Training Outline

6.2 Standard Lecture: The Consultation Process Itself (1 hour)

  • Using Transparency 110 outline the steps of a typical drafting/consultation process.

    • Step One: Explain that the process begins with a need for legislation or policy being identified. This need can be identified either by the legislature and policy makers themselves or at a grass roots level. This is the start of the consultative process. While individuals or groups with a vested interest may initiate the identification of the need for certain legislation or policy, it is important at this step in the process to also begin identifying additional stakeholders and supports.
    • Step Two: This is the part of the process to begin conceptualizing and framing the issues and needs that have been raised. What at the outset may appear to be a rather simple and one dimensional issue, may turn out to be a complex, three-dimensional issue. This step includes some additional fact-finding. For example, statistics may be referenced that highlight the extremely low employment rates of individuals with disabilities. While at face value that revelation may point to the need for non-discrimination legislation or policies, the statistics may in fact be completely unrelated to discriminatory practices. Perhaps the country has substantial numbers of individuals with disabilities participating in the disability insurance programme and the current programme provides for no incentives to leave the benefit rolls to pursue work. Another central issue may be that they are inadequate numbers of job placement organizations to match the need for jobs. Fact finding is critical to ascertaining the primary problem and targeting appropriate legislation and policies.
    • Step Three: This step begins to frame the issue by continuing to refine consultation from parties that can provide a more comprehensive picture of the issue and experiences which may need to be addressed. It is important to recognize that at this step what started out as potentially a very specific issue may become more generalized or what may have started out very generally may become much more specific based on the input solicited and provided.
    • Step Four: Explain that once the issues have been framed, a proposal or white paper can be developed that can then be publicized in order to reach consensus on the issue and frame the needed legislation or policy. The decision on who writes this position paper will be dependent on how the issue has surfaced. If it is a grass roots issue, the position paper may be the vehicle used to draw the issue to the attention of policy makers. If the issue has been identified by policy makers, they may turn to contracted or other legislative investigatory bodies to aid them in compiling a position paper on the issues.
    • Step Five: Once the conceptual proposal has been publicized to all key stakeholders, it is important to once again vet the paper, to ensure that the issues are correctly represented. This is a process in which the author(s) of the paper works with the body that requested the paper to identify reviewers representative of the constituents whose views are depicted in the paper to ensure that they have done an accurate job of outlining the issues, potential remedies and public policy strategies.
    • Step Six: Refining the legislative or policy proposal is a critical step that requires balancing the needs of the many. This step involves the art of negotiation as an attempt is made to establish mutual gains for all parties involved.
    • Step Seven: Ideally the final step is a first draft of a legislative or policy proposal. The consultation process may involve several stages, however, before a draft leaves the line ministry and is sent to the Justice Ministry or its equivalent, and thereafter to Cabinet and the relevant Parliamentary Committee for tabling. How the draft legislation is developed is dependent on the country crafting the legislation and again probably reflective of how the issue surfaced.

    Explain to participants that consultation on disability-related laws and policies frequently involves persons with disabilities and their representatives, and disability-related service providers. This consultation is often accomplished through task forces established for the specific purpose of advising on the legislation, or through existing national committees or councils representing government ministries and organizations of and for persons with disabilities. In some cases, the consultation takes place on an ad hoc basis, through a meeting or meetings called by the government.

    Use Transparency 111 to present examples from Australia, Cambodia, China, Kenya, Mauritius, Tanzania Mainland, and the United Kingdom as outlined on page 68 of the Primer that illustrate the approaches as referenced above.

    “In Australia, the National Disability Advisory Council advises the Commonwealth Government though the Ministry for Family and Community Services. Established in 1996, the NDAC members are selected based on their experience of and expertise in disability issues. The Council plays an important role in facilitating consultation with disability consumer organizations, families, careers and service providers on major Government initiatives. It also maintains links with similar disability advisory bodies operating at State and Territory levels.”

    “In Cambodia, the Disability Action Council was set up in 1999 to advise Government on disability strategy and legislation, as well as to act as a coordination body for disability-related programmes and services. The DAC Executive Board includes representatives of Government, disabled persons and non-governmental organizations. DAC involves the social partners through working groups established for specific purposes.”

    “In China, when formulating laws and policies concerning disabled persons, the Government consults the Chinese Federation of Disabled Persons, the All China Federation of Trade Unions and the China Enterprise Confederation. In addition, when implementing national policies, frequent contact is also maintained with the Federations for Disabled Persons, trade unions and enterprise organizations.”

    “In Kenya, a Disability Task Force was set up in 1992 to review laws relating to persons with disabilities. One of the key recommendations was the adoption of a proposed Persons with Disabilities Bill. An Act of this name was adopted in 2003, following extensive further consultation with disabled persons organizations and service providers.”

    “In Mauritius, the Training and Employment of Disabled Persons Board, established by law in 1996, is consulted by government on the implementation of national policy. This Board comprises representatives of disabled persons and of employers.”

    “In Tanzania Mainland, organizations of employers and workers are called upon to cooperate in the application of disability legislation through the Vocational Education and Training Authority and the National Advisory Council.”

    “In the United Kingdom, the Disability Rights Task Force was established in December 1997 to examine the full range of issues that affect disabled peoples’ lives and to advise the Government on what further action it should take to promote comprehensive and enforceable civil rights.”

    Finally, explain that to be effective and to realistically reflect the needs of the country, consultations on disability-related legislation and policy should also involve the social partners – representatives of employers’ and workers’ organizations – as well as disabled persons’ representatives.

    Use Transparency 112 to illustrate social partner considerations. Emphasize the importance of beginning by examining the process of labour law development and reform in different countries. In some cases, such consultations take place through existing tripartite bodies, and in other cases through bodies set up specifically for the purpose or through more informal arrangements. The Ministry of Labor’s direct contacts with the social partners and the issuing of White Papers can be another consultation route. Sometimes the consultation process is enhanced by national or international consultants, who are hired to assist in the drafting of the law.

    Reference and highlight the examples of consultation through Ad Hoc Tripartite Task Forces and existing Tripartite Bodies on pages 69-70 of the Primer.

    Examples: Consultation through Ad hoc Tripartite Task Forces

    “In Kenya, a coordinated process of labor law reform is underway, with support from the ILO, which will lead to revised and updated laws. The new laws will foster strengthened social dialogue in a legal framework consistent with ILO standards ratified by Kenya. A tripartite Labor Law Task Force appointed in May 2001, carried out nationwide consultations on what the new labour laws should contain. There was active participation in these consultations: in the first round of media calls for public comment, approximately 40 institutions, NGOs, and individuals shared their views. The Task Force submitted its Final Report and the draft legislations to the Minister of Labor and Human Resource Development in Spring 2004.”

    “In Indonesia, in response to the social impact of the Asian Financial Crisis and the collapse of an authoritarian regime in favor of democratic political reforms, a Tripartite-Plus Task Force was established in 1999 by Decree of the Minister of Manpower Participants. The Task Force included representatives of the Government, employers, workers, and other interested civil society groups. Through a broadly consultative process, involving workshops held through the Department of Manpower, the Tripartite-plus constituents reviewed and revised the labour laws to be responsive to a democratic and modern labour market.”

    Examples: Consultation through existing Tripartite Bodies.

    “In South Africa, the National Economic Development and Labor Council (NEDLAC) was created in 1995. It reflects the post-apartheid Government's commitment to seeking representative consensus on major economic, social, and development policies. In light of the particular needs of South Africa, it is composed of the traditional social partners, plus organizations which represent community interests. Its objectives include considering all proposed labour legislation relating to labour market policy before it is introduced in Parliament. It has reached agreement on a wide array of legislation, including the Employment Equity Act, 1998 which prohibits discrimination on the ground of disability, as well as other grounds.”

    “In Hungary, the Labor Code of 1992 recognized the National Interest Conciliation Council (NICC). The NICC comprises the social partners and the Labor Ministry. It is responsible for ensuring consultation on labor relations and employment issues of national importance, notably labor law reform. The social partners also have statutory rights to information.”

    Conclude by summarizing that whether a formal arrangement is chosen or an informal approach is taken, the consultation process provides a unique opportunity to bring together the different parties with an interest in and affected by disability-related legislation and policy. Such a consultative process, involving government, employers’, workers’ and disabled persons’ representatives, as well as other interested parties, will go a long way to ensuring that the varying interests are adequately reflected in the law and policy.

    Also suggest that seminars to finalize the text of a law with as wide a stakeholder involvement as possible, have proved useful. Law and policy makers should make the necessary efforts to consult both the social partners and civil society.