In the UK, taking into account that SO’s of the Houses envisage that committees can send for anyone one can argue that a public hearing may be organised with the presence of various subjects such as associations, organizations, persons representing various institutions, as well as representatives of a government agenda. Committees decide what witnesses they wish to appear before them for public questioning. In Germany, experts (Sachverständige) and representatives of interest groups (Interessenvertreter) and other persons who are able to furnish information (andere Auskunftspersone) may be heard.Footnote 46 In Poland both the statute and the parliamentary rules of procedure introduce the right to apply for participation in a public hearing when it is announced.Footnote 47 The parties entitled to lodge an application are: professional lobbyists (entrepreneurs or natural persons who act for profit on the basis of contracts in favour of third parties), lobbyists who are not officially registered (i.e., persons who provide notice of participation, but are not professional lobbyists) and any parties interested (for instance social organizations, professional self-governing bodies, associations, foundations, and citizens).Footnote 48 The Polish law also permits the establishment of a limit on the number of participants for technical reasons and for reasons of space availability.Footnote 49 According to Article 70d (1) of the Standing Orders of the Sejm and Article 80a (3) of the Standing Orders of the Senate, this reduction should be based on a reasonable criterion applied equally to each entity (for instance, the sequence in which declarations were submitted). This restriction for the number of participants has been criticized by the scholarship because it allows a broad range of discretion in this respect.Footnote 50
The public hearing is generally optional; thus, a party who is invited to participate in a public hearing has a right (but not an obligation) to participate. However, different measures have been adopted in these countries where, apart from strict legislative hearings, investigative hearings also occur. This prospect creates the need to institute relevant rules applicable to the summoning of parties who are supposed to be witnesses and rules governing the proceeding, accountability for the failure to attend the hearing, and accountability for false statements.Footnote 51 In the UK, there is no precise legal rule in which a select committee or the House of Commons could punish a person who was called to be a witness. According to R. Gordon and A. Street, refusal by someone to appear or to answer questions could be reported by the committee to the House, and then the House could treat this as contempt of the House.Footnote 52 However, while the Parliament has disciplinary powers over its own members (including expulsion), the authors argue that there are no effective coercive powers against those outside the House. In theory, the similar problem could arise in the case of legislative hearings, i.e. when a committee concerned with legislation (public bills) is at the exceptional stage of being able to receive witnesses, but it seems to be unlikely.
The authority that is entitled to hold a public hearing makes the decision to start the procedure. In Poland, for example, in the case of a public hearing on a bill in the Sejm, a resolution must be passed by the committee to which the bill has been referred for consideration. In some cases, a prior request of a committee member or group of members is required for the resolution to be passed. In Poland, a written request by a deputy who is a committee member is possible,Footnote 53 while in Germany, this motion must be put forward by, at least, one-fourth of the committee members.Footnote 54 If the committee that considers a bill does not introduce a public hearing or limits it to the issues connected to the committee’s scope of interest, another committee that participates in work on that bill may, in consultation, decide on holding a public hearing.Footnote 55In Poland, the decision regarding whether to hold a public hearing on a draft regulation is made by the authority that is responsible for drawing up the draft.Footnote 56 This means that a public hearing is held based on the good faith of the authority entitled to do so; therefore, it cannot be demanded by the parties who are entitled to participate. As it is seen, in Poland parties are entitled to apply to be heard as soon as a public hearing is announced, however whether a public hearing is hold lies in the discretion of the competent authority.
The public hearing is usually held at a precisely determined stage in the process of law making. The hearing should not be too early or too late. Holding a public hearing prematurely (e.g. after the introduction of legislation, but before it is formally verified) may lead to the failure to apply information that is essential in the matter and that was gathered in the public hearing (e.g., because of the rejection of the legislation that was introduced). Similarly, a public hearing that is held too late may make it impossible to apply the information gathered for a bill (e.g. because of the termination of the period in which amendments may be introduced). It is sometimes proposed that a public hearing should be held at the stage in which a bill is drawn up, before the party who is entitled to introduce the legislation in parliament has exercised this right.Footnote 57 In the US, legislative hearings are scheduled after a bill is referred to committees responsible for its content. The hearings are preceded by the process of consultations and meetings between the staff of a committee and interested groups.Footnote 58 It must also be noted that in the US, another form of legislative hearings occurs, i.e. an oversight hearing, which may take place after a statute has entered into force.Footnote 59 This type of hearing is associated with assessing the implementation of a particular statute, however legislative committees may decide on this occasion whether a new law is needed in a given field.
A document providing for a public hearing usually contains specified information, i.e., it indicates the matter, the date and the place of the public hearing that will be held. In Poland, a resolution to hold a public hearing must specify, in particular, the date and the time of the public hearing. The resolution and the information regarding the location of a public hearing must be made accessible on the Information System of the Sejm at least 14 days prior to the day of the public hearing.Footnote 60 It is worth adding that in the case of bills or budget acts classified as urgent, this term is shortened to at least three days prior to the date of the public hearing,Footnote 61 which implies the necessity of passing laws faster or on time. In the US, a document providing notice of a public hearing specifies the date, the place and the matter of the public hearing.Footnote 62 It must be published in the Daily Digest and made publicly available in electronic form.Footnote 63 Additionally, in Germany, a committee provides information regarding the location and the date of the public hearing.Footnote 64 The public hearing should, on the one hand, ensure the opportunity to express an opinion regarding the subject matter of a bill by all parties who are allowed to participate in the hearing; on the other hand, it should not be used to delay the procedures of law making. For these reasons, in certain countries, the time and duration of a public hearing is specified. In the Republic of Poland, for example, a public hearing must be held at only one sitting of the committeeFootnote 65; however, because of the need for a quick and efficient proceeding, the order for the day of the sitting of the committee during which a public hearing is to be held must not include other items.Footnote 66 Additionally, in the case of regulation drafts, a public hearing may be performed jointly with an inter-ministry adjustment conference regarding the draft. In the US public hearings are usually held at one committee session that lasts one day, part of a day or even several daysFootnote 67 (however, similar meetings may be held in numerous cities, depending on whether the matter they concern is of a federal or local scope).Footnote 68 In Poland, it is possible to change the date and the place of the public hearing or even cancel the scheduled hearing due to space availability and technical circumstances (this concerns the Sejm’s hearings only). The reasons for the cancellation must be published. This general and imprecise wording makes it relatively easy to cancel a public hearing and broadens the range of discretion that may be exercised.
To proceed in a quick and efficient way during a public hearing, a person responsible for holding it must be appointed. In Poland, the chairman of the committee is responsible for holding a public hearing with regard to bills; a representative of the authority that prepared a draft is responsible with regard to regulations. The chairman of the committee must establish an order and time limits for speeches by the entities that will participate in the public hearing.Footnote 69 These entities may speak only once during the sitting at which the public hearing is held.Footnote 70 In particularly justified circumstances, the chairman of the committee may adjourn the sitting at which the public hearing is held.Footnote 71 The chairman must determine the date, time and place of the resumption of the sitting.Footnote 72 In the US, the chairman of the committee is responsible for the course of the public hearing.Footnote 73 The chairman may punish breaches of order and decorum and of professional ethics on the part of counsel by censure and exclusion of persons from the hearings, and the committee may cite the offender to the House for contempt.Footnote 74 In Germany, the key players in the committee that works on a bill are the committee chairman, experts in parliamentary fractions, committee rapporteurs established for a given bill, a committee assistant and ministry officers. For each bill, therefore, a group of people that formed ad hoc is engaged.
The basic principle underlying a public hearing is its openness, which involves free admittance to the session at which the hearing is held, the presence of the press, and the provision of minutes. Thus, the exclusion of openness is an exception and not a rule. In the US for example, public hearings are open to the public; however, they will be closed if the disclosure of the testimony, evidence, or other matters to be considered would endanger national security, compromise sensitive law enforcement information, or violate a law or rule of the House.Footnote 75
The German institution of the public hearing has had a wider application since the 1960s. Presently it is used quite often in parliamentary work. In parliament’s fifth term, 28 issues were considered using a public hearing, while 58 sessions were held (V-28/58), and in the next terms correspondingly: VI-48/80, VII-48/76, VIII-53/70, IX-41/50, X-141/165, XI-185/235, XII-252/301, XIII-236/253.Footnote 76 In Poland, it has been the practice to hold public hearings since 2005. In the fifth (2005–2007) and sixth (2007–2011) terms of parliament, seven and twelve issues, respectively, underwent this process. Data is not available for the United Kingdom or the United States. In general one may notice that there are committees in which no public hearings are held or are held only occasionally, while public hearing concerning the same matter could be conducted several times by various committees.