.2d 838 , -
91.pdf the
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154 F.3d 455, (D.C. Cir. 1998) Cir. 455, (D.C. F.3d 154 - mak mind must be open be must mind er’s ‘open mind’ and mind’ ‘open er’s 519 ) rn Canyon Grand 520 (emphasis (emphasis
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ovince, hr te ifcly f determi of difficulty the where under section 118(1)(a) of South Africa’s Constitution. under 118(1)(a) section Constitution. of Africa’s South
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Merafong Demarcation Forum v President of the Republic of South Africa South Republic of the of President v Forum Demarcation Merafong Africa South Republic of the of President v Forum Demarcation Merafong Re the of President v Forum Demarcation Merafong Africa, South Province, example,Gauteng for See, Africa South Republic of the of President v Forum Demarcation Merafong of 118 Sec ofthe 74 Section http://nowwithouthesitation.blogspot.hu/2009/11/merafong s during which the majority of of majority the which during s
534 by certain provincial legislatures. provincial certain by 532 to sought and majority community’s Merafong of views the with agreed egislature the
South Africa’s Constitution requires that Constitutional amendments concerning amendments Constitutional that requires Constitution Africa’s South The provincial legislatures of Merafong, North West and Gauteng and West North Merafong, of legislatures provincial The h poica lgsaue i nt osdr eo s n pin n therefore and option an as veto consider not did legislature provincial The Constitution of the Republic of South Africa South of Republic the of Constitution Constitution of the Republic of South Africa South of Republic the of Constitution (10) BCLR 968 (CC) (13 June2008) (CC)(13 BCLR (10) 968
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Merafong Demarcation Forum v President of the Republic of South Africa South Republic of the of President v Forum Demarcation Merafong Africa South Republic of the of President v Forum Demarcation Merafong Sou Republic of the of President v Forum Demarcation Merafong Africa South Republic of the of President v Forum Demarcation Merafong Africa South Republic of the of President v Forum Demarcation Merafong Republic of the of President v Forum Demarcation Merafong the
537 importance of the statutes the of importance
aoalns wihrqie dfeet opportuniti different requires which easonableness hapter for Merafong as MPs Move to Rectify Blunder,” Blunder,” Rectify to Move as MPs Merafong for hapter In the case before the country’s Constitutional Court, the petitioner argued that argued petitioner the Court, Constitutional country’s the before case the In codn t te or, h cntttoa olgto t fcltt public facilitate to obligation constitutional the Court, the to According does does . 536
At the same time the Court held that the legislature is bound by the by bound is legislature the that held Court the time same the At
540 it 539
require
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8 (CC) (13 June2008) (CC)(13 8 seek
538 ing
13 June2008) 13 T that the legislatures enjoy discretion in choosing choosing in discretion enjoy legislatures the that
ad ht hy r as fe t cm u with up come to free also are they that and , he Court Court he consensus with members of the public. In this this In public. the of members with consensus
med them about their changed position. changed their about them med
South Africa South also , , , , , , 51 50 49 27 27 44 thAfrica
- - 50 54 46, Business Day, Business held that public participation as an as participation public that held
on how the public inpu public the how on es for involvement depending involvement for es
, (CCT 41/07) [2008] ZACC 10; ZACC 10; [2008] 41/07) (CCT , ZACC 10; [2008] 41/07) (CCT , ZACC 10; [2008] 41/07) (CCT , ZACC 10; [2008] 41/07) (CCT , ZACC 10; [2008] 41/07) (CCT , ZACC 10; [2008] 41/07) (CCT , purpose of of purpose
19 February 2009, February 2009, 19
m of government of m h consultative the t should t 117 535
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Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others and Africa of South theRepublic of President v Others and Forum Demarcation Merafong Africa South Republic of the of President v Forum Demarcation Merafong Africa South Republic of the of President v Forum Demarcation Merafong Africa South Republic of the of President v Forum Demarcation Merafong Afric South Republic of the of President v Forum Demarcation Merafong could be be could 542 The Court’s approach in this case seems to embed a conflicting message message conflicting a embed to seems case this in approach Court’s The that argument the to As
The 541
543 codn t te aoiy f h Cut te omte cniee the considered Committee the Court, the of majority the to According or ed ht vn f the if even that held Court
ed conal fr uh a such for accountable held According to the Court, nothing could have been done to change the change to done been have could nothing Court, the to According
al improvements that were made.
f h Cntttoa Aedet teeoe vn n the in even therefore Amendment, Constitutional the of , such as regular elections, such as poor poor
the legislatures the
delive
measures to improve it. it. improve to measures n em o esrn ‘epcfl ilge and dialogue’ ‘respectful ensuring of terms in ry of municipal of ry 544 eiltrs ed diinl ulc hearings public additional held legislatures
08) Lastly ,
‘ , , , ,
after realizing the need to change the change to need the realizing after icutos conduct discourteous 59 59 55 282 hy ee o ncsiae b the by necessitated not were they additional opportunities for public public for opportunities additional e one hand, the Court did recognize did Court the hand, one e
- 61
te or hl ta provincial that held Court the ,
.
C) (13 June2008) (13 C) 545 a
service , (CCT 41 (CCT , ZACC 10; [2008] 41/07) (CCT , ZACC 10; [2008] 41/07) (CCT , ZACC 10; [2008] 41/07) (CCT ,
ic te or dd not did Court the Since s
/07) [2008] ZACC 10; ZACC 10; [2008] /07) was was , 60 ’ among the main main the among
other through , (CCT (CCT , 118
CEU eTD Collection June2008) (CC)(13 BCLR (10) 968 SA (CC); 2008 171 (5) 2008 549 Sachs) (per 291 J June2008), (CC)(13 BCLR (10) 968 SA (CC); 2008 171 (5) 2008 548 Ju (CC)(13 BCLR (10) 968 SA (CC); 2008 171 (5) 2008 547 546 peddling. representatives governed. the and government the consti Africa’s South of principle position. its community of the change to the reporting about members not by involvement public facilitate to duty constitutional rather approach similar fair. be to is which process Galligan, by ex For dialogue’. ‘respectful or accountability government’s ensuring for the of importance means only the as seen be not should elections 1, the Chapter in explained as However, elections. on heavily relied Court limited the unnecessarily since seems participation public Court concerning the by approach current The democracy. country’s of pillars two these between balance proper a find to was Court the for challenge main the democracy, the its of foundation dual to establishes Africa South of Constitution the mentioned, As participants. back report to required were legislatures the if government of form representative t that held it hand, other the on But representatives. the ofaccountability of mechanism important an as seen be could they
Merafong Demarcation Forum v President of the Republic the of President v Forum Demarcation Merafong Africa South Republic of the of President v Forum Demarcation Merafong Africa South Republic of the of President v Forum Demarcation Merafong J. D. Galligan, ” 549 which is partly representative, and partly participatory. Therefore, it seems that seems it Therefore, participatory. partly and representative, partly is which
respect codn t Jsie Sachs, Justice to According Failu
Due Process and Fair Procedures Fair and Process Due and the people could people the and re by the legislatur the by re
by the government towards the governed is central to a to central is governed the towards government the by .
546
e potnte fr atcpto cud lo nagr the endanger also could participation for opportunities he Actually, in his concurring opinion opinion concurring his in Actually, tutionalism, requires a dialogue to be established between established be to dialogue a requires tutionalism, 548 ensure “ ensure
Only such genuine communication between the elected the between communication genuine such Only es to report back to the community about the changed the about community the to back report to es , Clarendon Press, 1996 Press, Clarendon , h poica legislature provincial the 547 a counterweight to secret lobbying and influence influence and lobbyingsecret to counterweight a ne2008)
atcptr dmcay a a inseparable an as democracy, Participatory
of South Africa South of , , 292 (per J Sachs) (per 292 J 287 - 302
,131. , (CCT 41/07) [2008] ZACC 10; ZACC 10; [2008] 41/07) (CCT , ZACC 10; [2008] 41/07) (CCT , ZACC 10; [2008] 41/07) (CCT ,
utc Sachs Justice
ald o ufl the fulfill to failed ample, as explained explained as ample, decision
dpe a adopted - mak 119 ing ing
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trustworthy relationship between the government and the people. the and government the between relationship trustworthy ing is valuable for its potential through channels of communication to ensure respectful respectful ensure to communication of channels through potential its for valuable is ing 552
decisio
, Parliament of South Africa, 19 March 2009, 2009, March Africa,19 South of Parliament , satisfy theneeds ofthe residents. A The two cases illustrate the difficulties faced by courts when they are asked to asked are they when courts by faced difficulties the illustrate cases two The Co the by decision the however, Eventually, crig o utc Scs priiaoy eorc i adto t its to addition in democracy participatory Sachs, Justice to ccording n http://www.info.gov.za/view/DownloadFileAction?id=98327 - mak
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10) BCLR 968 (CC) (13 June2008) (CC)(13 BCLR 968 10) n process. ing ves that the improvements concerning the service delivery were not not were delivery service the concerning improvements the that ves ould examine various sorts of documents and communication of the of communication and documents of sorts various examine ould decisio
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T r osdrd h rsoss eevd uig the during received responses the considered er e re ifcly s eemnn wehr the whether determining is difficulty true he , Republic of South Africa, of South Republic , , Gauteng Legislature, Johannesburg, Johannesburg, GautengLegislature, , 13 June2008) 13
See also also See In 2009, a new bill was proposed and and proposed was bill new a 2009, In , , , 300 Sachs) (per 299 J Sachs) (per 292 J Merafong Residents Consulted on Residents Consulted Merafong - 301 (per J Sachs) J (per 301 mte ws hne ad th and changed was mmittee Government Gazette Government , (CCT 41/07) [2008] ZACC 10; ZACC 10; [2008] 41/07) (CCT , ZACC 10; [2008] 41/07) (CCT , ZACC 10; [2008] 41/07) (CCT , atn province. Gauteng = 551
and and
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21 February 2 21 State of the Province Province the of State Amendment to the the to Amendment
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See e) relationship between the government and the governed are among the most pertinent of of pertinent most the among are governed the and government the between relationship e) Section
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Enhanced Opportunities for Public Participation and Deliberation and Participation Public for Opportunities Enhanced
– 554
Merafong indeed, indeed,
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or e
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Nikos Th. Nikolinakos, Nikolinakos, NikosTh. 3. Public Consul 3. Public s xet agencies expert as , Kluwer Law International, 2006 LawKluwer , International, an of The previous Chapters indicate that the scope of the obligation of consultation is consultation of obligation the of scope the that indicate Chapters previous The
telecommunications must be tailored to suit the specific the suit to tailored be must telecommunications issue dependent. Public consultation is inevitable and the opportunities for for opportunities the and inevitable is consultation Public dependent. issue the eeomnctos sector, telecommunications EU Competition Law and Regulation in the Converging Telecommunications, Media Media Telecommunications, Converging the in Regulation and Law Competition EU rae wee h ise are issues the where broader
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http://www.icasa.org.za/ LisaThornton in Privatization and Regulation Horses: and “OfCarts Wallsten, Scott c) b) a)
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, Richard A. Gershon “Deregulation, Privatization and the and Privatization “Deregulation, A. Richard , Gershon - Barrett 557
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Telecommunications Reforms,” Reforms,” Telecommunications esponsible for setting general setting for esponsible
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eds., eds., ” 560 - we
Telecommunications Law in South Africa in Law Telecommunications South Africa in Law Telecommunications
the , The - Lisa Thornton, et al., eds., eds., al., et Thornton, Lisa do erlying statutes include he IBA Act, the Broadcasting Act and the the and Act Broadcasting the Act, IBA he include statutes erlying
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hc i te ags ascain f mtu rdo prtr i te S sought US, the in operators radio amateur of association largest the is which 608 The general approach by the Federal Comm Federal the by approach general The ne is rpsd ue cnenn te ces P dvcs te C set FCC the devices, BPL Access the concerning rule, proposed its Under
, 231 , at
Accordingly, the operators of Access BPL technology would not be required be not would technology BPL Access of operators the Accordingly,
the center ofregulation such .
oeta t itree with interfere to potential - 83, §564, 123 Stat. 2142, 2184, 2184, 2142, Stat. 123 §564, 83, Freedom of Informat of Freedom .
- arrl
, 5 U.S.C. §552, as Amended by Public Law No. 110 No. byLaw Public as Amended §552, U.S.C. 5 ,
to be be to romulgation of the final rule. rule. final the of romulgation io frequency of different devices are allowed, and it is the is it and allowed, are devices different of frequency io mrcn ai Rly League Relay Radio American d limits on frequency emissions. T emissions. frequency on limits d affecte ion Act ion d by interferences caused by Access BPL. During BPL. Access by caused interferences by d the the .
http://www.justice.gov/oip/amended te ues f h setu, uh as such spectrum, the of users other A 610 inadequa ssmn o what of ssessment
of the agency’s materials, which it relied it which materials, agency’s the of unications Commission concerning Commission unications y f the of cy t ec te ee o ‘harmful’ of level the reach ot The League challenged the challenged League The , 524 F.3d 227, 390 F.3d 390 227, 524 , F.3d 390 227, 524 ,
notice hri, RL r the or ARRL (herein, constitutes constitutes he agency stated that stated agency he - 175, 121 Stat. 2524, 2524, Stat. 121 175, sne the since , - foia 607 - redlined
harmful a However, agency radio - 135 ,
CEU eTD Collection 239. 34, U.S.App.D.C. 615 239. 34, U.S.App.D.C. 614 and (1975), 34, U.S.App.D.C. 613 34, U.S.App.D.C. 612 (D.C.Cir.1984)) 34, U.S.App.D.C. 611 theproposals.make on submissions to parties interested for opportunities provide to and decisions proposed regarding public for requirements two the decision. procedure comment relyto on, studies its from data whichchoose to free agencyis the while methodologies. of choice agency’s the over doubt cast could which information, contradictory contain to likely were sections excluded that fact the on relied treate its in them on relied be not agency could they public, the to available versions the redacted the made and process rulemaking once that held court the requirement, disclosure the employs.”information,that it hiding ordisguisinginformation the “ allowed not is agency the that meaning occurs, parties meanin it from conclusions improper “ to able proc comment failed
American Radio Relay League v Federal Communications Commission (FCC) Commission Communications Federal League v Relay Radio American Communications Federal League v Relay Radio American (FCC) Commission Communications Federal League v Relay Radio American (FCC) Commission Communications Federal League v Relay Radio American (FCC) Commission Communications Federal League v Relay Radio American d as entirely internal documents and should be disclosed in full. in disclosed be should and documents internal entirelyas d
to fully disclose the studies it relied on. T on. relied it studies the disclose fully to gful if ‘a genuine interchange’ of information between the agency and the interested the and agency the between information of interchange’ genuine ‘a if gful 615 point out where … information is erroneous or where the agency may be drawing drawing be may agency the where or erroneous is information … where out point Coastal States Gas Corp. v. Dep't of Energy, of Dep't v. Gas Corp. States Coastal
The
As to t to As edure was edure
239 (citing239 237. (citing236 American Radio Relay League Relay Radio American
he FCC’s argument that the studies the that argument FCC’s he t s o fe t wthl ifrain hc ws h bss o its for basis the was which information withhold to free not is it NLRB v. Sears, Roebuck & Co., Roebuck Sears, v. NLRB Comm'rs Util. Regulatory of Ass'n Nat'l to improve the agency’s rulemaking process, whereby whereby process, rulemaking agency’s the improve to decision
.” 611
- mak According
r t poie oie n ohr information other and notice provide to ers
617 F.2d 854, (D.C.Cir.1980)) 854, 866 F.2d 617 o h cut pbi priiain ol be would participation public court, the to case illustra case he court held that held court he
Commission (FCC) Commission 421 U.S. 132, 161, 95 S.Ct. 1504, 44 L.Ed.2d 29 L.Ed.2d 44 1504, S.Ct. 161, 95 132, U.S. 421
were internal documents exempt documents internal were to play hunt the peanut with technical with peanut the hunt play to
( “ NARUC tes the links which exist between exist which links the tes 612
”) ”) 614 , 524 F.3d 227, 390 F.3d 390 227, 524 , F.3d 390 227, 524 , F.3d 3 227, 524 , F.3d 390 227, 524 , F.3d 390 227, 524 , the purpose of purpose the
613 v. FCC, v.
Accord
Particularly, the court the Particularly, during the notice and notice the during
737 F.2d 1095, 1121 1095, F.2d 737
ing to the court, the to ing consultees consultees 90 notice and and notice to
from from
136 are the
CEU eTD Collection http://news.bbc.co.uk/2/hi/uk_news/scotland/1738232.stm 619 also, http://www.zdnet.co.uk/news/networking/2007/07/18/ofcom July 18 2007, Porting,” Number on Rules Changes “Ofcom Meyer, David http://stakeholders.ofcom.org.uk/binaries/consultations/gc18review/summary/numberportability.pdf 1, July17 2007, Communications, Office of 18, 618 http://stakeholders.ofcom.org.uk/binaries/consultations/gc18review/summary/numberportability.pdf July17 2007, Communications, Office of 18, 617 616 of onthe side required investment they customers, the beneficial for changes been would have make to able not still were providers other to numbers their ported had who customers those and bankrupt, went providers service the of one when operator. old their of existence the on anymore in numbers providers. service phone switch but numbers phone their retain to chose who customers those for protection better ensure otherwise portability).known as number service (a provider service phone different a to switching while number phone their retain Tribu Appeal Competition meaningfulness the for information the participants‘genuine’the court.as required by which is by requested as materials of disclosure full a only Therefore, decision. final the improve end the the on comment impinge also may notice of inadequacy the Secondly, decision. its reaching when relied it which on that only not and process rulemaking the during considered it information
End of the Line for Atlantic Customers, Customers, Atlantic Linefor ofthe End Supplier Switch Customers when Numbers Phone Porting for Arrangements Supplier Switch Customers when Numbers Phone Porting for Arrangements Home, Tribunal, Appeal Competition Kingdom United The the Vodafone v Office of Communications (Ofcom) Communications of Office v Vodafone consultees could result in the interchange of the information between t between information the of interchange the in result could consultees ing process and and ing process such First n 07 Ocm ogt o hne h nme praiiy sys portability number the change to sought Ofcom 2007, In of exchange of importance the emphasizes which approach, similar A y i odr o rvd aeut ntc, n gny a t rva the reveal to has agency an notice, adequate provide to order in ly, wy that way a
prevent meaningful comments, which (had they been given) could given) in been comments,prevent whichthey (had meaningful nal
fe sicig rvdr, customers providers, switching after te Tribunal) (the 617
BBC News BBC h pooa sgetd hnig h sse o porting of system the changing suggested proposal The
f atcpto, a aotd by adopted was participation, of
, Competition Appeal Tribunal, 18 September 2008 18 Tribunal, Appeal Competition , , 2 January 2002, January 2002, 2 , 616
618 n cs cnenn cnue itrss to interests consumer concerning case a in - changes
http://www.catribunal.org.uk/
hs ocr ws ae o a incident an on based was concern This - rules r eev ay calls. any receive or
- on - number Condition General A , Review of Condition General A , Review of would not be dependent dependent be not would - h Uie Kingdom United the porting
e i odr to order in tem - he agency and agency he 39288098/ 619
See also also See
hl the While , 98. ,
See
137
CEU eTD Collection 38, 2010, purposes.” tactical to be appear su late for reasons legitimate sometimes are there While theircontents. to have regard to due stillwe required are closes consultation a after responses submit stakeholders “[w]here 2009/10: of AnnualReport in Ofcom’s retained been 624 623 622 http://www.legislation.gov.uk/ukpga/2003/21/data.pdf also, 621 620 the assess to regulator the allow would which industry, the from information and opinions appeal todelay processchanging order porting in existing the of the system. changes. proposed of information relevant provide to and institution a of because arose analysis benefit fromcosts they assessing thelikely would the prevented also information such of lack model, porting new of introduction the did Ofcom not was consultation of process the under required whole as transparent the that and persons’ interested ‘all involve to failed regulator the process consultation the during and accurate not was another to model one from argued follow not thatOfcomdid In Ofcom. by decision been have would interests financial whose country, the proposals, numbers. such with the Unsatisfied all of database a maintain and create to have would who providers, service
Interestingly, the concern that consultees may use consultation processes to delay issuan delay to processes usemayconsultation consultees that concern the Interestingly, (Ofcom) Communications of Office v Vodafone Communicat of Office v Vodafone (Ofcom) Communications of Office v Vodafone (Ofcom) Communications of Office v Vodafone Section bmission, we have noted a tendency on the part of some stakeholders to use late submission for whatfor usesubmission late to stakeholders some of part tendency a the on noted havewe bmission,
to clarify how thos clarifyhow to http://www.ofcom.org.uk/files/2010/06/annplan1011.pdf s
4 not provide sufficient provide not 7 and 49 and 7 h Tiua hglgtd ht the that highlighted Tribunal The in inaccuracies that held Ofcom claim, petitioners’ the to response In transfer the of costs the to as estimation Ofcom’s petitioners, the to According
of the ofthe 623 Vodafone v Office of Communications (Ofcom) Communications of Office v Vodafone
e estimates e oevr acrig o Ofcom to according Moreover, Communications Act 2003 Act Communications Ofcom,
ions (Ofcom) ions Annual Report and and Accounts Report Annual Vodafone the correct procedures inits Communications Act 2003 Act Communications information concerning its cost its concerning information failure by failure
were made. Also the petitioners argued that Ofcom failedOfcomargued that petitioners the Also were made. , Competition Appeal Tribunal, 18 September 2008 September 18 Tribunal, Appeal Competition , 2008 September 18 Tribunal, Appeal Competition , 1 Tribunal, Appeal Competition , 2008 September 18 Tribunal, Appeal Competition , incur and and incur
and other and
the the , which would be necessary to a to necessary be would which , , c.21 ups of purpose MNOs making the in relevant comments ,
(the UK), (theUK), Mobile Network Operators Network Mobile
, for the period 1 April 2009 to March 31 April 2009 1 thefor period , and Vodafone to cooperate with the the with cooperate to Vodafone and te eiinr hv bogt the brought have petitioners the , the . 621 decision the the most affected challenged the the challenged affected most
According to the petitioners, the to According consultation - benefit analysis related to related analysis benefit 8 September 2008 September 8 - 620 mak
case, the petitioners the case, ing process. ce of regulations has ofregulations ce 624
ssess the costs costs the ssess a t invite to was
(MNOs) in (MNOs)
, , 96. , 92. See , 91; the cost the end. MNOs
138 622
-
CEU eTD Collection switching/summary/switching.pdf switching, consumer http://stakeholders.ofcom.org.uk/binaries/consultations/mnp/summary/mnp_condoc.pdf April 2010, 1 Consultation, Statement and 18, Condition General to modification 2.28 Paras http://www.mobilenewscwp.co.uk/2012/02/ofcom 629 628 627 626 625 was operators other and Vodafone by held information The versa. vice and regulatees wher medium a as serve is others) settled. among providers TV pay and (broadband providers communications between issue the on held consultations continuing are there However, UK. the in place in still is system led consultations. new hold to Ofcom instructing consideration, technicalrequested information as by Vodafone. them,” of asked questions the to responses realistic to had Ofcom that held consultation, d judicially the on relying Tribunal, the case, this in However, parties. revealed decision the (including consultation of structure comments way andthis tocontribute tothe qualityregulator’s assessment. of cost its concerning adopted. approachrecipientnewof the industryif facethe could that difficulties
Michael House, Michael House, (Ofcom) Communications of Office v Vodafone (Ofcom) Communications of Office v Vodafone (Ofcom) Communications of Office v Vodafone (Ofcom) Communications of Office v Vodafone
and the final decision is expected is decision final the and 629 , hr te ups o cnutto i t rcie nomto fo te interested the from information receive to is consultation of purpose the where ), 625 - 29 of 29
The Tribunal found that the failure by Ofcom to provide su provide to Ofcom by failure the that found Tribunal The The case The I the of discretion the within is it Generally, Ofcom, Changes to the Mobile Number Porting Process, Including notification of a proposed proposed ofa notification Including Process, Porting Number the Mobile Ofcom, to Changes n the end, the Tribunal remitted the matter back to the regulator for for regulator the to back matter the remitted Tribunal the end, the n Ofcom N Ofcom http://stakeholders.ofcom.org.uk/binaries/consultations/consumer - eei aayi ipne o Vdfn’ aiiy o ae relevant make to ability Vodafone’s on impinged analysis benefit reveals the approach by the Tribunal that consultative proce consultative that Tribunal the by approach the reveals eeds to Act Quickly on Number Porting Rules: Three PortingRules: Number on Quickly Act to eeds
rlvn ifrain s rnfre fo te euao t the to regulator the from transferred is information relevant e
“ once the more general issue of ‘consumer switching’ ‘consumer of issue general more the once lo saeodr fly o rvd itliet and intelligent provide to fully stakeholders allow , Competition Appeal Tribunal, 18 September 2008 September 18 Tribunal, Appeal Competition , 2008 September 18 Tribunal, Appeal Competition , Tri Appeal Competition , 2008 September 18 Tribunal, Appeal Competition , - needs - to 628 - act
627 s o o mc ifrain hud be should information much how to as - quickly
for instance, by disclosing some of the of some disclosing by instance, for - on
As of February 2012, the donor the 2012, February of As - bunal, 18 September 2008 September bunal,18 decision number , 9 February 2012, 2012, February 9 , - porting - - led porting model was portingmodel led mak -
and and vlpd rtra of criteria eveloped fficient information fficient - r o design to er rues 626 Strategic review of of Strategicreview
- three/ , , 91 , 95 , 95 , 94. ss should should ss
See also, also, See
- -
97 97.
139
the the
CEU eTD Collection 2010, 634 2010 633 2010 632 Act Broadcasting consen holder the licence force, continue to in whichis for licence the period 631 630 that and changes upcoming the about licenses spectrum of holders the 1995. since to analogue from switchover detr the and slot more whereby switchover, digital networks. 4G mobile as such Different technologies, new of development the to due increasing broadcasting stations as process apart oftheir of switchover conform (Ofcom) holder. license aft only period its concerning conditions license’s a vary to British the of3(4) Section in set is licenses t telecommunicat example, implementing in discretion Ofcom’s limit which exist, incurred after companies changes byaffectingway phone theirare ofperformance introduced. costs the assess properly to order in authority regulatory the for necessary
Data Broadcasting International Broadcasting Data International Broadcasting Data International Broadcasting Data variationofthe a in ifof the case (a) holder theon licence served notice a by varylicence maya “Ofcom ofthe S3(4)(a)
15.
632
with strategies for the optimal usage of spectrum of usage optimal the for strategies the of conditions the changing when follow should Ofcom which procedure he 634 ae te B pttoe te or ad hlegd t challenged and court the petitioned DBI the case, iment of other business actors. actors. business other of iment lo i Also h dmn b actors by demand The
, 1990, , 1990, In 2004, Ofcom, as an authorized body to implement the switchover, informed switchover, the implement to body authorized an as Ofcom, 2004, In British Broadcasting Act Broadcasting British 631 h sauoy uy n t se cnet f li of consent seek to and duty statutory the
In the the In n the UK, certain statutory limitations concerning public participation participation public concerning limitations statutory certain UK, the n http://www.legislation.gov.uk/ukpga/1990/42/section/3
aa racsig International Broadcasting Data
v v v iia bodatn ws pn o cnieain y h public the by consideration for open was broadcasting digital Office of Communications Communications of Office Communications of Office Communications of Office , 1990, 1990, ,
s of frequency are being freed for the benefit of some of benefit the for freed being are frequency of s ihn the within http://www.legislation.gov.uk/ukpga/1990/42/section/3 Broadcasting Act 199 Act Broadcasting The British govern British industry (Ofcom) (Ofcom) (Ofcom) have now have
. for more frequencies is mainly mainly is frequencies more for 633 , , , [2010] EWHC 1243 (Admin), 13 May(Admin), 13 1243 EWHC [2010] May(Admin), 13 1243 EWHC [2010] E [2010]
r bann cnet rm the from consent obtaining er
v ts,” S3(4)(a) ofthe S3(4)(a) ts,” ment’s policy concer policy ment’s 0. ese bfr terminating before censees fie f Communications of Office
become available after the the after available become 630 e euao’ fiue to failure regulator’s he WHC 1243 (Admin), 13 May(Admin), 13 1243 WHC
The Act permits Ofcompermits Act The it would seek to change to seek would it os oiy For policy. ions
which could be be could which British British ning the the ning
140
CEU eTD Collection 2010, 641 58 International Broadcasting 640 2010, 639 2010 638 2010, 637 2010, 636 2010, 635 the of 3(4)(a) section enacting consent. licensees’ sought an licenses of period the affected changes the area, broadcasting licensed petitioners’ the of variations the of nature ‘dramatic’ the given them, to effect. practical no has license the of limit time the zero, to reduced is coverage th maintained petitioners the therefore area, broadcasting in decrease the is issue other. the on effect an having without changed be cannot one and cut, clear not distinctions license. the of date expiry the than rather broadcasting regulator changed peti the latter, the from consent without but petitioners, the and Ofcom between communications changes. the defer to agreed feedback proposed about DBI the notified Ofcom licens these Ofcom’s objected DBI The activities. its to detrimental been have would spe analogue of usage the on depended entirely business was holders licenses. other terminate and licenses some of conditions
Data Broadcasting International Broadcasting Data duration ofits original thefor period valid license a remain cannot coverage withzero “[a]licence International Broadcasting Data International Broadcasting Data International Broadcasting Data International Broadcasting Data Dat ,1. 61 58 33 31 31. a Broadcasting International Broadcasting a
-
35
es as part of the of part as es between a license’s conditions concerning the license period and licensed area is area licensed and period license the concerning conditions license’s a between Data Ofcom was argued thatit Broadcasting International (DBI) International Broadcasting tioners’ byremoving licenses licensed certain from stations area. the
v Office of Communications Communications of Office
641 switchover from analogue to digital broadcasting digital to analogue from switchover
v v v v v v Another Office of Communications Communications of Office 1990 Act Broadcasting Office of Communications Communications of Office Communications of Office Communications of Office Communications of Office Communications of Office 636 not ruet use b te eiinr ws ht by that was petitioners the by pursued argument
variations to their licenses but after receiving their their receiving after but licenses their to variations Between 2008 and 2009 after exchange of written of exchange after 2009 and 2008 Between required since altered consent, it thearea toseek of (Ofcom) , a broadcasting service provider, whose whose provider, service broadcasting a , , d, therefore, the regulator should have have should regulator the therefore, d, (Ofcom) (Ofc (Ofcom) (Ofcom) (Ofcom) (Ofcom) [2010] EWHC 1243 (Admin), 13 May (Admin), 13 1243 EWHC [2010]
and requiring Ofcom to seek consent seek to Ofcom requiring and om) tu ad hne t te licenses the to changes and ctrum 638 , , , , , , 635 [2010] EWHC 1243 (Admin), 13 May(Admin), 13 1243 EWHC [2010] May(Admin), 13 1243 EWHC [2010] May(Admin), 13 1243 EWHC [2010] May(Admin), 13 1243 EWHC [2010] May(Admin), 13 1243 EWHC [2010] May(Admin), 13 1243 EWHC [2010]
codn t te petitioners, the to According
mn te oiid license notified the Among
proposal to change to proposal
plan. 640 639 at when the the when at
According ,” in ,” The main The
In 2006, 2006, In
2010 Data Data 141 637 ,
CEU eTD Collection 2010, 645 2010, 644 2010 643 2010 642 the limit toused be could discretion this how Alsothey consult. illustrate whichto in particular manner examin participants. the and institution the between information of exchange enable would which design to is precondition necessary a that illustrate serve could compensatory introduced mechanisms topartly thecover DBI. costs ofthe and costs these consideration into took Ofcom Consequently, case switchover. the before since li either, overlooked been not had licensees the of interests the Court, the spectrum. the of usage efficient ensuring of terms in interest public furthering vari the that maintained w areas in broadcast to able be not would petitioners the changed, not were licenses the if even that noted Court The petitioners. change the case this instead. area licensed affected in whereas, period, license of change the concerning only consent Parl licensees. licenses, of period the altering when es ws eee is e ws eue, aig no con te ot o te forthcoming the of costs the account into taking reduced, was fee its renewed was cense
Data Broadcasting International Broadcasting Data International Broadcasting Data In Broadcasting Data International Broadcasting Data , ,62
forward forward 76 76 71
- ed cases reveal that the regulatory authorities enjoy authorities regulatory the that reveal cases ed 80 642 potnte for opportunities
645
The Court Court The To sum up, both cases from the US and the UK confirm that public consultation public that confirm UK the and US the from cases both up, sum To t changesin the to due incur theywould costs the concerning a means for for means a
Indeed during the consultation process the petitioners had a chance to chance a had petitioners the process consultation the during Indeed ternational ations made by Ofcom were in line with the statutory requirement of requirement statutory the with line in were Ofcom by made ations
ed ht the that held
h lkl affected likely the uteig eeomnctos euaoy policies regulatory telecommunications furthering
643 v v v v Office of Commu of Office Communications of Office Communications of Office Communications of Office
Therefore h ere the switchover took place. Moreover, the Court Court the Moreover, place. took switchover the ere racsig Act Broadcasting ,
Ofcom was not obliged to seek the consent of theof consent the seek to obliged not was Ofcom nications nications iament intended to provide protection for for protection provide to intended iament parties’ parties’
and implement and (Ofcom) (Ofcom) (Ofcom) (Ofcom) neet t p to interests
1990 a , , , , [2010] EWHC 1243 (Admin), 13 May(Admin), 13 1243 EWHC [2010] May(Admin), 13 1243 EWHC [2010] May(Admin), 13 1243 EWHC [2010] May(Admin), 13 1243 EWHC [2010] wide discretion in choosing the choosing in discretion wide
eurd fo t obtain to Ofcom required such a consultative process consultative a such riiae n rulemaking in articipate he spectrum policy. spectrum he 644
According toAccording Te also They . put their The The 142
CEU eTD Collection and policies the where instance, For services. telecommunications of users are who the by experienced primarily is decisions and sect other from proposed decisions orpolicies. their by affected be to likely those with consult to authorities government requires cons fairness of context the in 2, Chapter in telecommunications examined in As obligationssector. consultative the behind concerns the of one is which for which mechanisms, consultative like obligations similar in specific more are Authorities with Procedural Fairness and theStrictness theof Rules Taming3.4. the Broad Discretion the of Telecommunications Regulatory who have the tobear regu industryactors, from input the without properly out carried becannot functions their interests, consumer of guarantor the and expertise of source primary the are regulators communications of participants. the exchange and agency the between further information to as way a such in designed be mechanisms consultative that insist would courts the misused not was discretion this whether determine to order In processes. a meaningful participation. participation. meaningful It is worth mentioning that regulation in telecommunications sector is different different is sector telecommunications in regulation that mentioning worth is It invoking through is discretion such limiting of way One consultation public concerning regulators the for requirements some Although ors in that usually the immediate and most direct effect of regulatory policies regulatory of effect direct most and immediate the usually that in ors telecommunications area, generally the agencies are subject to very very to subject are agencies the generally area, telecommunications the rest of the of rest the latory burdens.
,
as described earlier described as
decision
- mak actors from the industry and not individuals individuals not and industry the from actors ers ,
could be used to limit the opportuniti the limit to used be could . As the cases illustrate even though the though even illustrate cases the As
Also they enjoy they laie biain, procedural obligations, ultative a rcdrl fairness, procedural wide
in designing designing in
de cisions 143 es
CEU eTD Collection 1140 650 al., et Huber 51 U.S.App.D.C. scores,” sports … as such 649 Review Law Washington George 648 Center, Resource Security 975 Procedures,” Rulemaking FCC in through Footnotes Notice 647 51 payment 646 the changing when incur would they costs and inconveniences the of because the longproviders. service distance re similar that establish to notice same the in footnote a used and ESPs, for rules the only concerning notice a adopted Commission the proposals, its for notices separate two issuing of instead However, companies. phone local concerning provider of types both regulate to sought Commission Communications as well as companies phone distance unbundling process The companies. phone local servicesof and infrastructure the to companies distance long by access of rules the change to decision oth and to as ‘adequate of requirement v Telecommunications the enforce to fairness procedural lack ofcompetition. promoting at aimed are
David S. Konczal “Telephone “Telephone Konczal S. David “Telephone Konczal S. David example, for see, ofunbundling processes description a For For example, an enhanced service is when “a customer dials a number to obtain access to stored information, information, stored to access obtain to number a dials customer “a when is service enhanced an example, For MCI Telecommunications v Federal Communications Commission Communications Federal v Telecommunications MCI C Tlcmuiain v eea Commu Federal v Telecommunications MCI - 976, and and 976,
whether er long distance companies had had companies distance long er Federal Telecommunications Law Telecommunications Federal The FCC’s Open NetworkArchitecture FCC’s Open The The following example from the US the from example following The
In general, the unbundling requirements for local phone companies affected long general,phone affected companies In localrequirements unbundling for the n usatv grounds substantive On , 1138. On distinction between long distance and enhanced service providers, providers, service enhanced and distance long between distinctionOn 1138. , the petitioner, one of the biggest long distance phone companies at that time, time, that at companies phone distance long biggest the of one petitioner, 647
MCI Telecommunications v Federal Communications Commissi Communications Federal v Telecommunications MCI http://csrc.nist.gov/publications/nistpubs/800 . aimed at increasingcomp
Federal Communications Commission Communications Federal
competition the most affected ones are those who benefit from the from benefit who those are ones affected most the competition , V –
Obscuring Notice through Footnotes in FCC Rulemaking Procedures,” Procedures,” Rulemaking in FCC Footnotes through Notice Obscuring ol. 64, 1996, 974 (citing 974 1996, 64, ol.
650
, Aspen Publishers Online, 1999, 37 1999, Online, Aspen , Publishers h pet the nacd evc Providers Service Enhanced proposed changes concerning changes proposed iain Commission nications en dqaey inf adequately been , National Institute of Standards and Technology, Computer Computer Technology, and ofStandards Institute National , itioner etition George Washington Law Review Law Washington George California v. FCC v. California illustrates how the court the how illustrates
poe te ugse cags mainly changes suggested the opposed
quirements will be adopted concerning adopted be will quirements in the market
(FCC) - , 57 F.3d 1136, 313 U.S.App.D.C. 51, 51, U.S.App.D.C. 313 1136, F.3d 57 , 11/node4.html
(FCC re about ormed , 57 F.3d 1136, 313 U.S.App.D.C. U.S.App.D.C. 313 1136, F.3d 57 , , 4 F.3d at 1507 at F.3d 4 , .
648 - )
39. 646 access were a part of part a were access (ESPs). notice’. notice’.
case s in the US the in s ad hi access their and s on , Vol. 64, 1996, 64, Vol. ,
, 57 F.3d 1136, 313 313 1136, F.3d 57 , , the issue arose issue the , – 649 - the
08) see Peter William William Peter see O In
bscuring h Federal The
regulator’s regulator’s the
invoke MCI MCI 144 an an
CEU eTD Collection 655 654 1141 653 1141 652 1138 651 pay among competition promote pay for scheme compensation a establish to procedure.in withholding public consultation fairn procedural of requirement the how suggests specific the into insights regulator rule, final because parties process. rulemaking its in parties the to fairness of guarantee a owes regulator telecommunications the US, the in Thus, proceedings. further for agency the to back matter the remanded and rule the vacated of merits the address to refused court the error, procedural consultation. the in participate to parties interested the for impossible it made which matter, different a on notice another of footnote a in notice stake. parties affected another on rulemaking proposed issue. of notice a in footnote a was mentioned was proposal the where instance only the since notice adequate an provide to failed agency the that argued be had which systems,
Sprint v Sprint Commission Communications Federal v MCITelecommunications Commission Communications Federal v MCITelecommunications Commission Communications Federal v MCITelecommunications Commission Communications Federal v MCITelecommunications
652 653
Th
codn t te or, hs proe wr nt e since met not were purposes these court, the to According Federal Communications Commission Communications Federal reguland the r al t epes their express to able are e court the helde that Under of case The
as well as to provide the regulator with relevant information on the issue at issue the on information relevant with regulator the provide to as well as during rulemaking process process rulemaking during the the n te wrs pu words, other In ator hasator totake account. theminto en based on bundled services. bundled on based en Telecommunications Act 199 Act Telecommunications
nature of rulemaking process concerning telecommunications. telecommunications. concerning process rulemaking of nature Sprint v Sprint
purposes of notice and comment and ofnotice purposes .
Federal Communications Commission Communications Federal phone service providers and promote the widespread widespread the promote and providers service phone
views and concerns about the proposals made by the the by made proposals the about concerns and views lc oslain ensures consultation blic , 31 , individuals 5 F.3d 369, 354 U.S.App.D.C. 288 U.S.App.D.C. 354 5369, F.3d
phone service providers (PSPs) (PSPs) providers service phone ess serves to limit the regulator’s discretion discretion regulator’s the limit to serves ess 6 651 the FCC is authorized by the Congress Congress the by authorized is FCC the 654
who are likely to be affected by the the by affected be to likely are who
As to the procedures, the petitioner the procedures, the to As
, 57 F.3d 1136, 313 U.S.App.D.C. 51 313 1136, F.3d 57 , U.S.App.D.C. 51, 313 1136, F.3d 57 , U.S.App.D.C. 313 1136, F.3d 57 , U.S.App.D.C. 51, 313 1136, F.3d 57 ,
oevr atr salsig this establishing after Moreover,
the decision. The court partly partly court The decision. the
were to ensure fairnessthe to were to rcdrl ares o the to fairness procedural
h agency the
655
offers additional offers “ [i] n lcd its placed order
51, 51, Italso
145
to
CEU eTD Collection 660 659 the FCC1999. to in PSPs several by submitted bypetition a was triggered reconsideration 658 657 http://www.fcc.gov/Reports/tcom1996.pdf 656 comment and notice the avoid to FCC procedure. the allowed which order, the than rather rule a as changes the adopted th other among it Instead, adopted. was order.’ rule ‘reconsideration new a if necessary been neededcompensated. tobe which calls, the track to placed best were agency, the to according who, IXCs, the to solely compensation of burden the shifting by scheme the changed FCC the 2001, In compensation. and calls some tracking of difficulty a was there PSPs. the to compensation for liable therefore, and, payphones from made calls the of beneficiaries economic initial Carriers Interexchange services such of for provision responsible are PSPs While actors. industry several between cooperation on depends pay of provision Efficient services. such of provision terminate would likely most companies phone government the from incentives additional without and Th scheme. compensation pay of the provision because necessary is establishing compensation regulation a issued powers its exercising pay of deployment
Sprint v Sprint v Sprint v Sprint ofthe 276(b)(1) Section pit v Sprint
Federal Communications Commission Communications Federal Commission Communications Federal Communi Federal
660 eea Cmuiain Commission Communications Federal
The ings that the FCC should have enacted the changes through adoption of a new new a of adoption through changes the enacted have should FCC the that ings h Fdrl omnctos omsin rud ht ne the under that argued Commission Communications Federal The
agency did not follow the notice and comment procedure which would have have would which procedure comment and notice the follow not did agency
phone services to the benefit of the general public general the of benefit the to services phone Telecommunications Act of of Act 1996 Telecommunications
659 (IXCs) as well as well as (IXCs) cations Commission cations
658 Sprint, which is an IXC, challenged the adopted changes arguing changes adopted the challenged IXC, an is which Sprint, 657 te cul eeiire ae p are beneficiaries actual the ,
oee,tecmesto sse ws o efcet because efficient not was system compensation the However,
, 315 F.3d 369, 354 U.S.App.D.C. 288, 373 288, U.S.App.D.C. 354 369, F.3d 315 , 373 288, U.S.App.D.C. 354 369, F.3d 315 , 371 288, U.S.App.D.C. 354 369, F.3d 315 , Switch , 315 F.3d 369, 354 U.S.App.D.C. 288, 372. Initially the the Initially 372. 288, U.S.App.D.C. 354 369, F.3d 315 , - Based Resellers Based
, Pub. L. No. 104 L. , No. Pub. many of the PSPs could not receive proper proper receive not could PSPs the of many
phone services is not always profitable profitable always not is services phone hone companies performing as as performing companies hone
- 104, 110 Stat. 56 (1996) (1996) Stat. 110 56 104, phone serv phone
(SBRs). were recognized as as recognized were (SBRs). .” 656 Ibid.
In 1996, the FCC the 1996, In ices to the public the to ices -
372.
146 e
CEU eTD Collection Comm effect’ ‘future standard [prescribed] 665 original) 664 citationsomitted) Phase Lead Refiner 663 1.108) 662 661 acts asontheas regulated oftheagency well industries. f establish agency an by r whereby process, rulemaking the of nature the by predetermined is participation others the exempting while companies affect substantially adopted it changes the since procedure comment and notice the following not agency’s jud well a provides and parties, affected to fairness ensures comment, public diverse to regulations exposing by rulemaking agency of quality companies. some of responsibilities financial the on effect their given substantial too were changes introduced cour rule. original the of adoption the after years 4 than more been the after days 30 within the that and unlimited ‘reconsideration long order’ wasafter as rule a asadopted noticecomment. theoriginal and 199 Act Telecommunications
Sprint v Sprint v Sprint v Sprint Sprint v Sprint “ i il review.” cial [i]n contrast to an informal adjudication or or adjudication informal an to contrast [i]n t,
unications Commission unications there was a need for a new rule rather than a reconsideration order because the the because order reconsideration a than rather rule new a for need a was there
decision Federal Communications Commission Communications Federal Commission Communications Federal Commission Communications Federal Federal Communications Commission Communications Federal
n pry eoe h aec trig agency the before party a on The court, in agreement with the petitioners, explained that such authority is not is authoritysuch explainedthat petitioners, the with agreement in court,The
- 663 Down Task Force Down
,’ - According mak
ed an agency's imposition of requirements that “affect subseq “affect that requirements of imposition agency's an
codn t According
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, 315 F.3d 369, 354 U.S.App.D.C. 288, U.S.App.D.C. 288, 369, F.3d 354 315 ,
notice of the proposal the of notice regulated industr regulated to the court, the notice and comment procedure comment and notice the court, the to
6
, it does have the authority to change the rules by a a by rules the change to authority the have does it , v. United States EPA, States United v. te or, hr ws lc of lack a was there court, the o . 664 , 315 F.3d 369, 354 U.S.App.D.C. 288, (emphasis 374 288, U.S.App.D.C. 354 369, F.3d 315 , (citing 373 288, U.S.App.D.C. 354 369, F.3d 315 , U.S.App.D.C. 354 369, F.3d 315 , , 315 F.3d 369, 354 U.S.App.D.C. 288, 375 (citing 375 288, U.S.App.D.C. 354 369, F.3d 315 ,
y mr plc sta policy mere a codn t te judges the to According , by increasing financial responsibilities of some of responsibilities financial increasing by , gers the APA notice requirement,” requirement,” notice APA the gers - developed record that enhances the quality of quality the enhances that record developed was
705 F.2d 506, (D.C.Cir.1983) 506, F.2d 547 705
made, whereas in the current case it has it case current the in whereas made, 665 373
eet wih ‘ which tement,
662
Moreover, according to the to according Moreover,
rcdrl ares n the in fairness procedural uent [agency] acts” and have a a have and acts” [agency] uent the , 288, 375 288, lacks the firmness of a a of firmness the lacks
eest o public of necessity
pit v Sprint
were such were (internal “imp egulations egulations
Small Small 47 C.F.R. § § C.F.R. 47 tion only only tion roves the the roves
Federal Federal 147 that 661
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to the openness and publicity of consultative processes, consultations could be could consultations processes, consultative of publicity and openness the to
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and ,
, . Once the discretion of the regulators is tamed with more more with tamed is regulators the of discretion the Once .
Congress, proposals were made to reform the way the FCC the way the reform to made were proposals Congress, is there a need for a more specific and detailed regulation detailed and specific more a for need a there is
the the nt requirements concerning the procedures which they they which procedures the concerning requirements nt legislature and courts to exercise exercise to courts and legislature issuance and revocation of licenses as a part of of part a as licenses of revocation and issuance , 315 F.3d 369, 354 U.S.App.D.C. 288, 376 288, U.S.App.D.C. 354 369, F.3d 315 , H.R. the IXCs the
3310, her p her 112 should have been given an opportunity to opportunity an given been have should hone companies they are best placed to to placed best are they companies hone aiu olgtos n operators, on obligations various th
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FCC Reform Bills Put Consumer Interests at Risk at Interests Consumer Put Bills FCCReform http://www.consumersunion.org/pub/core_telecom_and_utilities/018272.html 2011 of Act Reform Process Commission Communications Federal 2011 of Act Reform Process Commission Communications Federal Communic Federal Federal Communications Commission Consolidated Reporting Act of 2011, of Act 2011, Reporting Consolidated Commission Communications Federal
to the House Committee on En on Committee the Houseto representatives the proposed draft draft proposed the
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3310, 3310, , 671
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Testimony of Ronald M. Levin, William R. Orthwein Distinguished Professor of Law, Washington ofLaw, Washington Professor Distinguished R.Orthwein Levin,William M. Ronald Testimonyof H Letterto Risk at Interests Consumer Put Bills FCCReform Re
to the House Committee on Energy and Commerce and Energy on Committee the Houseto - gulatory Accountability Act Accountability gulatory standing judicial review doctrines.’ review judicial standing - 2, 2,
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opportunity for the agency t agency the for opportunity
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‘actual harm.’ consumer 675 , November 29, 2011, Para Para 2011, 29, November ,
Hearing on “Reforming FCC Process,” “Reforming on Hearing Similar concerns are behind the proposals by the by proposals the behind are concerns Similar countability. One of the difficulties concerning difficulties the of One countability. , it ucmite n omnctos and Communications on Subcommittee ng notice and comment procedure are too too are procedure comment and notice ng en to udnoe n h agencies’ the on burdensome too being decision decision o address meaningfulness of public of meaningfulness address o - - mak mak 674
g by the FCC. For instance, instance, For FCC. the by g
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above Consumers Union’s Union’s Consumers d Commerce, Commerce, d
June 22, 2011, 2011, June22, nefrn with interfering
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even where even 150 6 ,
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“Competitive Debacle in Loin Debacle “Competitive
are two ideas inherent in the efforts by the governments to limit regulationgovernments limit to theefforts in inherent the are by twoideas
. proposition stands in stark contrast to the more general perception of perception general more the to contrast stark in stands proposition re the U.S. House of Representatives, Committee on Energy and Commerce, Commerce, and Energy on Committee Representatives, of Housethe U.S. re 678 679
Also, the attempt to curb the regulatory powers of agencies standsagencies of regulatory powers the curb to attempt the Also, Secondly, ure, where protection of the pu the of protection where ure, notice and comment and notice
, Vol. 81( Vol. , if regulation as such seems to be unnecessary, then the unnecessary,then tobe seems as regulation such if cal Telephony: Is the 1996 Telecommunications Act to Telecommunications 1996 the Is Telephony: cal Hearing on “Reforming FCC Process,” “Reforming on Hearing FCC Process,” “Reforming on Hearing 1 ) , , 2003, atives, Committee on Energy and Commerce, Commerce, and Energy on Committee atives,
h would allow the agency to agency the allow would h 677
procedure than the proposed minimum minimum proposed the than procedure Professor 1 to promote public interest through through interest public promote to - 2,
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that the that , it is at is it , the cost cost the - 151 6 bill ,
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Jesse McKinley, “San Francisco Pas “SanFrancisco McKinley, Jesse Ste o necessarily not ers are ers v 681 , May 6, 2011, May , 2011, 6, e n P. Croley, n P.
Similarly, any other lab other any Similarly,
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Anne Shepherd and Christi Bowler, “Beyond the Requirements: Improving Public Participation in EIA,” in EIA,” Participation Public Improving Requirements: the “Beyond Christi Bowler, and Shepherd Anne example,for See, er.
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Stephen J. Turner, Turner, StephenJ. example,for See, Jonas http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/165/16509.htm Turner, StephenJ. Governanceand Environmental Transboundary Rights, “Participatory Turner, Sharon Macroryand Richard on projects private and public effects ofcertain the ofAssessment theon June1985 of27 Directive Council - text/85337.htm Ebbesson, “Public Participation and Privatisation in Environmental Matters: An Assessment of the Assessment of An Matters: in Environmental Privatisation and “PublicParticipation Ebbesson, Common Market Law Law Market Common Procedural environmental rights and, particularly, public partici public particularly, and, rights environmental Procedural under recognized rights other from different way, a in are, rights Environmental
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James T. Hamilton and Christopher H. Schroeder, “Strategic Regulators and the Choice of Rulemaking ofRulemaking Choice the and Regulators “Strategic Schroeder, H. Hamilton Christopher and T. James Casefor Democratic Law: The Stewart,Environmental “Reforming B. Richard and Ackerman A. Bruce Casefor Democratic Law: The Stewart,Environmental “Reforming B. Richard and Ackerman A. Bruce v EPA Rybachek Act Control Water Pollution Federal v EPA Rybachek Forewor The
. man and Richard B. Stewart, “Reforming Environmental Law,” Environmental “Reforming Stewart, B. Richard man and 715 Economics of Administrative Law Administrative of Economics
n 95 ne the under 1985 In (BAT). d for the Consultation Handbook states that “[t]he Handbook provides internal guidance and and guidance internal provides Handbook “[t]he that states Handbook thefor Consultation d s pr o te ueaig rcs, h EA ed eea rud of rounds several held EPA the process, rulemaking the of part a As nte cs i wih h s the which in case Another , Edward Elgar, 2007, 119) 2007, Elgar, Edward , , 904 F.2d 1276(9 F.2d , 904 1276(9 F.2d , 904 Columbia Journal of Environmental Law of Environmental Journal Columbia Law of Environmental Journal Columbia and http://epw.senate.gov/water.pdf 718 , Vol. 57, No. 2, 1994, 111, (reprinted in 111, (reprinted No.2, 1994, 57, Vol. ,
of notice and comment. The consultative processes revealed that one of of one that revealed processes consultative The comment. and notice of National Marine Fisheries Service, Fisheries Marine National
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th th Act Water Clean
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provides the EPA with certain discretion in discretion certain with EPA the provides , Vol. 13, 1988, 172 1988, 13, Vol. , 13, Vol. , yahk v Rybachek n h poess f iea mining. mineral of processes the in la Wtr Act Water Clean Susan Rose Susan
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- Ackerman, Ackerman, .
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CEU eTD Collection 727 726 725 724 723 722 721 participants. the by submitted inputs the consider and participation for opportunities provide Thu matters. other in applicable structure the maintained is participation public for requirements way a include not did it since undermined not was comments the to response comments. made agency’s previously the were documents added the that found court the Moreover, sev been had there since particularly meaningful, was procedure to opportunity an have not did comment. claimants the which on pages of r thousands final containing the supplemented EPA the since participation,’ public mines. mineral by discharged waste the including waters, national the to discharges regulate EPA the mining. mineralregulate The Associati mines small concerning regulation. proposed ro another opening by responded consultations EPA the comments these To mines. small on effect adversean have would regulations the that commenterswas some by concerns main the
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’ liat age ta udr the under that argued claimants 727 724
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the commenters to present additional data before it could modify the modify could it before data additional present to commenters the 723
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CEU eTD Collection Law Environmental and Planning 728 rightthe properconflicting andconcerns. between estimations tostrike balance contributerel their for opportunities the in Providing individuals interested situation. by economic participation country’s the to pertaining concerns env such involve only not does runway new a construct to proposalThe UK. the in airportsthe of one runwayfor new a build to proposal government’s includes which below, analyzed example an by described be could possessing and regulations competence. or opinions proposedinformation, necessary in interested those by made submissions relevant the expertise, or knowledge particular require and where mentioned, already As sides. both the rule for useful final the by affected be would who those and institution government the between decision vo to opportunity an given as well as impacts parties environmental interested that ensuring is matters environmental Information between the Public4.2. Participation as Meansa ofExchanging Environmental serve andprocedural thescopeofsuch thelinkswith todetermine opportunities fairness. vari of examination persist participation public on reliance such for however, reasons, Different
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, Vol. 12, 2010, 1515 2010, 12, Vol. ,
D ironmental problems as increased pollution and noise but also but noise and pollution increased as problems ironmental ecision EIA, SEA and AA, present position: where are we now?” where are AA, position: present and SEA EIA, - mak .
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CEU eTD Collection 2 [1999] WLR1 452, PLR116, [1999] 731 2 [1999] WLR1 452, PLR116, [1999] 730 2 [1999] WLR1 452, PLR116, [1999] 729 requirements EIA the and held were that consultations of considering after only set been have should site the of operation for conditions of possibility the given that planning where made were the affect to likely were decisions assessments proper ensure to EIA intended the that were observed requirements Hoffmann Lord court, UK a before case a In health. public’s the to order in interfere to have institutions government therefore and dust, and noise with surroundings the disturbs quarry a of operation County qu the of excavation by caused likely impacts environmental an out carry however, not, did It limestone. of quarry a for conditions setting before consulted was environment. the and lives daily their affect would commenced if constructions proposed government’s th All action. of course proposed the behind reasons the and solutions find to used methods the decision p this to parties both is information is necessary for the interested parties such as the residents of an area where area an of residents the as such parties interested the for necessary is information is
R (Brown) v North Yorks North (Brown) R v Nor (Brown) R v (Brown R a n
EIA. niomna Ipc Assessment Impact Environmental - oni’ dcso de o h asne f I. t s cmo patc ta the that practice common a is It EIA. of absence the to due decision Council’s mak ) v North Yorkshire County Council County Yorkshire North )v 731
ing process seek to receive the information about the substance of the proposal, the of substance the about information the receive to seek process ing The concept of exchanging information suggests that there are benefits for the for benefits are there that suggests information exchanging of concept The For instance, in instance, For
are
th Yorkshire County Council County Yorkshire th lhuh h cut i nt iety oc uo te ik ewe the between link the upon touch directly not did court the Although complimentary oes Idvdas n ter rus atcptn i environmental in participating groups their and Individuals rocess. hire County Council County hire
a significant effectsignificant a R (Brown) v (Brown) R
http://www.bailii.org/uk/cases/UKHL/1999/7.html http://www.bailii.org/uk/cases/UKHL/1999/7.html http://www.bailii.org/uk/cases/UKHL/1999/7.html in
environment.
well , [1999] UKHL 7, [2000] 1 AC 397, [1999] 1 All ER 969, All[1999] 1 AC969, ER 1 397, [2000] UKHL 7, [1999] , All[1999] 1 AC969, ER 1 397, [2000] UKHL 7, [1999] , All[1999] 1 AC969, ER 1 397, [2000] UKHL 7, [1999] , preserve the natural habitats and to prevent harm for harm prevent to and habitats natural the preserve - informed decision informed .
North Yorkshire County Council County Yorkshire North
process (EIA). by the quarry the by 730
The court, finding for the petitioners, held petitioners, the for finding court, The 729 i i it ,
oa rsdns cnend ih the with concerned residents, Local ovos ht h to procedural two the that obvious s -
arry, challenged arry, making. In the present case, the case, present the In making. on the surrounding environment surrounding the on
, a , North Yorkshire Yorkshire North
local authority local the necessity necessity 163 ,
CEU eTD Collection Aircraft Brothers 735 http://www.epa.gov/osw/hazard/tsd/permit/ Manual Participation Public RCRA 734 http://www.bailii.org/ew/cases/EWCA/Civ/1999/792.html 733 http://www.bailii.org/ew/cases/EWCA/Civ/1999/792.html 732 rules the and regulations changing or developing when consultation for opportunities so directive the under requirements consultation establishes RCRA order in enacted the is management waste I US. the from case another by illustrated decisions. that also but which information, valuable offer effect. direct of was court, the to according time, that at UK the by implemented fully not although which EIA, on Directive bypredeterminedEuropean wasEIA an forneed thatthe heldcourt the claimant, rely Primarily began. activities excavation before consultation in participate to opportunity meaningful a afforded been have should granted, was permission mining which for area an of resident effectspossible interms ofmining activities for need a signified also which mine, the of operation the pr
ocess of public consultation was a primary source of information for local residents about residents local for information of source primary a was consultation public of ocess Sarah L. Inderbitzin, “Throwing Out the Baby with the Bath Water: The Impact of The Water: withthe Bath Baby the Out “Throwing L.Sarah Inderbitzin, The Council County Durham v (Huddleston) R County Durham v (Huddleston) R US .’ This directive requires the regulators (either at a federal or a state level) to ensure to level) state a or federal a at (either regulators the requires directive This .’ Resource Conservation and Recovery Act ( Act Recovery and Conservation Resource
The information is necessary is The information for whocould individuals be The importance of exchange of information in the the in information of exchange of importance The anothe in Also ,” ,” ing on the importance of the effect that the mining could have had on the the on had have could mining the that effect the of importance the on ing the William and Mary Environmental Law and Policy Review Policy and Law Environmental Mary and William
to regulate the handling of hazardous waste from unregulated sites. unregulated from waste hazardous of handling the regulate to I sre a a rmr to o ifrig h public the informing of tool primary a as serves EIA 733
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T Oil v Shell Oil v Shell Impact of The Water: withthe Bath Baby the Out “Throwing L.Sarah Inderbitzin, Oil v Shell Act( Recovery and Conservation ofthe US Resource 6974(2) § Act( Recovery and Conservation ofthe US Resource 6974(2) § ofthe(1) USRe 6974(b) § t ment of hazardous waste. menthazardous of he ‘mixture’ rule “classifies as a hazardous waste any mixture of a ‘listed’ hazardous waste with other any waste hazardous mixture‘listed’ofa any waste hazardous as a “classifies he‘mixture’ rule ’ hazardous waste. hazardous 741
738 the enactment ofa enactment rulewith the dealingthe Environmental Protection Agency Protection Environmental Envi Protectio Environmental
, In 1977, the EPA commenced a rulemaking procedure rulemaking a commenced EPA the 1977, In
le the ‘derived the le ,” potnte fr oie n comment. and notice for opportunities s el s hs itrse i th in interested those as well as In ronmental Protection Agency Protection ronmental William and Mary Environmental Law and Policy Review Policy and Law Environmental Mary and William hl Ol v Oil Shell . Among other issues the agency sought to determine to sought agency the issues other Among .
source Conservation and Recovery Act ( Act Recovery and Conservation source
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, 950 F.2d 741, 745 (1991) 741,F.2d 745 950 , (1991) 741,F.2d 745, 950 , 741 F.2d 950 , rulemaking process witnessed attention from related from attention witnessed process rulemaking ) e matter, several participants representing representing participants several matter, e 743
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, 42 U.S.C. (1976) provides: provides: (1976) U.S.C. 42 ,
aadu wse which waste, hazardous c oncerning the handling the oncerning United States v. Goodner Goodner v. States United
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Shell Oil v Shell Oil v Shell Oil v Shell Oil v Shell ulation concerning ‘mixture’ and ‘derived and ‘mixture’ concerning ulation . 747
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the agency considered the comments that were submitted, submitted, were that comments the considered agency the ons of hazardous waste. The court, however, disagreed disagreed however, court, The waste. hazardous of ons
Ultimately, the the Ultimately, ,” ,” , 950 F.2d 741,F.2d 747 950 , 741,F.2d (1991) 950 , 741,F.2d 950 , 741 F.2d 950 , Pace Environmental Law Review Law Environmental Pace e hazardousness of the material, regardless of the fact that it fact that ofthe material,regardless ofthe hazardousness e - from’ standards and remanded the case back to back case the remanded and standards from’ 745 –
A Cautionary Tale,” January 27, 2011, 2011, January27, Tale,” Cautionary A -
developed principle of of principle developed
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- 70; and, and, 70; rcra , 1993, Vol. 11, No. 1, No.1, 265. 11, Vol. 1993, , ure’ and ‘derived from’ from’ ‘derived and ure’ - hazardous
that there was there that Charles M. Denton and and Denton Charles M. ‘logical outgrowth’ outgrowth’ ‘logical final rule should should rule final
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166 the
CEU eTD Collection Review Law Modern 754 Review Law Modern 753 752 Review Law Modern 751 and 116, 750 998. 116, 749 214 1996, 748 a on depends largely this reconciliation andecono ofenvironmental of implementation Successful change., climate with dealing 2008 Act Change Climate dema society’s civil with interests economic interests. stakeholder various of engagement facilitates which process a through is change climate with deal to ways common hand. at problems the decision the between information of exchange an of facilitation the through matters, environmental legalpreserves certain theprinciple of entities.” pul “to agencies by used be cannot process regulatory sought. were comments which on proposal, original the abandoned had agency the it, adopting when because outgrowth’ ‘logical a constitute Prote Environmental the that organization environmental proposal.initial succeed should it that and consultees the by unforeseen be not
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In environmental In , 427 F.Supp.2d 7, D.D. 7, F.Supp.2d 427 ,
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, Environmental Protection Agency (EPA) Agency Protection Environmental (EPA) Agency Protection Environmental
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ty ina mate Change: A UK Perspective on a Sisyphean Challenge,” Challenge,” Sisyphean a on Perspective UK A Change: mate 7.
literature, there is a a is there literature,
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decision
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759 ons.europarchive.org/tna/20080305120253/http://www.dft.gov.uk/consultations/closed/heathrowco ia decisions. final 760
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South Africa, Supreme Court of Appeal, Appeal, of Court Supreme Africa, South Environment the Save Vaal v Region Gauteng Development, Mineral Director: King Sarah and Bruch Carl c participation c http://www.eli.org/pdf/PPP/part1chap1.pdf
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amount of amount , Vol. 18, Issue 5, 2010, 6. See also, also, See 6. 2010, 5, Issue Vol. 18, , r than ‘a privilege’ of public public of privilege’ ‘a than r a
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(CCT 39/10) [2010] ZACC 26; 2011 (4); SA (CC); 20 ZACC113 2011 26; [2010] 39/10) (CCT (4); SA (CC); 2011 ZACC113 2011 26; [2010] 39/10) (CCT with community members community with
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- courts have have courts lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:024:0008:0029:en:PDF decision slation.gov.uk/uksi/2000/1973/contents/made As part of the procedures for the issuance of the permit, a consultation was held was consultation a permit, the of issuance the for procedures the of part As I te il of field the n PPC Regulations PPC , [2007] EWHC 311 (Admin) EWHC 311 [2007] s
- 2000 confirmed mak case, a group of local residents local of group a case, , Vol. 15, 20 Winter 15, , Vol.
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that the guarantee of procedural fairness to the parties is a a is parties the to fairness procedural of guarantee the that , 2006EWCA 877 , Civ 1. 2006EWCA 877, , Civ at websiteofCEMEX the also See 1. 2006EWCA 877, , Civ 2006EWCA 877 , Civ . It attracted It . tires
he European Parliament and of the Council of 15 January 2008, January 15 2008, of Council ofthe and Parliament heEuropean in order tominimize fuelin order theplant in consumption . 815 local public health institutions which institutions public health local 01, 1. 01, , 816 [2007] NPC 21, [2007] Env LR 29, [2007] JPL 1314, 1314, JPL Env [2007] [2007] LR NPC 29, 21, [2007]
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utemr, h court the Furthermore,
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International Harvester v. Ruckelshaus v. Harvester International Ruckelshaus v. Harvester International Ruckelshaus v. Harvester International Ruckelshaus v. Harvester International Ruckelshaus v. Harvester International Ruckelshaus v. Harvester International in 1970, the EPA, was authorized by the US Congress to set standards for for standards set to Congress US the by authorized was EPA, the 1970, in la Ar Act Air Clean fr h camns wo ogt o e rvdd ih h opruiis o public for opportunities the with provided be to sought who claimants, the for n 836 In a case from the US, the court’s reliance on procedural concerns offered offered concerns procedural on reliance court’s the US, the from case a In
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International Harvester v. Ruckelshaus v. Harvester International Ruckelshaus v. Harvester International In generally, See, ternational Harvester v. Ruckelshaus v. Harvester ternational ue ht atcpto b idvdas n h poes f environmental of process the in individuals by participation that ture 847 - mak
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i , February 12, 197 12, February , U.S.App.D.C. 411, 155 615, F.2d 478 1973, 12, February , U.S.App.D.C. 411, 155 615, F.2d 478 1973, 12, February , n his concurring opinion. Chief Judge Bazelon argued that arguedBazelon Judge Chief concurring opinion. his n decision n through the requirement for for requirement the n through 849 -
making process. making h cnurne y ug Bzln emphasized Bazelon Judge by concurrence The - mak 3, 478 F.2d 615, 155 U.S.App.D.C. 411, U.S.App.D.C. 411, 155 615, F.2d 3, 478 er. ary to deal with particularly complex and complex particularly with deal to ary s mentioned As 848 , ed. Louis Kotze and Alexander Alexander and ed.Louis , Kotze
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Section 213 of 213 Section Agency Protection Environmental v Husqvarna Lee Maria and Holder Jane Mechan AofInstitutional Survey Risk: Environmental and Participation “Citizen Fiorino, DanielJ. Section See ns to the the to ns
Technology, and Human Values Human and Technology,
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Husqvarna v Environmental Protection Agency Protection Environmental v Husqvarna Husqvarna Agency Protection Environmental v Husqvarna Agency Protection Environmental v Husqvarna Agency Protection Environmental v Husqvarna Agency Protection Environmental v Husqvarna of (a)(3)(1) 213 Section st, noise, energy and safety’ as safety’ and energy noise, st,
degree of emissions and would take into into take would and emissions of degree
of thespecific standards. the v Environmental Protection Agency Protection Environmental v In order to implement the provisions of the of provisions the implement to order In The court, disagreeing with the allegations, held that there were adequate adequate were there that held allegations, the with disagreeing court, The To sum up, the scope of public consultation seems to depend on particular particular on depend to seems consultation public of scope the up, sum To protection. l ‘ greatest degree of emission reduction achievable’ as a primary factor, and and factor, primary a as achievable’ reduction emission of degree greatest
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http://www.law.cornell.edu/uscode/text/42/7547 rocedural error’, the petitioner failed to show its show to failed petitioner the error’, rocedural 860 ,
856 254 consideration the costs to be incurred by the the by incurred be to costs the consideration
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F.3d 195, 349 U.S.App.D.C. 118 U.S.App.D.C. 349 195, F.3d
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Director: Mineral Development, Gauteng Region v Save the Vaal Environment Environment the Save Vaal v Region Gauteng Development, Mineral Director: Section nclusions
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The Aarhus Convention at Ten: Interactions and Tensions between Conventional Conventional Tensionsbetween and Interactions at Ten: Convention Aarhus The and Interactions at Ten: Convention Aarhus The Jenny Steele, “Participation and Deliberation in Environmental Law: Exploring a Problem a Law: Exploring in Environmental Deliberation and “Participation JennySteele, the to orListening Stakeholders Engaging Elicitation: “Government by Soneryd, Linda Lezaun and Javier Lee Maria and Holder Jane generally, See, in Perspective,” Justice Environmental an Urgency: ofEcological Cycle Second “The Falk, Richard in Perspective,” Justice Environmental an Urgency: ofEcological Cycle Second “The Falk, Richard Current Legal Problems Legal Current Environmental Impact Assessment Review Impact Environmental - -
mak to problems such as ‘ as such problems to The Modern Law Review Law Modern The per ’ 866 oe f h css lutae ht h kolde a knowledge the that illustrate cases the of Some In the the In ers’] knowledge.” ers’]
No. 34, May 2006, 2. May 2006, 34, No. Mark Stallworthy, “Legislating Against Climate Change: A UK Perspective on a Sisyphean Sisyphean a on APerspective UK Change: Climate Against “Legislating Stallworthy, Mark
Oxford Journal of Legal Studies Legal of Journal Oxford r ‘ or , ed. Marc Pallemaerts, Europa Law Publishing, 2009. Law Publishing, Marc Europa ed. Pallemaerts, , 2009. Law Publishing, Marc Europa ed. Pallemaerts, , ted by the decisionsted byat the stake. decision lmt change climate euaoy tt, seeking state, regulatory
, Environmental Protection, Law and Policy Law and Protection, Environmental , , Vol. 21, 2001, 437. 2001, 21, Vol. , - n , Vol. 61, No. 1, 2008, 229.2008, No.1, 61, Vol. , mak Context, ed. Jonas Ebbesson and Phoebe Okowa, Cambridge University University Okowa, Cambridge Phoebe and Ebbesson Jonas Context,ed. University Okowa, Cambridge Phoebe and Ebbesson Jonas Context,ed.
- , Vol. 72(3), 2009, 412 2009, 72(3), Vol. , making process with new information and even and information new with process making ecological urgency ecological 868 replaced is ers ipation and Deliberation in Environmental Law: Exploring a Problem a Law: Exploring in Environmental Deliberation and ipation
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expertise is one solution solution one is expertise with an approach where expert knowledge by knowledge expert where approach an with ; Daniel H Cole, “Climate Change and Collective Collective and Change “Climate Cole, ; DanielH
’ , 865
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- nte fr ulc consultation public for unities as well as ‘situated knowledge,’‘situated as well as 27, and A. Diduck and B. Mitchell, B. and A. and Diduck 27,
, 2 nd - 364.
ed., Cambridge University Press, University Press, Cambridge ed., d xeine f public of experience nd
International Law and EU EU and Law International - Journal of of Journal
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Journal of Environmental Assessment Policy and Management and Assessment Policy of Environmental Journal , Vol. 21, 2001, 438; See also, Jennifer M. P. Stewart and A. John Sinclair, A.Sinclair, John Stewart and P. Jennifer M. also, See 438; 2001, 21, Vol. ,
Between Facts and Norms: Contributions to a Discourse Theory of Law and and Law of Theory Discourse a to Contributions Norms: and Facts Between , 2006EWCA 877. , Civ
(133/98) [1999] ZASCA 9; [1999] 2 All SA 381 (A) (12 March 1999), March 1999), (A) (12 All 2 381 SA [1999] ZASCA9; [1999] (133/98)
[19 ariety of interests involved in consultation processes, f processes, consultation in involved interests of ariety Director: Mineral Development, Gauteng Region and Another v v Another and Region Gauteng Development, Mineral Director: 99] EWCA Civ 792 (15 February 1999) February (15 1999) 792 EWCA99] Civ
o isac, i instance, For 9, [1999] 1 PLR 116, [1999] 2 WLR 452, 2 WLR452, [1999] 1 PLR[1999] 9, 116,
,” ,” , 2006 EWCA877. Civ 2006 , unities and Local Government Local and unities Environmental Impact Assessment Review Assessment Impact Environmental t ires consultations are organizations,consultations environmental ; R (Brown) v North Yorkshire County Council County Yorkshire North v (Brown) R
only due to concerns raised by the public public the by raised concerns to due only 873
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Jonathan H. Adler, “Business, the Environment, and the Roberts Court: A Preliminary Assessment,” Assessment,” A Preliminary Court: Roberts the and the Environment, “Business, Adler, JonathanH. example,for See, Ziamou, Th. Theodora “PFreeman,Jody and R.DeShazo J. example,for See, ,2262. ers whichthoseinterests.a toseekaccommodate can solution even where certain groups of the public are not directly involved in the environmental the in involved directly not are public the of groups certain where even - The diversity of actors does not necessarily mean that the interests they represent are represent they interests the that mean necessarily not does actors of diversity The at they at
governmental [2010] EWHC 626 (Admin) (26 March 2010) 2010) March 626 (Admin)(26 EWHC [2010] . [2011] EWHC 53 (Admin) (20 January 2011), 48, January2011), (Admin)53(20 EWHC [2011] .
decision , 151. See, for example,offor case See, the 151. , Furthermore,
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ment of business actors in environmental environmental in actors business of ment Columbia Law Review Law Columbia
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(London), February 26, 2008. 2008. 26, February (London), 2, 1973, 478 F.2d 615, 155 U.S.App.D.C. 411, U.S.App.D.C. 411, 155 615, F.2d 478 1973, 2,
also obliges private persons seeking a permit of permit a seeking persons private obliges also rud tha argued f s succ ost fected. Patrick Barkham meets som meets Barkham Patrick fected. t ver, the ver, te ak f uh oppo such of lack “the sfl hlegs o inadequate to challenges essful the the South Africa’s South proposed decision proposed
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the changes tothe final made rule. mak judges are reluctant to examine the facts in order to assess the possibility of bias and and bias of possibility the assess to order in facts the examine to reluctant are judges decision re was rational, the court would inquire whether the participants participants the whether inquire would court the rational, was re t least at ers from making prejudged decisions. If decisions. prejudged making from ers h aayi o te law the of analysis The In the US, the law establishes yet another measure which is supposed to prevent to supposed is which measure another yet establishes law the US, the In , ess of as examined in Section 2.6.3. Consideration of the Inputs made by the Participants made the by Inputs ofthe Consideration in 2.6.3. Section as examined Association of National Advertisers v Federal Trade Commission Trade Federal v Advertisers National of Association eginning of eginning - Administrative Law Administrative mak Grand Canyon Air Tour Coalitio AirTour Canyon Grand , 627 F.2d 1151 1979)) Cir. 1151 (D.C. F.2d 627 , , -
( mak could be constrained by statutor by constrained be could decision hud e nomd bu te iie ntr o te oslain Also consultation. the of nature limited the about informed be should after the consultation the after ing Jack Beermann Jack ,
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ed., Aspen Publishers, 2006, 56, (referring to (referring 56, to 2006, Aspen Publishers, ed., 945
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change its initial proposal concerning regulations regulations concerning proposal initial its change n v Federal Aviation Administration Aviation Federal v n
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courts have never disqualified never have courts the y mandates. For instance, in one of the of one in instance, For mandates. y de decision cision o pr to the 946
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and which are not. are which and
A s described in Chapter 1, the critics of critics the 1, Chapter in described s ere a result of a deficient process. deficient a of result a ere tical that the expert knowledge if knowledge expert the that tical al experts and lay people, and people, lay and experts al - This information could could information This aig rcdrs is procedures making -
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Ralph De La Cruz, “South Florida Officials Lead National Push against Airport Body Scanners,” Scanners,” Body Airport Pushagainst OfficialsNational Lead Florida “South LaCruz, RalphDe “Greenpea Pateman, Carole Planning - national ly invigorates ly Forinstance, ce Seeks Fortress’ Architect,” Architect,” Fortress’ Seeks ce , January 23, 2009, 10 2009, January , 23,
ne te xsig ea frameworks, legal existing the Under However, -
push In the end, agencies retain discretion and eventually it is the courts which can can which courts the is it eventually and discretion retain agencies end, the In Participation and Democratic Theory Democratic and Participation ht to promote to ht - - against ma h scrt check security the
in the casethe in king processes depends to a large extent to extent large a to depends processes king the the Business Day, Business
cision having rules and procedures in place is not enough, and the dialogic dialogic the and enough, not is place in procedures and rules having es become contagious become es -
airport dec , Decemb , ision -
; aig rcs, hy eot o oslaie potnte in opportunities consultative to resort they process, making consultative processes processes consultative
- Wyndham Hartley, “South Africa: New Chapter for Merafong as MPs as MPs Merafong for Chapter Africa:New “South Hartley, Wyndham their causes through media p media through causes their body s
concerning health and environmental issues,environmentaland health concerning to - .
making process making 19 February 2009, February 2009, 19 - ok scanners/ er 19, 2011, 2011, 19, er the area one in established once observes, Pateman Building Design Building
in s measures
h U airports. US the and Jonathan Benso Jonathan and
http://fcir.org/2011/12/19/south and migrate to other areas of public life, public of areas other to migrate and ,
Cambridge University Press, 1989 Press, University Cambridge additional additional
, January 29, 2010, 3, and “Runway Critics Fight Fight “Runway 3, and Critics 2010, January29, , Natural News Natural
http://allafrica.com/stories/200902190080.html The and provides the fundament necessary for necessary fundament the provides and make use o use make h aoe mentioned above the
above analysis reveals that usually the reveals analysisthe above thatusually u i jeopardy in put ublicity and protests. and ublicity to public consultation public to 952 n, “Attractive Females Targeted by Targeted Females “Attractive n, , February 20, 2012 20, February , participate.
f hs wee h pol are people the where Thus, the implementation of those those of implementation the other means of means other - 950 florida
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Matatiele Municipality v President of t of President v Municipality Matatiele t of President v Municipality Matatiele t of President v Municipality Matatiele
Judges as h legislatures the more practical practical more - 955 Judges in the US, the UK and South Africa contribute to developing to contribute Africa South and UK the US, the in Judges makers are required to accommodate public consultation among variety of of variety among consultation public accommodate to required are makers were
aware of the possibilities of participation. of possibilities the of aware According to the analysis of the jurisprudence, o jurisprudence, the of analysis the to According Patrons ofParticipato illustrative in this respect, where country’s Constitutional Court held that that held Court Constitutional country’s where respect, this in illustrative could
the C) (18 August 2006), (Matatiele 2), 67 (Matatiele 2), August 2006), (18 C) adoption of adoption safeguards
s dfeet ei canl t ifr te iey affected likely the inform to channels media different use
esses. In a seminal case in South Africa, t Africa, South in case seminal a In esses. hne a wl a t poie rnpr t transport provide to as well as changes he Republic of South Af South Republic of he Africa South Republic of he Africa South Republic of he
a are necessary in order to ensure representative representative ensure to order in necessary are
lega the that ensuring as well as framework legal
ry Rights Only i Only
and deliberation. and
and deliberation. A couple of cases from cases of couple A deliberation. and rica rica
f understood this way, could the public the could way, this understood f
(2)(CCT73/05A)[2006] ZACC 12 [2006] [2006] ZACC 12 (2)(CCT73/05A)[2006] ZACC 12 (2)(CCT73/05A)[2006] [2006] ZACC 12 (2)(CCT73/05A)[2006] 953 954 - - 84 aa fie t fcltt public facilitate to failed Natal
The judges The , o instance, For ne of the guiding principles guiding the of ne First, t on paper only. Even only.paper on t emphasized that the that emphasized judges promote the the promote judges he Constitutional he codn t the to according ad rm the from and o concept of of concept
[2006] [2006] 219 lly lly
if if
CEU eTD Collection http://epic.org/EPIC_Body_Scanner_OB.pdf 958 1318805.pdf http://www.cadc.uscourts.gov/internet/opinions.nsf/B3100471112A40DE852578CE004FE42C/$file/10 2011) JulyCir. 15, 957 129, (CC), BCLR (12) 1399 2006 (citing http://www.saflii.org/za/cases/ZACC/2006/12.html 54, (Matatiele 2), August 2006), (CC)(18 BCLR(1) 47 2007 ZACC26; 956 the Eventually agencyitself. the by raised not were issues thesebecause especially, policy, proposed the about concerns its express to opportunities given been have Center Information Privacy proposed. being is that matter the on information relevant the all possess not does agency the where process, rulemaking the from procedures comment. require not does which rules’ ‘interpretive to applicable procedure processes consultative avoid to sought in scanners of body issues involved also airports of introduction the concerning policy the that fact the despite process, a holding avoid to used is discretion this the instance, For consultations. Sometimes it. do to how and consult to when abuse discretion. their areare willing todothat. toparticipate able who those and consultation upcoming the of aware are people that ensure to and consultation now are legislatures country’s participatorydemocracy. conceptof constitutional broaderAfrica’s decision in ‘partnering to amount involvement http://www.saflii.org/za/cases/ZACC/2006/11.ht
oiy on policy Electronic Privacy Information Center (EPIC) v Homeland Security (EPIC)Center Homeland v Information Privacy Electronic Security Homeland of Department States United v Center Information Privacy Electronic Municipality Matatiele Doctors for Life International v v Spea International Life for Doctors
957
ainl euiy n iprs suh t aod h pbi’ ivleet n the in involvement public’s the avoid to sought airports, in security national Second, The court held that an agency cannot justify exclusion of notice and comment and notice of exclusion justify cannot agency an that held court The , 2 ,
v Pres v certain level of of level certain For instance, in the US, the agencies enjoy broad discretion in choosing agencies in enjoy discretion broad US, the instance, inthe For
ident of t of ident
(EPIC) which is known for its privacy rights advocacy, should should advocacy, rights privacy its for known is which (EPIC)
Transportation S Transportation public concern such as privacy and public health. The agency The health. public and privacy as such concern public bie t tk efrs n diin o ipy organizing simply to addition in efforts take to obliged he Republic of South Africa South Republic of he ker of the National Assembly theNational of ker
judicial scrutiny ensures that pu that ensures scrutiny judicial ml n, hrfr, ogt o dp te ue hog a through rule the adopt to sought therefore, and,
)
- making,’ which is a crucial element of South of element crucial a is which making,’ ecurity Administration ecurity 958
codn t te court, the to According (2)(CCT73/05A)[2006] ZACC 12 [2006] [2006] ZACC 12 (2)(CCT73/05A)[2006] , No. 10 No. , , South African Constitutional Court Constitutional African South - 1157, November 1, 2010, November 2010, 1, 1157, 956
facilitation of notice and and notice of facilitation
Following this case,Following this blic institutions do not do institutions blic
(TSA) when (TSA) agency facilitated the the facilitated agency , No. 10 No. , - Electronic 1157, (D.C. 1157,
adopting - 1157 220 - , the
CEU eTD Collection and 152; 1984, 961 152. 1984, Press, and 44, 960 Policy Press, University 959 inf only Communications, Electronic for Regulators European of Body the by policies. regulatory of element necessary a considered is participation elec certain policydocuments. from as well as consultation public meaningful a of element important an as law case the juri chosen the the of of agenda’s political any nor requirements consultative establish which laws the of any under foreseen made. are decisions government public is what of understanding their in to contribute would affairs part take to individuals allowing that is democracy participatory of proponents t to apathy. political overcoming individuals allows consequently educate participation for opportunities the them, to According participation. of effects educative the on heavily rely democracy participatory rights. participatory of function the discretion of public authorities. fetter indirectly to judiciary the enables expectations legitimate of principle the that reveals limi to authorities public by failures procedural in process scanning body intrusive less a to leading EPIC, by suggested as changes the adopted and procedure, comment and notice
Benjamin Barber, Barber, Benjamin example,for See, Loveland, Ian tronic communications. Here, the education of consumers through the opportunities for for opportunities the through consumers of education the Here, communications. tronic
Benjamin Barber, BenjaminBarber, Carole Pateman, Pateman, Carole Among the EU countries, the educative function educative the countries, EU the Among educativ the establishing in forceful that not was however, judiciary, The
Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction A Rights: Human and Law, Administrative Law, Constitutional 2009, 499 2009, Carole Pateman, Pateman, Carole Strong Democracy: Participatory Politics for a New Age a for Politics Participatory Democracy: Strong Strong Democracy: Participatory Politics for a New Age a for Politics Participatory Democracy: Strong - 500. See also, also, See 500.
Participation and Democratic Theory Democratic and Participation
Participation and Democratic Theory Democratic and Participation 961 As explained in Chapter 1, the proponents of the theories of theories the of proponents the 1, Chapter in explained As
Section 2.5.1. Opportunities to Comment on a a Pr on Comment Opportunities to 2.5.1. Section In practice, the function of education was neither initially neither was education of function the practice, In sdictions, this function only sporadically emerged from emerged sporadically only function this sdictions, the US airports. US the t their discretion. their t 960
A rather common suggestion among the among suggestion common rather A
Also, in the UK, the judges are using using are judges the UK, the in Also,
required by public interest, and how and interest, public by required ,
Cambridge University Press, 1989 Press, CambridgeUniversity is most apparent most is ,
Cambridge University Press, 1989 Press, CambridgeUniversity , University ofCalifornia University , 959
The analysis of case law case of analysis The , University of California California of University ,
According to the report report the to According hink publicly, which which publicly, hink oposed Decision or or Decision oposed in the field of field the in , Oxford ,
Press, Press, ormed ormed , 44 221 .
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Merafong Demarc Merafong Sprint Commun Electronic for of Regulators Body
v 963
Federal Communications Commission Communications Federal
Merafong Demarcation Merafong nSuh fia eeal h dctv ucino ulccnutto s not is consultation public of function educative the generally Africa, South In - sr ad sal b paig eti rqieet fr h poies f the of providers the for requirements certain placing by usually and users ation Forum v President of the Republic of South Africa South Republic of the of President v Forum ation , Competition Appeal Tribunal, 18 September2008 18 Tribunal, Appeal Competition ,
providers are more willing to invest in provision of better better of provision in invest to willing more are providers
Forum ications , 315 F.3d 369, 354 U.S.App.D.C. 288 U.S.App.D.C. 354 369, F.3d 315 , v President of President v , Annual Report 2010, May 2011, BoR (11)19, 17, 17, (11)19, MayBoR 2011, 2010, Annual , Report nctos euaoy rcse de o the to due processes regulatory unications , 59
the Republic of South Africa South of Republic the ational function of participation, participation, of function ational der. In most cases which were which cases most In der. , (CCT 41/07) [2008] ZACC 10; ZACC 10; [2008] 41/07) (CCT ,
l%20report_final.pdf?contentId 964 , and ,
The Constitutional The Vodafone v Office v Vodafone 962 dures was was dures
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See, for example, Servaas van der Berg, “Apartheid’s Enduring Legacy: Inequalities in Education,” Education,” in Legacy: Inequalities Enduring “Apartheid’s Berg, der van example,Servaas for See, Africa South Republic of the of President v Forum Demarcation Merafong
judges
(5) SA 171 (CC); 2008 (10) BCLR 968 (CC) (13 June2008) (CC)(13 BCLR (10) 968 SA (CC); 2008 171 (5)
are more are T lhuh elce b sm jde, h euaie ucin f public of function educative the judges, some by neglected Although education. he educational function is not so popular among the courts the among popular so not is function educational he
, Vol. 16(5), 2007, 849; 849; 2007, 16(5), Vol. , ae i hs ocrig pno Jsie ah epaie ta public that emphasized Sachs Justice opinion concurring his in case, Therefore, in the in Therefore, concerned whether concerned
966
As mentioned, under the theories of democracy, the opportunities the democracy, of theories the under mentioned, As
ly an educative and informative effect. informative and educative an ly ocrig seii mte ae xetd o consequently to expected are matter specific a concerning
yoeo h ms rmnn jde nSuh fia In Africa. South in judges prominent most the of one by Merafong 851. parties cou parties
n that due to the complete turnover of the agreed agreed the of turnover complete the to due that n
case, the South Africa’s Africa’s South the case, d have ld , 59 - 61
had some influence some had decision t pressing issues. pressing t , (CCT 41/07) [2008] ZACC 10; ZACC 10; [2008] 41/07) (CCT , 965 - wareness. wareness. mak
One of the reasons for for reasons the of One Constitutional Court Constitutional
most likely most er to accommodate to er
Thus, the law law the Thus,
on the final the on luding the luding Journal Journal because 223 is
CEU eTD Collection 968 234, (CC), 416 967 and the publicinstitution occurs.individuals consultation public easier. actions authorities public of scrutiny the makes which tool a with judiciary the provided has rules 2 the to contribute order tomaintain meaningful opportunities for participation. between balance aretain proper taska to therefore difficult with vested decision for flexibility w institution, public a by proposed laws or decisions rules, by affected be could who those that the decision proced the strict of formalization between balance proper a strikes law the where ensured are consultation public for consultation. public concerning by explained be could requirements education toparticipate inthe political processesof thecountry. in the account , ould be aware of them. The discretion is necessary among other reasons to guarantee some guarantee to reasons other among necessary is discretion The them. of aware be ould
Section v LifeInternational for Doctors in the three jurisdictions at stake, at jurisdictions three the in
2.5.1. Opportunities to Comment on a Propo on Comment to Opportunities 2.5.1. - makers. The formal The makers. are proceduresfor legal thereasons certainty necessary of http://www.saflii.org/za/cases/ZACC/2006/11.html n ocuin t conclusion, In h efrs by efforts The
puts made by the participants and therefore enables even those who lack higher higher lack who those even enables therefore and participants the by made puts The judges are the driving force behind the concept the behind force driving the are judges The
evidence of the growing power of the judiciary. the of power growing the of evidence should - makers in their rulemaking or lawmaking practices. The judges are are judges The practices. lawmaking or rulemaking their in makers
be accommodated in such a way that way a such in accommodated be ures concerning public consultation and discretionary powers of of powers discretionary and consultation public concerning ures
the judges to secure meaningful opportunities for participation participation for opportunities meaningful secure to judges the Speaker of the National Assembly and Others and Assembly theNational of Speaker
e oe f the of role he As observed in Chapters 2 and 3, meaningful opportunities meaningful 3, and 2 Chapters in observed As the
a lack of more concrete and comprehensive rules rules comprehensive and concrete more of lack a trend towards broader interpretation of the procedural the of interpretation broader towards trend
sed Decision or Policy Decisionor sed
judiciary in developing the consultative consultative the developing in judiciary
967
968 a
[2006] ZACC 11; 2 ZACC 11; [2006] genuine
that As th
mentioned in mentioned the opportunities for opportunities the e two occurrencese in two
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CEU eTD Collection 969 protection the 2, Chapter in explained the encompass deliberation, ofof participation legally aids deliberationenforceable interms rights as well. beyond goes participants the simply guarantees for offered protection the that reveals rights participatory structured of kind some decision re legally a called be could jurisd examined three the of frameworks legal existing the of none w that observation vote. to right the with confused often of interchange of sort professionalism). over (unresponsiveness, government regulatory of problems the decision in deliberation
See rtra attributed criteria
Section - making process making cognized as enforceable rights, rights, enforceable as cognized
1.3. The Ideals of Participation and Deliberation and of Participation Ideals The 1.3. The thesis sought to establish how the opportunities for for opportunities the how establish to sought thesis The P ‘participation’ that assumed is it Generally, 1. Legally riiaoy rights articipatory right to deliberat to right canUltimately,followingconclusions be reach the hile the right to public participation is recognized is participation public to right the hile to ta by by nomto bten h priiat, n teeoe ‘participat therefore and participants, the between information ke part in decision in part ke - recognized opportunities forparticipationrecognized opportunities processes making
es ay eurmns o decision for requirements many icsin ih the with discussion coas o the to scholars
are
also potent also ,
e CONCLUSIONS CONCLUSIONS lhuh o epesy ikd ih h opruiis for opportunities the with linked expressly not although .
Nonetheless, since t since Nonetheless, 969
of - hs wo no opruiis o priiain in participation for opportunities enjoy who those das f oh participation both of ideals making process making ially might
atcptr rgt ad potnte includes opportunities and rights participatory hs supin s ute itniid y the by intensified further is assumption This
relevant
guaranteed guaranteed
be structured under law in order to remedy to order in law under structured be
decision he opportunities for participation are participation for opportunities he - does not imply a dialogue or some or dialogue a imply not does es aes hc ae soitd with associated are which makers
certain dialogical opportunities dialogical certain . In other words, the formulation formulation the words, other In . - maker. The juridification of of juridification The maker. can facilitate ed. -
regulation and lack of of lack and regulation cin recognizes ictions public partic public as an enforceable right enforceable an as
and and
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ing Electronic Privacy Information Center v United States Department of of Department States United v Center Information Privacy Electronic v States United .
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regulatory forms of government. The government. of forms regulatory el of judicial scrutiny of the quality of the of quality the of scrutiny judicial of el
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[2007] EWCA 1139 Civ [2007] , [1995] R.T.R. 346, R.T.R. [1995] , Nova Scotia Food Products Food Scotia Nova a right to have the submissions considered by the the by considered submissions the have to right a , the very concept of ‘representation’ is stretched to stretched is ‘representation’ of concept very the sdr h sbisos f osles ih a with consultees of submissions the nsider
(CCT86/08) [2010] ZAC [2010] (CCT86/08) ;
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consultative processes, the courts the processes, consultative , 568 F2d 240 (2 F2d 240 568 , C 5; 2010 (6) BCLR 520 (CC) (24 (CC)(24 BCLR(6) 520 2010 C5;
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problem of regulatory government. regulatory of problem individuals where ‘speaking’ where individuals ther fields of public life, it does at least illustrate how the interrelation the how illustrate least at does it life, public of fields ther
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instance, the right to freedom of expres of freedom to right the instance,
is not enough. As emphasized in Chapter in emphasized As enough. not is sion and Freedom of Information Information of Freedom and sion 972 Iowa Law Review Law Iowa
, In representative democracy, the democracy, representative In
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1.5.2. Unprofessionalism in Regulatory Government Regulatory in Unprofessionalism 1.5.2. Government Regulatory to Representative From 1.1. - For example, consultees hav consultees example, For The evidence of participation by individuals at various levels of public policy public of levels various at individuals by participation of evidence The solut alternative propose consultees Where making processes, and their significant contributions when addressing local as as local addressing when contributions significant their and processes, making Freedom Speech of Freedom
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ful consultative processes were necessary because the submissions submissions the because necessary were processes consultative ful 2.5.1. Opportunities to Comment on a Proposed Decision or Policy or Decision Proposed a on Comment to Opportunities 2.5.1. -
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, Oxford University Press, 2005, 18. 2005, Press, University Oxford , http://www.bailii.org/ew/cases/EWHC/Admin/2010/626.htm 981
The findings also challenge t challenge also findings The 980
e contributed important insights and information to information and insights important contributed e h jdcay n ah uidcin ed n several on held jurisdiction each in judiciary The - both making power in the hands of public of hands the in power making , [2007] EWHC 311 (Admin)EWHC 311 [2007] cognized.
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CEU eTD Collection Processes Consultative during Materials Relevant Government Regulatory in Unprofessionalism 983 982 the assessing of to, limited challenge not but the (including, involved those (3) for processes and consultative of meaningfulness consultees, relevant of pool the of definition difficulties (2) obligations; consultative trigger to criteria of set uniform decision in deliberation and can actpublic institutions oversight. without more decision import is observation This matters. scientific containing decisions and policies to regard with even secured be can responsiveness be by produced noise of levels the include matters uncertain scientifically of examples Illustrative answer. correct single no alternatives various of spectrum a from chosen be to has solution particular a often that clear becomes it made, are decisions these how of analysis closer a after Indeed, uncertainty’. ‘scientific expose to serve can processes consultative inevitable, and necessary consul the by decisionwhen non as well decis in participate individuals chapters, expertise. scientific or knowledge factualrequiring decisions in than
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Section imitations The Concept of Representation of Concept The
1.1.
983
From Representative to Regulatory Government Regulatory to Representative From - airplanes making processes. Such limitations include: (1) the absence of a of absence the (1) include: limitations Such processes. making
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, University of California Press, 1967 Press, California University , of 5.2.2. Requirements for Decision for Requirements 5.2.2. ich security ich ublic consultation reveals that even that reveals consultation ublic n.
982 or or Section
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very very 229
CEU eTD Collection 986 985 Rules the of Strictness the and Fairness 984 processes. making envisa democracy participatory and protection. environmental andrights and non of US involvement the from cases two the are examples illustrative most participatoryThe rights. guaranteed are meaningful decision or ruleproposed the in, interest some have who those also but by, affected directly be might who individuals wa a such in evolved Africa South and UK the US, the in fairness case The conditions. what beunder and involved should who advance in determine to of difficult exceedingly community is it the practice, In define consultees. appropriately to difficulty the is which obligations, necessarilydeliberative tomore lead orparticipatory decision and said, That defined. strictly not is opportunities such of scope and nature the but consultation, for opportunities be can requirementsconsultative example, for 2, Chapter in explained As processes. consultative decision leaving potentially jurisdictions, three all in Therefore consultation. public concerning requirements strict too prescribe cannot outcomes and consu that influence of level the surrounding uncertainties
Section Section Section eie i vr bod em, hr decision where terms, broad very in defined 1.4.3. Inclusiveness and Represe and Inclusiveness 1.4.3. Policy Decisionor a Proposed on Comment to Opportunities 2.5.1. 3.4. Taming the Broad Discretion of the Telecommunicati the of Broad Discretion the Taming First, because the nature of consultative processes requires flexibility, the law the flexibility, requires processes consultative of nature the because First, This brings to the second limitation of the role of law concerning consultative consultative concerning law of role the of limitation second the to brings This the legal requirements are often established in a rather ambiguous manner, manner, ambiguous rather a in established often are requirements legal the decisions). 986 - governmental organizations, acting respectively in the fields of human human of fields the in respectively acting organizations, governmental
eea css lutaeta eiin oe hmt ivlei public in involve to whom over decisions that illustrate cases Several a s illustrated in Chapter 3, more strict procedural requi procedural strict more 3, Chapter in illustrated s
-
makers with excessive space to maneuver when designing designing when maneuver to space excessive with makers
985 ntation ntation e h polm f h sol b ivle i decision in involved be should who of problem the ge
As examined in Chapter 1, the theorists of deliberativeof theorists the 1, Chapter in examined As
- law confirmed that the principle of procedural of principle the that confirmed law
h U, hr te ors ree the ordered courts the where UK, the - aes r mrl olgd o ensure to obliged merely are makers ons Regulatory Authoritieswith Regulatory ons ltees might have in relation to final to relation in have might ltees - making processes.
y so that not only those those only not that so y rements do not do rements 984
Procedural Procedural relevant 230 -
CEU eTD Collection 989 1988, 988 http://www.bailii.org/ew/cases/EWHC/Admin/2011/217.html 987 consultative of participants the by made submissions the consider genuinely to obliged while government. of form representative the with conflict not should involvement public for opportunities the that regard this in cautious been has Africa, South in particularly judiciary, The government. decision in consultation public This consultees. by made submissions by bound be cannot makers allow decision in deliberation and participation for opportunities the that emphasized was it In1, Chapter processes. consultative of meaningfulness natureof the affects extent certain a and enforcement. protection proper their concerning developments continuous to subject therefore and rights, as regarded are they because rights participatory of nature the to related is meaningfulness ofsuch decision and policy public deliberative p to access guaranteed be would groups affected particularly and discrete only exists, consult to obligation statutory no where UK, the in limited still are involvement for opportunities questi into call but mechanism, consultative the of meaningfulness the about only not concerns raise consultation ublic consultation.
Section HenryJ. Education for State of Secretary v Council) Borough (Luton R 77; 77;
niiul t ifune ia dcsos I Catr , t a osre ta decision that observed was it 2, Chapter In decisions. final influence to individuals 132. 2.5.3. Consideration of the Inputs made by the Participants bythe made Inputs the of Consideration 2.5.3. Steiner, “Poli Steiner,
989 The level of influenc of level The and participatory more ensure to law of role the of limitation third The
In order to avoid this conflict, the judges hav judges the conflict, this avoid to order In
987 n h vr lgtmc o decision of legitimacy very the on
tical Participation as a Human Right,” Right,” Human as a Participation tical
processes. One of the reasons behind the diff One reasons processes. of
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Harvard Human Rights Year Book Rights Year Human Harvard
[2011] EWHC 217 (Admin), 94, 94, (Admin), 217 EWHC [2011] - aig rcse. o eape the example, For processes. making
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Section Section Section Africa South Republic of the of President v Forum Demarcation Merafong
5.2.1. Imposition of Positive Duties on Decision on PositiveDuties of Imposition 5.2.1. Debate Reasoned 1.4.4. Deliberation and Participation of Ideals The 1.3. ns. T ns. at u nt es, h lgl atcptr rgt do rights participatory legal the least, not but Last his limitation could be explained by the principle of procedural fairness, which which fairness, procedural of principle the by explained be could limitation his
raise awareness of the issues important to them. In other words, as as words, other In them. to important issues the of awareness raise
tiue o poes f deliberation. of process a to ttribute
- ee, t s o te ny rtra o mauig the measuring for criteria only the not is it wever, making through the consultative processes, they could they processes, consultative the through making -
regarding interests, also because none of the laws the of none because also interests, regarding 991 990
ants are more inclined to emphasize their own their emphasize to inclined more are ants
Influence over a final decision is an important an is decision final a Influence over - Makers concerning Inclusion Inclusion concerning Makers
, 50
993 , (CCT 41/07) [2008 41/07) (CCT , 992
not necessarily satisfy the the satisfy necessarily not s etoe, generally, mentioned, As
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CEU eTD Collection 995 994 decision and policy public in recognized is deliberation and participation both of value the requirements, enforced judicially or guarantees constitutional through Thus, purpose. same the serve would new introduce to than suggested as effective, instruments are mechanisms consultative existing the that ensure t of transformation radical the for arguments on doubt some cast observations These democracy. deliberative and participatory of theorists by promoted those to similar requirements invoke comprehensiv and accountability parties, affected the to fairness thesis mani be easily could institutions public issues. important most the over power decisive with people the providing and affairs public in participation repr of transformation radical the for argue commonly government need the diminish rights consultative Robust 4. public of functions the undermine neither consultation, norobstruct it they as long as acceptable are constraints These government. representative of circumstances the as well as processes such of nature
Section Section he representative form of the government. It seems that it would be more sustainable to to sustainable more be would it that seems It government. the of form representative he
reveal 1.5.2. Unprofessionalism in Regulatory Government Regulatory in Unprofessionalism 1.5.2. Deliberation and Participation of Ideals The 1.3.
- s hs te iiain to limitations the Thus, As examined in Chapter 1, theories of participatory and deliberative democracy democracy deliberative and participatory of theories 1, Chapter in examined As making processes in all the three jurisdictions. jurisdictions. three the all in processes making
ht oslaie ehnss r bit n h vle o esrn procedural ensuring of values the on built are mechanisms consultative that 994 plc ad decision and policy e
One of the reasons behind the suggested transformations is the fear that fear the is transformations suggested the behind reasons the of One
y hoit o priiaoy n dlbrtv democracy, deliberative and participatory of theorists by s meaningfulness.
the consultative processes are predetermined by the the by predetermined are processes consultative the pulated by a few sectional sectional few a by pulated - making. Moreover, such consultative mechanisms mechanisms consultative such Moreover, making.
of decision of for radical transformation of transformation radical for
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representative However, t However,
which 233 his
CEU eTD Collection representative democracy. processe Such deliberation. true of prospects the enhance can fairness, procedural as such principles by mediated rights, s, in turn, can effectively address many of the the of many address effectively can turn, in s,
imperfections 234
of
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