There are considerable advantages to allowing
some form ofconsultation or participation before
rules arc made. it enables views to be taken into
account before an administrative policy has hard-
ened into a draft rule. ll can assist the legislature
with technical scrutiny. lr is hoped that there will
be better rules as a result ofinput from interested
parties, particularly where they have some
knowledge of thc area being regulated. A duty to
consult allows those outside government to play
some role iir the shaping of policy. In this sense
it enhances participation. It is moreover not
immediately self-evident why a hearing should
be thought natural when there is some form of
individualized adjudication, but not where rules
are being made. The unspoken presumption is
that a ‘hearing’ will be given to a rule indirectly
through the operation of our principles of repre-
sentative democracy. Reality falls short of this
ideal, both in the UK and in the United States.
lt would be mistaken to think that according
such participatory rights is unproblematic. It has
been argued that the APA provisions on rule
making can lead to ‘paralysis by analysis‘, with
interest groups opposed to the proposed iule
using all available legal machinery to delay its
implementation. Participatory rights can also
lead to delay and extra cost. However, ifall deci-
sions were made by an autocrat they would
doubtless bc made more speedily. A cost of
democracy is precisely the cost of involving
more people. Moreover, the argument for
increased participatory rights is based, in part at
least, upon the idea that the people who are con-
sulted may have something to offer the adminis-
trator. The rule that emerges will, it is hoped, b6
better. Whether this is always so may be debat-
able, but there is little reason to suggest that the
argument docs not hold in certain instances.
Where it does have validity, then it is far leSS