Decentralising Policy Responsibility and Political Authority in Germany 3031294785, 9783031294785

Table of contents :
Preface
Contents
About the Authors
Abbreviations
List of Tables
1 Decentralising Policy Responsibility and Political Authority in Germany: Introduction
1 Introduction: Why Study Decentralisation in Federal Systems?
2 Why Study Decentralisation in Germany? The Story of Competence Reallocation
3 Understanding the Impact of Decentralisation on Policy Outputs in Federal Systems
4 Possible Impacts of Decentralisation
5 Federal Reform in Germany in the 2000s: The Context of Our Study
6 Federalism Reform I—2006
Federalism Reform I—What Was Changed?
7 Federalism Reform II—2009
Federalism Reform II—What Was Changed?
8 Reform of the Fiscal Equalisation Scheme
Fiscal Equalisation—What Was Changed?
9 Structure of This Book
10 Conclusion: Understanding Federal Reform
References
2 Higher Education Policy
1 Introduction
2 The Changing Nature of Higher Education Policy in Germany Prior to Federal Reform in 2006
3 Legislation on Higher Education: The Gradual Shift
The Reform Dynamic Within Germany Prior to 2006: Towards a Rebalancing of Competences
Pre-2006 Changes at the University Level: Fostering Competitiveness Through Autonomy
The Rise and Fall of Tuition Fees: The Role of Federalism
4 Higher Education Governance and the Federal Reform Debate
Party Political Views on Proposed Changes
5 The 2006 Federal Reforms in the Area of Higher Education Governance
Evaluation and Discussion
6 The Impact of the 2006 Federal Reforms to Higher Education Governance
The New Legislative Landscape
Explaining Partisan Variation
Controversies in Developing New Modes of State-University Governance: The Case of North Rhine Westphalia
The New Financial Landscape of Higher Education
Human Resources at Universities Following the Federal Reforms
7 The Continuing Reform Dynamic Since the 2006 Federal Reforms: Subsequent Changes to Higher Education Governance in Germany
The Hochschulpakt (University Pact) 2020
The Excellence Initiative
Redrafting Article 91b and Lifting the Ban on Cooperation
The Embedding of the Bologna Process in German Higher Education
8 Conclusion
References
3 Care Homes Policy
1 Introduction
2 The Shifting Framework of Responsibility for Care Homes in Germany
Amendments Made to the Law on Care Homes in the 2006 Federal Reforms
3 The Implications of Decentralisation; Understanding Variation in Care Homes Laws Since 2016
The Scope and Reach of the New Länder Laws on Care Homes
Room Requirements
Involvement and Strengthening the Autonomy of Residents
Inspection Regimes
Qualifications of Staff
4 Discussion and Conclusions
References
4 Prisons and Justice Policy
1 Introduction
2 Reconfiguring Responsibility for Prisons and Justice Policy in Germany
Reforms in Detail
The Specific Reforms Concluded
Responses to the 2006 Reform decision—a Downward Spiral, and a Farce?
3 Developing and Implementing the New Legislation on Prisons
Youth justice
Aims of punishment
Entitlement to Single Cells
Open and Closed Prisons
Accommodation in Living Groups (Wohngruppen)
Access to Therapy
Youth Justice—conclusions
Adult prisons
Aims of Punishment
Open and Closed Prisons
Early Release for Those Serving Life Sentences
Duty to Work
Participation
Adult Prisons—conclusions
Pre-trial detention
Preventative detention
Analysing the Implications of Decentralisation in Prisons and Justice Policy
Variations in the Implementation of Prisons Policy in the Länder Post-2006
Towards a New German Justice Policy: National Laws, Regional Variation?
Conclusion
References
5 Reform of Public Service Regulation
1 Introduction
2 Understanding Beamte Status in German Public Life
3 The Shifting Legal Framework Governing Beamte Ahead of the Federal Reforms
4 Reform Proposals in and Around the Federalism Commission
5 Federal Reform in the Area of Public Service Law
6 Evaluating the Impact of the Federal Reforms
Levels of Pay Since the 2006 Reforms
Career “Tourism”
Career Structures and the Systems of Service Classes Since the 2006 Reforms
7 Evaluation and Discussion
8 Conclusions
References
6 The Changing Face of German Parties in the Federal System
1 Political Parties in the German Federal System
2 Regional Distinctiveness in German Political Parties
The CSU
The CDU
The SPD
Alliance 90/The Greens
The FDP
The Left Party (Die Linke)
The Alternative for Germany (AfD)
Other Parties
3 Coalition Politics
4 Voting Behaviour in Land Elections
5 The Land Level in Party Organisations and Cabinet Recruitment
6 Operation of the Bundesrat
7 Conclusion
References
7 Germany and the COVID-19 Pandemic
1 Introduction
2 Pandemic Management in German Federalism
3 The First Phase of the Pandemic (February to December 2020): Federalism Working Well?
4 The Second Phase of the Pandemic: January 2021–July 2021: Recentralisation?
5 Restrictions in a Time of Rising Vaccination Rates: July 2021–March 2022
6 The Pandemic, Public Opinion, and the Nature of German Federalism
7 Lessons of the Pandemic for German Federalism
References
8 Conclusions
1 Decentralisation and the Reform of German Federalism
2 Our Empirical Findings: Policy-Specific Dynamics with an Increased Visibility of Territorial Diversity
3 Racing to the Bottom, the top—or Even to the Middle?
4 Understanding Pressures for Diversity in a Reformed German Federal System
5 The New Dynamics of German Federalism—future Look
References

Citation preview

NEW PERSPECTIVES IN GERMAN POLITICAL STUDIES

Carolyn Rowe · Ed Turner

New Perspectives in German Political Studies

Series Editors William E. Paterson, Aston University, Birmingham, UK Thomas Saalfeld, Universität Bamberg, Bamberg, Bayern, Germany

Far reaching changes are now taking place in Germany. Stability lay at the core of the German model and much of the writing from Peter Katzenstein and Manfred Schmidt onwards sought to explain this enviable stability. Changes in the external environment have created a number of fundamental challenges which pose a threat to that stability. Germany is now Europe’s central power but this has generated controversy about how it is to exercise this new power. Although attention is often centred on German power the migration crisis demonstrates its limits. New Perspectives in German Political Studies aims to engage with these new challenges and to cater for the heightened interest in Germany. The Editors would welcome proposals for single-authored monographs, edited collections and Pivots, from junior as well as well-established scholars working on contemporary German Politics.

Carolyn Rowe · Ed Turner

Decentralising Policy Responsibility and Political Authority in Germany

Carolyn Rowe Aston Centre for Europe Aston University Birmingham, UK

Ed Turner Aston University Birmingham, UK

ISSN 2947-6747 ISSN 2947-6755 (electronic) New Perspectives in German Political Studies ISBN 978-3-031-29478-5 ISBN 978-3-031-29479-2 (eBook) https://doi.org/10.1007/978-3-031-29479-2 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: Tomohiro Ohsumi/Stringer This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

This book offers a systematic reevaluation of the dynamics of German federalism, and assesses the challenges facing policy-makers and politicians alike as they have tried, over the past 15 years or so, to decentralise responsibility, to streamline decision-making process and, in various ways, to “disentangle” the complex interplay of vested interests across Germany’s federal polity. In essence, our book aims to demystify this complexity and to explore how territorial diversity manifests itself through policy choices and the operation in practice of contemporary German federalism. Our explorations presented in this volume unpack the various moves that have been undertaken since the turn of the century in an effort to rebalance German federal interactions. In doing so, we construct a more nuanced understanding of territorial diversity in what is too often taken as a unified federal state. Few federal systems have undergone the kind of perpetual scrutiny in recent years as has the German federal system. A first reform effort, which was launched in the early 2000s, brought together a cross-party convention that drew on expertise from across the levels of territorial authority in order to redraft a revised federal framework that would “modernise” the constitution—the “Basic Law”. The difficulties experienced in trying to achieve such an aim speak volumes about the nature of this particular federal system, with its interlocking spheres of interest and power bases which make reform a sizeable undertaking. Reform was introduced

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PREFACE

only after elections brought to power at the federal level a new constellation of party politicians who collectively cherry-picked ideas from the convention’s proposals to adopt, in an effort to meet at least some of the convention’s lofty goals. Further reform efforts in the latter part of the decade, which addressed the financial constitution, were disrupted by the considerable pressure put on German politics by the euro crisis and the global financial turmoil of that era. Reform of such a complex system is dependent on both political will and a favourable political climate; progress was limited as a result. This is not to say, however, that change cannot happen. We set out in detail the changes that have been made to German federalism, in this volume. What we aim to assess, however, is not the reason for the limitations on change that have curtailed large-scale reform, but to engage with the dynamics of those changes in practice. Where do we see the reforms as having impacted on the policy-making arena? We identify change where it has happened and assess the dynamics of the reform moment that have redefined the parameters of policy-thinking in 4 specific areas: higher education, social care homes policy, prisons policy and public servants’ pay and conditions. We consider how federal change has impacted political parties. We consider also how the external shock of the COVID-19 pandemic in 2020 lead to new forms of federal governance. Taken as a whole, we consider the extent to which decentralisation in German federalism has led to meaningful policy diversity across the territory. Where change has been enacted, we look to consider the implications of those changes. Where there has been less evidence of meaningful change, we consider the wider contextual factors that have ringfenced changes and diversity in the system. This wider assessment allows us to comment on the potential for “races” in terms of policy delivery. We find scant evidence across the board of decentralisation leading directly to a race to the bottom; overall, our assessment showcases the broader system-level dynamics of German federalism that serve to maintain policy standards, and in some cases, have driven a new race to the top, delivering improvements in public services and policy outputs. Our book is a result of many years of critical investigation of various dimensions of German federalism in practice. Along the way, we have had opportunities to engage with practitioners, policy-makers, political party activists and German citizens, all of whom have had extensive first hand experience of federal dynamics. Our research activities have taken us into party political forums, think tanks, the Bundestag and the Bundesrat, and

PREFACE

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have crystallised our thinking on the real nature of territorial diversity in this enormously complex and fascinating polity. The primary policy research that forms much of the substantive evidence of this book has been supported by the German Academic Exchange Service (DAAD) and we are enormously grateful for both their financial support and the interest they have taken in our work. We owe thanks also to colleagues who have worked with us on federal themes over the years, primarily Charlie Jeffery, whose thinking on territorial diversity has been a guiding light in the preparation of this book, and Niccole Pamphilis, scholar of all things policy and territory-related. We fully recognise that this book will capture only a moment in the history and development of German federalism, but it is a significant one nonetheless, and this is a timely moment to be offering a sharper insight into the German polity. We hope too that this book will speak to scholars of federal systems more broadly, as well as to those looking to understand better the complexity of German federal interactions. Ultimately, we hope that anyone engaging with this book finds it informative and that it helps to shape a better understanding of territorial diversity in Germany. Birmingham, UK

Carolyn Rowe Ed Turner

Acknowledgements The authors would like to thank the DAAD for their financial support for their research work, on the project “Reframing German Federalism: Territorial Policy Variation in the German Länder”.

Contents

1

Decentralising Policy Responsibility and Political Authority in Germany: Introduction

1

2

Higher Education Policy

25

3

Care Homes Policy

59

4

Prisons and Justice Policy

89

5

Reform of Public Service Regulation

125

6

The Changing Face of German Parties in the Federal System

155

7

Germany and the COVID-19 Pandemic

193

8

Conclusions

231

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About the Authors

Carolyn Rowe is Reader in Politics at Aston University, Birmingham, UK. She is Co-Director of the Aston Centre for Europe. She has expertise in the analysis of German politics and federalism, territorial politics in the EU and devolution in the UK. She has provided analysis on the role of the German Länder in the European Union to a number of EU bodies, industry associations and to the Scottish Parliament. Ed Turner is Reader in Politics at Aston University, Birmingham, where he is Co-Director of the Aston Centre for Europe, an interdisciplinary hub for policy-relevant research and knowledge transfer on Europe. He is also a Research Fellow of the Foreign Policy Centre. Ed has published widely on German politics, especially on political parties and federalism, as well as on politics in the UK and in comparative perspective. He is currently Chair of the International Association for the Study of German Politics.

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Abbreviations

AfD BBesG BMBF BMI BPersG BRRG BVerfG CDU CSU dbb DFG DneuG FDP GDP GDR GEW KMK MDK

Alternative for Germany (Alternative für Deutschland) Federal law on public servants’ pay (Bundesbesoldungsgesetz) Federal Ministry of Education and Research (Bundesministerium für Bildung und Forschung) Federal Ministry of the Interior (Bundesministerium des Innern und für Heimat ) Federal Law on Staff Committees in the Public Sector (Bundespersonalvertretungsgesetz) Framework law on public service regulation (Beamtenrechtsrahmengesetz) German federal constitutional court (Bundesverfassungsgericht ) Christian Democratic Union Christian Social Union German association of public servants (Deutsche Beamtenbund) German Research Foundation (Deutsche Forschungsgemeinschaft ) law re-organising the regulation of the public service (Dienstrechtsneuordnungsgesetz) Free Democratic Party of Germany (Freie Demokratische Partei Deutschlands ) Gross Domestic Product German Democratic Republic German Education Union (Gewerkschaft Erziehung und Wissenschaft ) Conference of Education and Culture Ministers (Kultusministerkonferenz) Medical Service of the Health Insurers (Medizinische Dienst der Krankenkassen) xiii

xiv PRO RAI SPD SSR Ver.di

ABBREVIATIONS

Law and Justice Offensive (Partei Rechtsstaatliche Offensive) Regional Authority Index Social Democratic Party of Germany (Sozialdemokratische Partei Deutschlands ) staff–student ratio United Services Trade Union (Vereinte Dienstleistungsgewerkschaft )

List of Tables

Chapter 1 Table 1

Summary of the allocation of competences in the German federal system as a result of the 2006 federalism reforms (authors’ summary, drawing on Schneider, 2013)

13

Chapter 2 Table 1

Table 2

Overview of changes to federal government—Länder interaction on higher education (Opportunities for federal co-financing) New models of state-university governance in the Land laws since 2006

39 42

Chapter 3 Table 1

Care home laws in the Länder

69

Chapter 4 Table 1 Table 2 Table 3

Crime rates in the Federal Republic of Germany (source Bundeskriminalamt ) Prisons legislation in the Länder (source Land websites, own research) Aspects of prisons policy in the Länder

92 101 108

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LIST OF TABLES

Table 4 Table 5 Table 6 Table 7 Table 8

The rate of prosecutions and the rate of cases dropped in all completed preliminary investigations Rate of conviction by Land Sanctions imposed according to the general criminal law (excluding road traffic offences) Prisoners held in default of payment as a proportion of all prisoners Cases completed at tribunal in the first instance: average duration of the procedure (in months)

114 115 116 117 118

Chapter 5 Table 1 Table 2

Land-level GDP and public debt, 2018 New career pathway group structure

138 145

Chapter 6 Table 1 Table 2 Table 3

Bundesrat composition in August 2021 Comparison of satisfaction ratings of incumbent Minister Presidents September 2017–August 2021 Personal background of federal cabinet members, 2021

175 181 183

Chapter 7 Table 1

Support for statements about the advantages of federalism (Köcher, 2021: 27)

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CHAPTER 1

Decentralising Policy Responsibility and Political Authority in Germany: Introduction

1 Introduction: Why Study Decentralisation in Federal Systems? Federalism is perhaps best understood as a constitutional principle by which power is shared between at least two levels of governmental authority. The division of responsibilities and resources between the central government and the constituent units is ultimately fundamental to the way in which federal systems operate (Dardanelli et al., 2019: 1). But the federal contract, the constitutional “bargain” (Riker, 1964) which outlines relative roles and responsibilities is not fixed, and is subject to multiple pressures for change over time (Benz, 1985). Change is therefore a constant feature of any federal system. While the dynamics of the change process themselves vary both across time and across space, happening differentially, reallocating competences differently, upwards or downwards as the empowered actors dictate in any given context, any change enacted needs to be assessed in terms of its longer term significance. When federal systems are rebalanced, how can we interpret the changes that are made? If we are to better understand federalism as a living, breathing, responsive contract between partners, then the impact of those changes enacted becomes a centrally important field of study. Germany offers an important test case for analysis of the implications of federal reform. In 2006, a newly elected Grand Coalition government © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Rowe and E. Turner, Decentralising Policy Responsibility and Political Authority in Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-29479-2_1

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took office at the federal level for only the second time in the Federal Government’s history. This historic consensus on leadership allowed for amendments to the constitution, the Basic Law (Grundgesetz) to be enacted, the most far-reaching constitutional reform that the Federal Republic of Germany had ever witnessed. Seen as “the biggest constitutional reform since the Basic Law was created” (Holtschneider & Schön, 2007: 5), branded “the mother of all reforms” by one of Germany’s most prominent regional leaders and a key player in the reform movement, Edmund Stoiber of Bavaria’s Christian Social Union (CSU), the new federal framework aimed to separate competences, clarify roles and responsibilities which were allocated to the Federal Government and to the Länder, and in so doing, to streamline the decision-making process within Germany. While these changes did not bring about the root and branch reform of the system which some champions of federal reform had been pressing for, they did fundamentally alter the balance of power within German federalism. What we see is a downward shift, with considerable policy autonomy being (re-)allocated to the Länder, a move that chimes with global trends in the re-scaling of governance (Hooghe et al., 2016). On its own, system-level change is pretty meaningless. What matters more is how the effects of those changes play out. It follows that significant change at the level of the political system will bring about significant change on the ground, at the level of policy-making, and in the policy “output” that citizens will experience in their day-to-day lives. This book aims to shed light on how the changes that were first enacted in 2006, alongside subsequent change to the federal system in Germany introduced in 2009, in combination, have changed the pattern of policy-making across the federal system. Our aim is to understand better how the macro level changes, with their focus on a separation of powers and a clarification of respective roles and responsibilities, have allowed for greater variation in policy development and implementation across the territory of the 16 Länder which constitute the Federal Republic. At the same time, we do not focus uniquely on areas which saw a wholesale shift in political authority, and we weave in discussion of the important role of political parties in shaping and coordinating decision-making across tiers of government. Where do we see change being enacted, and how can we evaluate these changes? Overall, our research helps us to paint a picture of the reshaping of German federalism in recent years, one which illustrates Germany’s new social and economic dynamics while at the same

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time offering insights as to how federal reforms in other polities can be assessed. The present study offers some insights into what happens when a federal contract is reconfigured. The reforms agreed upon in 2006 removed the federal government’s ability to engage in certain policy fields altogether and relativising intergovernmental decision-making frameworks in others. Our chief focus here is to understand the impact of these reforms at the level of policy outputs.

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Why Study Decentralisation in Germany? The Story of Competence Reallocation

For scholars of comparative federalism and decentralisation, Germany presents both a model, and a unique test case. The reform process launched in the early 2000s itself has secured significant interest from international analysts, looking to understand power and process in what has long been regarded a “cooperative” federal state (Dardanelli et al., 2019; Jedwab & Kincaid, 2018). But this narrative of cooperation and consensus masks a strong counter-narrative of variation within the policy environment across the territory of the 16 Länder, which more recent empirical studies have sought to unpack (Hildebrandt & Wolf, 2016; Jeffery et al., 2016; Turner & Rowe, 2013). No less a scholar of federal politics in Germany than Manfred G. Schmidt suggests that “there is still a considerable need for further research in this area” (Schmidt, 2016: 307) so as to understand better the wider contours of policy diversity in Germany. We take forward this line of analytical thinking, presenting our own findings in the context of debates on both policy continuity and change. Much of the critical reflection on the recent reform of German federalism has focused predominantly on issues relating to both mechanical and procedural innovation. This again relates to an influential reading of German federal politics: that it is institutionally gridlocked; that it is a heavily interlocked polity with too many veto players along with extremely high thresholds which any constitutional reforms must secure in both chambers of parliament; and that it is thus categorically unable ever to reform itself (Auel, 2008; Scharpf, 2008). The sheer fact that reform, however limited its critics might interpret the changes enacted, did actually happen, has understandably generated a good deal of scholarly interest on the processes and procedures of change. Nathalie Behnke and

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her colleagues, for instance, have sought to understand the general logics of the federal reform process in Germany, through the lens of institutional theory (Behnke & Kropp, 2016; Kropp & Behnke, 2016). The lessons they draw from this analysis, they suggest, deliver insights into “the inherent logic of federal reforms in general” (Behnke & Kropp, 2016: 586), offering comparative lessons which are useful in other contexts, be those in established federations or in emerging federal systems. Most recently, Paolo Dardanelli and colleagues have also taken an international comparative approach to the issue of reform in federations. Yet their focus remains, similarly, on an understanding of the reforms themselves, rather than on an analysis of their implications. Dardanelli and colleagues seek to explore, through comparative review across federal systems, “what drives dynamic centralization and decentralization?” (Dardanelli et al., 2019: 1), and then offer contextual explanations of the patterns observed. Missing from both these pre-reform approaches is the post-reform counterpoint which would offer an understanding of the extent to which the reforms themselves, ultimately, had made any difference. There have been few, limited, attempts to assess systematically the overall impact of the most recent federal reform in Germany, and its agenda to reallocate competences to levels of authority while attempting to ringfence spheres of competence. What is clear however, is that Germany’s attempt to satisfy demands for reform from across the political spectrum resulted in a shift towards a more decentralised system, which has had a meaningful impact on both policy-making and policy output over time (Dose & Reus, 2016; Hildebrandt & Wolf, 2016; Reus & Vogel, 2018). Fewer still offer English-language accounts of the changes, or consider the ramifications for the political parties in Germany, the drivers who can lead change initiatives at the sub-state level. This work seeks to fill that void, delivering fresh insights through a comparative framework that is applied wholesale across issue areas. With an evidence base that stretches back for over a decade, we can draw upon it to explore how Germany’s new federal dynamics are playing out in the wake of “the mother of all reforms”.

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Understanding the Impact of Decentralisation on Policy Outputs in Federal Systems

The optimum level of government to hold responsibility for particular functions is a pressing debate amongst scholars, constitutional lawyers,

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politicians, and public sector professionals. For some, there is a deeply rooted commitment to national equality and national policy standards (Peterson, 1995; Walker, 1999), which points to retaining power at the national level. Other “modernising” trends in the socio-economic space, notably technological change or increased mobility might be expected to sustain centralising reforms (Beer, 1973); equally, globalisation, European integration and market integration more generally can present a mandate for centralisation, given that international agreements offer scope for central governments to encroach into areas of sub-state authority (Lazar et al., 2003: 4). Yet, as we know, states are giving more power to regional and sub-national levels of government. In a major study comparing the development of 81 countries since 1950, Hooghe et al. (2016) found that not only was there a shift towards the creation of a regional tier of government, but that those countries with such a tier chose to strengthen it. Indeed, the authors’ measure of a “regional authority index” (RAI) finds that, once granted or increased by the central state authorities, regional authority almost never decreases, except in the context of regime change (Hooghe et al., 2016). Flowing from this, then, there is a keen interest in the possible consequences of, how “racing” dynamics are unleashed and in developing a better understanding of how to assess what the optimum level of government to manage state functions might be. The empirical chapters which follow in this book evaluate how these dynamics have impacted on policy outputs in the German context since the federal reforms. We have two headline aims within this analysis: 1. To capture the legacy impacts of the federalism reforms of 2006 and 2009 on territorial policy variation in Germany; and 2. To examine the impacts of widening territorial policy variation, in particular by applying to the German case insights from international policy literatures that produce alternative claims: that territorial policy variation leads to a “race to the bottom” of lower service provision; or alternatively, that it leads to processes of innovation that benchmark and diffuse higher standards of services to citizens, enabling a “race to the top”.

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This book breaks new ground by generating new data on the capacity and inclination of Länder governments to pursue Land-specific policies in important policy fields such as higher education, prisons policy, one key dimension of social policy—care homes—as well as in the regulation of public sector pay. In sum total, then, this book serves to advance understanding of the dynamics of contemporary German federalism and territorial policy variation in Germany, but also shed light on what happens when political power shifts from one tier of authority to another.

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Possible Impacts of Decentralisation

In prevailing scholarship, various possibilities about the impact of decentralisation on public policy can be discerned: • Races to the bottom: This postulates that decentralisation will lead to downward pressure on levels of expenditure, taxation and regulation. The level will be set in order to gain a competitive advantage for the territory in question; for instance, taxes will be set lower in order to attract new inward investment (McKenzie, 2006: 28; Oates, 1972: 142); environmental regulations will be lowered in order to attract investors (Wilson, 1996); welfare payments will be reduced, both to avoid attracting benefit claimants to the state, and to allow funds to be spent on cutting taxes or more popular items of spending (Peterson, 1995). Such effects are considered to have impact both at the level of the nation state (when power is passed from a higher jurisdiction to a lower one) and also in the context of different nation states competing in circumstances of globalisation (Rodrik, 1997). • Races to the top: Under this view, competition between jurisdictions (whether within a single nation state or beyond) may actually lead to an upward trajectory of competition. There are distinct mechanisms which might underpin this. First, in circumstances where large, powerful jurisdictions adopt a higher level of regulation, there may be pressure from manufacturers based in these, to force smaller jurisdictions to adopt the higher, level of regulation, in order to gain an advantage vis-à-vis domestic competitors: this is known as the “California Effect” (Vogel & Kagan, 2004: 9). Secondly, there may be public pressure within a jurisdiction to offer a higher level of provision. So, for instance, Keating argues that in the area of social

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provision, stronger bonds of solidarity at the sub-national level may exist and thus support higher levels of welfare provision; he also suggests that sub-national governments may adopt additional welfare measures to “fill out” the range of benefits as part of a process of nation-building (Keating, 2009). This could lead to upward competition as other jurisdictions face electoral pressure to match the frontrunners on provision or regulation (witness the adoption of free bus travel for pensioners across the UK, after Wales made the first move, or the extension of Scotland’s smoking ban to England). • Races to the middle: In this variant, posited by Green and Harrison (2006), states may seek to avoid being outliers—with there being some electoral safety in numbers. • “Laboratories of democracy”: In this account, sub-national units will have the opportunity to learn from each other in a positive way. Decentralisation thus serves to promote positive experimentation and policy learning (Osborne, 1998), which may have the effect of driving up standards. • Partisan influence on politics: In this account, political parties will shape policy (classically, Garrett & Lange, 1986; Hibbs, 1977). Logically, therefore, if power is passed from the centre to a sub-state level, variations will occur depending on the partisan colour of the government in question (Schmidt, 1980; Turner, 2011). Of course, it is also possible that passing power from the centre to the sub-national level will have absolutely no influence upon policy choices whatsoever. States might well recognise the value of policy coordination, there may be particular utility to be derived from policy harmony, or existing rules may become embedded in a path-dependent way (Pierson, 2000; Turner, 2011). A classic example of such voluntary coordination, in the German context, would be the work of the Conference of Education and Culture Ministers (Kultusministerkonferenz KMK; see also Chapter 3 in this volume) in Germany, which operates on the basis of unanimity yet which, to a significant degree, harmonises German education policy, so that curricula and the length of schooling only vary within given parameters. It is worth noting further that, while effects of decentralisation are often postulated in quite general terms, the mechanisms and thus effects to be observed may vary rather strongly from policy area to policy area.

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For instance, Vogel’s postulated “race to the top” in environmental regulation is based upon areas where large firms operate, and stand to gain a competitive advantage by seeing more exacting regulations adopted across a wider area. This particular mechanism could not operate in an area of public policy exclusively provided by the public sector. Equally, downward pressure on levels of regulation, expenditure or service provision is more likely where there is a fiscal reward to be realised by such a move (either through lower expenditure, or driving more costly elements out of the territory). These considerations frame our analysis of how the rebalancing of competences in the German federal policy have shaped policy-making across the areas we reflect upon in this volume. Across each field of analysis, we reflect upon both the continuities in each policy paradigm and the changes subsequent to the federal reforms across three variables: 1. The political salience of the policy field in question: This embraces its relevance to the electoral climate across the time frame of analysis, party political positioning on the policy field and public or media interest in policy outputs and policy change. 2. Public finances in the issue area: This dimension provides a lens through which to investigate how legislative autonomy in each of these policy fields has been operationalised over time. Clearly, without the relevant funds or the ability to implement new and divergent policy agendas, the Länder governments are hamstrung in their ability to enact the headline increases in competence which the federal reforms (notionally) ushered in. 3. Institutional constraints: This particular variable engages with the complexity of policy-making across the various fields of analysis. To what extent did the federal reforms allow the Länder governments to bypass existing policy networks? Have previously empowered vested interests and actors been sidelined as a result of the changes or have institutional configurations that existed prior to the federal reforms proved dominant? Do we see the Constitutional Court becoming an increasingly significant actor in determining appropriate levels of authority within the new federal framework?

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This model allows us to consider, in the round, how the system-level changes made to the federal constitutional order have impacted on policymaking in Germany. Our findings offer little confirmation of the “racing to the bottom” hypothesis; as will be made evident, this particular fear has in Germany at least proved to hold little water, although the particular nature of the policy areas in question, where little fiscal advantage can be derived from a lowering of standards by the unit of government responsible for setting levels of regulation, may restrict the extent to which this finding can be applied more widely.

5 Federal Reform in Germany in the 2000s: The Context of Our Study German federalism is the backbone of the country’s contemporary political culture. The very name—the Federal Republic of Germany—encourages a form of constitutional patriotism and a healthy political life that is bound up with power sharing between 16 constituent units. Public policy rests on an equivalence, if no longer an equality, of living conditions; social citizenship, as it plays out in Germany, has sustained a redistributive system within fiscal federalism that effectively penalises the richer Länder to shore up their economically weaker cousins. Even the most recent amendments made to the fiscal equalisation system do not remove the horizontal transfer system entirely (Benz & Sonnicksen, 2018). Over the course of the last two decades, German federalism has been substantially re-engineered, but the big reform moments in 2006 and 2009 were in essence the result of a long process of deliberation and negotiation, a process that dates back to the 1990s. By the turn of the millennium, questions of how competences should be allocated appropriately across the levels of political authority within German federalism were increasingly becoming something of a flashpoint. Disputes over appropriate levels of political competence were becoming increasingly common matters taken to the Federal Constitutional Court for a resolution. In addition, that “the risks of domestic deadlock were seen as threatening Germany’s capacity to act at European level” (Benz & Sonnicksen, 2018: 142). These pressures for change, driven from the bottom up, led to three major constitutional reforms being carried out in Germany between 2003 and 2017. The first two were the result of large-scale Commissions, bringing together parliamentarians and policy experts, to scope out

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concrete potential for reform. The first Commission ultimately proved unsuccessful; actual constitutional amendments were only made once a Grand Coalition had taken office in Federal Government and had the necessary level of votes to push through reform. The Grand Coalition was able to cherry pick the key elements of the Commission’s proposals, and bring these reforms to fruition with the necessary 2/3 majority in both chambers of the German Parliament. The second Commission, while knocked off schedule by the financial crisis of 2007, did manage to bring forward concluding proposals. Beyond these two reform Commissions, a further reform of the fiscal equalisation scheme was instituted towards the end of the 2010s, for which 13 amendments to the Basic Law were made in 2017 alone. The empirical chapters in this book assess the implications of these changes and the resulting decentralisation of policy competences across the board in Germany. Before moving on to those discussions, it is worth setting out in some detail at this point the suites of amendments decided upon at each of these junctures.

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Federalism Reform I---2006

The „Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen Ordnung“ (“Commission of the Bundestag and the Bundesrat on the Modernisation of the Federal Order” or “Federal Reform Commission”), set up in 2003, was met with a large degree of enthusiasm and support, given that it finally offered the potential to settle differences that had been rumbling within German federal politics since reunification. This Commission had the explicit aim of freeing German politics from what had famously come to be known as the “Joint Decision Trap” (Politikverflechtungsfalle), a problem which was increasingly becoming blamed for Germany’s various ills. First presented by Fritz Scharpf in 1988, this metaphor captured the constraints posed by Germany’s institutional framework on any kind of agenda for change; federal government policies could be limited by the veto power of the Bundesrat, while politics at the Land level had no real autonomy either in legislation nor in the financial economy (Scharpf, 1988). Throughout the 1990s, policy-making in Germany had increasingly been significantly constrained by non-contiguous majorities in both chambers of the federal parliament. With different political parties controlling the Bundesrat and the Bundestag at any given moment,

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it proved very difficult to achieve agreements in policy-making especially where landmark legislative proposals were concerned (Benz & Sonnicksen, 2018: 143). An increase in the sheer variety of governing coalitions at the Land level after 2000 made it even more difficult to anticipate Bundesrat vetoes (Detterbeck, 2016). These developments offered fuel to the fire for those champions of decentralisation, such as the Christian Democrat-led Länder, and the economically successful Länder who were net contributors to the financial equalisation system in Germany, who saw decentralisation as a way to make policies on their own terms, rather than having to obstruct federal legislation. “In this context, the re-allocation of competences and especially the idea of ‘disentanglement’ and thus retrenching of cooperative federalism became a dominant motive” (Benz & Sonnicksen, 2018: 143). These frustrations in part helped to secure the agreement from both levels of government on the need for federal reform, a process that would streamline decisionmaking and allow federalism in Germany to become both more efficient and flexible. The reform Commission essentially mirrored the composition of the federal parliament, with 16 members from each chamber, plus deputies. The decision-making rules of the Commission were shaped by the rules governing constitutional amendments in Germany, namely a twothirds majority in the Bundestag and the Bundesrat. Consequently, the familiar interplay between party politics and intergovernmental relations in German federalism was institutionalised into this reform process from the outset with the Commission itself designed to anticipate vetoes in the legislative process (Benz & Sonnicksen, 2018: 143). After more than a year of deliberations, the reform Commission broke down, unable to reach a final agreement, ostensibly on the issue of education (see Chapter 2, in this volume). Subsequent reforms were actually introduced, many of them based on the proposals that had been developed within this Commission forum, quietly, and with much less fanfare, after a short review under the leadership of the Grand Coalition in 2006 (Moore et al., 2008). Essentially, the reforms enacted in 2006 recalibrated intergovernmental relations in German federalism. Yet despite the fact that these reforms constituted the most extensive and wide-reaching reform package to the Basic Law in the history of the federal republic (BPB, 2021), the reforms were criticised from all sides for not going far enough—only “peanuts”, to quote one renowned federalism expert—and

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for lacking the necessary long-term vision to bring about lasting improvements in the system. Criticism was also levied at the Commission for shelving the more difficult issue of the financial constitution until a later stage. A total of 25 amendments to the Basic Law were approved in 2006 in the first stage of the federal reform process. Federalism Reform I—What Was Changed? 1. A clearer separation of functional roles and responsibilities between the Länder and the federal government. In order to avoid future re-entanglement of responsibilities, the legal basis for setting framework legislation was got rid of entirely. 2. The streamlining of legislative decision-making so as to reduce the veto power of the Bundesrat, achieved through a reduction in the number of bills requiring Bundesrat approval, the goal being a reduction from 60 percent to around 35 to 40 percent of all federal legislation. The aim of this reform was also to encourage more responsive and more transparent governance and decision-making. 3. Reducing the level of joint financing, thereby removing some of the complex joint arrangements for governance and decision-making. To illustrate this point, we summarise some key points of stability and change as a result of the 2006 reforms in the Table 1. In addition to the points in the table above, in dispensing with a previous category of law (Rahmengesetzgebung, or “framework laws”, where principles of a law were set by federal level and details by the Länder, some competences shifted. In certain cases, powers were given exclusively to one level or the other. So law on ID cards and on the protection of German cultural property from unauthorised export were exclusively given to the federal level. In other cases, “framework laws” were replaced by “concurrent legislation”, such as in certain areas of natural protection, where Land law applies unless overtaken by a federal law—although with the possibility of further deviation by the Länder, leading to worries about a “ping pong” effect, whereby laws would be in constant flux.

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Table 1 Summary of the allocation of competences in the German federal system as a result of the 2006 federalism reforms (authors’ summary, drawing on Schneider, 2013) Competence retained at federal level (set out in Article 73 of Basic Law)

Exclusively Land competence

● Foreign affairs ● All laws unless and defence otherwise provided for ● Citizenship in the federation ● Freedom of movement ● Air transport, federal railways ● Industrial property rights ● Currency, money and coinage

Transfer of authority from federal level to Länder

Transfer of authority from shared competence to federal level

● Assembly of ● Combating citizens international terrorism ● Prisons ● Law on weapons, ● Care homes explosives and ● Shop closing nuclear power times (previously ● Pubs and concurrent amusement legislation) arcades ● Fairs, exhibitions and markets ● Media law ● Law on Land and local public servants (rules of service, payment and pensions)

In this book, we investigate the significant areas where reform measures were implemented as part of this wider objective to reallocate responsibilities and to separate complex, interlocked decision-making across a number of important policy fields. These are the most tangible areas and the most publicly visible changes to policy responsibility in Germany.

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Federalism Reform II---2009

Consideration of a second suite of federal reforms was undertaken from 2007 to 2009, while a Grand Coalition government still held office at the federal level. The FDP had made their support for the first set of reforms in 2006 contingent on this second round of reforms being conducted swiftly thereafter. Establishing a second, bicameral reform Commission to develop proposals for reform aimed to address the outstanding issues

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from the first reform round, principally the more thorny issues of intergovernmental fiscal relations. The context of a Grand Coalition presented a further window of opportunity for securing the necessary two-thirds majority and to finally bring to fruition a key set of fundamental reforms that would improve the financial relationship between the Bund and the Länder. The financial crisis from 2007 onwards had placed unprecedented demands on the Länder economies. New cleavages emerged within German federalism, with some Länder confronted with the challenges of managing excessive debt loads. Such new fiscal cleavages were compounded by the weakening of the integrative effects of the German party system, and all of this served only to exacerbate the consequences of the fiscal crisis at the Land level. As a result, any ambitions to disentangle the system of shared taxation turned out to be unfeasible and so the second reform Commission was forced by the ongoing fiscal crisis to narrow its agenda (Heinz, 2012). Despite the climate of a worsening financial situation, in the end, the weaker, less economically productive Länder agreed to see the proposals for a new constitutional debt regime as more acceptable than rejecting reform of federalism per se (Heinz, 2010: 1). Federalism Reform II—What Was Changed? 1. Creation of a debt brake for federal and Länder governments, limiting new federal debt to 0.35% of GDP in any given year and prohibiting any new debt at the Land level after 2020. 2. Establishment of a joint “Stability Council”, a key institutional innovation brought forward by the work of the second Federal Reform Commission. Its role would be to monitor the fiscal consolidation work being undertaken at both the federal and the Länder level. However, as with the first Commission, the representatives of Länder and Federal Governments excluded issues that would require decisions with redistributive effects (Benz & Sonnicksen, 2018: 147). Consequently, decisions on the future of fiscal equalisation were omitted, and left until a further, future reform process.

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Reform of the Fiscal Equalisation Scheme

This third set of constitutional reforms finally grasped the nettle of what had previously been shied away from and placed in the “too hard” basket (Moore et al., 2008). But the need for new arrangements for the fiscal equalisation scheme was driven by a legal requirement to do so; there was pressure to secure a deal on this particular issue by the mid-2010s given the impending immovable deadline (agreed in the 1990s) to revise the framework of fiscal federalism in Germany in its entirety, along with the expiry of the Solidarpakt II at the end of 2019. However, this reform was somewhat different from those undertaken in 2006 and 2009 on account of the fact that no joint Commission of the Bundestag and Bundesrat was established as a forum to negotiate proposals for reform. This reform, rather, was negotiated within the regular intergovernmental conferences of the executive. Fiscal Equalisation—What Was Changed? • Abolition of the horizontal equalisation scheme in its entirety, though this was integrated into the redistribution of VAT, therefore not getting rid of equalisation entirely, but making it less transparent and therefore harder to compare and to pinpoint specific winners and losers in the system. • Increase in the federal contribution to the fiscal equalisation scheme as a whole as a means to alleviate the direct financial burden on the economically stronger Länder. • Extension of federal supervision over tax administration and federal grants.

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Structure of This Book

The first part of our analysis tracks the changes in some of the major policy fields where reforms were first agreed by the Grand Coalition in 2006. We take an evidence base that covers some of the most salient policy fields covered by the reforms, recognising all the while that these were of course criticised at the time for not going far enough, for being “peanuts” in the grand scale of what the original supporters of federal reform in the early 2000s had been hoping for. We analyse both the direction of change, and the wider implications of change. Collectively, our chosen policy fields

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offer up an overarching picture of change in the reordering of competence; how these policy fields were affected varied, and the redistribution of decision-making competences was enacted differently. We focus on the following: • one policy field which became an exclusive competence of the Länder following the 2006 reforms (prisons policy); • a policy area which had previously been regulated by framework legislation and which now became a Land-level competence (public sector pay); • a field in which the Länder can “deviate” from federal legislation following the 2006 reforms (higher education policy); and • an area where local government, the Länder and the federal government all play a significant role (social policy and the provision of care for the vulnerable, i.e. care homes, over which the Länder gained additional powers in 2006). In writing this book, two things became apparent to us. The first is that the role of political parties is so important in shaping and coordinating policy across different areas that a chapter discussing the role of parties in German federalism was essential. Secondly, the COVID-19 pandemic provided a major challenge to the German federal system, with responsibility divided between three tiers of authority (central, Land and local), a strong need for coordination, but also increasing levels of friction between the different levels. While the lasting impacts of the pandemic upon the federal system remain to be seen, at the very least it raised the public profile of Germany’s federal system, prompting widespread expert and popular debate, and posed a major test to the institutions of federalism. It was therefore worthy of a chapter on its own. Considered in isolation, each of the areas of policy affected by the federalism reforms of 2006 presents evidence of primarily modest changes in the way political power is exercised. They provide evidence of the downward shift in territorial authority, and an in-depth policy study illuminates the reality of claims to “autonomy”. Despite the reallocation of power within the system, is inter-dependence still a necessity? Have we seen evidence of the traditional centripetal forces of governance within German federalism begin to belie this narrative of enhanced autonomy since 2006? Taken in combination, then, the analysis which this book

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presents, begins to uncover the reality of federal governance and politics after federal reform and a decentralisation of competence. Against this background, then, the reform measures enacted and enshrined into the Basic Law in 2006 and 2009 may look surprising. But as we, and others, have argued elsewhere (Jeffery et al., 2014, 2016), the concept of Germany as a “unitary federal state” (Hesse, 1962), disguised a long tradition of policy variation between the Länder—in spite of a notional requirement to secure a uniformity or equivalence of living conditions across the whole German territory. Thus, a more nuanced reading of the reforms as they happened in the 2000s understands these developments not as a lacuna but rather the continuation of a pre-existing trajectory of territorial policy diversity. Our analysis, as it is presented in this books, draws on these arguments and illustrates the extent to which we can assess both continuity and change across the policy sectors where the federal reforms brought about institutional change, and which form the focal point of our study. This book, “Decentralising Policy Responsibility and Political Authority in Germany” offers an interpretive overview of the key areas of German policy-making which have been affected by changes to the federal constitutional order since the early 2000s. Our analysis of the relevant data that can help us make sense of how and to what extent policy-making at the Land level has been affected by the changes is unique; we know of no other endeavour that has examined this question to the same degree nor over the same time frame. We flesh out data analysis with insights gleaned from interviews with key actors across each of our sectors—in the areas of prisons policy, higher education, public sector pay and care homes. In the remainder of this introductory section, we set out in fuller detail how the reforms in Germany came into being. We explore the social and economic factors, as well as the political ones, which drove a reform of the federal system itself right up the political agenda, and shed light on how changes were actually delivered. This leads us into a fuller explanation of our research project, and how we selected the case studies to cover in this volume. Chapter 2 focuses on the reforms which were undertaken in the area of higher education. Education policy, in all its manifestations, has a powerful symbolic status within the German federal system. It is a core element of the “state-like” quality of the Länder in Germany, sustains their sense of individuality and is thus held in special regard by both the political elites and the general public alike. It forms a central tenet of the

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identity of any individual Land and autonomy in this particular policy area is fiercely protected. What we see in this chapter is how the reform drivers in the 2000s continued to underscore ongoing reform measures in the sector itself, such as moves to modernise and internationalise the German higher education sector, while at the same time ringfencing the powers of the Länder themselves and reducing federal government authority to the management of wider macro issues such as funding programmes for the whole of Germany. Chapter 3 traces the developments in the main area of social policy to be affected by the federal reforms of the 2000s: legislation regulating the management and operation of care homes in the Länder. This second policy case study, an aspect of social policy, thus offers further insights into whether the devolution of competence leads ultimately to inter-Land competition and a decrease in welfare standards (the feared “race to the bottom”). Drawing on primary research material (interviews, analysis of the legislation), we explore the implications of the shift in policy responsibility to the Länder. The new legislative framework which was introduced ultimately ushered in a timely shift towards a more flexible regulatory framework in a sector where practice had seen the federal legislative framework become very outdated. But rather than launching a race to the bottom, the overarching view is that Land-level responsibility for care homes has led to an improvement and modernisation of this aspect of social policy, and has allowed for a degree of experimentation, in line with the broader thesis that decentralisation can allow component elements of a federal state to act as “laboratories of democracy”. We explore also the limited impact played by inter-party competition in this policy field, and underscore the extent to which regional social, demographic and territorial differences have been the most significant variables in explaining legislative change to date. In Chapter 4 we turn our attention to one of the most controversial areas of federal reform: prisons policy. Here, fears of a race to the bottom were loudest during the deliberation phase of the federal reform process, with opponents criticising the plans as ushering in a “competition of harshness” in penal policy. The extent to which these fears have proved to be founded is complex. What this chapter does is walk the reader through the major areas where the reforms have brought about a new approach, and assess how differentiation has manifested itself. We reflect here on the wider normative considerations and demonstrate how

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areas of both continuity and change can be identified within the policy field itself. Chapter 5 then considers reforms in the area of civil service rules, Beamtenrecht. Decentralisation in this policy space has been dogged by fears over competition between Länder for the most skilled staff. The issue of developing a differentiated array of rules covering public sector staff became one of the most public controversies as the federal reforms were being discussed. The area remains a huge public issue in Germany, given the role of the civil service in providing key services and a large proportion of jobs. This chapter of the book provides technical detail on the amendments, analysis of the dynamics of competition across territory which this did usher in and consideration of “races” which were unleashed by the changes. Chapter 6 considers the dynamics of intergovernmental relations throughout the COVID-19 pandemic. The pandemic has provided challenges for territorial relations between different tiers of government globally, but these were clearly seen in Germany, as new modes of intergovernmental cooperation were developed and tested throughout the pandemic. Our analysis presents a comprehensive discussion of how the pandemic was instrumental in reshaping the contours of intergovernmental politics in Germany. Chapter 7 offers an insight into how political parties in Germany have developed new ways of working across a remodelled federal playing field. We assess the implications of changes to the federal system for party politics in Germany and for the party system. Germany’s federal state is also a “party state”, one in which democratic party competition is of central importance, and in which the parties play a significant role not only in decision-making, but also in selecting and controlling the government (Schmidt, 2016: 302). What impact, then, have recent constitutional amendments to the political order had on the practice of party politics in Germany? Political parties at the same time mediate political division (for instance, they can provide an arena for territorial conflicts to be resolved, or set the parameters in which they take place), but at the same time they are challenged by such division (where, for instance, the bounds of solidarity between SPD politicians suing to pay less towards the fiscal equalisation mechanisms, and those suing to receive extra funds, would be tested). The chapter explores the role of these parties, also presenting findings about how the mechanisms for facilitating cooperation, such as

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the regular, party-based pre-meetings before Bundesrat plenary sessions, cope with greater territorial diversity. Our concluding chapter brings together the narratives of continuity and change that the policy analysis has introduced, and allows us to offer some wider reflections on decentralisation through federal reform as it is evidenced through 15 years of practice in Germany. Situating our findings within the wider scholarly debate about the shape of contemporary German federalism, we tone down the thinking of those authors such as Schneider (2013) who see no less than a “new German federalism” in the present arrangements. We argue also that contrary to Leber’s view (2014) that these federal reforms have constituted a “new Bundesstaat”, the most fundamental elements of Germany’s founding constitutional bargain remain intact, albeit with new opportunities for diversity. We draw together evidence from the previous chapters to underscore further our view that what we see is continuity rather than radical divergence from previous arrangements. We align ourselves with more sober assessments of the new German federalism (Leunig & Pock, 2010; von Blumenthal, 2010) who acknowledge a new emphasis on Länder diversity and put forward the expectation that the changes will lead to greater policy innovation and variation, not least due to the specific Land-level dynamics of party competition in Germany (von Blumenthal, 2010: 194). We draw on the hidden narrative of pre-existing policy diversity to strengthen our view of incremental change as the “leitmotif” through all of German federalism’s recent history, and argue that despite the opening up of new avenues to take that dynamic much further, there is no sharp appetite at the present juncture to push further or more radically in that direction. There is no evidence of a massive shift towards competition in policymaking across Germany, and here we draw further on the continuity of Germany as a “party state”, where party logics by and large continue to dominate the potential for diversity presented by this new policy-making frame. This concluding chapter also allows us to draw some wider conclusions about the state of contemporary German federalism and its capacity for change, through a comparative analysis of the implications of decentralisation in a federal state. This has clear relevance for scholars and analysts of other federal states undertaking constitutional reforms which aim to allow for more decentralised policy-making.

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Conclusion: Understanding Federal Reform

Throughout this book, our analytical frame emphasises the space for a diversity of policy outcomes in Germany. We work from the start point of challenging traditional readings of German federalism and consensus democracy. As we have discussed elsewhere, our view is that the conventional paradigm of German federalism as a highly integrated system geared to broadly common outcomes appears to be inappropriate or at least insufficient (Jeffery et al., 2014: 1361; Turner & Rowe, 2013). In order, therefore, to deliver a richer and more nuanced analysis of the contemporary dynamics of German federalism, this book explores policy variations in those areas where the Länder were awarded greater policy-making capabilities. Studies of constitutional reform have tended to equate formal ratification with a successful reform (Behnke et al., 2011). In order to move beyond this, the present volume unpacks the reforms across a series of policy areas and analyses the extent to which constitutional reform matters. Have we witnessed a tangible shift in the balance of responsibility across levels of political authority in Germany? Has the framework for and the process of intergovernmental relations qualitatively improved as a result? Does decentralisation lead to any discernible changes if not improvements in the quality of policy outputs across the sectors affected by the changes? The case studies presented in this volume situate the federal reforms within a wider context of both policy and constitutional evolution. As we show, the 2006 reforms themselves need to be read and understood alongside analysis of changes in those policy sectors both before and afterwards. Kropp and Behnke (2016) accurately describe the process of federal form in Germany as a zig-zagging between attempts to disentangle shared powers and decisions which reinforce joint decision-making. While the net effects of the federal reforms overall might not have met the original intentions of the agenda to streamline and “modernise” German federalism as a whole, what we tease out and analyse in the following chapters are important federal dynamics that contribute to understandings of intergovernmental relations, appropriate levels of authority and the potential for regulatory “races” in a multi-level political system, alongside questions of effective and accountable governance more broadly. Our micro-level analysis illustrates how the extent to which individual Länder have pursued the new opportunities for differentiated law-making across

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the state is dependent on a number of key factors: the salience for the policy issue within that Land, the financial capacity of the Land in question, institutional constraints and the nature of party competition in that Land.

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Hildebrandt, A., & Wolf, F. (2016). Politik in den Bundesländern under reformierten institutionellen Rahmenbedingungen. In A. Hildebrandt & F. Wolf (Eds.), Die Politik der Bundesländer: Zwischen Föderalismusreform und Schuldenbremse (2nd ed., pp. 1–9). Springer VS. Holtschneider, R., & Schön, W. (Eds.). (2007). Die Reform des Bundesstaates. Nomos. Marks, G., Hooghe, L., & Schakel, A. (2008). Patterns of regional authority. Regional & Federal Studies, 18(2–3), 167–181. Hooghe, L., Marks, G., Schakel, A., Niedzwiecki, S., Chapman Osterkatz, S., & Shair-Rosenfield, S. (2016). Measuring regional authority: A postfunctionalist theory of governance (Vol. 1). Oxford University Press. Jedwab, J., & Kincaid, J. (2018). Identities, trust and cohesion in federal systems. Public Perspectives. McGill-Queen’s University Press. Jeffery, C., Pamphilis, N., Rowe, C., & Turner, E. (2016). Introduction to the special issue: Reframing German federalism. German Politics, 25(2), 165–175. Jeffery, C., Pamphilis, N., Rowe, C., & Turner, E. (2014). Regional policy variation in Germany: The diversity of living conditions in a ‘unitary federal state.’ Journal of European Public Policy, 21(9), 1350–1366. Keating, M. (2009). Social citizenship, solidarity and welfare in regionalized and plurinational states. Citizenship Studies, 13(5), 501–513. Kropp, N., & Behnke, S. (2016). Marble cake dreaming of layer cake: The merits and pitfalls of disentanglement in German federalism reform. Regional & Federal Studies, 26(5), 667–686. Lazar, H., Telford, H., & Watts, R. (2003). Divergent trajectories: The impact of global and regional integration on federal systems. In H. Lazar, T. Hamish, & R. Watts (Eds.), The impact of global and regional integration on federal systems. A comparative analysis (pp. 1–36). McGill-Queen’s University Press. Leber, F. (2014). Landesgesetzgebung im neuen Bundesstaat. Handlungsmuster landespolitischer Akteure nach der Föderalismusreform 2006. Nomos. Leunig, S., & Pock, M. (2010). Landespolitik nach der Föderalismus I. In. J. von Blumenthal & S. Bröchler (Eds.), Föderalismusreform in Deutschland. Bilanz und Perspektiven im internationalen Vergleich (pp. 157–175). Springer VS. McKenzie, K. (2006). Fiscal federalism and the taxation of nonrenewable resources. In R. Bird & F. Vaillancourt (Eds.), Perspectives on fiscal federalism. WBI Learning Resources Series (pp. 247–265). The World Bank Moore, C., Jacboy, W., & Gunlicks, A. (2008). German federalism in transition? German Politics, 17 (4), 393–407. Oates, W. J. (1972). An essay on fiscal federalism. Journal of Economic Literature, 37 (3), 1120–1149. Osborne, S. (1998). Partnerships in local economic development: A bridge too far for the voluntary sector? Local Economy, 12(4), 290–295. Peterson, P. E. (1995). The price of federalism. Brookings Institution.

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Pierson, P. (2000). Increasing returns, path dependence and the study of politics. American Political Science Review, 94(2), 251–267. Reus, I., & Vogel, S. (2018). Policy-Vielfalt zwischen den Bundesländern nach der Föderalismusreform I: Art, Ausmaß und Akteure. Zeitschrift Für Vergleichende Politikwissenschaft, 12, 621–642. Riker, W. (1964). Some ambiguities in the notion of power. American Political Science Review, 58(2), 341–349. Rodrik, D. (1997). The ‘paradoxes’ of the successful state. European Economic Review, 41(3–5), 411–442. Scharpf, F. (1988). The joint-decision trap: Lessons from German federalism and European integration. Public Administration, 66(3), 239–278. Scharpf, F. (2008). Community, diversity and autonomy: The challenges of reforming German federalism. German Politics, 17 (4), 509–521. Schmidt, M. G. (2016). Das politische System Deutschlands. Institutionen, Willensbildung und Politikfelder (2nd ed.). C.H. Beck. Schmidt, M. G. (1980). CDU und SPD an der Regierung: Ein Vergleich ihrer Politik in den Ländern. Campus. Schneider, H.-P. (2013). Der neue deutsche Bundesstaat: Bereicht über die Umsetzung der Föderalismusreform I . Nomos. Turner, E. (2011). Political parties and public policy in the German Länder: When parties matter. Palgrave Macmillan. Turner, E., & Rowe, C. (2013). Party servants, ideologues or regional representatives? The German Länder and the reform of federalism. West European Politics, 36(2), 382–404. Vogel, D., & Kagan, R. (2004). Introduction. National regulations in a global economy. In D. Vogel & R. Kagan (Eds.), Dynamics of regulatory change: How globalization affects national regulatory policies (pp. 1–41). University of California Press. von Blumenthal, J. (2010). Im Zweifel für die Einheit(lichkeit)? Determinanten landespolitischer Entscheidungen. In J. von Blumenthal & S. Bröchler (Eds.), Föderalismusreform in Deutschland: Bilanz und Perspektiven im internationalen Vergleich (pp. 177–196). VS-Verlag. Walker, D. (1999). The rebirth of federalism (2nd ed.). Sage. Wilson, J. (1996). Capital mobility and environmental standards. Is there a theoretical basis for a race to the bottom? In J. N. Bhagwati & R. E. Hudec (Eds.), Fair trade and harmonization: Prerequisites for free trade? Volume 1: Economic analysis (pp. 393–427). The MIT Press.

CHAPTER 2

Higher Education Policy

1

Introduction

Higher education policy presents an interesting test case to analyse how far the disentangling agenda could ever prove to be successful within the German model of cooperative federalism, without a root and branch reform of the financial underpinnings that a more comprehensive separation of powers would necessitate. While on the surface, the 2006 reforms to higher education policy in Germany brought some clarification of roles and competences within an increasingly “interlocked” policy area, without the necessary financial resources to enact substantive change or give teeth to new powers for independent policy setting, the Länder ultimately found themselves in something of a bind. This was compounded further by an overarching need for common, state-wide standards in education— made all the more crucial in an increasingly globalised higher education market. Significantly in this policy area unlike others considered in this volume, regulatory changes to higher education policy subsequent to the federal reforms of 2006 have sought to undo much of the streamlining effect that had been the leitmotif of the reformist movement of the early 2000s. More practical, pragmatic concerns, alongside financial realities, have taken higher education back towards a cooperative policy space in the years thereafter.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Rowe and E. Turner, Decentralising Policy Responsibility and Political Authority in Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-29479-2_2

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This chapter explores the competing tensions inherent in this complex policy field and puts the 2006 reforms into their much wider context. We start by setting out the direction of policy change within the area of higher education prior to the federal reform movement of the early 2000s. We then explore how and why higher education became such a focal point for the champions of reform, leading to the enactment of constitutional reforms on higher education policy in the 2006 wave of amendments. Through a wider data analysis and the consideration of subsequent reconfigurations impacting the policy field, we consider the broader impact of the 2006 reform “moment”, and draw from this some conclusions about the relative success of efforts to disentangle the German cooperative, interlocked federal system in a highly visible and politically sensitive policy field.

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The Changing Nature of Higher Education Policy in Germany Prior to Federal Reform in 2006

Legally, German universities are an element of the educational framework which is considered to be, substantively, the realm of the cultural sovereignty of the Länder. For this reason, policy-making in the area of higher education was originally something given to the Länder themselves to regulate. Since the cultural sovereignty of the Länder is a fiercely protected element of the federal identity of Germany, indeed, serves as something of a lynchpin of the whole German understanding of federalism, the Basic Law originally foresaw an education system which would reflect the rich pattern of regional historical, socio-economic, geographic and cultural identities across the German state (Lanzendorf & Pasternack, 2016: 35). However, in any federal political system, higher education is “one of those areas in which both levels of government have had an interest” (Watts, 1992: 12). The complexity of German higher education regulation relates to the social and economic position of this issue area, sitting somewhere between, and indeed linking, education policy and research policy, and with this, national issues of economic growth (Pasternack, 2011: 23). The ability of higher education to drive forward competitiveness has meant that over time, the German federal government has taken on a greater steering role in this policy field, a role

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sustained further by the constitutional imperative to deliver an equivalence of living conditions to all citizens around the territory of the 16 Länder. As a result, the regulation of this particular policy space is already a story showcasing the competing tensions inherent in the need to deliver coherence and national educational standards (the federal government perspective) while at the same time acknowledging the symbolic significance of autonomy at the Land level in delivering locally attuned education policies. Added to this tension in the 1990s was the growing sense within the sector, and within the leading universities in particular, that the regulatory infrastructure governing higher education in Germany was holding back international competitiveness. Germany is seen as a latecomer to the changes that universities and university systems worldwide had been experiencing throughout the latter part of the twentieth century. In fact, research in the 1990s described the German higher education system as having “fallen into oblivion” (Keck, 1993: 145). Other systems globally, particularly in the US and Australia, but also in other parts of Western Europe, appeared much better suited to overcome the enormous changes that higher education systems were exposed to: rapid growth and expansion of what had previously been seen as an elite undertaking; marketisation; internationalisation and the resulting pressures of both domestic and global competition, as well as mega-trends such as the shift towards a knowledge-based society (Marginson & Carnoy, 2018). Thus, from the 1990s onwards, significant governance reforms can be seen in nearly all European higher education systems (Amaral et al., 2003; Kehm & Lanzendorf, 2006; Knill & Dobbins, 2009). These encompassed not only the regulatory and management structures of higher education institutions themselves, but also their diversification, financing and the nature of the degrees awarded (Hüther & Krücken, 2018: 10). Gradually, this global agenda began having an impact on the higher education system in Germany, with pressure growing for reforms in a similar direction.

3 Legislation on Higher Education: The Gradual Shift In order to understand the impact which the federal reform processes of the 2000s made on how higher education policy is decided within Germany, the following section sets out the direction of travel in policy change within the sector.

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The Reform Dynamic Within Germany Prior to 2006: Towards a Rebalancing of Competences Despite the original vision of the Basic Law setting out higher education as an area in which the Länder could legislate autonomously, the legal framework for cooperation between levels of authority had changed markedly over the years, complicating the way in which higher education was governed, particularly in the area of the financing of higher education (Konegen-Grenier, 2014: 6). This area, as much as any, was a victim of the incremental creep within Germany’s complex system of cooperative federalism, which led to an “interlocked” framework (Scharpf, 1988), bringing the attendant difficulties of a crowded policy-making arena with large numbers of veto players, and, as a result, limited ability to drive forward reform. Higher education came to be seen as a “classic example of the resilient interlocking between the federal government and the Länder” (Förster & Klenk, 2012: 412). At the outset, the original allocation of competences as set out in the Basic Law in 1949 did not provide for any federal-level responsibility on education. Agreement between the 16 Länder was secured through cooperation in the Conference of Education and Culture Ministers, the Kultusministerkonferenz (KMK). This horizontal form of engagement is the chief means by which the Länder coordinate their own university and higher education policies, with decisions taken on the basis of consensus (Lange, 2009). But the increasing costs of education throughout the 1960s and the general weak financial situation in most of the German Länder forced a change that facilitated federal government involvement in this previously sovereign area. Thus, from the late 1960s onwards, the trend in higher education policy in Germany was towards a greater role for the federal government. Starting in 1969 with the introduction of the “joint tasks” (Gemeinschaftsaufgaben), the federal authorities began to carve out a more significant role within the management of higher education issues. These joint tasks were an arrangement which allowed for financing across the levels of government in Germany, despite the functional separation of powers in the Basic Law. They were justified as being necessary to deliver an equivalence of living conditions at that time. In the higher education sector, joint tasks covered building work carried out at university buildings, as well as planning on education issues and support for research

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(Article 91 of the Basic Law). From the perspective of the federal competence allocation, observers reflected on this development as a significant transition from a “pure” to a “cooperative” cultural federalism (Preisert & Framheim, 1990: 7). At around the same time, the federal government was able to secure a framework legislating power for higher education. From 1976 onwards, a national framework for higher education was provided by the Higher Education Framework Law Hochschulrahmengesetz (HRG). This gave the federal government “de jure” the legal competence to set framework legislation for higher education policy, such as rules on regulating universities’ organisational structures. Anchored in Article 75 of the Basic Law (until 2006), this gave the federal government huge potential to engage in policy-making in this area. This transfer of competence was accepted by the Länder governments as a means to counter both the’68 generation and concerns over too great a degree of autonomy for individual universities, given that the implementation of Land-level higher education laws was patchy (Pasternack, 2011: 29). It also solved problems for the Länder in the light of financing challenges caused by the rapid rise in student numbers. Further, a federal-level framework power was also seen as the best means also to achieve national coherence, at a time when legislation on higher education in the Länder was not extensively developed and few of the 16 Länder had written individual, Land-level laws on higher education (Pasternack, 2011: 45). Other vertical integration mechanisms for coordination with federal policy served to reduce further the space for autonomous Land-level control of higher education, and increased the complexity of the decisionmaking process. These included for instance a multi-level, federal government—Länder Commission for educational planning and support for research (Bund-Länder-Kommission [BLK]). Similarly, the Wissenschaftsrat, working to implement the interests of the scientific community presented a further means by which federal and Land-level interests could be coordinated and integrated within the system; equally the national science research funding council, the Deutsche Forschungsgemeinschaft (DFG) operated as another important intermediary in the multi-level nexus of actors engaged in university planning in Germany and the financial interdependency between the Länder. This locked in further a need for vertical coordination on higher education policy (Schimank & Lange, 2006).

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Pre-2006 Changes at the University Level: Fostering Competitiveness Through Autonomy Discussions on restructuring the higher education system in Germany gained pace from the mid-1990s, as the need for reform took on crisislevel discourse. At the time, governance reforms were happening in nearly all European higher education systems, encompassing issues as diverse as the regulatory and management frameworks of higher education institutions themselves, but also their diversification, financing and the nature of the degrees awarded (Hüther & Krücken, 2018: 10). Germany was something of a laggard in moving in this direction of change, however, as the focus of any reform efforts in the early 1990s had been directed at integrating East Germany’s higher education system. This had meant that the deficits of the West German higher education system were not addressed (Hüther & Krücken, 2018: 10). From 1998 onwards, relations between the federal government and the Länder began a process of “disentanglement”, offering greater autonomy of decision-making to the Länder themselves. A first step in this direction was the federal ministry for education (BMBF) in 1998 revising the HRG to cover only very general aspects of university regulation; in fact, they dropped completely any nation-wide regulations relating to the organisational structure of universities, opening up scope for a re-federalisation of the policy area (Detmer, 2004; Hüther, 2010; Lynen, 2004). This fourth amendment of the HRG (known as the Rüttgers amendment, named after the federal education minister at the time) was focused on extending the institutional autonomy of universities, offering greater scope for individual management of their administration and organisation. This allowed for institutional innovation between the Länder, resulting in a differentiation across organisational aspects such as new leadership structures in universities (university councils, a strengthening of the professional management capacity within universities themselves), and various new steering instruments such as target agreements and quality assurance processes (Reus & Vogel, 2018: 46). At a corporate level, German universities were managed on the basis of autonomous, self-organisation of scientific researchers, a strong professorial chair system but a weak university management (Welsh, 2010: 54). Individual professors enjoyed their own autonomy with regard to the substance and conditions of their research. Yet all facets of university administration which were not directly related to scientific research were

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controlled by the Länder bureaucracies. This covered aspects of university life such as the appointment of staff, decisions on budgets, organisational structures, right through to the approval of new courses (Lange, 2009: 75). The late 1990s saw a further push from within the sector for deregulation of these arrangements, seen as a means to improve organisational competitiveness and thus to attract more successfully both students and resources, as well as enhance global reputations (Bleiklie & Lange, 2010: 179). The buzzword here was “internationalisation”, alluding to processes that intended to make German higher education institutions competitive and attractive at the global level (Welsh, 2004: 362). The Rise and Fall of Tuition Fees: The Role of Federalism A further significant dimension of the wider debate on university reform in Germany around this time was the issue of tuition fees. In line with marketisation practices in comparable systems worldwide, German universities attempted around this time also to introduce an element of fee-driven financial support. However, increased public discourse about tuition fees in the early 2000s prompted the Schröder administration (SPD/Die Grünen) to legislate against their introduction in its revision of the HRG, its 6th Amendment, in 2002. The Länder rejected this, arguing before the Federal Constitutional Court (Bundesverfassungsgericht—BVG) that the Federal Government had legislated beyond its sphere of competence. The BVG upheld this claim and as a result, opened the way for 7 of the 16 German Länder to introduce tuition fees for undergraduates in their first degree programmes between 2006 and 2007, with some scope for individual fee-setting in practice.1 The BVG’s ruling also meant that this issue was not appropriate for consideration within the Federal Reform Commission, as responsibility at the Land level had already been clarified in legal terms. Demonstrating the high public salience of political decision-making on higher education matters, the subject of tuition fees was both politically and ideologically charged, with fault lines running largely along party political lines; the more market liberal political parties (CDU/CSU and 1 There was a degree of variation, with Bavaria for instance allowing its universities to set their own fee levels between EURO 100 and EURO 500 per semester; in North Rhine Westphalia, universities were able to decide for themselves whether or not to introduce tuition fees.

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the FDP) wanted to introduce tuition fees at German universities, the SPD, the Greens and the left party were dead set against them. Key to these arguments were that tuition fees would likely increase social selectivity (Hüther & Krücken, 2014: 91). Tellingly, tuition fees were only introduced in Länder governed by the CDU/CSU alone or in a coalition including the CDU or the FDP. Those Länder helmed by the SPD did not, ever, introduce tuition fees. The year 2007 proved to be the peak of the tuition fee framework in Germany, however. By 2008, the first Länder were legislating to abolish tuition fees. Hesse axed tuition fees in 2008, with Saarland following in 2010, and Hamburg, North Rhine Westphalia and Baden Württemberg abolishing theirs in turn in 2011. Bavaria removed tuition fees in 2013 and Lower Saxony in 2014. The politicisation of university tuition fees is largely held as the key factor explaining their unsuccessful introduction in Germany. Political parties were keen to latch onto their image as markers of social equality and justice, and regularly used them as shorthand for their own vision of public policy and social mobility. According to the Green Party in 2010, for instance, tuition fees had “a selective effect in society, turn potential students away and put an additional financial burden on students and their families” (Bündnis 90/Die Grünen, 2010). This politicisation was most keenly felt through the federal landscape of the German university system. Ultimately, not even half of the German Länder brought in tuition fees. This piecemeal approach in itself prevented any wider, even reluctant, acceptance amongst the German public that tuition fees may be a necessary means by which to boost the finances of universities. The federal system and non-congruent Landlevel elections also mean that Germany is in a permanent state of electoral campaigning. Tuition fees became a key rallying cry and marker of difference between rival political parties (Konegen-Grenier, 2013); indeed, 5 of the 7 decisions to abolish Land-level tuition fees were taken after a change of party leadership in that Land.

4

Higher Education Governance and the Federal Reform Debate

It was against this backdrop of a “modernisation” of internal governance structures, “internationalisation” and a new public management-inspired reconfiguration of the relationship between university authorities and the

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Länder administrations that the first federal reform Commission began its deliberations in late 2003. Debates within the federal reform Commission exposed divergent opinions on the regulation of the higher education system both along party lines and between the Länder themselves, as well as vertically between the federal government and the Länder. From the outset, it was clear that the Commission’s global aim to reduce interlocking policy-making, clarify and rebalance competence levels and thus streamline decision-making would face a spectacularly tricky conundrum in the area of higher education. Given that in Germany, education is categorically (and symbolically) an area of Land-level governance, it is therefore an area where we can expect to see policy differentiation at a horizontal level; research policy is at the other end of the spectrum, a federally regulated policy field where uniformity is a key goal (Pasternack, 2011: 23). It very quickly became evident that higher education reform would have to embrace regional preferences but also accommodate the need for country-wide uniformity in standards—even more so than in the area of school-level education given that university students and researchers are much more mobile than school pupils and teachers. In a sense, this presented a poisoned chalice to the Commission, which struggled to embrace these seemingly mutually incompatible demands. It is perhaps therefore unsurprising that education issues proved to be the one area on which the entirety of the Commission’s work was to come unstuck.2 The first proposals on constitutional changes to the Basic Law on education governance, which were put forward by the reform Commission on 13 December 2004, failed principally due to a lack of agreement on higher education policy (Münch, 2005). However, the Commission had managed to find agreement on a number of higher education issues quite early on in the deliberation process and with relative ease.3 The first of these was the potentially controversial dimension of building work on university property 2 In the Commission’s deliberations, there was no clear separation on the issue of education between higher education and school-level education. At a symbolic level, education was a red line for the Länder, with their demands that they take back control over all aspects of this policy field, “from the Kindergarten through to the post-doc (Habilitation)”, as the speaker of the CDU fraction in the Commission, Norbert Röttgen, had termed it (Arbeitsgruppe 1, 15.1.2004, Protokollvermerk p. 2). 3 Tuition fees were not part of the discussions in the Commission; at the end of January 2005 the FCC was due to rule on the legality of these in any case.

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(Hochschulbau). The power to lead on the building and renovation of universities is a significant one in the context of German federalism; “Hochschulbau ist Hochschulpolitik” (“the building of universities is higher education policy”) is something of a slogan here—whoever gets to lead on decision-making with regard to the physical infrastructure of university buildings has an opportunity to steer investment decisions and thus the wider agenda of higher education policy in Germany (Feuchte, 1972: 202). Early on in the Commission’s deliberations, there was agreement on both sides that Hochschulbau should become a Land-level competence. Up until this point, the federal government and the Länder had financed renovation works and new building works for universities jointly—as one of the Joint Tasks. In future, however, only issues of cross-regional importance like supercomputers for instance, should receive federal funding (Süddeutsche Zeitung, 2010). Secondly, the Länder wanted to get rid of the HRG which prescribed for them, for instance, what kind of conditions Professors had to meet in order to secure a position, how long a period of study should last, on average, or how students should be selected for those disciplines where there was an intake quota, such as medicine. The federal government was in agreement with the Länder on all of this, and was prepared to limit its role in future to a degree of influence on university admissions and qualifications (Scharpf, 2006b: 101). These achievements were made possible thanks to some background horse-trading; the federal government was offering to step back on university education, and give greater independent authority to the Länder, in exchange for securing some powers back from the Länder in areas of decision-making on the EU and on atomic energy (Süddeutsche Zeitung, 2010). While the federal government was only prepared to get rid of the Joint Task on Hochschulbau, as set out in Article 91a of the Basic Law, the Länder demanded that the issue of educational planning (Article 91b) also be deleted from the Basic Law. They also wanted to be engaged in the federal government competence on “general principles of higher education” (Scharpf, 2006b: 101). The Federal Education Ministry was not represented in the Commission, and as none of the other federal ministers expressed any preferences on the issue of higher education, the demands of the Länder were not addressed to any extent during the first 6 months of deliberation.

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Party Political Views on Proposed Changes Then, in June 2004, two of the SPD Members of the Bundestag sitting on the Commission, Voker Kröning and Ortwin Ronde, put forward a proposal for a new Article 104b of the Basic Law, which would replace the previous Joint Tasks covered in Articles 91a and 91b. The following extract from this proposal caused outrage amongst a number of the Landlevel representatives on the Commission: the federal government and the Länder can work together to achieve an improvement in living conditions by completing tasks collaboratively where there is a legitimate state-wide interest, in …. the development of the education sector, including support for institutions, scientific research agendas and universities. (Kommissionsdrucksache 0057—own translation)

A number of Minister Presidents were so incensed by the u-turn this represented to what they felt had already been tacitly agreed on education issues, that they threatened to pull the plug on the entire work of the Commission (Scharpf, 2006b: 102). The issue thus had to be parked for a while, and as time was never then found for a full discussion of the Kröning and Runde proposals, the disagreements still continued to figure in the final sitting of the Commission. By contrast, the conflicts over the removal of framework legislation for higher education proved less problematic though still challenging to resolve. In the project group, the federal government had put forward its demands for sole or concurrent federal legislative power over admissions to higher education institutions, degree awards, quality assurance as well as scientific staff (PAU 3/12). The Länder, on the other hand, demanded a complete removal of all framework legislation. They did, however, concede that university admissions, qualifications and degree awards, as well as quality control, should indeed be managed centrally; they wanted to do this not through additional legislation, but by way of self-coordination, using mechanisms such as agreements to achieve end goals (PAU 3/16). The working group on this particular issue, project group 3 was unable to secure an agreement over this difference in opinion (Scharpf, 2006b: 102). No agreement could be found either on the issue of responsibility for educational planning in higher education (Article 91b), and the Länder were not prepared to enter into any talks on alternative financing models for universities. By December 2004, it became clear that neither side

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was prepared to withdraw entirely from the higher education policy area (Scharpf, 2006b: 102–103). Ostensibly, the main cleavage at this juncture was between federal and Länder perspectives on the future of higher education governance, rather than between partisan ideas. Co-Chair of the Commission, Bavaria’s Minister President Edmund Stoiber’s emphasised this: for him, a clearer separation of powers between the federal and Länder level meant also that mixed financing arrangements, the Joint Tasks and other complex financial arrangements needed to be dissolved—“das is sozusagen das zentrale Ziel ”—that is in essence the primary goal (Kommission, 2004). Yet while from the outset the Minister Presidents of the Länder had been able to present a united front within the Commission on the issue of higher education as a whole, this Land-level perspective masked serious differences in perspectives between the 16 Länder themselves, the key difference being financial. What undermined coherence were the different perspectives on future financial arrangements, running along the salient fault line of recipient/donor Länder in the financial equalisation programme (Nehmerländer/Geberländer). This became clear quite quickly in the fact that the demands for greater fiscal autonomy put forward by richer southern Länder, had to be removed from the final draft of a joint Länder position paper early in the Commission’s work (Scharpf, 2006a: 9). The weaker Länder regarded these sorts of powers within the federal system as a means by which to introduce a potentially “ruinous” intra-German competition. These differences were also evident in how the political leaderships of the Länder positioned themselves within the debate on the future of higher education governance. Those Länder governments led by the CDU/CSU, amongst them the economically powerful Länder, along with NRW, argued in favour of a complete transfer of authority of responsibility for higher education policy to the Länder. They wanted no further federal government responsibility in the framework legislation on admissions to university. In addition, they wanted to see an explicit ban on cooperation between the federal government and the Länder in the area of higher education (Krings, 2007: 76). This view was a means to prevent mission creep by the federal government through the back door, through the use of financial support packages to the Länder attached to various education initiatives. This they viewed as unacceptable in the area of education (Pasternack, 2011: 35). The SPD-led Länder (all apart from

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NRW) and the SPD-led BMBF at the time, on the other hand, wanted the federal government to retain an important role in higher education. External to the Commission, there were also concerns that the introduction of greater educational diversity through decentralisation of competences could be harmful to German cohesion and to national competitiveness. The leading union for higher education professionals, the Education and Scientific Union (Die Gewerkschaft Erziehung und Wissenschaft —GEW) spoke out against the decentralisation of higher education policy, saying that this would make achieving coherent educational norms across the 16 Länder hugely problematic, and would be a move towards a network of 16 separate higher education systems (Deutschlandfunk, 2009). Unions feared in particular the introduction of new categories of professional staff at universities which would complicate moves between Länder (Leischner et al., 2017). But the discussion on relative roles and responsibilities on education, both school level and university level, within the Commission was about more than merely education; it was about power politics. At a much deeper level, the posturing on education masked a squaring off between the federal government and the Länder over identity, purpose and control per se; it is only in the areas of education and culture that the Länder can really exercise their independent authority. Thus, the drawing of red lines over university education in the Commission on federal reform was not some kind of vanity project, but rather an existential question for the Länder.

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The 2006 Federal Reforms in the Area of Higher Education Governance

Given the direction of travel of change in the higher education sector since 1998, it came as no great surprise that the reforms which were developed as part of the wider package of federal reforms in 2006—itself crystallising some of the key ideas formulated in the Commission—significantly limited federal-level responsibility for higher education. The framework legislative powers for the federal government were removed from the Basic Law entirely. What remained in the purview of the federal government was solely a concurrent competence for the regulation of:

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1. admissions to universities and other higher education institutions (Hochschulzulassung ), and 2. the management of higher education qualifications (Hochschulabschlüsse)—though following a further legal change in 2008, the Länder can deviate from these. The related area of access to higher education (Hochschulzugang ) remained a Land-level competence, given that this is tightly bound up with school education. Similarly, tuition fees remained a Land-level concern. Overall, these reforms in 2006 redefined the cooperation between the federal government and the Länder in the higher education sector. Regulations governing the participation of the federal government in investment in research institutes at universities, including large machinery, were rewritten. The “Joint Task” relating to the building, renovation and extension work of university property was transferred into the sole competence of the Länder, as was the Joint Task of educational planning. The net result saw the federal government withdraw entirely from the financing of building work in higher education institutions, and cut off direct funding programmes for university education. Article 91b of the GG was rewritten. This removed the previous formulation which had allowed the federal government to finance “scientific research of crossregional importance” but this also called into question the role of federal finance in teaching as well as research, and in professional education. Further, the changes also meant that the entire clinical infrastructure was no longer able to receive financial support from the federal government, but rather was transferred entirely into the budgets of the Länder themselves (Welsh, 2010: 65) (Table 1). This complete separation of responsibility for the financing of higher education, articulated in a new Article 91b of the Basic Law, was quickly termed the “ban on cooperation” (Kooperationsverbot ), and proved ultimately to be one of the most difficult and controversial aspects of the first suite of federal reforms, as will be seen below. Article 91b paragraph 1 as it was redrafted in 2006 read: The federal government and the Länder can cooperate on issues of crossregional importance on the basis of agreements. This will be to support: 1) Scientific research institutes and agendas, outside of universities

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Table 1 Overview of changes to federal government—Länder interaction on higher education (Opportunities for federal co-financing) Pre-2006 federal reforms

Post-2006 federal reforms

University building work Educational planning Scientific institutes and research initiatives of cross-regional importance

Research aligned with certain initiatives Teaching, learning, continuing education Large-scale research facilities, large research apparatus

2) Science and research agendas within universities 3) Research apparatus for universities, including large machinery Agreements in accordance with point 1) require the agreement of all of the Länder.

Evaluation and Discussion Ultimately, the reforms of the Basic Law introduced with Federal Reform 1 in 2006 ringfenced the power of the federal government to engage in higher education policy, shifting the constitutional order back towards the original conceptualisation foreseen by the drafters of the Basic Law in 1949 (Lanzendorf & Pasternack, 2016: 35). This re-federalisation owes a lot to the power politics at the federal level after 2005; the CDU/CSUled Länder governments held relatively strong positions within the party following the Grand Coalition taking office, and alongside the majority they held in the Bundesrat at the time, this presented an effective power base which they were able to use in order to push through the Länderfriendly reforms to federalism that they had been championing in the reform Commission (Kluth, 2007: 54). Baden-Württemberg, Bavaria, Hesse, North Rhine Westphalia and Saarland all felt held back by the constant bending to the demands of the NehmerLänder and the prioritising by the federal government of the need to achieve a harmonisation across the territories. The stronger Länder wanted more policy autonomy, autonomy that at the very least Baden-Württemberg, Bavaria, Hesse and North Rhine Westphalia would be able to use on account of their economic strength and resources (Pasternack, 2011: 37). Ideological differences played less of a role, although notably, leading SPD politicians

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had threatened to hold back their support for the entire federal reform package in 2006 on account of the proposed changes to federal funding of the higher education sector, until concessions were won (Der Spiegel, 2006).

6 The Impact of the 2006 Federal Reforms to Higher Education Governance With the retreat of the federal government from the sector and refederalisation of policy control, did the 2006 reforms see the Länder making significant changes to the overall situation of the university sector in their territory? This was very much the expectation in 2006 (Lanzendorf & Pasternack, 2016: 39). Yet analysis of the raw data on developments in the sector paints a very mixed picture of the impact of this decentralisation and separation of competences. On the one hand, the 2006 federal reforms opened up seemingly limitless opportunities to restructure and manage their own higher education systems (Bleiklie & Lange, 2010). Yet on the other, the “ban on cooperation”, which the federal reforms had introduced by the back door, actually reduced the opportunities the Länder had to innovate in higher education policy to any noteworthy extent. To explore these questions fully, the following section considers in detail firstly the post-2006 regulatory landscape in the Länder, analysing key dimensions of change, as and where these exist. It then moves on to explore how the new financial architecture has played out in the Länder and the impact that the 2006 reforms made to how the university sectors in the 16 Länder are resourced. The New Legislative Landscape Reforms to Land-level laws after 2006 allowed for legislative innovation in the degree to which state authorities retained some element of managerial control over universities, while facilitating the shift towards institutional autonomy for the universities themselves that was seen as so fundamental to enhancing their global competitiveness. Power was no longer solely concentrated in the Land ministries, but they retained important functions, driving competition, change and quality assurance (Bogumil et al., 2008). However, each of the 16 Länder has implemented this differently, and at a different pace, with differences in approach based

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on issues such as respective historical circumstances, partisan constellations and fiscal situations (Keller & Dobbins, 2015). The leaders and policy entrepreneurs such as Bavaria were quick to redraft Land laws on university education; others were content to continue with the operationalisation of the HRG. Thüringen, for instance, only produced its first post-federal reform higher education law (Landeshochschulgesetz) in 2018. Differences in the new Länder models of regulation encompass factors such as the degree of Land authority participatory rights in university governance arrangements, the extent to which Länder ministries can influence different aspects of university administration, notably the election of university bodies, or the extent to which this is undertaken by the university senate (see for instance Burgi & Gräf, 2011). Analysis of the legal status of universities shows how CDU-led Lower Saxony, for instance, allowed universities to choose their own legal status, offering scope for them to be considered charitable foundations or similar (Hildebrandt & Wolf, 2016: 10). Other Länder had found legal approaches which moved universities towards something of a service provider rather than a public good (Hildebrandt & Wolf, 2016: 12)—a Dienstleistungsunternehmen). Taking these points into consideration, we can bracket together the 16 different forms of Land legislation on contemporary higher education into one of 6 different categories of regulatory models are shown in Table 2. Explaining Partisan Variation There is no neat partisan distinction to explain the development of Land legislation on higher education in the post-2006 era. The 6 clusters of “types” of law on the regulation of this policy space set out in Table 2 do not match up exactly with party leaderships at the Land level over time. But this is not to suggest that partisan ideology has not played a role in the emergent legislative landscape on higher education in Germany. Successive reforms in the Land laws on higher education have presented a back and forth between socialist and conservative ideologies on how to establish a new paradigm of state control of universities, in the face also of pressure to both “internationalise” and to modernise the sector.

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Table 2 2006

New models of state-university governance in the Land laws since

Cluster

Länder

Primary legislative emphases

Group 1

Bremen, Mecklenburg-Lower Pomerania, Saxony-Anhalt

Group 2

Berlin, Rhineland Palatinate

Group 3

Brandenburg, Lower Saxony, Saxony, Schleswig–Holstein

Group 4

Hesse, Saarland

Group 5

Baden Württemberg, Bayern, Hamburg, Thuringia

Group 6

North Rhine Westphalia, as an outlier

Land authorities have little influence on the selection of the University council, but are moderately powerful in the election of the university’s leadership roles Land authorities are more strongly empowered to have a role in the selection of the university council, but are comparatively weak when it comes to playing a role in deciding on university leadership appointments Land authorities have comparatively strong roles when it comes to selecting new leadership positions within the university and in the management of the university council selection process Land authorities are particularly powerful when it comes to choosing new university leadership positions, and are reasonably strongly empowered to engage in the selection process for membership of the university councils Very strong roles given to the Land authorities when it comes to selecting representatives to sit on the university councils, yet only moderate roles to the Land authorities for the selection of new university leadership positions State authorities having no role whatsoever in the selection process for new university leadership positions, and only a moderately powerful role to play in the selection of the university council

Source Burgi and Gräf (2011), Keller and Dobbins (2015) and own calculations

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Controversies in Developing New Modes of State-University Governance: The Case of North Rhine Westphalia The history of Land legislation on higher education in North Rhine Westphalia since the federal reforms serves as something of a showcase in partisan differentiation in this policy sector. In 2007 the CDU/FDP government in North Rhine Westphalia introduced a controversial new “university freedom law” (Hochschulfreiheitsgesetz), which saw the Land decide to manage its universities as corporate bodies under public law (Körperschaften des öffentlichen Rechts ). Essentially, this saw the Land authorities in North Rhine Westphalia give up their functional supervision of the university sector and to provide the universities themselves with the powers to manage their own day to day business. This law was a beacon at the time, a stand-out piece of Land-level legislation on universities that shook up the higher education landscape in Germany. At the time, it presented the most sharply articulated move away from a traditional, Humboldtian model of higher education towards a competitive model. But this move did become something of an area of partisan conflict; in 2009 the then-SPD candidate for Minister President, Hannelore Kraft, began to express concern that moves to guarantee university autonomy had “gone too far” (Keller & Dobbins, 2015: 40). The SPD election manifesto therefore made it clear that the party wanted to bring some of the decision-making capacity on issues of planning and of budgetary management back to the Land authorities. CDU politicians were particularly vocal in their criticism of how the new law would reintroduce a faculty oversight process (Fachaufsicht ) and allow the Land authorities to make concrete proposals on university research agendas (Hildebrandt & Wolf, 2016). In 2014, the SPD-led administration introduced a new law which repealed many of the university freedom law’s provisions, and increased the role of the state through an anchoring of the Land science ministry in university oversight processes. Reversing this subsequently became a leitmotif of the CDU’s 2017 election campaign manifesto in North Rhine Westphalia and once in office again, the party rapidly brought forward proposals on a subsequent higher education law. “Wir stellen die Hochschulfreiheit wieder her” (“we will reinstate freedom for universities”) (CDU Nordrhein Westfalen, 2017: 74). The newly elected CDU/CSU—FDP Land government in North Rhine Westphalia did

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then indeed bring forward new proposals in 2018 for amending legislation on higher education in North Rhine Westphalia, which aimed to re-enact the “spirit” of the former Hochschulfreiheitsgesetz (Landtag NRW, 2018). In 2019, this then replaced the previous, SPD-drafted text. But as Pasternack rightly notes, the partisan dimension alone is not a reliable indicator of the direction of change (Lanzendorf & Pasternack, 2016; Pasternack, 2011). For this reason, we need to consider a fuller range of measures to make sense of how variation has played out in the post-2006 landscape of higher education legislation. The New Financial Landscape of Higher Education On any measure it is difficult to suggest that the retreat of the federal government from the sector in 2006 has had a significant impact. Change across the sector has been minimal and on average, the amount of financing given by the Länder to their university sectors over the last 15 years, in relation to their GDP, has not changed significantly (Baumgarth et al., 2016: 11). Where there have been increases, these have been marginal (Saxony-Anhalt for instance spent 0.9% of its GDP on higher education in 2013, compared with 0.86% in 2004). Berlin, Bremen, Mecklenburg-Lower Pomerania, Saxony-Anhalt and Thuringia all have a lower than average Land-level GDP, but yet still invest more than the average level in their universities. On levels of spend per university student, the biggest improvements have been made in some of the economically weaker Länder, namely Brandenburg, Mecklenburg-Lower Pomerania and Thuringia as well as the Saarland. The picture has worsened significantly in Hesse, Bremen, and in particular, in North Rhine Westphalia. These Western states do not share similar profiles: though all are relatively weak financially, Bremen as a city state has a university sector larger than its population would merit, as it draws in a large percentage of its students from surrounding Länder. On the staff–student ratio (SSR), we can see a relatively stable picture over time. The starkest contrasts can be seen in Berlin, where the SSR rose from an average of 18.3 in 2004 to 22 in 2016. Notable improvements were seen in another one of the city states that draws in students from other Länder, Bremen. Here, the SSR improved from 21.9 at universities in 2004, to an average of 18.1 by 2016. In Hesse, there was a marked worsening of the SSR over the time frame, rising from an average of 16.7 in 2004 to 23.6 in 2016, the worst decline of all of the Länder.

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Analysis of spending per Land illustrates further the intra-German marketplace for higher education. This perspective sheds light on how higher education in Germany is a story of variation over the territory, with some Länder spending disproportionately less on their higher education provision, yet benefitting from a highly qualified graduate workforce pursuing careers in their Land economy, despite the cost of their training having been borne by a different Bundesland. Bavaria, with its successful, high skill economy, is a case in point in this regard. The Land economy has a constant high demand for a highly skilled workforce, such as university graduates. And yet, measured against its GDP, Bavaria invests relatively little into its universities. Instead, it profits by drawing in people with a university-level qualification into its economy, whose education has been paid for by one of the other 15 Länder. The city states in particular tend to be caught in this trap of paying to upskill young people with university education, then losing them to careers in other parts of the country (Der Tagesspiegel, 2017). Other Länder which win from this situation tend also to be the big Western German Länder with strong economic profiles and greater employment opportunities, such as Baden Württemberg, Hesse and North Rhine Westphalia. In fact, an estimated 35 percent of university graduates move from one Land to another after graduation in order to find employment (Arends, 2017). Evidently, there is no consistent picture to the development of key indicators across the sector which can be attributed directly to the governance reforms brought in by the constitutional amendments of 2006. The new competence order that the federal reforms dictated have not had a marked impact on the nature of the student experience, for instance, which is determined in large part by factors such as government spending on higher education or the SSR. However, these statistical indicators need to be read in context, and there have been supplementary developments within the sector over the period since the federal reforms were introduced in 2006, which have further changed the higher education landscape across the Länder. Human Resources at Universities Following the Federal Reforms Arguably, changes to staffing policy under the new Länder regulations, such as the categorisation of certain types of professional positions at universities, can be regarded as the most significant example of diversification within the sector to have been introduced by the 2006 reforms

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(Reus & Vogel, 2018: 47). The strongest degree of variation between the Länder can be found in their choices on introducing new categories of professional staff such as teaching professorships (lehrgeprägter Professuren) or research professorships (forschungsgeprägter Professuren), teaching only lectureships (lehrgeprägter Hochschullehrerpositionen) or the introduction of a new category of staff, the academic official (akademischer Mitarbeiter) (Reus & Vogel, 2018: 47). Yet this has not served to restrict the academic job market, but rather forms a core element of the shift towards a more competitive model within the university higher education landscape in Germany. Beyond the differences between the Länder, the universities themselves, since 2006 now governed at even greater arm’s length by the Land legislation on personnel issues, have been able to experiment considerably with new staffing policies, within the national-level framework, where relevant, of the law on temporary contracts in science (Wissenschaftszeitvertragsgesetz). This has ultimately led to a great deal of variation not simply between the Länder but between individual universities across Germany, who offer considerably different working terms and conditions—a key element, of course, of their agenda to compete for the best global scientific talent. At least half of all Land-level ministries for universities and higher education are now no longer involved in the appointments process for Professorships at Universities in their Land, whereas they had previously enjoyed approval rights (Leischner et al., 2017). Yet despite examples of diversification in the human resources practices within the higher education sector around the country, coherence has been maintained by the horizontal coordination mechanism of the KMK. A test case on professorial salaries in 20124 which had seen the Constitutional Court (FCC) rule in favour of a more common approach to performance-related pay, led to the KMK publicly stressing its renewed commitment to systemic coherence “against the backdrop of the nationwide responsibility that the Länder have acknowledged in the wake of the reforms to German federalism” (KMK, 2012). The KMK had already agreed in a previous resolution in 2008 (12.06.2008) to maintain comparable working conditions for university staff, by keeping the core elements 4 On 14.2.2012 the FCC ruled that the pay for W2 level professors in Hesse conflicted with the “alimentation principle” written in the Basic Law (Article 33, Paragraph 5) and was, therefore, unconstitutional.

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of their regulatory frameworks the same. But this agreement in 2012, in the wake of the FCC ruling on W2 professorships, saw the education ministers of the Länder agree expressly on a set of guiding principles on pay for professors. The aim was to meet the objectives of the Basic Law’s ambitions for an equivalence of living conditions across the entire territory of Germany; it would also allow for mobility of scientific staff and would avoid competitive distortions. Despite the KMK’s claims that this was not a move to harmonise the actual levels of pay across the territory, this intervention did in effect serve to limit the extent of innovation and experimentation on this particular policy competence.

7 The Continuing Reform Dynamic Since the 2006 Federal Reforms: Subsequent Changes to Higher Education Governance in Germany One of the greatest tests of the relative “success” of the constitutional amendments decentralising higher education governance in Germany in 2006 is an analysis of their durability. To what extent have, in the intervening years, further changes been undertaken? Did the solution achieved in 2006, with its ringfencing of competences and uncompromising stance on federal government involvement in the policy field through financial programmes prove sustainable? To assess this, we can consider the development of the regulatory context of higher education governance in Germany over the years since 2006. A number of new schemes and initiatives have been brought forward by the federal government, driven primarily by an agenda to enhance further the international competitiveness of German universities rather than to upset the federal balance. The realities of the modern higher education landscape demand a fuller oversight function for the federal government than the Länder were perhaps prepared to admit in 2003/2004, and indeed, even in the 15 or so years since then, the globalised higher education marketplace has taken on its own new dynamics. This section therefore assesses the federal reforms of 2006 in the context of subsequent changes to the policy sector in Germany. It explores the changing contextual factors which have served to reshape further Higher Education governance in Germany, notably the development and impact of two nationally run funding schemes, the University Pact 2020

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(Hochschulpakt ) and the Excellence Initiative, while also assessing how the controversial Kooperationsverbot came to be lifted ten years on. Further contextual pressures for change have been presented by the embedding of the Bologna process and its aims within the German higher education environment. Thus, while the federal reforms of 2006 were clearly a marker of change and of political intent, they were by no means the end of the story; what has happened since helps to shed light on the significance and impact of the 2006 changes as a reform “moment”. The Hochschulpakt (University Pact) 2020 Although the federal reforms of 2006 left the federal government with less of a role to play in higher education policy than before, the social and economic reality of that particular era led to a unique situation where the Länder governments were massively in need of federal support. The first pressure point on this new system was largely demographic, though also social. Demand to study at university grew on account of both a spike in the birth rate and a general increase in young people wanting to receive a university education. Further, the abolition of the compulsory military service year between school and university, as well as the reduction of the number of compulsory pre-tertiary school years by one year meant a sharp spike in demand for university places, felt particularly acutely in the statistics for the years 2008–2011. Over this three year period, the number of students beginning a degree programme in Germany rose by around one third (Lanzendorf & Pasternack, 2016: 44). Clearly, this rapid increase in numbers was going to put pressure on the higher education systems of the Länder. As they alone were now responsible for the building and development of university infrastructure, they were under some pressure to find enough teaching facilities to cope with this sudden surge in demand for university places. Against this backdrop, then, a new arrangement for federal funding to the higher education sector in the Länder, the Hochschulpakt 2020 (University Pact 2020) was approved between the federal government and the Länder in 2007. This was something which had been so vehemently rejected by the supporters of a federally structured higher education system during the reform Commission process in 2003/2004, yet the reality meant that this additional funding was desperately needed, and would essentially serve to create a level playing field across Germany (Pasternack, 2011: 44). The Kooperationsverbot (new Article 91b of the

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Basic Law) had vastly reduced the extent to which the federal government was able to engage in any form of financial support for the higher education system in Germany. This hindered in particular long-term financing, i.e. financial support which is independent of any specified programme or initiative. The Hochschulpakt could address this deficit, but it nonetheless did also offer the federal government a new opportunity to exercise indirect influence on the structural conditions at universities in Germany (Baumgarth et al., 2016: 118), even after this had so clearly been rolled back by the 2006 federal reforms. Agreed in 2007, the first Hochschulpakt was worth e566 million in matched funding to the Länder. The funding allowed universities to accept around 275,000 additional students through to 2015, and to increase, on a fixed-term basis, their level of teaching provision (BMBF, 2007). Other pillars of the support programme focused on improving study conditions and quality enhancements in teaching. A second phase, the Hochschulpakt II, ran from 2011 to 2015, providing EURO 3.2 billion to support a further expansion in new student numbers as well as to improve access to higher education for people holding vocational qualifications, and a third phase, running from 2016 to 2023 focuses on delivering a new range of courses for an additional 760,000 new students and also included an objective to reduce student dropout rates (BMBF, 2007). The University Pact has made a significant contribution to the financial situation of universities in Germany. In Bremen and in Thuringia, for instance, 85% and 89%, respectively, of the growth in real terms of the financial support given to this area between 2004 and 2013 is directly attributable to the University Pact (Baumgarth et al., 2016: 7). The percentage of the University Pact’s contribution to basic university running costs in four Länder, Hamburg, Hesse, Lower Saxony and Rhineland Palatinate, is as high as 25% (Der Tagesspiegel, 2017). Thus, analysis of the post-2006 financial landscape for universities points to an increasing role for the federal government in the financing of higher education (Ziegler, 2016). The Excellence Initiative One of the main factors influencing the wider higher education landscape in Germany was the launching in 2005 of the German “excellence initiative”, which aimed to reduce a perceived gap between German and the

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highest standard global research (DFG, 2013). The introduction of this initiative saw substantial changes to the funding of higher education institutions in particular, with relatively large sums being directed towards universities and research institutions in general. Its global aim was to strengthen the international competitiveness of German universities through the establishment of research centres for PhD students and post-doctoral researchers, clusters of excellence linking universities with research institutes and businesses, and the selection of a top-ten set of “Universities of Excellence”, a Germany Ivy League so to speak, to promote world-class research (Dobbins & Knill, 2017: 80). This accolade possibly had the effect of drawing in the brightest students and researchers thereafter (Lange, 2009: 87), but more significantly, it guaranteed them around e25 million in additional funding per year. This was not without its critics though as this agenda to develop what were perceived as elite universities caused an outcry in Germany for breaking a long-standing social democratic taboo—by supporting and promoting elite institutions (Kehm, 2014). The outcome of the bid process did nothing to support further a federal model of equality of education; none of the 10 elite universities chosen were located in the former GDR territory. Four were from the prosperous state of Baden Württemberg, three were in Bavaria and one each was located in North Rhine Westphalia, Bremen and Berlin. From the perspective of federalism, this dimension of the excellence initiative illustrated territorial inequality, promoting further the notion of diversity. The excellence initiative has had a profound effect in multiple and at times unanticipated ways. It has created new momentum even amongst institutions that were not selected. It has fuelled functional differentiation, encouraged Land ministries to initiate their own competitive grant programmes and led to new networks between universities and research centres outside of universities (Welsh, 2010: 60). These in themselves have created new forms of federal government—Länder interaction on higher education management. Despite the separation of competences set out in the 2006 reforms, these have established through the back door a means by which the federal authorities can seek to exert some form of control and national oversight function over developments in the 16 Länder HE systems. In their analysis of the excellence initiative, for instance, Schimank and Lange describe the dynamics of the interactions thus: “The federal government wanted to ‘buy’ itself some form of institutional influence at the best German universities; the Länder just wanted

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the money” (Schimank & Lange, 2006: 339). So while these new pacts did allow for “mission creep” on the part of the federal government, and re-instituted some degree of control within the sector, the fact that these new funding and support schemes were even agreed upon does suggest a willingness on the part of the Länder to compromise on their claims to autonomous competence over HE, in spite of some more hard line views having been expressed in the reform Commission. Pragmatism trumps federal norms. Redrafting Article 91b and Lifting the Ban on Cooperation Of all the amendments to the legislative framework regulating Higher Education in Germany after 2006, the amendments to Article 91b and with these, the so-called Kooperationsverbot have been the most controversial. Its provisions proved problematic, and led to bitter discussions in subsequent years about its purpose, its negative impact and the problems it had brought about for the introduction of important new science and research policy initiatives, even those which found wide support at both the Länder and the Federal Government level. Ultimately, the situation proved unworkable on all sides. After 10 years of operation, this separation of competences, the ban on cooperation between the federal government and the Länder in science and research apart from on issues of trans-regional importance, was found to be no longer viable. As a result, on 1 January 2015, a replacement Article 91 Paragraph 1 of the Basic Law became law. The new formulation of the constitutional provision now listed teaching specifically as an area where cross-regional cooperation would be permitted. The term “projects” (Vorhaben) was also deleted from the wording of this paragraph, meaning that there was no need to place any kind of time limit on specific cooperation between the federal government and the Länder in their support for science, research and teaching. The redrafting of Article 91b was met with expectations on the part of the Länder that it would lead to an improvement in the financial situation of their universities (Bulmahn, 2015: 7), given that the new provisions would allow for more longer term, institutionalised co-financing of universities by both the federal government and the Länder (Speiser, 2016: 8). The new Article 91b significantly expanded the opportunity for the federal government to play a part in the financing of universities,

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re-engaging them more extensively in the steering of the sector. In addition, the federal government can, together with the Länder develop new measures to improve conditions for future scientific research. Cooperation between non-university research institutions and universities are as a result of this constitutional amendment now also able to draw down federal financial support. One early example of a new co-financing programme that this constitutional provision has enabled was the BMBF initiative to create 1000 tenure-track professorships around the country, which must be bid for competitively (Wanka, 2015). The Embedding of the Bologna Process in German Higher Education Since its inception in 1999, the Bologna process for EU member states has also played a significant part in the development of the German higher education landscape, but has served to contradict many of the effects of the 2006 federal reforms by imposing constraints on the Länder administrations to develop independent models of higher education governance. The Bologna agreement itself was signed, on behalf of Germany, by both the federal government and by the Länder, so its impact necessarily touches on Länder controls of the higher education landscape. Bologna and its attendant benchmarking processes encourage a convergence of national higher education systems towards a series of transnationally promoted external policy models (Dobbins & Knill, 2017: 69); these pressures to create a transnational European higher education space offered further support to reformists within Germany who were seeking to continue reforms towards the modernisation of the German Higher education system after 2006. Thus, institutional innovation within the sector, such as the creation of university councils (Hochschulräte) and their inclusion of external stakeholders, and new quality assurance schemes (Dobbins & Knill, 2017: 75) can be linked to the influence of the Bologna agenda. A new accreditation system for degree programmes, for instance, was established jointly by the German university leaders’ forum, the University Rectors’ Conference (HRK) and the KMK. Under this new arrangement, accreditation agencies have assumed the role formerly held by the Land ministries in programme approval, alongside the Foundation for the Accreditation of Study Programmes in Germany, which assumes the role of coordinator and monitoring agency (Welsh, 2010: 64). Ultimately, then, there is a concern that the Länder space for autonomy in higher education governance has been hollowed out by

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wider internationalising processes, primarily Bologna, with its emphasis on homogenising higher education structures and requirements across all countries and programmes (Toens, 2009). These external agendas need to be regulated in a uniform manner, in order to provide for a level playing field not just within Germany but Europe-wide, and this runs counter to the ambitions presented by the Länder during the reform debates of the early 2000s to ringfence autonomy in the area of higher education (Scharpf, 2006a). In reality, Bologna simply presents a further constraint on governmental autonomy alongside other legal frameworks which regulate working times, pay, minimum wage legislation and such like (Hüther, 2008).

8

Conclusion

There was always differentiation between the German Länder in the higher education sector. Indeed, in aspects such as the size of the higher education sector in each Land, their development, the number of students enrolled on courses at different types of higher education institution (Fachhochschule or University and such like) has meant that different Länder consistently had different priorities and objectives. The decentralisation of authority introduced by the federal reforms of 2006, however, did offer the Länder further scope to manage those differences, to structure and remodel their own higher education systems in line with regional priorities. However, certain contextual factors have ultimately served to constrain net policy diversity meaning that while there has been a degree of differentiation, this has perhaps not been to the full extent which might have been predicted on the basis of the changes that the federal reforms brought about. Taking into consideration how the sector has developed in the 16 Länder overall, what we can see is a more or less parallel development trajectory, with differences only really noticeable in the management of certain priority issues such as the relationship between state authorities and the universities themselves, or university staffing. Overall, the federal reforms achieved the “disentangling” of the complex array of joint decision-making arenas within higher education policy. As a net result, the reforms reduced the cooperative federal elements of the policy area and set out the opportunities for more competitive federalism in this sector. But, the reform of federalism itself was not the sole driver of change; important decisions had already been taken in the late 1990s and early 2000s which were pushing reform in

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the higher education sector already, prior to the federal reforms. Subsequent federal government initiatives such as the excellence initiative or the University Pact 2020 also ran counter to the notion of strengthened autonomy in the higher education sector. For those who saw the federal reforms of 2006 and their implications for higher education governance as an expression of “parochialism”, and likely to undermine Germany’s wider global ambitions of research and teaching excellence, these fears have not been proven correct. There has been no obvious race to the bottom across the territory of Germany since the reforms were instituted. We have not witnessed a move to an outright system of competition for students and research talent between the 16 Länder on account of different policy frameworks governing higher education regionally. Nor has there been a significant or even variable drop in the resources allocated to higher education across the Länder. Instead, the picture has remained relatively consistent, as the above discussions have shown. Where there has been innovation, this has largely been peripheral, such as in the varied extent of Land control of the governing student councils, or how these are constituted. Levels of financing made available by the Länder to their university sectors has remained consistent; 2006 was not a trigger of real change on this measure. On the issue of higher education financing, the evidence of a possible race to the bottom is similarly scant. Any appetite within Land leaderships for policy entrepreneurship in the area of higher education is ultimately tempered by fiscal realities.

References Amaral, A., Meek, V., & Larsen, I. (Eds.). (2003). The higher education managerial revolution? Kluwer. Arends, H. (2017). Equal living conditions vs. cultural sovereignty? Federalism reform, educational poverty and spatial inequalities in Germany. Publius: The Journal of Federalism, 47 (4), 673–706. Baumgarth, B., Henke, J., & Pasternack, P. (2016, November). Inventur der Finanzierung des Hochschulsystems. Mittelflüsse, Kontroverse und Entwicklungen im letzten Jahrzehnt (Working paper Stuudienförderung Nr. 001). Hans Böckler Stiftung. Bleiklie, I., & Lange, S. (2010). Competition and leadership as drivers in German and Norwegian university reforms. Higher Education Policy, 23(2), 173–193.

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Bogumil, J., Heinze, R. G., Grohs, S., & Gerber, S. (2008). Hochschulräte als neues Steuerungsinstrument? Eine empirische Analyse der Mitglieder und Aufgabenbereiche. Abschlussbericht der Kurzstudie. Hans-Böckler-Stiftung. Bulmahn, E. (2015). Introduction. In Friedrich Ebert Foundation (Ed.), Neuer Artikel 91b GG: Was ändert sich für die Wissenschaft? Publikation zur Konferenz am 19. Mai 2015. Friedrich Ebert Stiftung. Bundesministerium für Bildung und Forschung. (2007). Bekanntmachung der Verwaltungsvereinbarung zwischen Bund und Ländern über den Hochschulpakt 2020. BMBF. Bündnis 90/Die Grünen. (2010, April 20). Studienfinanzierung neu denken. Grünes Zwei-Säulen-Modell statt dürftiger BAföG-Reform und elitärem Stipendienprogramm (Fraktionsbeschluss). Retrieved December 22, 2022, from http://www.gruenebundestag.de/fileadmin/media/gruenebundestag_ de/fraktion/beschluesse/studienfinanzierung.pdf Burgi, M. & Gräf, I.-D. (2011, February 15). Typologie der Landeshochschulgesetze. Paper presented at forum on the new Länder higher education laws, Ruhr University, Bochum. CDU Nordrhein Westfalen. (2017). Zuhören. Entscheiden. Handeln. Regierungsprogramm der CDU für Nordrhein-Westfalen 2017–2022. Retrieved January 18, 2022, from https://www.kas.de/de/web/geschi chte-der-cdu/wahlprogramme-des-cdu-landesverbands-nordrhein-westfalen Der Tagesspiegel. (2017, January 1). Starke Länder tun zu wenig. https://www. tagesspiegel.de/wissen/geld-fuer-hochschulen-starke-laender-tun-zu-wenig/ 19196398.html Detmer, H. (2004) Das Recht der Universitätsprofessoren. In M. Hartmer & H. Detmer (Eds.), Hochschulrecht. Ein Handbuch für die Praxis (pp. 46–123). C.F. Müller. Deutsche Forschungsgemeinschaft (DFG). (2013). Positionspapier der DFG zur Zukunft des Wissenschaftssystems. https://www.wissenschaftsmanagement-onl ine.de/beitrag/positionspapier-der-dfg-zur-zukunft-des-wissenschaftssystems Deutschlandfunk. (2009, April 8). Das lange Sterben des Hochschulrahmengesetzes. https://www.deutschlandfunk.de/das-lange-sterben-des-hochschulrah mengesetzes.680.de.html?dram:article_id=37393 Dobbins, M., & Knill, C. (2017). Higher education governance in France, Germany and Italy: Change and variation in impact of transnational soft governance. Policy and Society, 36(1), 67–88. Feuchte, P. (1972). Hochschulbau als Gemeinschaftsaufgabe. Die Verwaltung, 1972(5), 199–222. Förster, C., & Klenk, J. (2012). Innovationskraft trotz Vetospieler: Bildungspolitische Reformen im deutschen Föderalismus. WS Mitteilungen, 65, 412–418. Hildebrandt, A., & Wolf, F. (2016). How much of a sea change? Land policies after the reforms of federalism. German Politics, 25(2), 1–16.

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Hüther, O. (2008). Starke Dekane – Schwache Professoren? Vergleich und Analyse der deutschen Landeshochschulgesetze. Hochschulmanagement, 3(1), 23–27. Hüther, O. (2010). Von der Kollegialität zur Hierarchie? Eine Analyse des New Managerialism in den Landeshochschulgesetzen. Springer. Hüther, O., & Krücken, G. (2014). The rise and fall of student fees in a federal higher education system: The case of Germany. In H. Ertl & C. Dupuy (Eds.), Students, markets and social justice: Higher education fee and student support policies in Western Europe and beyond (pp. 85–107). Symposium Books. Hüther, O., & Krücken, G. (2018). Higher education in Germany—Recent developments in an international perspective. Springer. Keck, O. (1993). The national system for technical innovation in Germany. In R. Nelson (Ed.), National innovation systems: A comparative analysis (pp. 115– 157). Oxford University Press. Kehm, B. (2014). New forms of university governance in Germany: Autonomy, self-governance and the distribution of authority. In M. Shattock (Ed.), International trends in university governance. Autonomy, self-government and the distribution of authority (pp. 17–33). Routledge. Kehm, B., & Lanzendorf, U. (2006). Germany—16 Länder approaches to reform. In B. Kehm & U. Lanzendorf (Eds.), Reforming university governance—Changing conditions for research in four european countries (pp. 135– 186). Lemmens. Keller, A., & Dobbins, M. (2015). Das Ringen um autonome und wettbewerbsfähige Hochschulen: Der Einfluss von Parteipolitik, fiskalpolitischem Problemdruck und historischen Vermächtnissen auf die Hochschulpolitik der Bundesländer. Beiträge zur Hochschulforschung (2), 28–55. Kluth, W. (2007). Föderalismusreformgesetz. Einführung und Kommentierung. Nomos. Knill, C., & Dobbins, M. (2009). Hochschulpolitik in Mittel- und Osteuropa: Konvergenz zu einem gemeinsamen Modell? Politische Vierteljahresschrift, 2009(3), 226–252. Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen Ordnung. (2004, July 2). Kommissionsdrucksache 0057 – neu. Vorschlag zur Neuregelung der Mischfinanzierungstatbestände der Art. 91a und b sowie Art. 104a Abs. 4 GG., mit Erläuterungen. Retrieved January 25, 2022, from www.bundesrat.de Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen Ordnung. (2004, Dezember 17). Stenographischer Bericht, 11. Sitzung. Berlin, Freitag den. Retrieved January 25, 2022, from www.bun desrat.de Konegen-Grenier, C. (2013). Sind Studiengebühren ungerecht? Ein Beitrag zur aktuellen Debatte um die Abschaffung der Studiengebühren (IW Policy Paper

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5/2013). Institute der deutschen Wirtschaft (IW). https://www.econstor.eu/ handle/10419/71271 Konegen-Grenier, C., Lang, T. Placke, B., & Winde, M. (2014). Nutzen der Unternehmen aus ihren Investitionen in akademische Bildung. Institut der deutschen Wirtschaft (IW): IW-Trends Vierteljahresschrift zur empirischen Wirtschaftsforschung. https://www.econstor.eu/handle/10419/157100 Krings, G. (2007). Die Beratungen der Föderalismuskommission. In W. Kluth (Ed.), Föderalismusreformgesetz. Einführung und Kommentierung (pp. 61– 80). Nomos. Kultusministerkonferenz (KMK). (2012, June 21). Eckpunkte zur Systematik der Besoldungsanpassung in Umsetzung der Entscheidung des Bundesverfassungsgerichts vom 14.02.2012. Beschluss der Kultusministerkonferenz vom. Lange, S. (2009). Neuer gesellschaftlicher Legitimierungsbedarf der Wissenschaft in Deutschland – Veränderungen in der Wissenschafts-Governance am Beispiel der Universitäten. In E. Böhlke, P. Laborier, A. Knie, & D. Simon (Eds.), Exzellenz durch Steuerung? Neue Herausforderungen für das deutsche und das französische Wissenschaftssystem (WZB Discussion Paper No. SP III 2009-602, pp. 70–96). www.wzb.eu Landtag Nordrhein Westfalen. (2018). Drucksache 17/468. Lanzendorf, U., & Pasternack, P. (2016). Landeshochschulpolitiken nach der Föderalismusreform. In A. Hildebrandt & F. Wolf (Eds.), Die Politik der BundesLänder (pp. 35–59). Springer. Leischner, F., Krüger, A., Moes, J., & Schütz, A. (2017). Beschäftigungsbedingungen und Personalpolitik an Hochschulen in Deutschland – Projektbericht. Insitut für Sozialwissenschaften, Humboldt Universität zu Berlin. Lynen, P. (2004). Entwicklungen des Hochschulorganisationsrechts und rechtliche Besonderheiten der „anderen“ Hochschulen. In M. Hartmer & H. Detmer (Eds.), Hochschulrecht. Ein Handbuch für die Praxis (pp. 511–545). C.F. Müller. Marginson, S., & Carnoy, M. (2018). Higher education in federal countries. In M. Carnoy, I. Froumin, O. Leshukov, & S. Marginson (Eds.), Higher education in federal countries: A comparative study (pp. 1–36). Sage. Münch, U. (2005). Bildungspolitik als föderativer Streitpunkt. Die Auseinandersetzung um die Verteilung bildungspolitischer Zuständigkeiten in der Bundesstaatskommission. In Europäisches Zentrum für Föderalismusforschung (Ed.), Jahrbuch des Föderalismus 2005 (pp. 150–162). Nomos. Pasternack, P. (2011). Die föderale Kompetenzordnung im deutschen Hochschulwesen: Entwicklung und Status. In P. Pasternack (Ed.), Hochschulen nach der Föderalismusreform (pp. 21–60). Akademische Verlagsanstalt. Preisert, H., & Framheim, G. (1990). Das Hochschulsystem in der Bundesrepublik Deutschland – Struktur und Entwicklungstendenzen. Bock.

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Reus, I., & Vogel, S. (2018). Policy-Vielfalt zwischen den Bundesländern nach der Föderalismusreform I: Art, Ausmaß und Akteure (online appendix). Zeitschrift für Vergleichende Politikwissenschaft, 12, 621–642. https://link.spr inger.com/article/10.1007/s12286-018-0406-9 Scharpf, F. W. (1988). The joint-decision trap: Lessons from German federalism and European integration. Public Administration, 66(3), 239–278. Scharpf, F. W. (2006a). Föderalismusreform: Weshalb wurde so wenig erreicht? Aus Politik und Zeitgeschichte, 50(2006), 6–11. Scharpf, F. W. (2006b). Nicht genutzte Chancen der Föderalismusreform (MPIfG Working Paper 2). Institut für Gesellschaftsforschung. Schimank, U., & Lange, S. (2006). Hochschulpolitik in der Bund-LänderKonkurrenz. In P. Weingart & N. C. Taubert (Eds.), Das Wissensministerium. Ein halbes Jahrhundert Forschungs- und Bildungspolitik in Deutschland (pp. 311–346). Weilerswist. Speiser, G. (2016). Die Rolle des Bundes in der Hochschulfinanzierung. Beiträge Zur Hochschulforschung, 38(3), 8–25. Spiegel. (2006, June 27). https://www.spiegel.de/politik/deutschland/spd-bil dungspolitiker-tauss-das-kooperationsverbot-ist-vom-tisch-a-423867.html Süddeutsche Zeitung. (2010, May 19). Machtkampf um die Schulen. (https:// www.sueddeutsche.de/politik/gescheiterte-foederalismuskommission-machtk ampf-um-die-schulen-1.885381) Toens, K. (2009). The bologna process in German educational federalism. German Politics, 18(2), 246–264. Wanka, J. (2015, December 3). Eine Milliarde bewirkt etwas. Die Zeit. Retrieved July 1, 2022 from https://www.zeit.de/2015/49/bildung-wissenschaft-nac hwuchs-foerderung-johanna-wanka? Watts, R. (1992). The federal context for higher education. In D. Brown, P. Cazalis, & G. Jasmin (Eds.), Higher education in federal systems: Proceedings of an International Colloquium Held at Queen’s University, May 1991 (pp. 3– 26). Renouf Publishing. Welsh, H. (2004). Higher education in Germany: Reform in incremental steps. European Journal of Education, 39(3), 359–375. Welsh, H. (2010). Higher education in Germany. Fragmented change amid paradigm shifts. German Politics and Society, 28(2), 53–90. Ziegler, T. (2016, November). Die Finanzierung der Hochschulen durch Bund und Länder nach den Föderalismusreformen I und II im Kontext der Politikverflechtung. DGB Diskurs.

CHAPTER 3

Care Homes Policy

1

Introduction

There is significant interest in the puzzle of how decentralisation of social policy, with responsibility moving from the national to a sub-national tier of government, affects levels of entitlement (Peterson, 1995; Rodden, 2004; Turner, 2019; Vampa, 2016). Often, this is bound up with questions of whether decentralisation leads to some sort of “race to the bottom”; it is frequently argued that, at times of pressure on public finances, it becomes attractive to national policy-makers to shift responsibility for social policy, as part of a blame avoidance strategy (Turner, 2019; Weaver, 1986). In this chapter, we look at the change in responsibility for laws regulating care homes in Germany, which transferred from the national government to the Länder in 2006. At the time, the change was controversial: in particular, several state politicians but also care home providers warned of a “race to the bottom”, as well as of the risk of excessive complexity. Our puzzle is simply: what impact did decentralisation of this legal responsibility have? This is useful in informing debates about the impact of the 2006 federalism reforms, but also in understanding the impact of decentralisation on social policy more widely. The material in this chapter is based on an analysis of laws in the Länder, and also a range of interviews with care home providers, politicians and civil servants in

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Rowe and E. Turner, Decentralising Policy Responsibility and Political Authority in Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-29479-2_3

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the Länder, and indeed representatives of providers’ organisations at the national level. We question whether policy choices did indeed diverge between the different Länder, and if so what factors appeared to drive any such divergence. We examine whether “races” can be identified, whereby standards change across the whole country, whether upwards (a “race to the top”) or downwards (the much-feared “race to the bottom”). Even if outcomes seem similar, it is important to probe why: is that a result of co-deliberate ordination, or states reaching the same outcome with independent processes? At this juncture, it is worth highlighting that the whole area of care home regulation is strikingly under-represented in scholarship on Political Science in Germany and more widely. There was one chapter in an edited volume (Schieren, 2013) on this specific topic, and a thorough doctoral thesis (in Law) by a practitioner in the area (Dinter, 2015), and the area is discussed as part of wider analysis of the federalism reforms (Reus & Vogel, 2018; Schneider, 2013). This may seem puzzling, given the size of the social care sector in Germany. Approximately 3.9 million Germans receive payments towards their care costs in 2017/18, of which 3.7 million were in the state care insurance scheme—a figure which had increased from 1.7 million in 1997. Expenditure was e41.27 billion in 2018, up from e19.14 billion in the space of ten years. The sector employed some 1.15 million people in 2017, of whom 390,000 were in mobile care provision and 765,000 in “stationary” provision, such as care homes (Bundesministerium für Gesundheit, 2019). The increases in cost, and scale of provision, in Germany relate to the country’s demographic position—the same position which leads to a growing imbalance between the proportion of the population who pay into the care system, and the proportion who need to draw upon it. Recruitment challenges in the sector have also been a major issue: the 2018 coalition agreement between CDU/CSU and SPD specifically discussed this area (CDU, 2018: 96–97), pledging urgent action, particularly on recruitment and on pay. The rather complicated web of care home provision in Germany and associated governance is discussed in the next section. However, it is worth noting that territorial variations in care home provision might well be anticipated, based on party political, but also structural features of their context. In terms of party politics, a classic left–right schema would expect that parties of the left would favour a higher level of expenditure, but also

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a higher level of regulation, than parties of the right (cf. Reus & Vogel, 2018). Moreover, there may be variations depending on context. Rural and urban areas may face specific issues; mobile care may be harder to provide in very remote areas, for instance, and there may also be particular staffing challenges. These could likely end up being reflected in the level of regulation chosen. The structure of this chapter will be as follows. The first section will discuss the legal framework for care home provision in Germany, including the changes introduced by the federalism reforms of 2006. The chapter then turns to discussion of the new laws, presenting areas of variation, and attempting to identify patterns. It concludes with discussion of the key findings, in particular that there is no evidence whatsoever of a “race to the bottom” in this area of policy, and that, if anything, there has been a “race to the top”, with more exacting regulations being agreed as time went on. This view is borne out by analysis of the care home laws of the 16 Länder, but also expressed very forcefully to us by interviewees from across the sector. It therefore sits at odds with the thrust of much of the comparative literature about decentralisation and social policy, providing a striking, and important finding.

2

The Shifting Framework of Responsibility for Care Homes in Germany

Germany houses around 857,000 people in care homes (according to the most recent statistics, up to the year 2015), principally but not exclusively elderly people. The cost of care is paid from three sources: by care insurance (Pflegeversicherung ), part of the country’s system of health insurance, provided either by the state insurer or a private provider; by individuals topping up their entitlements out of their own means, and by social assistance (Sozialhilfe), provided by municipalities (cf. Oschmiansky, 2013: 145–150). There were in 2015 some 13,596 care homes, of which 7,200 are owned by not-for-profit organisations, 5,737 are in private ownership, and 689 in public ownership (generally local authorities) (GBE, 2019). The not-for-profit sector comprises providers associated with the Catholic Church, the Protestant church, the labour movement, and a “secular” provider, who are amongst Germany’s biggest employers and have strong links to political parties and policy-makers (Henriksen et al., 2012). An extremely important point of context is who pays for

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any additional regulation. The answer here is that the burden will immediately affect care home providers; however, they in turn will need to finance investment through increasing charges, which will affect payments from care insurers, from private individuals and also from social assistance. Local authorities which provide their own care homes would also be adversely affected, but it is noteworthy that the federal government nor the governments of the Länder would be directly affected by increased costs. The exception to this are the three “city states” (Bremen, Hamburg and Berlin) where, as they form the local government as well as the Land government, they would be liable for cost increases in social assistance. Dinter (2015) provides a thorough account of the development of care homes law. Until 1967, legal regulation of care homes was (inadequately) provided by general commercial legal code (Gewerbeordnung ), as well as a regulation covering non-state homes, which meant they were overseen by the health authorities. However, this situation provided only inadequate legal regulation: poor conditions in homes were discovered, but the state had inadequate sanctions to deal with these; the market did not provide choice, and state care providers needed to place people into particular homes without a choice, or where there was only an inadequate choice available within a reasonable distance (ibid.: 29). In 1967, a change to the commercial legal code was made, such that Land governments could lay down regulations setting minimum standards. However this, too, proved inadequate—providers of care homes did not need to acquire a licence, but merely notify the authorities that they were opening. The state was able to close down homes that failed to meet standards (thus precipitating a shortage of places) but did not have appropriate preventative tools at its disposal; there were also difficulties in making modifications to buildings to meet the minimum standards (ibid.: 29–30). In 1973, therefore, the Federal Care Home Law (Bundesheimgesetz) was proposed. The newspaper Die Zeit discussed the need for a new law at the time. It noted that: Someone who wants to open a pub needs a particular permit from the state. Someone who wants to earn his living as a taxi driver is subject to particular checks from the authorities, but someone who opens a home to accommodate and care for old people just has to pay a registration fee. This trade in [looking after] old people is open to every citizen, and word has got around that it is a lucrative business. (Die Zeit, 1973)

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The same article referred to a scandal in which a transportation magnate, one Friedrich Poths, had set up a chain of care homes, in which poor conditions had been found but which still made a good deal of money. It also noted that in Berlin Zehlendorf, investigations had revealed that of 103 homes, only 11 met the prevailing legal requirements there, with deficiencies including over-occupation of rooms, and a lack of wash basins and call systems. In 20 cases, homes had been closed down as a result (ibid.). The new law covered all care homes, regardless of whether they were run by the public, private (for profit) or not-for-profit sector (Dinter, 2015: 34). The new law created individual, legally enforceable rights for care home residents, as well as the protection of the public interest. It covered such issues as involvement of residents, but also the nature of contracts to provide care, and introduction of a requirement to get permission to establish a home, and made clear that there would be the possibility of the federal government setting down minimum standards for buildings (Dinter, 2015: 34–39). While the new law was passed unanimously by the Bundestag in 1974, it did so in the face of strong objections from care home providers, in particular the large, not-for-profit ones, who regarded the law as unnecessary and as an encroachment on their autonomy (Klie, 1990: 177). The regulation on minimum building standards was agreed in 1978, but fell below the standard set by several Länder under the legislative framework agreed in 1967 (and which could continue to apply). This was squarely related to a desire to contain costs. Moreover, the minimum standards only applied to new buildings, and providers successfully resisted a requirement to bring existing homes up to standard over time. Die Zeit published a highly critical article in 1977, under the title “A beautiful law on paper” (Die Zeit, 1977); it pointed to the fact that, in practice, instruments on resident involvement did not result in binding input, and pointed to a case, tearfully recounted by a resident, when rules on conflicts of interest amongst representatives of residents were used to close down dissenting views. It was sharply critical of the fact that existing homes, and those under construction, were exempt from the new requirements on building standards, referred to the new law as a “get out of jail free card” for local authority and not-for-profit providers, which would leave residents “without protection”, and would lead to more scandals about care homes in future. Revisions to the standards in 1983 were intended further to reduce the cost, and Dinter observes

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that local authority providers were particularly keen to see standards kept down (Dinter, 2015: 68). The lower standards would also help enable the conversion of former hospitals to care homes. The law was substantially revised in 1990, with the intention, in particular, of improving the operation of care home contracts. It also allowed for the creation of a Heimfürsprecher (nominated external representative) as an alternative to a Heimbeirat (residents’ committee); in around a quarter of care homes, no such committee had been formed owing to the degree of disability of the residents. The nominated external representative would be chosen by the supervisory authority, rather than by the residents, which was a point of criticism (Dinter, 2015: 46–47), and there was also a revision to a section preventing exploitative acceptance of legacies from residents (Dinter, 2015: 47–48). More significant was the debate over a regulation on minimum personnel requirements in 1993. The federal government wanted a minimum resident to staff ratio of 4:1, but the Bundesrat objected, fearing additional costs to the Länder, and would only agree to a ratio of 5:1. The upshot was that, as a compromise, the regulation was silent on this important point. Nonetheless, the regulation on minimum personnel requirements did introduce the Fachkraftquote—a requirement that, for caring duties, at least 50% of the staff should be suitably qualified, where there were at least four residents with care needs, or 20 residents without care needs, to be looked after (ibid.: 73–80). Further reforms to the Federal Care Home Law were made in 1997, when short-term care was included, and the privileged position of some established providers vis-à-vis private providers in relation to the granting of a licence was abolished (Dinter, 2015: 48–50). In 2002, there was a more substantial package of revisions, including clarification that supportive living accommodation was not within the scope of the law, changes to resident involvement (there had been a revision under regulations to allow relatives to join residents’ committees, but the new law restricted the proportion of these relatives to less than half), and also an attempt (in Dintner’s view, unsuccessful), to clarify the different responsibilities of two inspection authorities, namely the Care Home Inspectorate (Heimaufsicht ), and the Medizinische Dienst der Krankenkassen (MDK), or Medical Service of the Health Insurers (cf. Dinter, 2015: 51–63).

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Amendments Made to the Law on Care Homes in the 2006 Federal Reforms The legal framework for the governance of care homes was amended by the suite of federal reforms in 2006, essentially decentralising policy responsibility through the decisions taken. ● Responsibility for care homes from the federal government to the Länder, achieved by an amendment to Article 74 of the Basic Law. This article governed areas where concurrent legislative powers applied—“public welfare” continued to be listed, but the law on social care homes (“Helmrich”) was explicitly excluded. – Under concurrent legislation, the Länder were allowed to pass legislation but the federal government was also entitled to legislate in the interests of securing equitable living conditions across the Federal Republic, and its legislation would take precedence. Just as in the case of prisons policy, discussed elsewhere in this volume, this was an area of policy which caused both bemusement and alarm. The decision to reform area of policy rather came out of the blue. It had not been the subject of significant discussion before the proposal surfaced, and there was no sense of “problem pressure”. There had been a push for significantly greater transfer of powers around social policy (“public welfare”, notably from the Presidents, aka speakers, of the parliaments of the Länder, and also the leaders of the CDU and CSU groups of the Land parliaments (cf. Schneider, 2013: 556–557). This would have encompassed social assistance, and also support for children and young people. The federal government resisted this, arguing for national standards, which, it held, would also be in the interests of providers that were organised nationally. It also noted the links to consumer protection legislation and other laws that would continue to be a federal responsibility. In the end, switching responsibility for care home law, but leaving concurrent legislation in place for other public welfare matters, represented a compromise acceptable to both sides. So in one sense, the area was chosen simply to allow both sides to save face: the federal government had successfully resisted a wholesale switch in responsibility for

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social policy, while the Länder could claim at least a partial victory. Moreover, a Federal Constitutional Court verdict on the Care for the Elderly Act (cf. BVerfgGE 106, 62) cast doubt on whether federal legislation on care homes would withstand legal challenge. In this case, the state of Bavaria challenged a new federal law which, amongst other issues, governed employment structures in the care profession; it was partially upheld, and the Court set quite a high hurdle for the federal government to issue concurrent legislation in the interests of securing equitable living conditions in the federal republic (cf. also Dinter, 2015: 106). When the federalism reforms were debated, however, the change was controversial. In particular, ministers and civil servants in social affairs ministries, but also care home providers, were hostile to this transfer of responsibility, worrying variously about “races to the bottom”, but also excessive complexity.1 Several SPD MPs made personal statements in the Bundestag debates, objecting to the inclusion of care home law in the federalism reforms—although for the most part, they voted for the package (cf. Plenarprotokoll 16/44). It was especially noteworthy that several social policy specialists, including Kerstin Griese (chair of the Bundestag’s family affairs committee at the time) and Caren Marks, also a member of that committee, made particular objection to the decision in relation to care homes, stating: Care home law belongs, like all aspects of public welfare law, at the federal level. It is not comprehensible why the creation of equitable living conditions does not apply to care home residents. In concrete terms, we fear reductions in quality of care and in consumer protections. The foreseeable problems of the interface between care home insurance (in social affairs code book X1) and the newly-decentralised care home law will, in our view, be severe. (Ibid.: 4361)

A group of 40 other SPD MPs made a similar declaration, stating that the decision in relation to care homes law was against the clear recommendation of experts at the parliamentary hearings, who saw a reason for keeping this competence at the federal level to preserve equitable standards of living. They declared there was a “regrettable contempt for the

1 Interviews with provider representatives, September 2012; interview with national parliamentary representative, September 2012; interview with Land civil servants, January 2013.

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clear demands of experts and the findings of the joint hearings of the Bundestag and Bundesrat, which can only be understood as being justified by power politics rather than the objective facts” (ibid.: 4354). There was rather less discussion of this issue in the Bundesrat, although Schleswig– Holstein registered some objections, foreseeing “massive disadvantages for structurally weak Länder” (Plenarprotokoll 820: 58). Nonetheless, the concerns of these social policy “specialists”, as well as those politicians with more federalist instincts, were over-ruled by more powerful “generalists” (such as Minister Presidents of the Länder and national cabinet ministers) who wanted the package of reforms to succeed and subscribed to what Schneider called the “minimal consensus”, or lowest common denominator, of keeping transferring responsibility for care homes while leaving the rest of public welfare policy the subject of concurrent legislation. (cf. Schneider, 2013: 557; also Turner & Rowe, 2013: 391). There was an early test of the boundaries of Land competences in this area, concerning care home contract law (cf. Schneider, 2013: 560–561). The federal government took the view that this was part of civil law, for which it retained the competence under Article 74 section 1.1 of the Basic Law (“Article 74: Subjects of concurrent legislation: (1) Concurrent legislative powers shall extend to the following legislative subjects: 1. Civil law, criminal law and corrections, court organisation and procedure, the legal profession, notaries and the provision of legal advice”). In 2009, the federal government proposed a new law covering civil law aspects of care homes. During the Bundesrat discussions, the (CDU-led) states of Hesse and Baden-Württemberg argued that the federal government had exceeded its competence, and that care home contracts were a matter for the Länder; they proposed that the conciliation committee between Bundestag and Bundesrat should consider the issue (cf. Bundesrat Drucksache 566/1/09). In a short plenary debate in the Bundesrat on the topic, the Social Affairs Minister of Baden-Württemberg, Monika Stolz, argued that making the Länder responsible for care home contract law was not only the right thing constitutionally, but also that it would allow the care home inspectorate governed by the care home laws of the Länder (Heimaufsicht ) to step in and enforce the rights of residents in contractual disputes, rather than needing them to take action through the courts (cf. Plenarprotokoll 860: 299). However, the majority in the Bundesrat did not agree and the federal legislation was passed. This led the three Länder (Bavaria, Baden-Württemberg and North Rhine Westphalia) which had

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already passed their laws to amend them to be in conformity with the new federal legislation, and others took this into account in developing their own laws (Schneider, 2013: 561). The decision was welcomed by the national associations of care home providers, who, in line with their previous objections to the federalism reform in this area, saw no reason for the legislation for care home contracts to vary from state to state (Pflegeboersen, 2009).

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The Implications of Decentralisation; Understanding Variation in Care Homes Laws Since 2016

At the time of writing, all sixteen Länder have passed their own legislation to cover care homes (cf. Table 1). It is striking, however, that there was a significant difference in the speed at which they did so. It is also important to note that, in many cases, these laws provided a framework, with some important matters to be settled by regulations, which were passed at a later date. For instance, in Rhineland Palatinate, the law was passed in 2009 but significant regulations were only agreed in 2013. Sometimes, particular points are even clarified in letters from the ministry.2 From the point of view of the providers, this process was especially unsatisfactory: regulations can be issued with significantly less involvement than is the case for primary legislation, yet the details in regulation (for instance around single room requirements) can have the greatest financial consequences. Three things are striking about the list of laws. The first point (rather often remarked upon in interviews) is that the laws bore increasingly long and complicated names: the second such law in North Rhine Westphalia, the “Law for the development and strengthening of a demographically robust, involvement-orientated infrastructure and for the further development and securing of the quality of the living and care provision for older people, people with disabilities, and their relatives”, probably wins the prize for the most convoluted title. For sure, this reflects the desire of some Länder to add particular points of emphasis (we can see frequent references to strengthening autonomy, involvement and also a move away simply from referring simply to “care homes”), but, as the providers 2 Cf. interview with provider representative, 8 November 2013.

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Care home laws in the Länder

Land

Law

Year of initial passing and partisan composition of government

Baden-Württemberg

Care Home Law for Baden-Württemberg Law on supported forms of living, involvement and care Law to govern care, support and living quality in old age and for the disabled Law about autonomy and participation in supported, communal forms of living Law on living with care and support for the state of Brandenburg Law to secure the rights of people with a need for support and care in supported living forms Bremen care and support law Hamburg Law to support the living and care quality of older people, disabled people and those with support needs Hesse Law on care entitlements Law to support quality in institutions for those in need of care and people with disabilities as well as to strengthen their autonomy and involvement Lower Saxony Care Home Law Lower Saxony Law on supported forms of living Living and involvement Law Law for the development and strengthening of a demographically robust, involvement-orientated infrastructure and for the further development and securing of the quality of the living and care provision for older people, people with disabilities, and their relatives

2008 (CDU/FDP)

Bavaria

Berlin

Brandenburg

Bremen

Hamburg

Hesse Mecklenburg-Lower Pomerania

Lower Saxony

North Rhine Westphalia

2014 (Green/SPD) 2008 (CSU)

2010 (SPD/Left Party)

2009 (SPD/CDU)

2010 (SPD/Green)

2017 (SPD/Green) 2009 (CDU/Green)

2012 (CDU/FDP) 2010 (SPD/CDU)

2011 (CDU/FDP) 2016 (SPD/Green) 2008 (CDU/FDP) 2014 (SPD/Green)

(continued)

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Table 1

(continued)

Land

Law

Year of initial passing and partisan composition of government

Rhineland Palatinate

Law on living forms and involvement Saarland care home law Saarland Law to secure the living and care quality for older people as well as those in need of care and disabled adults Law to govern care and living quality in old age, when disabled and when in need of care in the Free State of Saxony Law on forms of living and involvement of the state of Saxony-Anhalt Law to strengthen self-determination and protection of people with a need for care or with disability Thuringian Law on supported forms of living and involvement

2009 (SPD)

Saarland

Saxony

Saxony-Anhalt

Schleswig–Holstein

Thuringia

2009 (CDU) 2017 (CDU/SPD)

2012 (CDU/FDP)

2011 (CDU/SPD)

2009 (CDU/SPD)

2014 (CDU/SPD)

Source Schneider (2013: 558–560) and BIVA (2019)3

noted, it also marks a desire on the part of the Länder symbolically to differentiate their laws, both from the old federal care home law, and also from each other. The second point is that there was (as in the case of prisons policy) a very significant difference between the pace at which different Länder chose to introduce legislation. At the front of the curve were Bavaria and Baden-Württemberg, along with North Rhine Westphalia; the former two Länder, in particular, were amongst those who had pushed most strongly for the transfer of powers from the federal government to the Länder. An interview with a civil servant in the Bavarian social affairs ministry

3 In the foregoing text, individual laws and regulations are drawn on, as collated in BIVA (2019).

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mentioned particular political pressure to try to be the first Land to get a new law in place.4 The third point is that, while there have been revisions to laws (necessitated by the clarification of the provision on care home contract law, but also in other ways), in most cases newly elected governments of a different party composition have chosen not to rip up these laws and start again. In one case, Bremen, the new law was agreed by the same political constellation as before: the revisions were principally to extend the scope of the law to cover more aspects of mobile care, and to make terminological changes (cf. Freie Hansestadt Bremen, 2019). In the case of Baden-Württemberg, the change of government did indeed lead to a new law, with changes that reflected the political direction given by the new government: in its coalition agreement, it pledged to introduce a newer, wide-ranging law which would apply to other parts of the care sector beyond care homes (cf. Grüne-BW, 2011: 49), and this was indeed followed through in legislation, as well as other amendments on such issues as transparency, inspection regimes, advice and involvement. In North Rhine Westphalia, a new law was agreed (as anticipated by the coalition agreement of the new SPD/Green government), but this took place with the support of all parliamentary groups. This suggests that care home law is not at the top of the in-tray of a new government. The remainder of this section looks at areas of differentiation in four key areas. These were identified as being of significance in interviews, and were also amongst those considered by Reus and Vogel in their careful analysis (Reus & Vogel, 2018). The first is the scope of the new law, and whether it restricts regulations or goes beyond that. The second is the requirement for single rooms and around room sizes. The third concern requirements on the involvement of residents and strengthening their autonomy. The fourth concerns the inspection regime. The fifth concerns rules on the qualifications of staff. These are different parameters, but through them runs a common thread, namely decisions on the level of state requirements imposed upon providers. Reus and Vogel (2018) equate this to a left–right division (Reus & Vogel, 2018: 632), where they find that the starting point was the old federal care home law, which they put on the “far right” of their typology (Reus & Vogel, 2018: 634), with all of the new laws of the Länder moving to the left. They note 4 Interview with senior civil servant, Bavarian Ministry of Social Affairs, 6 December 2013.

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(ibid.: 632) that left-wing positions can be those which are “economically restrictive, socially liberal and focused on equality”, while right-wing positions are “economically liberal, focused on performance, and conservative”. In this area, there might be a case for distinguishing between “old left” requirements in terms of an exacting regulatory framework, and a “new left” emphasis upon involvement. However, in practice interviews with both politicians and providers did not particularly distinguish between these different dimensions: politicians talked about the need to secure and improve conditions for residents, while providers talked about the difficulty and cost of meeting an ever-increasing list of requirements from politicians. While the terminology of Reus and Vogel may seem incongruous (the old Federal Care Home Law was, as the discussion above indicates, an attempt to strengthen very patchy regulation of the sector, and in no sense to be associated with a right-wing political agenda), subsuming these issues into a single left–right axis of political competition reflects the perceptions of policy-makers and practitioners in the sector. The Scope and Reach of the New Länder Laws on Care Homes The old Federal Care Home Law applied to residential care comes, but also day-care centre (“Einrichtungen der Tagespflege”) and night-care centres (“Einrichtungen der Nachtpflege”), albeit with significant exemptions for the latter two categories. Several of the new laws, notably the first three to be passed (Baden-Württemberg, Bavaria, North Rhine Westphalia), in each case by Christian Democrat-led governments (in the cases of Baden-Württemberg and North Rhine Westphalia, in coalition with the FDP), did not include the latter two categories; some of the later ones (such as that passed by the CDU/Green government in Hamburg, the SPD/CDU government in Mecklenburg-Lower Pomerania and the CDU/FDP government in Hesse did), while others (such as that passed by the SPD in Rhineland Palatinate) did not. In the Saarland, day-care and night-care centres were excluded in the first (2009) law but were added into the new (2017) law, a point specifically highlighted in the preamble. Interviewees did not refer to this issue, and it would appear that the regulation of day-care and night-care centres, at least through this legislation, is not an area of political priority or contestation.

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The more sensitive issue come in relation to regulation of supported housing or “serviced living”, and in particular Pflege-WGs (shared accommodation with care). Both of these forms of care are a hybrid between completely independent living, and living in a care home. In the case of supported housing or serviced living, care services are provided alongside accommodation (which may be rented or owner-occupied). In practice, this can encompass a wide range of different services, ranging from, on the one hand, accommodation resembling a hotel with the provision of a sauna, through to those which provide cleaning, washing, or care services which are similar to a regular care home; the key point is that it is not possible to cancel the service contract independently of the rental contract (cf. Verbraucherzentrale, 2019). Shared accommodation (PflegeWGs ) with care involves a group of people choosing to live together, often with similar levels of care need, who have two different contracts, one for their room rent, and one for their care (Pflegeverantwortung, 2019). Views on the decision of the state to get involved in this area of regulation were rather strongly polarised between providers and politicians, particularly on the left. For instance, an interview with a Left Party Land politician saw him express the strong view that these Pflege-WGs were an attempt by providers to make lots of money, and circumvent national regulatory requirements, as the MDK was not able to exert any control over them.5 The politician also suggested there was a concerted lobbying campaign to prevent this particular “loophole” being closed. A similar point of view—that the growth in Pflege-WGs was driven by a desire to circumvent care home law requirements—was made by Land civil servants.6 On the other hand, in an interview with a provider,7 it was argued this represented a huge, unexpected and unwarranted expansion of state power, where if people simply chose to live together and then procure some care services, all of a sudden they were the subject of extensive legal duties. Another provider interviewed8 suggested that care providers were already overseen by the MDK, and including them into care home legislation, and thus putting them under the control of the

5 Interview with Social Affairs spokesperson for Die Linke Thuringia, 21 November 2012. 6 Interview with Social Affairs Ministry, Schleswig–Holstein, 5 November 2012. 7 Interview with care home provider, Berlin, 30 October 2012. 8 Interview with care home provider, Rhineland Palatinate, 7 November 2012.

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care home inspectorate (Heimaufsicht ), caused confusion and imposed an excessive regulatory burden. In the case of serviced living, there are differences between the Länder. Five Länder have included this category: Bremen, Hamburg, the Saarland, North Rhine Westphalia and Lower Saxony, although in the latter two cases there are exclusions if the cost of the services is below a particular proportion of the rent. In the case of the Saarland, clear definitions are included in the law of where a “structural dependency” of residents on the provider exists, and therefore becomes necessary. This area of Pflege-WGs was not covered in the old Federal Care Homes Law, but in practice now every single Land has introduced legislation (cf. Bundesministerium für Gesundheit, 2017). The law initially passed in North Rhine Westphalia did not include such provisions, but they were included in the new law passed in 2014. There is quite a lot of variation, however, in the scope of these powers. Reus and Vogel (2018, online appendix: 14) attempt to classify this area, and see, at one end of the scale, North Rhine Westphalia’s 2008 law, and at the other end of the scale laws in Bremen, Hamburg, Hesse, Mecklenburg-Lower Pomerania and Schleswig–Holstein. However, a study for the Federal Health Minister (Bundesministerium für Gesundheit, 2017), in a detailed exploration of this precise area, found even more variety—it is difficult to undertake precise classifications, because of the complex variety of legal provisions. Broadly speaking, laws aim (across the country) to offer more legal protection where services are steered by providers, and reduce the degree of oversight when they are freely chosen by residents. Within that, the more recent laws (such as the new laws in North Rhine Westphalia, Baden-Württemberg and the Saarland) are more exacting than the earlier ones to be passed, such as that in Bavaria (which admittedly was the first to seek to regulate this area), or the original laws in North Rhine Westphalia and the Saarland. The new law in the Saarland is especially demanding, because it also, in some circumstances, includes not only day- and night-care homes but also, in the case of particular complaints, can allow the Heimaufsicht (care home inspectorate) to involve itself in the conduct of mobile care providers, and in any event to require them to register with the inspectorate—a point particularly highlighted by the Social Affairs Minister when the new law was agreed in 2017 (Ministerium für Soziales, Saarland, 2017: 6).

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In seeking to discern patterns in this area, it is hard to discern very clear party political tendencies. Instead, the key deciding factor in the scale of regulation seems to be the passage of time: as laws are revised, their area of responsibility tends to be expanded. Underlying this are two parallel concerns. On the one hand, there is a trend towards encouraging alternative forms of care to classical care homes (Bundesministerium für Gesundheit, 2017: 186). On the other hand, there is a concern to ensure that residents in these “intermediate” settings, where they are not completely free to arrange and amend their own care packages, receive the protection of the state (Ministerium für Soziales, Saarland, 2017: 6) or that they constitute a “loophole”.9 The study on the subject specifically of Pflege-WGs commissioned by the federal government argued that legal provision in this area should be passed back to the national level, in order to support the creation of these forms and provide clarity in relation to federal law around social care payments (Bundesministerium für Gesundheit, 2017: 191). Room Requirements The next important area of variation concerns room requirements—both in terms of size, and also whether single rooms are required for residents. This became, at times, an area of political contestation, for instance, in parliamentary debates in Bavaria when the law was first being agreed, and an area where the cost to providers of new legislation could be extremely significant.10 The old Federal Care Home Law set out a requirement for a minimum size of 12 m2 for single rooms (with increasing sizes for rooms with more residents, with the maximum capped at four) but did not impose particular stipulations requiring access to single rooms. Some Länder have now increased their regulatory requirements in this area. The first to do so was Baden-Württemberg, which in its 2009 regulations said that all residents who wished to have a single room should have one, albeit that it gave providers a ten-year implementation period. In Hamburg, Bavaria and Schleswig–Holstein, no stipulations for single

9 Interview with Social Affairs spokesperson for Die Linke Thuringia, 21 November 2012. 10 Interview with senior civil servant, Bavarian Ministry of Social Affairs, 6 December 2013; interview with care home provider, Bavaria, 8 November 2013.

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rooms were imposed in their initial care home laws, but changes in regulations required them (in Bavaria, with an appropriate proportion of single rooms, in Hamburg, with a requirement for single rooms; in Schleswig– Holstein, a minimum proportion of 75% of single rooms). In North Rhine Westphalia, 80% of single rooms in existing buildings and 100% single rooms in new buildings were required by the law agreed in 2008 (again with a ten-year implementation period in relation to existing buildings); this was unchanged in a proposed new, 2019 law, although this added in a requirement for internet to be available. In most cases where single room requirements were introduced, the minimum size of a single room was also increased from 12 m2 in the old Federal Care Home Law to 14 m2 . Interestingly, too, a recent discussion identified that in some cases care home inspectorates might require single rooms without this being a requirement in care home law, as in the case of Brandenburg (HCM Magazin, 2017). There is significant variation in the extent to which single rooms are available across Germany, ranging from Bremen (83.6%) to the Saarland (61.6%), according to a 2017 survey (Pflegemarkt.com, 2017). The author of the same study noted that regulatory changes in BadenWürttemberg and North Rhine Westphalia appeared to lead to a significant increase in the proportion of single rooms. Nonetheless, providers are able to apply for dispensation from legal requirements if to do so would render their operation economically unviable,11 which may account for provision in those Länder which introduced minimum requirement falling behind what laws required. As in the case of the scope of laws, such variation as exists does not appear to have a party political foundation—any expectation that governments led by the SPD would impose more stringent regulations than those led by the CDU/CSU appears to have been confounded— indeed, if anything CDU and CSU-led governments appeared more likely to adopt such rules. Nor is it the case that in the city states (Berlin, Hamburg and Bremen) would necessarily shy away from increasing regulatory requirements on the basis that, as municipalities, they would be more exposed to cost increases: in Hamburg, as noted above, a firm requirement was introduced, while in Berlin, regulations required 60% to be provided; only in Bremen was no provision required, although

11 Interview with care home provider, Bavaria, 8 November 2013.

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as part of the new 2017, the Senator indicated that attempts would be made to raise the proportion of single rooms when new regulations were introduced. One interviewee suggested that a demanding regulation, such as that adopted in Baden-Württemberg, would be financially impossible for poorer Länder,12 and poorer Länder (such as Berlin, Saxony-Anhalt, Thuringia and Bremen) are well-represented amongst those not imposing a requirement. Involvement and Strengthening the Autonomy of Residents As discussed when looking at the nomenclature of laws, there is a strong emphasis in most of the titles on, in different ways, the involvement, participation, and empowerment of residents and the strengthening of their autonomy. This point was especially emphasised in interviews,13 who mentioned that the SPD had convened a conference of those interested in the topic, they had cooperated, and had together looked at ways that participation could be extended. On the other hand, providers, while agreeing with the principle of extending participation, felt that some requirements were impractical.14 By and large, however, this area seemed significantly less contentious than the two previous areas discussed—this is not a surprising finding, since greater steps towards involvement and strengthening residents’ autonomy is less likely to be costly for providers than a requirement to make structural changes to buildings. There is also a degree of variation in terms of how residents’ personal, social and cultural rights are to be provided for. Reus and Vogel (2018: 15) distinguish four areas where there is variation in terms of involvement. In Rhineland Palatinate, the (2009) law allows relatives and carers to be engaged decisions made on care provided by the care home; in Berlin’s (2010) law “cultural, religious, gender and sexual identities” are to be respected. Civil servants there pointed to the city’s large Turkish population, and the need to ensure that appropriate food was available for residents.15 The inclusion of such principles was not, however, exclusively 12 Interview with senior civil servant, Social Affairs Ministry Thuringia, 21 November 2012. 13 For instance, interview with SPD state parliamentarian Rhineland Palatinate, 7 November 2012. 14 Interview with care home provider, Rhineland Palatinate, 7 November 2012. 15 Interview with senior civil servant, Berlin Ministry of Social Affairs, 9 January 2013.

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the preserve of SPD-led governments: the 2012 law passed by the CDU and FDP coalition in Hesse is amongst the most ambitious, with principles including protection from violence, protection of intimate areas, recognising cultural and religious beliefs, and also gender-specific needs. New Land-level rules around the handling of complaints have also varied somewhat (Reus & Vogel, 2018: 16). The previous Federal Care Home Law had not been prescriptive on this point, and the new legislation drafted in Hesse, Mecklenburg-Lower Pomerania and Schleswig– Holstein also remained vague on the issue. All other Länder laws set out a requirement for a complaints procedure, sometimes including making residents aware of external support on resolving complaints, or setting down particular elements of the complaint resolution process that must be followed. Overall, therefore, the picture here is that, as the Länder passed their own laws, they all, to some degree, took the opportunity to increase the onus on care home providers to strengthen residents’ autonomy. This took a variety of forms—from setting down abstract principles, to allowing nominated representatives to replace residents on the residents’ council, to setting down requirements of a complaints process and stipulating ways in which care homes had to relate to older people. SPD-led Länder, and those who were slightly slower to pass legislation, tended to go further in their stipulations in this area. Inspection Regimes A salient issue for all concerned with this sector concerns regimes of inspection. For politicians, under pressure to ensure that standards are met and that scandals of poor treatment are avoided, having a robust and reliable inspection regime is essential. For providers, inspections are an accepted part of running a care home, although there are often comments about onerous requirements and in particular duplication when both the MDK and the Care Home Inspectorate are involved16 ; indeed, one representative of a national provider referred sardonically to Prüftourismus (“inspection tourism”), such was the extent of over-inspection. At the heart of this issue is the ability of the state to safeguard the well-being of care home residents. In their discussion of this area, Reus

16 Interview with care home provider, Rhineland Palatinate, 7 November 2012.

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and Vogel (ibid.: 19–20) look at four areas: whether inspections are announced or unannounced, the frequency of inspections, whether the burden of inspections is reduced where the MDK also inspects, and whether there is the possibility of imposing a ban on accepting new residents as an intermediate sanction. The general picture is one of a tightening of inspection regimes across the piece, but the extent to which this is so differs from Land to Land. On the question of whether care homes would be forewarned of a forthcoming inspection, the previous Federal Care Home Law had stipulated that these might be either announced or unannounced. However, at the time of writing most Länder have switched to inspections not being announced in advance: only Lower Saxony, Berlin, Bremen and Mecklenburg-Lower Pomerania have not moved towards inspections being unannounced “as a rule”, while Brandenburg has a hybrid system of inspections where the old Federal Care Home Law provision applies, except where complaints or concerns are being followed up, in which case inspections will be unannounced. The State Secretary of Thuringia, Hartmut Schubert (SPD), explained the rationale for the switch to the default of unannounced inspections thus: “I expect that the inspection authority will only get an insight into the normal and real conditions in residential care facilities with unannounced inspections” (Landtag Thüringen, 2013: 61). Revisions to the law in SPD-led Rhineland Palatinate in 2016 dispensed entirely with the notion of regular, unannounced inspections; the revisions foresaw a shift such that homes themselves took greater responsibility for their quality, and that the inspection authority moved from being a supervisor to offering advice in a spirit of partnership, although the possibility of inspections to address concerns or complaints remained. This shift was not universally welcomed by providers—they faced a new legal obligation to report on their staffing levels at quarterly intervals, report shortages and if these could not be addressed, stop accepting new residents, and that the changes could “destroy a Land’s care home infrastructure” (Altenheim, 24th February 2016). This Land therefore saw a mix of terminological changes (from “inspection” to “advice”), a shift towards increased responsibility for care homes, but a tightening of sanctions in the case of legal contraventions. The frequency of inspections is one of the few areas where some Länder have adopted a slightly more flexible approach than the old Federal Care Home Law. That law stipulated that inspections should take place at least annually; most Länder followed this approach (Reus &

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Vogel, 2018) but in Hamburg and Schleswig–Holstein, a reduced frequency was made possible when there were no concerns about a facility, while in Hesse a precise frequency is not stated (but inspections should be “at regular intervals”). In summary on this point, there has been a general tightening of inspection regimes, with, in particular a shift in most Länder towards unannounced inspections being the norm. Some Länder have taken the opportunity to reduce the burden of inspections where the MDK has recently visited a home and identified no issues, and most interestingly, revisions to the law in Rhineland Palatinate attempted to affect a paradigm shift towards a different role for the care home inspectorate. It is hard to identify particular territorial or partisan motivations for the differences in this area—there are particular features of Länder that would lead them to opt for different inspection regimes (except, perhaps, for tightening in response to particular scandals), while party politics does not seem to play a major role. Indeed, it is noteworthy that Rhineland Palatine’s initiative came under an SPD government—the CDU has subsequently called for a review, arguing that there had been a “neglect of those in need of protection” (cf. Landtag Rheinland-Pfalz, Drucksacke 17/4565). Qualifications of Staff At the heart of the old Federal Care Home Law was the “Fachkraftquote” (minimum ratio qualified to unqualified staff), which required at least 50% of staff involved in the care of residents to be specially qualified (having the status of Fachkraft ). In addition, the head of a care service in a home required this qualification. Unfortunately, meeting this ratio has proven extremely difficult for providers, due to a shortage of qualified staff.17 The organisation of private care home providers, in particular, has been especially critical of this point (see for instance Pflege-online, 2017).18 Nonetheless, no Land to date has actually dispensed with the minimum ratio set out in the old Federal Care Home Law. Instead, a few have added particular duties which need to be performed by Fachkräfte (Reus & Vogel, 2018: 15). Interviewees sometimes referred to a more

17 Interview with care home provider, Rhineland Palatinate, 7 November 2012. 18 See also interview with national representative of another care providers’ federation,

Berlin, 20 September 2012.

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flexible ratio in Brandenburg.19 However, in fact the 2010 regulation there is, in line with other Land regulations in insisting on the minimum ratio, and indeed has the longest list of functions reserved for qualified staff of any Land (Reus & Vogel, 2018: 22). Berlin and Hamburg also added some additional duties reserved for qualified staff. There have been a couple of recent changes which might be seen as going in a deregulatory direction: in Baden-Württemberg, in some circumstances, the ratio can be reduced to 40% when workers qualified in areas other than care are instead deployed, though there is a substantial list of duties reserved for qualified workers in the care profession, and the social affairs ministry argued that because of requirements for workers with other qualifications, the minimum ratio for all qualified staff was now at 60% (Baden-Württemberg, 2015). In North Rhine Westphalia, the new law proposed in 2019 would slightly reduce qualification requirements for managers of care homes. However, other than these exceptions the requirements of the Federal Care Homes Law remain intact. This is precisely the sort of area where, if there was to be a “race to the bottom” in care home regulation, we would have expected to see changes. The fact the original law has been retained or even tightened, in the face of hostility from private care home owners, is significant.

4

Discussion and Conclusions

There is one clear, overarching punchline to this discussion. Those who anticipated that, with the switch of responsibility for care home laws from the federal government to the Länder there would be a “race to the bottom”, and that Länder would take the opportunity to deregulate the sector, have been rather comprehensively refuted. This is a striking and important finding, since much of the literature on the territorial politics of welfare (cf. Turner, 2019 for a summary) suggests that decentralisation is very likely to lead to retrenchment. Several of our interviewees in this area had been opposed to the shift of competence, but not one of them felt that, with hindsight, a race to the bottom had results. Instead, they often referred to a “race to the top”, a “competition to see who could regulate the sector the most”, or a “competition to have the first law, or the best law”.

19 Interview with care home provider, Bavaria, 8 November 2013.

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What, then, explains this rather striking finding? Interviews point to three explanations. The first is that, for the most part, the Länder are not directly affected by increased costs resulting from extra regulation: as one frustrated provider representative put it, “They say that these laws are cost neutral – they are cost neutral for the state, but somebody still has to pay”.20 This, certainly, is part of the explanation—especially since several Länder had lower fiscal capacity as a result of the requirements of the debt brake agreed of 2009. In one interview,21 it was suggested that differences in fiscal capacity accounted for different decisions on single rooms—as discussed above, there may be some truth in this, but at most it would explain the different extent to which Länder have increased their requirements, and it does not relate to a race to the bottom. Moreover, there is no sense that the city states, whose budgets are directly affected by changes in regulation, have particularly held back out of concern for their budgets. The second explanation is that there has been a strong public perception, highlighted by a provider’s representative22 that care home owners were to be mistrusted, and that the state ought to concern itself with “those poor people who live in care homes”. Just as, in the 1970s, scandals about the poor quality of care led to the introduction of Land-level regulations, and then the Federal Care Home Law, this public concern for the well-being of care home residents seems to have affected decisions in the Länder since the federalism reform; it would explain, for example, why the minimum ratio of qualified to unqualified staff has barely been affected by new legislation, in spite of strong pressure from providers. Thirdly, one interviewee noted that providers were constantly seeking to reduce costs23 —there was therefore a natural pressure to increase levels of regulation to counteract that trend. One interviewee suspected there was an unstated government agenda to regulate care homes to such a strong extent that they would be driven out of business, and instead residents would be in mobile care,24 but this could

20 Interview with care home provider, Bavaria, 5 December 2013. 21 Interview with senior civil servant, Social Affairs Ministry Thuringia, 21 November

2012. 22 Interview with care home provider, Berlin, 20 September 2012. 23 Interview with senior civil servant, Bavarian Ministry of Social Affairs, 6 December

2013. 24 Interview with care home provider, Bavaria, 8 November 2013.

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not really explain the extension of regulation to mobile care providers and Pflege-WGs and was not mentioned by any other interviewees—it is unlikely that this was policy-makers covert intention, even if it was a possible consequence of tighter regulation. A second finding of this discussion is that there is now quite a significant degree of variation on the details of care home laws, including in such important areas as the nature of inspections, and single room requirements. It is very difficult to identify clear patterns, however, which could explain differences. In some cases, laws were passed unanimously through the Landtage, and as noted above, revising care home laws has not tended to be a priority for Land governments after a shift in political control. SPD-led governments seemed to emphasise slightly more the need of new laws to empower residents (also related to the ideas shared at a conference of SPD politicians with an interest in this area at the time), while if anything SPD-led Länder tended to be less stringent on the area of single room requirements. There were, at times, criticisms made of laws by parliamentary oppositions (for instance, the CDU in Rhineland Palatinate criticised the paradigm change in inspection regimes, and the Greens in North Rhine Westphalia criticised proposed changes to qualification requirements for home managers) but interviewees did not see this as an area of major party political polarisation, and so such disagreements are more likely to be related to parliamentary oppositions “doing their job”, rather than major differences of political outlook. In just a few areas, particular characteristics of the Länder seem to have affected their policy choices (Berlin’s diverse population was reflected in the text of its law, and those states with a higher number of Pflege-WGs were more likely to include these in the scope of regulation), but in most areas, it is impossible to think of territorial reasons that might explain variation—there is no reason why the characteristics of a particular Land might lead it to have different rules on, say, non-residents being able to be part of a representative group for residents, or should lead a Land to insist on unannounced inspections. What does seem to play a role is the timing of new laws. The first laws, often modelled quite closely on the old Federal Care Home Law, tended not to increase levels of regulation as much as their more recent counterparts, and when Länder undertook major revisions or introduced new regulations some time after the initial law (Baden-Württemberg being an example of the first case, Bavaria an example of the second) there tended to be an increase in levels of regulation. This may also reflect a changing Zeitgeist concerning expectations

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of care homes: for example, a strong emphasis on the involvement of citizens and the expectation that single rooms are available may be expected far more than they were in the 1970s, when the Federal Care Home Law was first passed, with expectations gradually increasing. It was the case that Bavaria and Baden-Württemberg, both of which were especially enthusiastic about increasing levels of Land competence, moved to legislate more quickly; this confirms the view (cf. Reus & Vogel, 2018: 460) that Bavaria in particular pushes for, and then uses, new competences; Baden-Württemberg is in this group in the case of care home law (as it is in the case of prisons policy). In this area, in contrast, for example, to the area of prisons policy, there was no formalised coordination between the Länder, although as noted above, SPD politicians with an interest did meet at the time when they were considering what should be in new laws. Interviews with civil servants,25 especially in smaller Länder, did say that they had an eye to what neighbours were doing, and of course those working on new laws would follow the trade press, and developments in other Länder, but this was not at the level of formal coordination. Finally, an interesting finding (at odds with the school of “collective action problem” scholarship, which would anticipate that a political system would be more responsive to easily-organised interests, like providers, rather than the disparate, hard-to-organise interests of individual residents) is that care home providers have found it extremely difficult to influence new laws and regulations in the Länder—they were near unanimous in expressing discontent at civil servants and especially politicians being unwilling to listen. This was at its strongest in discussion about inspection regimes and the potential for unnecessary duplication between the work of care homes inspectorate and the MDK, but also featured in comments on extensions to the scope of regulation, for example. One said the pillar organisations (AWO, Caritas, Diakonie) were well-organised and able to lobby on a national level, but had much less capacity to do so at the level of individual Länder.26 Moreover, there had been a tendency to implement major changes (Bavaria was an important example of this) through new regulations rather than new laws, which reduced the extent of consultation requirements and political scrutiny.

25 Interview with Social Affairs Ministry, Schleswig–Holstein, 5 November 2012. 26 Interview with care home provider, Bavaria, 8 November 2013.

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Overall, the finding of this chapter is that passing power from the national level to the level of the Länder has brought about a degree of diversity in laws and regulations relating to care homes which is not driven by partisan ideology, but rather by pragmatic considerations and Landspecific concerns. The changes in total have taken the form not of a race to the bottom, as had been anticipated by opponents of the change, but something akin to a race to the top, with the Länder running at different paces.

References Altenheim. (2016, February 24). Rheinland-Pfalz: Neues Heimgesetz verschärft die Lage zum 1. März 2016. Altenheim. http://www.altenheim.net/Inf opool/Nachrichten/Recht/Rheinland-Pfalz-Neues-Heimgesetz-verschaerftdie-Lage-zum-1.-Maerz-2016 Baden-Württemberg. (2015. December 28). Neue Verordnung zum Personaleinsatz in Heimen tritt in Kraft. Press Release. https://www.baden-wuerttemb erg.de/de/service/presse/pressemitteilung/pid/neue-verordnung-zum-per sonaleinsatz-in-heimen-tritt-in-kraft/ BIVA. (2019). Heimgesetze der Bundesländer. https://www.biva.de/gesetze/lae nder-heimgesetze/ Bundesministerium für Gesundheit. (2017). Ambulant betreute Wohngruppen: Bestandserhebung, qualitative Einordnung und Handlungsempfehlungen. Bundesministerium für Gesundheit. Bundesministerium für Gesundheit. (2019). Zahlen und Fakten zur Pflegeversicherung. https://www.bundesgesundheitsministerium.de/fileadmin/Dat eien/Downloads/Statistiken/Pflegeversicherung/Zahlen_und_Fakten/Zah len-u-Fakten-zur-Pflegeversicherung_2019.pdf CDU. (2018). Ein neuer Aufbruch für Europa, eine neue Dynamik für Deutschland, ein neuer Zusammenhalt für unser Land: Koalitionsvertrag zwischen CDU, CSU und SPD, 19. Legislaturperiode. https://www.cdu.de/system/ tdf/media/dokumente/koalitionsvertrag_2018.pdf?file=1 Die Zeit. (1973, March 23). Mehr Schutz für alte Menschen. Die Zeit. https:// www.zeit.de/1973/12/mehr-schutz-fuer-alte-menschen Die Zeit. (1977, June 24). Ein schönes Gesetz auf dem Papier. Die Zeit. https:// www.zeit.de/1977/27/ein-schoenes-gesetz-auf-dem-papier Dinter, K. (2015). Die Entwicklung des Heimrechts auf der Ebene des Bundes und der Bundesländer. Dr Kovaˇc. Freie Hansestadt Bremen. (2019). Bremeisches Wohn- und Betreuungsgesetz. https://www.soziales.bremen.de/soziales/detail.php?gsid=bremen69.c. 9612.de

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GBE. (2019). Gesundsheitsberichterstattung des Bundes. http://www.gbe-bund. de/gbe10/pkg_isgbe5.prc_isgbe?p_uid=gast&p_aid=0&p_sprache=D Grüne-BW. (2011). Der Wechsel beginnt: Koalitionsvertrag zwischen Bündnis 90/Die Grünen und SPD Baden Württemberg 2011–2016. https://www.gru ene-bw.de/wp-content/uploads/2015/10/Koalitionsvertrag-Der-Wechselbeginnt.pdf Henriksen, L. S., Smith, S. R., & Zimmer, A. (2012). At the eve of convergence? Transformations of social service provision in Denmark, Germany, and the United States. Voluntas: International Journal of Voluntary and Nonprofit Organisations, 23(2), 458–501. HCM Magazin. (2017). Einzelzimmerquoten: Handlungsbedarf durch unterschiedliche strukturelle Vorgaben. https://www.hcm-magazin.de/einzelzim merquoten-handlungsbedarf-durch-unterschiedliche-strukturelle-vorgaben/ 150/10739/357559 Klie, T. (1990). Das Heimgesetz hat sich bewährt? Erfahrungen mit dem ‘Bewohnerschutzgesetz’ und Anmerkungen zur geplanten Novellierung. Zeitschrift für Rechtspolitik, 23(5), 177–179. Landtag Thüringen. (2013). Plenarprotokoll 5/139, p. 61. Available at https:// parldok.thueringer-landtag.de/ParlDok/dokument/51356/139_plenarsit zung.pdf (accessed 10 January 2022). Ministerium für Soziales, Saarland. (2017). Die Novellierung des Landesheimgesetzes Saarland. Ministerium für Soziales, Gesundheit, Frauen und Familie. Oschmiansky, H. (2013). Zwischen Professionalisierung und Prekarisierung: Altenpflege im wohlfahrtsstaatlichen Wandel in Deutschland und Schweden. Free University of Berlin. Peterson, P. E. (1995). The price of federalism. Brookings Institution. Pflegeboersen. (2009). Heimvertragsrecht bleibt einheitliches Bundesrecht. https://www.pflegeboersen.de/info/aktuelle-themen-archiv/heimvertrags recht-bleibt-einheitliches-bundesrecht.html Pflegemarkt.com. (2017). Pflegeheime in Deutschland mit hoher Doppelzimmerquote. https://www.pflegemarkt.com/2016/06/16/pflegeheime-in-deu tschland-mit-hoher-doppelzimmerquote/ Pflege-online. (2017, November 7). Fachkraftquote unter 50 Prozent: Völlig absurd! Pflege-online. https://www.pflegen-online.de/fachkraftquote-unter50-prozent-voellig-absurd Pflegeverantwortung. (2019). Was ist eine Pflege-Wohngemeinschaft? https:// www.pflegeverantwortung.de/pflegehilfe-pflegefall/pflege-wg/ Reus, I., & Vogel, S. (2018). Policy-Vielfalt zwischen den Bundesländern nach der Föderalismusreform I: Art, Ausmaß und Akteure. Zeitschrift für vergleichende Politikwissenschaft, 12, 621–642. Rodden, J. (2004). Comparative federalism and decentralization: On meaning and measurement. Comparative Politics, 36(4), 481–500.

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Schieren, S. (2013). Das Heimrecht und die Föderalismusreform. In P. Massing & G. Weißeno (Eds.), Demokratischer Verfassungsstaat und Politische Bildung. Festschrift für Joachim Detjen zum 65. Geburtstag (pp. 29–44). Wochenschau Verlag. Schneider, H.-P. (2013). Der neue deutsche Bundesstaat: Bereicht über die Umsetzung der Föderalismusreform I . Nomos. Turner, E. (2019). Empowering local government or just passing the austerity buck? The changing balance of central and local government in welfare provisions in England 2008–2015. Regional and Federal Studies, 29(1), 45–65. Turner, E., & Rowe, C. (2013). Party servants, ideologues or regional representatives? The German Länder and the reform of federalism. West European Politics, 36(2), 382–404. Vampa, D. (2016). The regional politics of welfare in Italy, Spain and Great Britain. Palgrave Macmillan. Verbraucherzentrale. (2019). Betreutes Wohnen: Eine Alternative furs Wohnen im Alter. https://www.verbraucherzentrale.de/wissen/gesundheit-pflege/ pflege-in-wohngemeinschaften/betreutes-wohnen-eine-alternative-fuers-woh nen-im-alter-13905 Weaver, R. K. (1986). The politics of blame avoidance. Journal of Public Policy, 6(4), 371–398.

CHAPTER 4

Prisons and Justice Policy

1

Introduction

In Germany as elsewhere, analysis of the area of prisons and justice policy has tended to be the focus of both academic law scholars and professional lawyers (e.g. Figgen, 2017), or criminologists (most notably, the prolific and impressive work of Frieder Dünkel, e.g. Dünkel, 2007, Dünkel & Pruin, 2015), rather than political scientists. That has changed somewhat in recent decades internationally, with growing interest in the role of constitutional courts (e.g. Kelemen, 2006; Shapiro, 1988; Stone Sweet, 2000), and also a handful of studies of the role of the private sector in running prisons and other penal establishments (e.g. Cabral et al., 2010; Donahue, 1989). However, there is little scholarship in mainstream English or German-language journals on the “nuts and bolts” of the operation of the German criminal justice system, whether taking a national perspective, or a regional one. This dearth of literature is puzzling in many respects. The power of the state to deprive individuals of their liberty is obviously a crucial aspect of state activity. It is also curious that so much attention is focused on the process of making laws, but rather less is paid to such important aspects of their enforcement, such as the punishment of those who break them. There are many aspects of prisons and wider justice policy which are highly contentious: indeed, with the argument that the socio-economic © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Rowe and E. Turner, Decentralising Policy Responsibility and Political Authority in Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-29479-2_4

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cleavage in structuring voting behaviour and differences between political parties is becoming less important, and that the difference between liberal and authoritarian social values is more important, then this area of policy would rise in importance. For example, discussions about the harshness of sentencing or of the early release of offenders who have shown good behaviour can quickly become front-page material. The case for studying this area of policy is even stronger when analysing German politics below the national level. As is discussed below, the implementation of justice is something that has, throughout the history of the Federal Republic, been devolved to the Länder, giving rise to the possibility of territorial variation, whether random or driven by local circumstances or indeed different “cultures” in the operation of the criminal justice system (Boyne, 2012). The potential for such divergence was heightened by the 2006 federalism reform, which passed responsibility for prisons laws from the federal level to that of the Länder. Moreover, there is a normative debate about whether there should be variation across the territory. In this area the view is very widely held that someone who commits a crime should be treated the same regardless of whether it occurred in Bremen or Bavaria, the Saarland or Saxony—be that in terms of decisions on whether to prosecute, the harshness of sentencing, the conditions in prison or the possibility of early release (Kopp, 2006). As would be anticipated by the literature seeing the “libertarian vs. authoritarian” divide as being more important in structuring party competition, there are differences between German political parties in this area of policy, with parties of the left—notably the Greens—and to some extent the Free Democrats, more likely to support a more liberal approach than the Christian Democrats, with a stronger emphasis on rehabilitation, support for open prisons and provision for early release (cf. Turner & Rowe, 2016). While the focus of this chapter is on prisons policy, an area that was affected by the 2006 federalism reform, it also considers wider policy in relation to the operation of the criminal justice system, including decisions on prosecution and sentencing. There are two reasons for this: first, it is an area of policy in which the Länder have continuously had an important role in implementation of national law (e.g. enforcing the Strafgesetzbuch, or penal code), and augment this with their own decisions on some aspects of the organisation of the judiciary. Secondly, like the area of prisons law, it is an area where political views are divided along

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libertarian-authoritarian lines, with the potential division between political parties that this brings. As noted above, there are pressures both for policy choices and outcomes to converge, but also diverge, in these policy areas. Key factors promoting convergence are a widely held normative preference for common treatment of those who transgress the law across the territory, and also the fact that much legislation set at the federal level. To that might, in the area of prisons law, be added a degree of path dependence: even though the Länder have the opportunity to diverge after the 2006 reforms, they would be doing so on the basis of a common starting position, from which they would only diverge slowly. There could also be some functional pressures for convergence, for instance, in avoiding presenting prisoners with an incentive to request a move between prisons on grounds of a more attractive regime in a different Land.1 Pressures for divergence include partisan difference at the level of government or ministry (divergence might be anticipated between two grand coalitions, where in one case the Justice minister is an SPD member and in the other case s/he comes from the CDU), value differences in the local population, as the same political party in different Länder may pursue a different programmatic orientation (cf. Müller, 2009) to respond to local circumstances, or indeed differences in the characteristics of the Land in question. A Land with greater fiscal means may, for instance, find it easier to increase prison education entitlements. Crime rates differ in the Federal Republic (cf. Table 1 below), which could cut both ways: higher levels of crime might lead to public pressure for a harsher approach to crime and punishment, or might lead the system to become overloaded and thus incentivise, for example, early release. Indeed, the level of discrepancy is striking, with nearly three times as many crimes committed per head of population in Berlin compared to Bavaria. This chapter outlines firstly the background to prisons and wider justice policy in Germany, setting out which level of government is responsible for which provisions, and how that has shifted over time. It then discusses the changes to prisons law brought about by the federal reforms of 2006, including youth justice, adult prisons, pre-trial detention and preventative detention, before turning to the implementation of prisons law. Finally,

1 Interview with a trade union official, Bavaria, 3 December 2013.

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Table 1 Crime rates in the Federal Republic of Germany (source Bundeskriminalamt )

Land Berlin Hamburg Bremen Saxony-Anhalt Saxony North Rhine Westphalia Saarland Brandenburg Mecklenburg-Lower Pomerania Thuringia Lower Saxony Schleswig–Holstein Rhineland Palatinate Hesse Baden-Württemberg Bavaria

Crimes per 100,000 people (2017) 14,558 12,480 11,960 8,342 7,917 7,677 7,110 7,015 6,850 6,637 6,621 6,557 6,191 6,046 5,295 4,868

it looks at what the changes have meant for the development of wider justice policy in Germany, before drawing together the chapter’s findings.

2 Reconfiguring Responsibility for Prisons and Justice Policy in Germany The 2006 federalism reforms passed the power to make law about prisons to the Länder as part of the wider package of constitutional changes, and in the face of opposition from most experts in political parties and the civil service, and some opposition political parties. At a whole state level, the regulation of prisons and justice policy had throughout the history of the Federal Republic been managed by a framework established by the Basic Law. According to articles 30 and 92 of the Basic Law, the administration of justice is a matter for the Länder, including the provision of Land courts (overseen by the justice ministries of the Länder) and state prosecutors. On the specific subject of prisons, certain basic rights, starting with, in Article 1, the inviolability of human dignity, are enshrined in the Basic Law, which stated that these rights may only be modified in primary legislation, and that their essence could never be altered (Article 19).

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Yet there was considerable scope for divergence at the level of implementation. The history of the Federal Republic had shown that many important matters in the operation of prisons were questions of implementation, and thus solely the responsibility of the Länder. On issues such as the requisite service and supervisory staff to allow prisons to function effectively, it was understood that in practice, the federal government cannot provide direct support here but instead, on this, the Basic Law had transferred responsibility for this to the Länder themselves.2 It was still, however, something of a surprise that prisons legislation was included in the 2006 federalism reform (Schneider, 2013: 220–2). Despite normative claims for a uniform, federal prisons policy being raised during the deliberations of the Federal Reform Commission, this was ultimately seen as a potential area where a shift to Land-level autonomy would ultimately be viable, primarily as the Länder had to pay for the delivery of prisons legislation in any case (Aumüller, 2006: 1). Further, it was at the Land rather than the federal level where the relevant expertise on prisons policy was concentrated, given that there are no federal prisons, and no prisoners serving sentences at the behest of the federal government (Lückemann, 2006: 2). A further potential motivation was that reforms to prisons legislation had been hard to achieve—the 1976 law had remained in place because there was no consensus amongst the Länder about the direction of any proposed reforms, with liberal reforms opposed by conservative Länder, and a sense that costly reforms would be vetoed by poorer Länder. Reforms in Detail The Specific Reforms Concluded In detail, the 2006 amendments had one principal impact: ● responsibility for prisons legislation would transfer to the Länder through the removal of the word “Strafvollzug” (prisons policy) from Article 74 Abs. 1 Nr. 1 of the Basic Law (areas which were defined as “concurrent legislation”, where the federal legislature was able to legislate and such legislation had primacy).

2 See for instance Die Zeit, 30 August 1974, ‘Dampf in der Debatte: Ein Zeitgespräch mit Bundesjustizminister Hans-Jochen Vogel.

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Notwithstanding the parameters set by the Basic Law and indeed the European Convention on Human Rights noted above, the Länder would, from that date, have the ability to make their own prisons laws, rather than merely implementing the previous 1976 Federal Prisons Law. Responses to the 2006 Reform decision—a Downward Spiral, and a Farce? Yet this shift in responsibility for prisons policy from the Bund to the Land level came as something of a surprise; as late as September 2004, the then Justice Minister Brigitte Zypries (SPD) emphasised clearly that there must be “absolutely uniform federal laws” for prisons policy (Maelick, 2006: 3). Even the 2005 coalition agreement between the SPD and the CDU underscored an intention to regulate youth prisons (Jugendstrafvollzug ) and pre-trial detention through federal legislation. The first draft of changes to the Basic Law published in March the next year indicated that thinking on this approach had already shifted in favour of decentralising legislative competence to the Länder. Within the inter-party horse-trading on a federal reform compromise, this area emerged as an element where a bargain could be struck. At the time, these changes drew a chorus of opposition from practitioners in the sector (e.g. Kopp, 2006); the criminologist Frieder Dünkel told the Spiegel magazine of his fears of a “competition of harshness” (Der Spiegel, 2006). The same discussion noted the fear of Schleswig–Holstein’s Justice Minister, Uwe Döring (SPD), that it would prompt the Länder to change the law to enable savings to be made in the area of social therapies for prisoners, and reminded readers that the CDU in Hesse had previously pledged the “harshest prison regime in the federal republic”. Dünkel subsequently entitled a 2007 essay on the subject “The farce of the federalism reform” (Dünkel, 2007). While prisons law was one of the areas to attract significant criticism, especially from practitioners and politicians with a particular interest in it (cf. Turner & Rowe, 2013), this did not crystallise in major opposition to the proposals from the ruling CDU/CSU-SPD coalition in the Bundestag and Bundesrat, notwithstanding the opposition of the SPD’s former Federal Justice Minister, who explicitly mentioned prisons policy as one reason for rejecting the changes (BT 16/44: 4338). The Left Party highlighted the area of prisons policy as a reason for opposing the change in the Bundestag, with Bodo Ramelow, its spokesperson on these issues and subsequent Minister President of Thuringia, saying:

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Now prisons will be equipped according to availability of funds and every regional baron can run riot and try to win votes by applying his own law and order principles, at the expense of having a common prisons policy [across Germany]. (BT 16/44: 4247).

A more sober assessment of the changes suggests, however, that there is not now the potential for sixteen different legal systems in the German Länder. Other important features of the legal framework continue to offer a framework for standardised delivery of policy. In addition to the continued presence of civil law, criminal law, and court organisation in Article 74, as matters of concurrent legislation, important principles are defined in the Basic Law which inevitably constrain the autonomy of the Länder—for instance, they were required according to a 2006 verdict of the Federal Constitutional Court to develop a youth prisons law (Dünkel & van Zyl Smit, 2007: 351). Moreover, the European Convention on Human Rights (and the EU Charter of Fundamental Rights, which gained legal force with the Lisbon Treaty in 2009) also shape the parameters in which justice policy operates.

3 Developing and Implementing the New Legislation on Prisons As a result of the decisions on reform taken in 2006, both the enthusiastic and the reluctant Länder were forced to get involved in the creation of new legislation in the area of prisons policy in the period just after the 2006 reforms came into force. A verdict of the Federal Constitutional Court in 2006 (1. BvR 357/05 decision of 15th February 2006) immediately required all the Länder to legislate, specifically, for youth prisons. Some Länder took the opportunity to create their own, joint laws amalgamating youth and adult prison laws, while others cooperated on the drafting of a common template (“Musterentwurf”) for a new youth prison law. The same Länder then cooperated on the drafting of a Musterentwurf for new Land-level legislation on prisons. At the headline level, then, we can see a contrast between; ● those Länder who were quick to take advantage of the possibility to introduce new legislation (Bavaria, Lower Saxony, Hamburg) in the area of adult prisons;

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● those who eschewed formal engagement in the drafting of the template law, but advanced at a slightly slower pace in bringing forward a new adult prisons law (Baden-Württemberg, Hesse, North Rhine Westphalia); and ● those who were content to coordinate their efforts, and advance at a slower pace, only bringing forward the youth prisons legislation required by the Federal Constitutional Court. There is a clear link to the partisan composition of the government in these cases: all three Länder in the group of frontrunners to legislate were led by the CDU (or in the case of Bavaria the CSU), as were the three Länder who acted somewhat less quickly, but also brought forward their own adult prison laws and declined to take part in the template law, even though they followed its development with interest.3 It is noteworthy that this mirrors the patterns of activity in other areas of policy (such as the law on care homes, see Chapter 2 in this volume). However, not all CDU-led Länder shared this approach: several, such as Schleswig– Holstein (CDU/SPD) and Saxony-Anhalt (also CDU/SPD during the period in question) were in no rush to legislate and took part in the template law project. The following section analyses the dimensions of prisons policy at the Land level where new legislation has been created in the wake of the 2006 reforms, and evaluate these changes in detail. These changes have been enacted in four principal areas of prisons policy: a) Youth justice b) Adult prisons c) Pre-trial detention d) Preventative detention Youth justice In the case of youth prisons, there have been five key areas of variation between the laws enacted by the Länder relatively soon after the 2006

3 Interview with a senior Land prisons policy official, Rhineland Palatinate, 5 November 2012.

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Federal Constitutional Court verdict, and have only been subject to quite limited amendment since. Aims of punishment Two Länder, Bavaria and Hamburg, specifically identify two primary purposes of youth prisons in their legislation, namely protection of the community—which is mentioned first in both cases—and resocialisation of offenders. Baden-Württemberg follows a similar logic, although they are a long way apart in the legal text, and it is not immediately clear which has priority. Lower Saxony emphasises the equivalence of resocialisation and protection of the community, while the remaining Länder (Hesse, North Rhine Westphalia, Saxony and those signed up to the template law) all gave primacy to the aim of resocialisation, while giving “protection of the community” equivalence as a function. This was, therefore, an area where some—but only some—Christian Democrat-led Länder chose deliberately to “fly a conservative flag” (Feest & Bammann, 2010: 537). Entitlement to Single Cells In all new prisons laws in the Länder, there is some level of commitment to providing prisoners with single cells. However, in each case there are opportunities for this not to be observed, either where a shared cell is in the prisoner’s interest (e.g. fears for the prisoner’s health), or temporarily for other operational reasons. In most Länder, though, single cells must otherwise be offered. There are four variations in evidence: ● Bavaria has a substantially weaker formulation of entitlement: prisoners “should” have a single cell, rather than this being a requirement; ● Baden-Württemberg and Hamburg (until 2009) also stated that prisoners “should” have a single cell, but with more exceptions under which a single cell must be offered (in the former case, in new prisons single cells must be offered, in the latter, exceptions from when prisoners “should” be offered a single cell are limited to when it is in the interests of a prisoner to be in a shared cell). ● In Berlin, the legislation set a deadline of the end of 2012, after which “operational reasons” would no longer justify a breach of the requirement for single cells.

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Again, in this area, we see party politics appearing to play a role, with some CDU-led Länder offering less generous provisions for prisoners, and a slightly more liberal line being taken by the SPD-Left Party coalition in Berlin. In all of this, though, it is important to consider not only the legislation, but also whether it is implemented, with one senior official cautioning that single cells were never likely to be fully implemented in practice, even in the context of falling prisoner numbers.4 Open and Closed Prisons In the Musterentwurf , and in the laws of Saxony and North Rhine Westphalia, open and closed prisons are presented as equal options. North Rhine Westphalia goes further with its endorsement of open prisoners, with a requirement to move a prisoner to an open prison if it is appropriate; in the other cases, a prisoner “should” be transferred if appropriate. By contrast, and with slightly different formulations, Hamburg (until 2009) and Hesse give priority to closed prisons, while noting that a prisoner “can” be moved to an open prison under some circumstances; Bavaria and Lower Saxony also have as a default closed prisons, but prisoners “should” move to an open prison if appropriate. BadenWürttemberg’s law also contains a difference: the Land had adopted a pilot of youth custody, whereby it would occur in an institution run by youth services, and this is explicitly referred to in the Land’s law alongside open and closed prisoners. With the exception of Bavaria and Hamburg, each of the Länder also refers to this possibility, while affording it less prominence. So here we again appear to see a party political pattern, with some CDU/CSU-led Länder adopting more “hardline” laws, but we also see regional path dependence, since Baden-Württemberg chose to reflect its (successful) experience with alternative forms of detention in its law. Accommodation in Living Groups ( Wohngruppen) In youth prisons, it was often felt that accommodating prisoners in small groups where they would spend their time (when not in individual cells) was desirable, and the initial draft law from the Federal Justice Ministry specified this as being what should happen “regularly”. The maximum size of these groups was, in that draft, set at eight prisoners. There is now some variation in the extent to which this model finds endorsement in the 4 Interview with a senior Land prisons policy official, Rhineland Palatinate, 5 November 2012.

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laws of the Länder. The Länder following the Musterentwurf stuck with the formulation proposed by the federal justice ministry, albeit without stating the maximum group size (apparently at the request of Land finance ministries), Hesse had a similar formulation but followed the Federal Justice Ministry’s proposal on size, and Saxony had a minimum size of 12 (Dünkel & Pörksen, 2007: 62). Baden-Württemberg, Lower Saxony and Hamburg used a weaker formulation, stating that suitable prisoners “should” be accommodated in living groups. Hamburg also mentions a minimum size of 8, and maximum of 15 prisoners. Bavaria has the weakest formulation, stating that “young prisoners who qualify may be housed in living groups” (Art. 140); an interview with a CSU parliamentarian on the subject saw him dismissive of the concept of living groups, where an increase would have been a “daft liberal idea”.5 Again, there seem to be some partisan patterns here, with CDU-level Länder seemingly attaching a lower priority to living groups than their SPD-led counterparts. Access to Therapy All the new laws at the Land level refer to the possibility of access to therapy while serving their sentences, but there are variations in the extent to which each prisoner has a legal entitlement to it. In most Länder, laws state that prisoners “can” be accommodated in a social therapy institution; however, this is stronger in Rhineland Palatinate, where the draft law was amended by parliamentarians to say that prisoners “should” have an entitlement to therapy; in Bavaria, Hamburg and Lower Saxony, there is a legal requirement to provide therapy in certain circumstances. A CSU parliamentarian6 speculated that this was an area where the CSU had been able to legislate because it was a Land competence, but would have been blocked at the federal level by poorer Länder, had the competence been on a national level—an interesting counter-claim to the “race to the bottom” argument. Youth Justice—conclusions In summary, then, there are three conclusions that can be drawn in relation to youth prisons laws. First, the laws are in essence quite similar,

5 Interview, CSU policy lead on prisons, Bavaria, 3 December 2013. 6 Interview, CSU policy lead on prisons, Bavaria, 3 December 2013.

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with only limited areas of substantial difference; this is particularly the case, unsurprisingly, where Länder chose to cooperate on drawing up the new law. Secondly, what differences there were often appear attributable to party politics, with some, but only some, Christian Democrat Länder keen to put down a conservative marker. In Hamburg, such markers were promptly reversed when the Green Party took over the justice ministry (as can be noted in the changes between 2007 and 2009). Similarly, in Lower Saxony, when an SPD/Green coalition took over in 2013 from the previous CDU/FDP coalition, the coalition agreement pledged to create a stand-alone youth prison law, and a greater emphasis on prevention (although in the end it was content to modify its existing law). Thirdly, as in the case of Baden-Württemberg’s provision for alternative provision of youth custody other than in a prison, Land-specific factors shaped the laws to a limited degree. Adult prisons As Table 2 shows, the pace at which the Länder advanced and created their own adult prisons laws varied significantly. At one end of the scale, Bavaria, Lower Saxony and Hamburg were out of the blocks as early as 2007, creating an adult prison law including the provisions on youth prisons required by the Federal Constitutional Court. At the other end of the scale, Berlin’s legislation was only implemented in 2016, and Schleswig–Holstein’s in 2017. As in the case of youth justice, there are a number of key areas of variation—some “symbolic” (such as the aims of punishment), some substantively important (such as the distinction between open and closed prisons, and provisions on early release), provided the law is actually implemented. However, it is also striking that there are very significant areas of similarity between the new laws (and indeed between these and the old Federal Prisons Law). Aims of Punishment As in the case of youth prisons, there is some variation in the definition of the aims of punishment, with some CDU/CSU-led Länder trying symbolically to place greater emphasis on punishment, while still operating within the boundaries set by the Federal Constitutional Court. Bavaria and Baden-Württemberg mention the protection of the community first (and only then resocialisation of offenders); the Musterentwurf

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Prisons legislation in the Länder (source Land websites, own research)

Land

Youth prisons law or prisons law?

Part of template group?

Year of first new Land-level legislation on prisons

Baden-Württemberg

Youth prisons law first, then prisons law

No

Bavaria Berlin

Prisons law Youth prisons law

No Yes

Brandenburg

Youth prisons law

Yes

Bremen

Youth prisons law

Yes

Hamburg

Prisons law

No

Hesse Mecklenburg-Lower Pomerania Lower Saxony

Youth prisons law Youth prisons law

No Yes

2007 youth 2009 prisons (implemented 2010) 2013 revised version prisons 2007 Draft published 2015, implemented 2016 2013 published, 2014 implemented 2014 published, 2015 implemented 2007, fundamentally rewritten 2009 2010 2013

Prisons law

No

North Rhine Westphalia Rhineland Palatinate Saarland Saxony

Youth prisons law

No

Youth prisons law Youth prisons law Youth prisons law

Saxony-Anhalt Schleswig–Holstein Thuringia

Youth prisons law Youth prisons law Youth prisons law

Yes Yes Partially—joined at the outset then left during the process to draft a template for youth prisons law; YES on prisons law Yes Yes yes

2007 (revisions 2013 and 2017) 2015 2013 2013 2013

2015 2017 2014

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(and those laws upon which it is based) put resocialisation first, and then mentions that protection of the community is also a function of prison; a similar formulation is adopted by Lower Saxony. Hamburg does the same, but emphasises the equal importance of this function to resocialisation. When Lower Saxony shifted from a CDU-led to an SPD-led government, its legal revisions also included some text at the start about the need to get prisoners to recognise that they had committed a wrongdoing. Open and Closed Prisons Again, there are similarities to the situation with youth prisons in whether a Land regards open or closed prison as the “normal” form of punishment. Bavaria and Lower Saxony both make closed prison the norm, though in the latter case a prisoner “should” be transferred to an open prison if certain criteria are met; Hesse views open prison as a relaxation of prison conditions (away from the “default option” of closed prison); while all the other laws passed, the Musterentwurf , and the old Federal Prisons Law do not mention a particular “default”, but state that a prisoner “should” be housed in an open prison if he or she meets certain conditions. Early Release for Those Serving Life Sentences One topic highlighted in interviews with practitioners, and which attained a certain media profile, was the stage at which inmates serving life sentences would be considered for early release.7 Most prisoners, according to the laws of each Land, can be considered for this, but under the Federal Prisons Law this could not be considered within the first ten years of a sentence for those serving a life term; this was adopted by Hesse, Bavaria, Baden-Württemberg, Lower Saxony and Hamburg. The Musterentwurf reduced this to five years, but this was one of just two proposals from civil servants which failed to find favour with politicians: in Berlin, Rhineland Palatinate, the Saarland, Schleswig–Holstein, Saxony and Mecklenburg-Lower Pomerania, politicians chose to stick with the ten-year rule. Only in Brandenburg—with its Justice Minister from the Left Party—did the decision differ, with no particular stipulation beyond the prison authorities considering it appropriate.

7 Interview with head of department, Rhineland Palatinate, 5 November 2012.

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Duty to Work The other area where civil servants working on the Musterentwurf differed from leading politicians was in whether prisoners should be face a duty to undertake work. The duty was a feature of the Federal Prisons Law, and also the five laws passed by CDU/CSU-led Länder. However, the Musterentwurf proposed dispensing with it: in Rhineland Palatinate, Brandenburg and Saxony, this advice was followed; in MecklenburgLower Pomerania and in Berlin, the duty was retained, while in the Saarland, the “duty” was abolished, but instead prisoners could be “compelled” to work. Opponents of the duty to work argued that the European Court of Human Rights saw work as a reward for good behaviour and that it should not be used as a punishment; moreover, in practice there was a shortage of work so it was rarely refused, and indeed it was considered less challenging than undertaking therapy8 (Forum Strafvollzug, 2012: 223–4). Supporters of the duty to work pointed to its value in achieving resocialisation, and also the need to retain the infrastructure of prison employment (which would be lost, they argued, if the duty was deleted, as Länder would choose to save money by not providing employment for the prisoners with the least experience of work).9 In Berlin, while the duty to work was retained, the level of remuneration for prisoners was increased to a more generous level than in Brandenburg or the old Federal Prisons Law (Drenkhahn, 2015). Participation The old Federal Prisons Law (paragraph 160) stated that it “should” be made possible for prisoners to “take responsibility for issues of common concern”. There was some legal debate about the extent to which this required prisons to establish some sort of representative body. In Hesse, Lower Saxony, the Musterentwurf and those laws based upon it, there is now reference to a representative body, but it remains on that basis that one “should” be established, rather than a firm legal requirement. Only in Hamburg’s law is the requirement to allow prisoners to take some responsibility binding. In Lower Saxony and the Musterentwurf (and laws based

8 Interview with head of department, Justice Ministry, Berlin, 4 December 2012. 9 Interview with a union official, Bavaria, 4 December 2013; Interview with senior

official, Justice Ministry, Schleswig-Holstein, October 2012).

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upon it), the prison authorities should discuss proposals coming from prisoners through this route, whereas in Bavaria and Hesse, prisoners are just entitled to put forward their points (Drohsel, 2012). Adult Prisons—conclusions In summary, then, legislation on adult prisons demonstrates, first, that the majority of Länder were in no rush at all to deviate from the old federal law and plough their own furrow—with such enthusiasm only being detected amongst some Christian Democrat-led Länder. Moreover, ten Länder chose to cooperate on a new law, through the Musterentwurf process, preferring a process of harmonisation (led by civil servants) to differentiation. Secondly, there are, nonetheless, still some differences, but these appear to be concentrated to a significant degree on issues of symbolic importance, such as the aims of punishment, the status accorded to open prisons, and the duty to work. Finally, some commentators have regretted the extent to which the new laws are vague in terms of personnel and structural requirements for prisons, so that potential improvements will be “torpedoed by restrictive budgets” (Ziethener Kreis, 2012: 86; Drenkhahn, 2011: 266). Pre-trial detention The lack of appetite for variation in laws across the territory is particularly striking when laws on pre-trial detention (Untersuchungshaft ) are considered. The decision of the Federal Constitutional Court to require a separate youth justice law to be created was considered, by extension, to apply also to pre-trial detention (Winzer, 2010: 3). Lower Saxony included this area in its wider prisons law of 2007; 12 Länder formed a group to create a Musterentwurf , and while the remaining four Länder (Bavaria, Baden-Württemberg, Lower Saxony and North-Rhine Westphalia) were not part of this process, in practice their laws were quite similar. Certainly, the laws are similar in format, and indeed Schneider contends that “there are no differences worth mentioning” (Schneider, 2013: 277). Feest and Pollähne point to a few areas of divergence, such as spending allowances and length of visits (where Lower Saxony’s law is more restrictive than those elsewhere), although their greater concern is with legal uncertainty about the boundaries to Land competences, since the federal government retains some responsibility for possible reasons for incarceration (Feest & Pollähne, 2009).

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Preventative detention A picture of even closer horizontal coordination on Land-level legislation in the broader area of prisons and justice policy since 2006 has been evident in relation to preventative detention (Sicherungsverwahrung ). In a decision on 4 May 2011 (2 BvR 2365/09), the Federal Constitutional Court struck down previous legislation on this topic (both at a federal level—passed in 2011 and in the individual prisons laws of the Länder, inasfar as these existed), and it gave the Bund the power to set guidelines (“Leitlinienkompetenz”) in this area. The Bundestag and Bundesrat agreed with the relevant legislation in 2012 (Schwind et al., 2013: 1008). As a result of this, all the Länder set up a working group, under the leadership of Lower Saxony and North Rhine Westphalia, to establish a possible legal framework, and Land legislation subsequently has been closely orientated around the results of the working group discussions (ibid. 1009–10). Analysing the Implications of Decentralisation in Prisons and Justice Policy In summary, in the area of prisons legislation, we can draw five broad conclusions. First, there has been no “competition of harshness”, in spite of fears to the contrary. This has been confirmed by our empirical findings in the foregoing discussion, where there is absolutely no evidence of a dynamic whereby Länder seek to outbid each other with increasingly harsh treatment of prisoners. The absence of a “competition of harshness” was accepted by every single practitioner we spoke to in the field, and even by some of the experts who had been most critical of the proposals. For instance, scholar Johannes Feest, while remaining critical, entitled an essay on the Musterentwurf on adult prisons “A Musterentwurf not without value” (“nicht ohne Wert” ), which concludes: If [the law] is consistently implemented by the Länder and is not watered down by amendments and restrictive administrative decisions, then the fears at the time of the federalism reform of a “dog’s dinner” and a “competition of harshness” will have, at least in part, have been banished. The Musterentwurf is admittedly miles away from the big hopes of a prison reform. But times are apparently such that one is happy when things don’t turn out quite as badly as feared. (Feest, 2012: 8).

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In a similar vein, the highly sceptical Frieder Dünkel and his collaborators conclude that “The ‘competition of harshness’ which was originally feared, has so far not appeared. By contrast, certain Länder have even introduced considerable investments”, even referring to a “competition to achieve best practice” (Dünkel et al., 2010: 31). This is not to say that the reforms to prison laws have led to huge improvements (a point discussed on the implementation of prisons policy below), simply that the Länder have not entered a dynamic spiral of legislation to treat prisoners with increasing harshness. Secondly, we see substantial differences between the Länder in their appetite for variation in this policy area. While a few—Bavaria, BadenWürttemberg, Hamburg, Hesse and Lower Saxony (at the time, all led by Christian Democrats) were keen to legislate autonomously, others were keen to collaborate with other Länder, developing the “template laws” which were then embraced, with only relatively minor tweaks, across the board. This should, perhaps, not be a surprise, given the shared disdain for decentralisation of the legislative responsibility amongst many civil servants and politicians, as well as the relatively tight parameters set on prison laws by both the Basic Law and verdicts of the Federal Constitutional Court. It also fits with the picture we find in other areas of policy, whereby some Länder not only demand greater autonomy, but seek to use it, while others have far less appetite to vary policy. Thirdly, where differences between the laws are observed, quite often they appear to be around issues of symbolism, possibly affecting relatively few prisoners, such as the aims of punishment, or whether open or closed prison is, in legal terms, regarded as the default. Here, some Christian Democrat politicians—in government and in some Länder in opposition—sought to emphasise their conservative values, although this desire was not universally shared: several CDU-led Länder adopted the template law on youth prisons with little modification, for instance. There are occasional variations due to Land context—particularly evident, for instance, in Baden-Württemberg’s youth prisons law, and there is modest evidence, too, of other Länder seeking to learn from this experience. By contrast, there is no evidence that the vastly differing crime rates have led to differences in prison laws, in either of the directions posited in the introduction to this chapter (more crimes leading to demands for harsher treatment; or more crimes leading to pressure on prisons and thus more

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generous day release provisions). Such causes for change were not identified in interviews, or in our review of parliamentary proceedings or media coverage of these issues either. Fourth, there is some evidence of Land politicians taking a greater interest in this policy area, and being willing to invest extra funds as a result.10 Not everyone viewed that as being welcome, with a leading trade unionist insisting that in fact, the extra attention prevented officials from being able to get on and do their jobs.11 Fifth, the federalism reform of 2006 did ensure that Länder were able to legislate in areas which, hitherto, had been left untouched due to a stand-off between the federal government and the Bundesrat: indeed, if, as suggested in the introduction, reducing the number of veto players in this policy area to facilitate legislation was behind the transfer of responsibility, it has been a success, with laws being passed in all areas demanded by the Federal Constitutional Court, but also in the area of adult prisons in several Länder after an impasse spanning decades at the federal level. Variations in the Implementation of Prisons Policy in the Länder Post-2006 A point which is frequently emphasised by scholars (e.g. Figgen, 2017: 186) and practitioners,12 is that the comparison of laws will paint, at best, an incomplete picture of the situation in prisons across Germany. For instance, we have seen different levels of commitment to single cells in legislation. Arguably the more important question is not what the legislation says should happen with regard to single cells, but rather whether prisoners actually have access to a single cell, or whether the Länder fail to meet their legal obligations. Precisely the same point applies to open prisons. In table 3, below, we summarise key data on the implementation of prisons policy: Table 3 illustrates clearly the substantial variations across a range of indicators. The different levels of expenditure per prisoner—with Bavaria’s

10 Interview with head of department, Rhineland Palatinate, 5 November 2012; Interview with head of department, Justice Ministry, Berlin, 4 December 2012. 11 Interview with a union official, Bavaria, 4 December 2013. 12 Interview with former prison governor, Berlin, 17 October 2012.

29.600 47.000 52.500 36.000 59.800 41.400 45.000 43.400 40.700

Bavaria Berlin Brandenburg Bremen Hamburg Hesse Mecklenburg-Vorpommern Lower Saxony Nordrhein Westfalen

6.0 26.6 19.6 16.9 15.9 7.4 10.8 16.4 27.2

15.2

% prisoners in open prison (2018)14

65.5 89.0 92.3 94.6 91.0 87.8 78.4 88.5 72.4

59.1

% Prisoners in single cells (2016)15

90.7 86.4 76.9 71.0 73.6 81.0 75.8 80.0 83.1

88.0

% Occupancy (2016)

16 Dünkel & Pruin, 2015: 41. 17 Dünkel & Pruin, 2015: 37. 18 Cho, 2014: 84–92.

13 Statistisches Bundesamt, 2015: 54. 14 Statistisches Bundesamt (Fachserie 10, Reihe 4.1); own calculations. 15 Own calculations based on Statistisches Bundesamt, 2018: 322.

33.900

Spend per prisoner (e, 2011)13

Aspects of prisons policy in the Länder

Baden-Württemberg

Land

Table 3

18.7 45.5 10.2 45.7 32.7 16.8 285 36.5 30.2

28.0

Admissions to parole ( Freigang) per 100 prisoners (2012)16

234 762 132 971 801 273 334 335 672

391

Agreement of day release per 100 prisoners (2012)17

JVA Bremervörde

JVA Hünfeld

JVA Offenburg returned to public running in 2014

Privatisation or partprivatisation18

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Rhineland Palatinate Saarland Saxony Saxony-Anhalt Schleswig–Holstein Thuringia Germany: total

Land

48.100 41.800 31.300 44.200 45.700 38.500 39.500

Spend per prisoner (e, 2011)

6.6 16.6 6.3 4.3 9.1 5.5 15.5

% prisoners in open prison (2018)

84.8 88.6 62.6 86.1 94.7 61.3 75.0

% Prisoners in single cells (2016)

94.8 78.7 92.6 78.9 79.7 82.6 84.7

% Occupancy (2016)

40.0 51.6 (2010) 8.4 2.2 11.4 6.8 N/A

Admissions to parole ( Freigang) per 100 prisoners (2012) 426 611 202 65 261 192 428

Agreement of day release per 100 prisoners (2012)

JVA Burg

Privatisation or part-privatisation

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expenditure per prisoner in 2011 less than half that of Hamburg’s—are striking. On occupancy levels, the range of variation was, in 2016, now rather narrower than it was back in 2012 (when Bavaria was at full capacity, and Brandenburg only used 64% of its available places; cf. Statistisches Bundesamt, 2015: 30). However, the level of variation on single cells is indeed striking; with the percentage in Baden-Württemberg (59.1%) comparing unfavourably with most Länder, notably Bremen (94.6%) and Schleswig–Holstein (94.7%). A key area where laws appeared to differ was in the status given to open prisons, and these differences are reflected in substantial variations in the proportion of prisoners held this way. Bavaria, Rhineland Palatinate and several eastern Länder (Thuringia, Saxony and Saxony-Anhalt) appear reluctant to use this option, with around 6% being accommodated in an open prison. By contrast, in North-Rhine Westphalia (27.2%) and Berlin (26.9%) it is far more common. A similar pattern can be discerned in various forms of relaxation of prison sentences (Vollzugslockerungen). For instance, on day release, Berlin, Hamburg, NRW and Bremen appear to take a liberal line, with an average of over 600 day releases per 100 prisoners being agreed; Bavaria, Schleswig–Holstein and each of the eastern Länder apart from Mecklenburg-Vorpommern average below half this level, with under 300 day releases per 100 prisoners. For Dünkel and Pruin, this reflects party political priorities and political will: Shifts to SPD-led governments or coalitions involving Bündnis 90/Die Grünen or the Linkspartei regularly see increases in the statistics on relaxation of prison sentences. These statistics stagnate under CDU-led governments; in the cases of Hesse or Hamburg, we even saw these fall. Playing out party political differences on the prisoners themselves in no way seems to be a rational way of carrying out penal policy. (Dünkel & Pruin, 2015: 44)

Certain Länder (exclusively at times when they are led by the CDU) have also introduced partially privatised prisons. There are some constitutional restrictions to this, as certain functions can only be carried out by Beamte—(state employees) (cf. GG Art. 33 Abs. 4 und 5)—but, starting in Hesse with Hünfeld prison, many services inside a prison became the

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responsibility of a private company, namely the areas of buildings management, services, care, treatment and oversight. These duties are performed, in full or in part, by around 95 employees of the company Serco. Initially, the Land government had hoped to save around 15% of the running costs of the prison, although in the end this has not happened, and these are in fact higher than at the equivalent prison at Darmstadt (cf. Cho, 2014: 84– 90). In Burg in Saxony-Anhalt, Offenburg in Baden-Württemberg, and Bremervörde in Lower Saxony, responsibility for the running of prisons has similarly been passed to the private sector (and indeed Burg and Offenburg represented Public Private Partnerships as, unlike in Hünfeld, the private sector was tasked with the construction of the new facility (cf. Barisch, 2010: 28). However, the Green–Red coalition in BadenWürttemberg brought Offenburg prison back into the public sector in 2014, while in Bremervörde, although the length of the contract was such that a similar decision could not be taken, the new SPD minister has made plain her unhappiness with the principle of privatising prisons. In Berlin and in Bavaria, privatisation has also been considered, but in both cases the projects were not progressed as they were no longer perceived to be advantageous financially, and in recent years there has been no further interest in pursuing privatisation of prisons. In summary, then, we can see substantial differences in the way prisons are run across the Federal Republic. Although there are some variations, by and large Bavaria can be relied upon to have relatively restrictive practice, while such Länder as Hamburg and Berlin are more liberal—so that prisoners will have a higher level of per capita expenditure, will be more likely to be housed in a single cell, will be more likely to be accommodated in an open prison, and are substantially more likely to obtain day release. This raises the question of whether these differences in implementation necessarily reflect the content of prison laws. Dünkel and Pruin (2015: 44) argue that Länder such as Bavaria, Hesse and Lower Saxony have “legitimated” their previous restrictive practice in the running of prisons in their new laws. However, as Figgen (2017: 186) notes, this only goes so far. In the majority of new laws, open prison is foreseen to be the normal form of punishment, yet even in the Länder where it is deployed most frequently, it remains a minority pursuit, affecting under a third of prisoners. All of the eastern Länder retain the formulation that prisoners “should” be accommodated in open prison when certain conditions are met, yet this applies in three of them (Saxony, Saxony-Anhalt

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and Thuringia) to less than 7% of prisoners. It hardly seems likely that the prison populations in Berlin (26.9) and Saxony-Anhalt (4.3%) are so different that it can account for the reason why six times the proportion of prisoners are in open prisons in the latter compared to the former—yet the two Länder have very similar legal provisions on the subject. Indeed, even Bavaria, which drafted its law in such a way as to be rather hostile to the concept of open prison, has a higher proportion of its prisoners there than in Saxony and Thuringia, ostensibly home to more liberal legislation. Dünkel and Pruin (2015) note that in practice, all the legal texts give sufficient room for manoeuvre for a more or less liberal course to be taken, and their view is that there is “insufficient political will” to move in this direction, with more restrictive, less risky practices providing a “job guarantee) to a Land’s justice minister (Dünkel & Pruin, 2015: 44). Even the issue of party politics—while clearly evident to some degree in both the formulation and implementation of laws—needs some nuance. An interview with a former prison governor suggested that CDU ministers’ law and order credentials would be taken for granted, they would have less scrutiny than their SPD equivalents, and would therefore be more inclined to let civil servants get on with their jobs, without interference. Former Justice Minister in Brandeburg Volkmar Schöneburg, of the Left Party, eventually resigned after accusations of having illicitly communicated with and helped an inmate of his acquaintance, leading to the Left Party in the state to say “[Schöneburg] is a victim of public pressure, which at its heart is against the policy of resocialising criminals as the core of preventing crime, and which had as its purpose to demolish his reputation”.19 That being said, Schöneburg had a reputation as being particularly liberal (illustrated by the state being the only one to implement in full proposed provisions in the template law on early release of prisoners serving a life sentence). Towards a New German Justice Policy: National Laws, Regional Variation? In an interesting contribution, Boyne, on the basis of extensive interviews as well as analysis of data, argues that

19 https://www.sueddeutsche.de/politik/verdacht-auf-amtsmissbrauch-brandenburgsjustizminister-schoeneburg-tritt-zurueck-1.1843819.

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Germany’s federalist structure delegates the administration of criminal justice to the Land and regional levels, this delegation of authority undercuts the ability of the system to fulfill its founders’ normative aspirations [of achieving equality of all citizens before the law]. While the law aims to produce uniform outcomes reflecting the certainty of a scientific decisionmaking process, the structure of German federalism disperses political power and encourages the production of localized conceptions of justice. (Boyne, 2012: 254)

Descriptive statistics do indeed suggest that, in a variety of areas, there appear to be differences in the practice of state prosecutors and courts. We might start by reviewing decisions on prosecution (Table 4). The prosecution rate (Anklagequote) shows the proportion of cases which are passed to a court, and we can also compare the proportion of cases which are not pursued for legal reasons, for instance, in the case of minor breaches of the law (Einstellungsquote). Some cases fit into neither category. Considering data for the years 2006, 2009 and 2012, there are some clear patterns; it is striking that variation over time within a particular Land is much lower than between the Länder. Thus, in every year, Schleswig–Holstein has the lowest prosecution rate of all the Länder, while Bavaria, Bremen and Saxony consistently form the three Länder with the highest prosecution rate. Similarly, Bavarian prosecutors are the most reluctant to drop cases (in each case having the lowest rate of cases dropped), while Hamburg has the highest level of cases being dropped in each of the three years. Comparative data is also available on court verdicts, and specifically the rate of conviction (Verurteilungsquote) (Table 5). This will reflect not only the practice of judges, but, according to the Statistisches Bundesamt, also depends on the completion practice of the public prosecutor, since a higher level of prosecution of minor cases will lead to a lower level of convictions. Although there are some variations over time within particular Länder (notably a decline in the rate of conviction in RheinlandPalatinate, the Saarland and Brandenburg, and an increase in Hesse, Meckleburg-Vorpommern and Bremen), some (different) patterns can be discerned here, with Hesse, Rheinland-Palatinate, the Saarland and Baden-Württemberg tending to be amongst those with the highest level

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Table 4 The rate of prosecutions and the rate of cases dropped in all completed preliminary investigations Land

Baden-Württemberg Bavaria Berlin Brandenburg Bremen Hamburg Hesse Mecklenburg-Vorpommern Lower Saxony Nordrhein Westfalen Rhineland Palatinate Saarland Saxony Saxony-Anhalt Schleswig–Holstein Thuringia Germany overall

Prosecution rate in % 2006 30.6 32.0 29.4 28.4 32.6 24.2 24.4 30.8 27.8 28.6 23.7 25.2 30.6 25.0 22.4 29.9 28.3

2009 31.2 30.7 28.8 27.5 33.0 23.8 22.5 27.9 25.4 27.2 22.0 26.0 31.8 23.3 21.1 27.3 27.2

Rate of cases dropped in % 2012 30.1 30.0 26.420 25.7 28.5 21.6 20.6 26.8 24,2 26.2 22.5 26.6 30.4 23.2 19.3 27.0 26.0

2006 57.0 54.4 67.2 64.0 58.1 71.0 66.4 59.0 61,7 64.5 63.9 61.4 59.7 65.5 64.1 58.1 62.0

2009 55.5 54.2 68.0 62.6 57.6 71.2 68.6 60.4 62,9 64.4 62.3 59.8 57.9 64.9 65.1 59.6 62.1

2012 56.4 52.9 71.1 63.9 60.5 73.6 70.7 62.1 63.5 66.4 61.8 58.4 60.1 68.1 65.7 58.6 63.3

Source Statistisches Bundesamt (2008, 2011, 2015)

of convictions, and Hamburg and Bremen consistently bringing up the rear. An area where prosecutors enjoy some discretion is in the prosecution of adolescent offenders aged 18 to 20 (Heranwachsende); here, youth prison policy can be applied if “a full consideration of the offender’s personality, also taking into account environmental factors, reveals that at the time of the offence the offender could have been considered a minor, in terms of their moral and mental development; or that the form of, circumstances surrounding or motivations for the offence can be considered a mistake attributable to youth “ (§105 of the Youth Courts Law). Taking the statistics for the years 2006, 2009 and 2012, the top six Länder for the application of youth prisons law are Hamburg, Schleswig– Holstein, Bavaria, Lower Saxony and Hesse, while Brandenburg, Saxony,

20 Berlin data is from 2011.

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Mecklenburg-Vorpommern and Baden-Württemberg are consistently in the bottom five. Here, the degree of variation is striking: in 2012, for instance, Hamburg and Schleswig–Holstein applied the youth prisons law in 87% of cases (excluding road traffic offences), while in Brandenburg and Mecklenburg-Lower Pomerania, this was only applied in 52% of cases. Even though it is conceivable that the nature of crimes committed might explain part of the variation, it would appear also to point to the differences in the practice of different prosecuting authorities. One critically important point in the implementation of justice policy is in the nature of sanctions imposed. In this area, we also find substantial territorial variation over time (Table 6). The striking finding of Table 6 is that there appear to be consistent patterns; while around four in five cases across the Federal Republic is likely to be punished with a fine rather than a prison sentence, the proportion is substantially lower in Bremen, and higher in Bavaria and in particular the Saarland. Even allowing for the possibility of different Table 5

Rate of conviction by Land

Land

Baden-Württemberg Bavaria Berlin Brandenburg Bremen Hamburg Hesse Mecklenburg-Vorpommern Lower Saxony Nordrhein Westfalen Rhineland Palatinate Saarland Saxony Saxony-Anhalt Schleswig–Holstein Thuringia Germany overall

Rate of conviction in % 2006 85 82 78 82 73 72 82 82 83 77 87 83 79 Data not available 81 77 80 (excluding Saxony-Anhalt)

Source Statistisches Bundesamt (2008, 2011, 2015)

2009 85 80 79 77 73 72 84 84 80 77 84 83 77 78 80 78 80

2012 84 81 78 77 76 74 86 85 81 78 82 80 79 81 80 79 81

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offences being on trial, it would point to territorial variation in the practice of sentencing. We also find regional variations in the treatment of those who fail to pay fines, which can be seen by comparing the proportion of prisoners who are imprisoned in default of payment (Table 7). While variations over time might reflect the (expected) change due to economic conditions (Statistisches Bundesamt, 2015: 33), with the economic climate affecting the extent to which fines fail to be paid, the regional variations reflect differences in the extent to which those who default on fines are punished with imprisonment in default of payment, with the consequent impact upon the prison population, or instead through a public service activity (Statistisches Bundesamt, 2015: 33). Nonetheless, those Länder which hand out the highest proportion of fines (as opposed to imprisonment) appear to have the highest proportion of their prison populations taken by those undertaking imprisonment Table 6 Sanctions imposed according to the general criminal law (excluding road traffic offences) Land

Baden-Württemberg Bavaria Berlin Brandenburg Bremen Hamburg Hesse Mecklenburg-Vorpommern Lower Saxony Nordrhein Westfalen Rhineland Palatinate Saarland Saxony Saxony-Anhalt Schleswig–Holstein Thuringia Germany overall

2009 Imprisonment 19 27 20 18 12 19 21 18 23 22 25 28 20 25 21 20 22

Source Statistisches Bundesamt (2008, 2011, 2015)

2012 Fine 81 73 80 82 88 81 79 82 77 78 75 72 80 75 79 80 78

Imprisonment 19 26 20 19 12 19 19 18 21 22 24 32 19 21 21 18 21

Fine 81 74 80 81 88 88 81 82 79 78 76 68 81 79 79 82 79

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in default of payment—so this table should not be taken as a proxy for illiberal justice policy choices, and if anything the reverse is true. Finally, we can examine the length of court hearings. This can be analysed with respect to one example—the length of hearings which are resolved (without appeal) at the tribunal or criminal court, as it has a sufficiently high number to give useful data (with over 13,956 cases across Germany in 2010, and 13,077 in 2013). Here, we again see variation, with the average length ranging from around five and a half months in Bavaria and the Saarland in both years, to around 10 months in Bremen (Table 8). This comparison illustrates that the way courts and public prosecutors operate across the Federal Republic varies, and such variation is not random. To some degree, it might reflect patterns of criminality, but it is clear that Boyne’s expectation (2012) that there are different cultures and practices in different Länder holds; these broadly reflect the political climate in each Land. So, in staunchly conservative Bavaria, cases are more likely to be brought before a court, those on trial are more likely Table 7

Prisoners held in default of payment as a proportion of all prisoners

Land

Baden-Württemberg Bavaria Berlin Brandenburg Bremen Hamburg Hesse Mecklenburg-Vorpommern Lower Saxony Nordrhein Westfalen Rhineland Palatinate Saarland Saxony Saxony-Anhalt Schleswig–Holstein Thuringia Germany overall

% 2007 (rounded) 7 5 7 8 13 7 8 7 9 8 5 3 9 8 10 7 7

Source Statistisches Bundesamt (2008, 2011, 2015)

2009 7.6 5.2 11.9 9.9 13.5 8.6 7.6 6.8 8.1 7.2 6.4 3.3 10.1 7.1 9.3 6.5 7.6

2012 9.5 5.5 11.0 10.7 13.1 10.2 9.4 10.1 7.6 8.2 6.3 6.4 11.1 10.1 8.1 8.7 8.4

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Table 8 Cases completed at tribunal in the first instance: average duration of the procedure (in months)

Land

2010

2013

Baden-Württemberg Bavaria Berlin Brandenburg Bremen Hamburg Hesse Mecklenburg-Vorpommern Lower Saxony Nordrhein Westfalen Rhineland Palatinate Saarland Saxony Saxony-Anhalt Schleswig–Holstein Thuringia Germany overall

6.2 5.5 7 8.4 10.2 6.4 6.6 6.3 6.3 6.0 6.1 5.5 6.6 6.2 6.0 6.5 6.3

6.1 5.5 7 7.8 9.7 6.8 8.1 6.9 7.3 6.8 6.8 5.4 5.5 5.5 6.6 5.3 6.6

Source Statistisches Bundesamt Fachserie 10.2.3 / own calculations

to be found guilty, and are more likely to face a fine than, say, in more liberal Hamburg. This matches the discussion on the implementation of prisons policy (above) and suggests that drilling down beyond legislative provisions towards policy implementation is valuable in the study of territorial diversity in Germany. Conclusion The aim of this volume is to explore the changing face of German federalism, in particular in the light of the 2006 federalism reforms, but also in the light of our view of the Federal Republic as a country which is more diverse across its territory than is often recognised. In the area of prisons legislation and policy, and justice more widely, we have found this is a fruitful area for exploration. Firstly, even though this was not an area, unlike for example education policy, where the Länder had sought greater powers, Germany lives up to its name as a “Federal Republic”. Once given the opportunity to produce their own prison laws, several Länder, those who tended to be

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more assertive about the need for greater power across the piece, worked quickly to develop their own laws, and variations can be seen between them, accounted for in particular by party politics, but also by structural and path dependence considerations. Secondly, however, we also see that an exclusive focus on laws will mask very important variation which is evident in the way Länder implement policy, which they do so on the basis of laws they have passed themselves, or on the basis of federal legislation. This is especially striking in the case of justice policy: it is an area where, with Germany adopting the “separation of powers” that would be expected in any democracy based on the rule of law, political involvement would not be anticipated, and yet there are very clear patterns, related to a significant degree to the party politics of the Länder, which go beyond legislation. Moreover, prisons laws, on their own, are not a good guide to the state of a Land’s prison system: this is most clearly exemplified by the case of open prisons, where the proportion of prisoners in an open prison is far lower than expected across the board, but there are big variations between Länder between those with near-identical legal provisions on the subject. It is noteworthy, too, that there is especially big variation on matters of symbolism in the legislation—such as the different roles ascribed to protecting the community, vis-à-vis rehabilitation. Conservative parliamentarians in this area have been glad to demonstrate their law and order credentials by passing more restrictive laws than what went before in national legislation, but the read-across to policy implementation is actually rather limited. In explaining variation, this area of policy suggests that party politics matters. However, this does not account for all variation. We find patterns between eastern Länder (for instance, where open prisons are less common) and also between city states (where they are more common— perhaps because day release will be easier to manage and more valuable in an urban environment). There also seem to be some political choices at a Land level which endure beyond particular administrations: for instance, North Rhine Westphalia has had higher levels of incarceration in open prisons throughout periods of both CDU/FDP, and SPD/Green political leadership. Thirdly, and in common with other areas of policy, we observe very different appetites amongst the Länder to make use of the ability to adopt newly awarded powers. Not only were some Länder content to rely on old federal legislation for over a decade, without passing new laws (while swifter counterparts developed new legislation within a matter of

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months), but the majority were keen to cooperate to develop new laws, based on a common template and cooperation at the level of civil servants. In this area, the latter choice undoubtedly reflected practitioners’ normative convictions that variation should be kept to a minimum, while the decision to accelerate legislation amongst more conservative Länder was taken at a political, rather than a civil service level. Finally, it is worth reflecting on the fears of practitioners and some politicians at the time of the federalism reform debates that there would be a “competition of harshness” in this area of policy. On the one hand, this seems to have been proven broadly unfounded, with evidence only really to be found for this in some rather symbolic areas, such as the aims of punishment (and even then, there not being a “race”, in the sense of a dynamic, rather just a straightforward read-across between political beliefs and legislative choices). Yet on the other hand, we have shown in this chapter that actually variation in prisons and wider justice policy extends way beyond areas covered by the federalism reform, towards policy implementation across the piece. Variation across Germany is significant, and for those who feel uneasy that those who commit a crime are likely to be treated (from the point of arrest to the point of release from prison after serving a sentence) differently, simply reversing the decisions of the 2006 federalism reform and recentralising policy would do little to remove such variation. This area of policy therefore contains a warning not only to scholars, but all who seek to understand policy variation: beware of focusing on legislative texts at the expense of an analysis of policy implementation.

References Aumüller, T. (2006). Stellungnahme zur öffentlichen Anhörung des Rechtsausschusses des Deutschen Bundestages zur Föderalismusreform – Justiz (Strafvollzug). Retrieved February 22, 2018, from http://www.bundestag. de/ausschuesse/a06/foederalismusreform/Protokolle/02_Justiz-Inneres.pdf Barisch, S. (2010). Die Pritavisierung im deutschen Strafvollzug unter Einbeziehung des Jugendstrafvollzuges und unter Berücksichtigung entsprechender Entwicklungen in Großbritannien, Frankfreich und den . Waxmann. Boyne, S. M. (2012). The cultural limits on uniformity and formalism in the German penal code. Crime, Law and Social Change, 58(3), 251–293 Bundesamt, S. (2008). Justiz auf einen Blick. Statistisches Bundesamt. Bundesamt, S. (2011). Justiz auf einen Blick. Statistisches Bundesamt.

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Bundesamt, S. (2015). Justiz auf einen Blick. Statistisches Bundesamt. Bundesamt, S. (2018). Statistisches Jahrbuch. Statistisches Bundesamt. Cabral, S., Lazzarini, S. G., & Furquim de Azevedo, P. (2010). Private operation with public supervision: Evidence of hybrid modes of governance in prisons. Public Choice, 145(1–2), 281–293. Cho, E. M. (2014). Privatisierung und Diversifizierung im Strafvollzug. Peter Lang. Donahue, J. D. (1989). Privatization decision: Public ends, private means. Basic Books. Drenkhahn, K. (2011). Was bringt der Musterentwurf zum Landesstrafvollzugsgesetz? Forum Strafvollzug, 2011(5), 266. Drenkhahn, K. (2015). Stellungnahme zum Entwurf eines Gesetzes zur Weiterentwicklung des Berliner Justizvollzugs https://www.parlament-berlin. de/ados/17/Recht/vorgang/r17-0258-v_Stellungnahme%20Prof.%20Dren khahn.pdf Drohsel, F. (2012). Interessenvertretung von Gefangene—ein vernachlässigter Baustein der Strafvollzugsreform. Forum Strafvollzug, 2012(5), 293–298. Dünkel, F. (2007, September 24). Die Farce der Föderalismusreform: Ein Vergleich der vorliegenden Gesetze und Gesetzesentwürfe zum Jugendstrafvollzug, Greifswald University Working Paper. Retrieved October 8 2020, from http://www.rsf.uni-greifswald.de/fileadmin/mediapool/lehrst uehle/duenkel/Stand_JuVoG_24_9_2007.pdf . Dünkel, F., Geng, B., & Morgenstern, C. (2010). Strafvollzug in Deutschland: Aktuelle rechtstatsächliche Befunde. Forum Strafvollzug, 2010(1), 20–32. Dünkel, F., & Pörksen, A. (2007). Stand der Gesetzgebung zum Jugendstafvollzug und erste Einschätzungen. Neue Kriminalpolitik, 2007 (2), 55–67. Dünkel, F., & Pruin, I. (2015). Wandlungen im Strafvollzug am Beispiel vollzugsöffender Maßnahmen: Internationale Standards, Gesetzgebung und Praxis in den Bundesländern. Kriminalpädagogik, 2015(50), 30–45. Dünkel, F., & Schüler-Springorum, H. (2006). Strafvollzug als Ländersache? Der “Wettbewerb der Schäbigkeit” ist schon im Gange! Zeitschrift Für Strafvollzug Und Straffälligenhilfe, 2006(3), 145–149. Dünkel, F., & van Zyl Smit, D. (2007). The implementation of youth imprisonment and constitutional law in Germany. Punishment & Society, 9(3), 347–369. Feest, J. (2012). Ein Musterentwurf nicht ohne Wert. Anmerkungen zum ME StVollzG1 vom Autorenkreis des AK StVollzG2. Neue Kriminalpolitik, 2012(1), 5–8 Feest, J., & Bammann, K. (2010). Jugendstafvollzugsgesetze: Anspruch und Umsetzung. In B. Dollinger & H. Schmidt-Semisch (Eds.), Handbuch Jugendkriminalität: Kriminologie und Sozialpädagogik im Dialog (pp. 535– 543). VS Verlag.

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Feest, J., & Pollähne, H. (2009). Haftgründe und Abgründe: Eine Zwischenbilanz zur Untersuchungshaftgesetzgebung. Forum Strafvollzug, 2009(1), 30–32. Figgen, S. (2017). Die Strafvollzugsreform im Zuge der Föderalismusreform: Hintergründe und Folgen der umstrittenen Kompetenzübertragung am Beispiel der Unterbringung von Strafgefangenen im offenen Vollzug. Hamburg: Dr. Kovaˇc. Höynck, T., Hagemann, N., Kapteina, B.-M., Klimaschewski, K., Lübke, V., Luu, N., & Riechey, F. (2008). Jugendstafvollzugsgesetze der Länder: Eine Auswahl wichtiger Regelungsbereiche in synoptischer Darstellung. Zeitschrift Für Strafvollzug Und Straffälligenhilfe, 57 (2), 159–166. Kelemen, R. D. (2006). Suing for Europe: Adverserial legalism and European governance. Comparative Political Studies, 39(1), 101–127. Kreis, Z. (2012). Neue Strafvollzugsgesetze: Nur gut gemeint reicht nicht! Neue Kriminalpolitik, 2012(3), 85–86. Kopp, U. (2006). Keine Verlagerung der Gesetzgebungskompetenz für den Strafvollzug auf die Länder – Gesetzgebungskompetenz für den Strafvollzug muss beim Bund bleiben. Zeitschrift Für Strafvollzug Und Straffälligenhilfe, 2006(1), 3. Lückemann, C. (2006). Stellungnahme, Anhörung des Rechtsausschusses des Deutschen Bundestages zur Föderalismusreform—Justiz (Strafvollzug) am 17. Mai 2006, page 2. Maelick, B. (2006, May 17). Stellungnahme zur Anhörung des Rechtsausschusses des Deutschen Bundestages zur Föderalismusreform—Justiz—am 17. Mai 2006 in Berlin Retrieved 20 March 2021, from http://www.bag-s.de/fil eadmin/user_upload/Stellungnahme_foederalismusreform.pdf Müller, J. (2009). The impact of ths socio-economic context on the länder parties‘ policy positions. German Politics, 18(3), 365–384. Ostendorf, H. (Ed.). (2012). Jugendstafvollzugsrecht: Kommentierte Darstellung der einzelnen Jugendstrafvollzugsgesetze (2nd ed.). Nomos. Schmidt, M. G (1980). CDU und SPD an der Regierung: Ein Vergleich ihrer Politik in den Ländern. Frankfurt: Campus. Schneider, H. -P. (2013). Der neue deutsche Bundesstaat: Bereicht über die Umsetzung der Föderalismusreform I . Baden-Baden: Nomos. Strafvollzug, F. (2012). Pro Und Contra Arbeitspflicht. Forum Strafvollzug, 2012(4), 223–224. Schwind, H.-D., Jehle, J.-M., & Laubenthal, K. (Eds.). (2013). Strafvollzugsgesetz Bund und Länder (6th ed.). Beck. Shapiro, M. (1988). Who guards the guardians? Judicial control of administration. University of Georgia Press. Shapiro, M., & Stone, A. (1994). The new constitutional politics of Europe. Comparative Political Studies, 26(4), 397–420.

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Shapiro, M., & Stone Sweet, A. (Eds.). (2002). On law, politics and judicialization. Oxford University Press. Spiegel (2006, June 15) Wettlauf der Schäbigkeit Der Spiegel https://www.spi egel.de/spiegel/print/d-46925774.html Statistisches Bundesamt (no date): Fachserie 10.2.3—Rechtspflege: Strafgerichte, https://www.statistischebibliothek.de/mir/receive/DESerie_mods_000 00103 Statistisches Bundesamt (no date): Fachserie 10.4.1—Rechtspflege: Strafvollzug, https://www.statistischebibliothek.de/mir/receive/DESerie_mods_000 00108 Stone Sweet, A. (2000). Governing with judges: Constitutional politics in Europe. Oxford University Press. Turner, E., & Rowe, C. (2013). Party servants, ideologues or regional representatives? The German Länder and the reform of federalism. West European Politics, 36(2), 384–404. Turner, E., & Rowe, C. (2016). Let’s stick together? Explaining Boundaries to Territorial Policy Variation: THe Case of Germany’s Prisons Legislation, German Politics, 25(2), 193–209. Winzer, S. (2010). Der Vollzug der Untersuchungshaft nach dem Niedersächsichen Justizvollzugsgesetz: Eine Untersuchung aus verfassungsrechtlicher und verfahrensrechtlicher Perspektive. Universitätsverlag Göttingen.

CHAPTER 5

Reform of Public Service Regulation

1

Introduction

The issue of the legal framework governing public servants in Germany, or Beamtenrecht, was one which was taken up within the Federalism Reform Commission in the early 2000s and made its way onto the statute books following the reforms introduced in 2006. The area is politically sensitive in Germany, as the status of appointment as a Beamte, better translated as “public” than simply “civil” servant, embracing as it does both teachers and police officers alongside officials in the Land and federal administrations, is one which holds a degree of social as well as economic status. The title of Beamte is both revered and desired within broad sections of society, though its appropriateness is disputed by political thinkers on the Left in particular. Under the federally organised system, all public servants were subject to the rules set out in the nationally determined legislative framework, the Beamtenrechtsrahmengesetz (BRRG) which had been introduced in the 1950s. This allowed for only very limited regional deviation from terms and conditions set at the central state level. By the 1990s, this system was widely regarded as outdated, inflexible and in need of a systemic overhaul, not just on account of its discriminatory practice of rewarding individuals on the basis of age rather than merit (Reintjes, 2019). Certain Länder, most notably the more economically successful Länder and Bavaria in © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Rowe and E. Turner, Decentralising Policy Responsibility and Political Authority in Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-29479-2_5

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particular, had long championed a “modernisation” of this regulatory framework in order to allow for the introduction of performance-based promotion criteria, for instance.1 Pressure to decentralise responsibility for public service regulation had come largely from the Bavarian leadership and a group of Länder which supported their proposals. Yet any decentralisation and resulting variation in both pay levels as well as conditions of service was vehemently opposed by the unions representing public servants, notably ver.di, which is the second-largest trade union in Germany, and the federation of public servants, the Deutsche Beamtenbund (dbb). These lines of conflict were drawn well in advance of the Federal Reform Commission taking up its deliberations, but continued to provide the key source of tension between various positions on the future of the policy area. This chapter therefore firstly considers the story of policy reform in the sector, analysing the reform debates of the early 2000s within the broader historical context. It then moves forward to present the key changes introduced by the federal reforms of 2006, before turning to an evaluation of the longer term significance and impact of those reforms. It is clear that the federal reforms have allowed for a much more competitive marketplace for the recruitment and retention of public servants within the different Länder, but this competition has been constrained by other significant factors. The decentralisation of policy responsibility in this particular area is therefore illustrative of the limits on competitive federalism which are embedded in German political and social culture more broadly, and how these serve to limit any kind of a race to the bottom.

2 Understanding Beamte Status in German Public Life In Germany, staff in public administration fall into two categories: fullyfledged Beamte, i.e. public servants, who belong to the career-based system and hold posts in the traditional administration, such as school teachers or police officers, or secondly, mainstream public officials (Tarifbeschäftigte), who hold positions under a contract of employment (BMI, 2019). While this second category of public sector employees are regular,

1 Interview with former advisor to the Minister President of Bavaria, 5 December 2013.

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salaried employees and are subject to collective wage negotiations, levels of pay for the first category of public servants—Beamte—and their service conditions, such as pension provisions, are set out in law. Beamte employment is not regulated through contracts but by a much more formal process of an Ernennungsakt (an “instrument of appointment”) and the conferral of an Ernennungsurkunde (a “certificate of appointment”) (BMI, 2019). This highly formalised appointments procedure underscores how the position of Beamte is not only a desired professional status, bringing with it job security, a permanent contract of employment and relatively generous terms and conditions, but reflects their position within German society; Beamte are seen as upstanding members of the community and are part of the moral and social fibre of the German establishment. Regarded as fundamental to Germany’s administrative tradition, and the “backbone” of the state and state bureaucratic tradition (Gottschall et al., 2015: 10), the role of the Beamte is prescribed by the Basic Law (Article 33 Paragraph 4); this dictates that they are employed primarily to exercise the sovereign authority of the state, for instance, when the state engages with the rights of individuals, in areas such as policing, justice or financial administration (Gottschall et al., 2015: 11). As public servants of the state, Beamte have a particular set of rights and responsibilities. Their aim is to serve the well-being of the community, and as part of this commitment to social stability, they have no right to strike. As compensation for the lack of a right to strike or to negotiate their working conditions, there are long-standing institutionalised joint procedures with the unions representing Beamte (ver.di and dbb) (Bosch et al., 2012: 21–22). These have to be consulted on all new laws concerning the status and the working conditions of civil servants. In addition, toplevel talks between the responsible Ministry and the unions have to be held twice a year (Keller, 2010: 127). Periodic claims that being unable to organise strike action is unconstitutional to have consistently been rejected by the state; for instance, in June 2018, Germany’s highest court, the Federal Constitutional Court (BVerfG), ruled against a group of teachers who had brought a challenge to the court over their right to strike. Yet again, the BVerfG provided a verdict that underlined how current law regulating the profession of the Beamte in Germany is in keeping with the constitutional ethos (Die Zeit, 2018). Yet in spite of their constitutionally entrenched position at the heart of the state, Beamte in their strictest sense are in the minority compared with

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the rest of public sector employees although the statutory and working conditions are virtually identical. The public sector covered around 4.9 million employees in 2020, and of these, only 1.7 Million were Beamte (Statistisches Bundesamt, 2020). Only a small proportion of Beamte work at the federal level; most are employed at the Land level. Despite this, the idea of the German Beamte is so firmly entrenched in the national political imagination, that any proposals on reform of the profession hold much more symbolic cultural significance than in other countries.

3

The Shifting Legal Framework Governing Beamte Ahead of the Federal Reforms

At the time of the 2006 federalism reform, the appropriate level at which to determine the law on Beamte, or, more precisely, their pay (Besoldung ), was a hotly debated topic. Other Beamte regulations under revision, notably that on career pathways (Laufbahnrecht ), were less contentious. Interestingly, the view amongst poorer Länder was mixed; whereas Schleswig–Holstein was implacably opposed to this reform, Berlin—due to its particular history, with a very substantial public sector inherited after reunification, as well as its budgetary difficulties—was especially keen to gain this competence.2 Klaus Wowereit, mayor of Berlin at the time, stated that “I cannot afford to be dependent upon the Bundestag decisions about the pay of Beamte. We have to be able to take the decision ourselves…This is fundamental for the sustainability of each Land” (Deutscher Bundesrat, 2006: 212). Wowereit’s point, of course, was that personnel costs in the public sector represent almost half of most Land budgets (Turner & Rowe, 2013). Those opposed to passing this competence to the Länder pointed to the history of the policy area. Prior to 1971, the pay of public officials was in fact a competence of each Land, and in that year the ruling federal government SPD/FDP coalition made it a federal competence, with the rationale that an unwelcome competition amongst the Länder on pay had broken out. In their view, the “ascending spiral” of competitive increases in the level of Beamte pay could be stopped only if the federal government

2 Interview, Land government official, Schleswig Holstein, 5 November 2012.

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were to assume overall responsibility.3 This led to the introduction of an amendment to the Basic Law which made issues of both pay and pensions for civil servants subject to concurrent decision-making (Article 74a). On the issue of retirement pay, legislation to establish a national framework for civil service pension arrangements was first produced in 1976 and was linked directly to the amendments made 5 years earlier to the Basic Law (Walther, 2013: 12). The reform discussions took place against a backdrop of increasing moves within the sector to allow a degree of territorial variation and indeed, flexibility within the system of Beamte pay and conditions. A relatively small degree of differentiation in the pay of Beamte had been introduced prior to the 2006 reforms, as a response to pressure for change from the bottom up, i.e. from the Länder themselves.4 Federal responsibility had been loosened, with a so-called “Öffnungsklausel ” or flexibility clause being introduced and written into the Beamte remuneration legislation, the Bundesbesoldungsgesetz (BBesG) in 2003. This had given the Länder more room for manoeuvre on individualising their own Christmas and “special” bonus payment schemes, as well as an ability to deviate more widely on holidays and holiday pay. Such Land-specific bonus payments were regarded as a means to compensate officials for the higher cost of living in some of the more prosperous Länder capitals.5 There was also a degree of flexibility, though relatively minor, under the terms of the BRRG; the Länder had had a degree of flexibility to manage two aspects of career pathways: working time, including the number of contracted hours per week, overtime and such like, as well as the form of working practice, such as remote working, which was seen as a means to allow for family-friendly working conditions (Reus & Vogel, 2018: 40). These small steps in the direction of a more flexible arrangement for the governance of Beamte issues already indicates how momentum was growing for more comprehensive moves in this direction. One of the most significant real drivers of a reform agenda from the early 2000s onwards was the issue of finances and huge pressures on the

3 Interview with dbb Land union representatives, Rhineland Palatinate, 7 November 2012. 4 Interview with dbb Land union representatives, Rhineland Palatinate, 7 November 2012. 5 Interview with dbb Chair, Berlin, 3 December 2012.

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public purse. Cost-saving concerns were a key motivation forcing the revision of public service regulation higher up the agenda, alongside moves to downsize public employment. Since the majority of the public workforce is employed at the Land level in Germany, fiscal pressure was especially high here (Gottschall et al., 2015: 16). This acute awareness of the need to save money in the public sector informed the decision to make reform of public service laws on pay, retirement provisions and career structures an agenda item during the Federalism Reform Commission.6

4

Reform Proposals in and Around the Federalism Commission

Publicly, the headline reform agenda in this policy area was the need to “modernise” the public service. The exploration of whether, how and to what extent to decentralise responsibility for three principal aspects of Beamte legislation, was very much linked to this overarching federal agenda for the “modernisation” of public service, or what the federal government termed a “renewal” of the Berufsbeamtentum (“civil service careers”) (Deutscher Bundestag, 2005). Thus, the decentralisation of competence could be introduced as an opportunity to usher in legal innovations in an area which had failed to keep pace with societal and economic changes over the years and was badly in need of an overhaul (Peters, 2008: 98). For champions of a more competitive system, decentralisation would be a means by which to revitalise the profession. This was a view taken not just by the more economically powerful Länder, but by a number of influential politicians at the federal government level too, mainly on the more conservative end of the spectrum. The incumbent Minister of the Interior, Wolfgang Schäuble (CDU), was very much in favour of a more competitive system, and what he termed, the introduction of a “Wettbewerb um die besten Köpfe”, a fight for the cleverest people, between the Länder (DGB Bundesvorstand, 2006: 1). A further argument put forward in favour of decentralisation centred on the idea of Land sovereignty and the notion of self-determination. Some of the Länder took the view that the decentralisation of competence on public service law would in fact strengthen the state-like quality

6 Interview with Thüringer Beamtenbund, 20 November, 2012.

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of the Länder, which is enshrined in the Basic Law and is therefore a core element of their identity. One expert called to give evidence to the Commission, Professor Hans Meyer, a legal expert from the Humboldt University in Berlin, underlined the point that if the Länder were to preserve their state-like quality, so proudly established in the Basic Law, then at the very least they should have the right to set their own legal framework for managing their own public servants (Kommission, 2003: 63). This self-determination and identity argument also shored up the view that only by managing the civil service themselves would individual Länder be able to make the necessary cuts which would allow them to improve their budgetary situation. As the leader of one of the recipients Länder under the financial equalisation scheme at the time, Wolfgang Böhmer, Minister President of Sachsen-Anhalt, said in the first meeting: The Länder have been bound to the terms of a blanket pay agreement for Beamte, set and determined at the federal level. We take the view that the Länder need direct access to this process.

On the flip side, trades unions expressed their concern that a more competitive system would simply compound the disadvantages faced by the poorer Länder; not only would they permanently lose in any situation where levels of pay were the key deciding factor in the recruitment of the best individuals, but they would also have to deal with the resulting staff shortages, or accept lower or even under-qualified applicants to fill positions in their own civil services (GEW, 2006). Critics of decentralisation pointed out that without additional financial resources, any reordering of responsibilities would be “meaningless”. What was needed was a move to give the Länder greater powers over Land-level taxation, and increased revenue from income tax.7 For the Linkspartei in particular, the decentralisation of this policy field without a corresponding financial boost so as to allow Länder governments more room for manoeuvre, would mean that the decentralisation itself was powerless, leading simply to more neoliberal, competitive form of policy-making on Beamte legislation.8 Most of the discussion on modernising the civil service was concentrated in one of the Commission’s working groups, focused on the issues 7 Interview with Linkspartei Director of Social Policy, 21 November 2012. 8 Interview with Linkspartei Director of Social Policy, 21 November 2012.

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of “Offentlicher Dienst, Innere Sicherheit” (public service, national security—project group 2). But crucially, many of the ideas shaping the reforms to Beamte law across the three issue areas date back to a position paper developed in late 2004, in parallel to the Commission, by the then Federal Interior Minister Otto Schily (SPD), along with the leaders of the dbb and ver.di unions. This suggested that: • Remuneration was too closely linked to age or family status than to individual performance; • There was limited flexibility within career structures, meaning that qualified personnel faced enormous barriers when trying to enter public service from the private sector and vice versa; • The pay system did not allow either the Bund or the Länder enough room for manoeuvre to adequately reward performance or to account for regional differences in economic conditions such as the cost of living and • New ideas were needed to make the option of a career in the service attractive to qualified individuals, at all levels of the profession. This position paper proved massively influential and ultimately went on to become a draft law (BT DRS 16/7076 from 2007), itself then forming the basis of the new legal framework which was subsequently developed— the Dienstrechtsneuordnungsgesetz (law re-organising the regulation of the public service—DneuG) (Lemmel, 2010: 285).

5

Federal Reform in the Area of Public Service Law

The federal reforms of 2006 established a new distribution of regulatory competences for public service in Germany. The previous allencompassing regulation by the federal government, comprised of detailed regulations for pay, pensions provisions and the system of service classes and career advancement rules, was rescinded. The reforms circumscribed federal government authority considerably, allowing it only to define the general status rights and obligations of Beamte. There were four principal measures agreed upon in order to reform public service law in Germany:

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1) Firstly, all of the framework legislation governing Beamte pay and conditions were repealed. This transferred responsibility for decision-making on civil service issues entirely to the employing level of authority, primarily the Länder, though in some cases this also then applied to the local authority level. 2) In order to achieve this transfer of competence, Article 75 of the Basic Law was repealed. This had set out framework competence for law on Beamte, and had, in detail, set out the basis for the articulation of: a. The BRRG, which included uniform principles for career pathways and the recognition of individual abilities and b. The Bundespersonalvertretungsgesetz (Federal Law on Staff Committees in the Public Sector—BPersG), which itself set out framework requirements and overall guidelines. 3) The old Article 74a of the Basic Law was repealed. This had covered a state-wide single pay and pensions framework for all Beamte, along with soldiers and judges at the federal and local authority level, as well as all public law institutions. With the repeal of Article 74a, the previous concurrent legislative power for the regulation of pay, pensions and career structures for civil servants which this article of the Basic Law had regulated in detail, fell to the exclusive competence of the Länder. 4) The removal of federal framework powers was compensated for with a new addition to Article 74 Paragraph 1 of the Basic Law, which offered some degree of coherence across the federation, albeit limited. Article 74 Paragraph 1 No. 27 was rewritten to explain that the law on the status of Beamte, incorporating both their rights and responsibilities as public servants, was to remain a federallevel competence. This applies to Beamte at all levels: Land, local authority and other public law bodies, as well as judges in the Länder. This particular constitutional provision then goes on to exclude explicitly “career regulations, remuneration and pensions”. The idea underpinning this move was to give the federal government the legislative authority covering issues concerning status, which would thus retain a degree of coherence as Länder laws began to diverge. But as the new constitutional provisions stress, this authority is strictly limited to the area of status rights and duties in regard to Beamte employed at the Land level.

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As discussed in the introduction to this volume, by definition, the removal of framework legislation in any policy field opens up the scope for divergence and increased competition in the sector. The federal government has sought to limit further this divergence with the subsequent introduction of two new significant legal measures subsequent to the federal reforms of 2006, but essentially serving to reinforce the principles enshrined in the 2006 decentralisation package. These two new legal measures together strengthen further coherence across the state, despite much of the detail now being decided by the Länder themselves. These two new laws are: 1) The Beamtenstatusgesetz (law on the status of Beamte) of 2008 (has legal effect in the Länder) and 2) The DNeuG of 2009 (has legal effect for Beamte employed by the federal government). Through the Beamtenstatusgesetz, the federal government retains a leading competence for the profession of Beamte, and the detail of this particular law provides for a degree of coherence across the profession throughout Germany. This means that the federal government still legislates for the Länder in some significant areas affecting public service. For instance, the Beamtenstatusgesetz provides for a common legal understanding of principal issues such as: • The legal form and nature of the employment relationship • Secondments and transfers between the Federal civil service and the civil service(s) of the Länder • Conditions for the termination of service • Status-defining obligations and consequences of non-compliance.

6

Evaluating the Impact of the Federal Reforms

The new constitutional provisions since 2006 have indeed allowed the Länder to control the development of three major areas of their civil service independently: pay, retirement entitlements and career structures. As expected, the Länder have since then increasingly begun to establish new regulatory environments and pay scales which differ, thus confirming

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the unions’ fears at the time of the reform Commission that decentralisation of power over these aspects of civil service regulation would introduce a form of competitive marketplace for civil servants (Dose & Wolfes, 2016: 268). Yet the ability to deviate in levels of salary or terms and conditions for civil servants is constrained by constitutional norms set out elsewhere in the Basic Law, principally in Article 33, which covers citizenship and public service (Seeck & Rieger, 2011: 1). Even a cursory glance reveals that across these three policy areas, the Länder have very evidently been exercising their new powers differentially. Thus the question arises as to how can we explain the new patterns of differentiation. The discussion below begins to assess the differentiation in detail and draws out potential explanations for both the direction and the pace of change. Levels of Pay Since the 2006 Reforms As became evident during deliberations over the decentralisation of Beamtenrecht, cost-saving concerns were a significant motivator for the Länder. This is particularly the case since the majority of the public workforce is employed at the Land level in Germany and fiscal pressure has consequently been especially high here; personnel costs—overwhelmingly paid to Beamte—represent between 40 and 50% of most Land budgets9 (Turner & Rowe, 2013). The logic follows, then, that we would expect to see lower levels of pay being offered to Beamte by those Länder where fiscal pressures are greatest. Rather than a race to the top in pay, or in the wider sense of the terms and conditions of public service employment, fiscal pressures would be expected to limit experimentation and innovation amongst the Länder in the new regulatory environment. The issue of limits on legislative innovation presented by the fiscal position of the Länder has been further compounded since the federal reforms, by the increased pressure for budgetary prudence as a result of the strict new rules on public debt following the introduction of the debt brake (Schuldenbremse) in 2011. The law on the debt brake is enshrined in the German Basic Law (Article 109 Paragraph 3), effectively prohibiting the 16 Länder from running budget deficits and limiting the federal government’s structural deficit to 0.35% of GDP. The debt brake 9 Interview with senior official in the State Chancellory, Rhineland Palatinate, 9 November 2012.

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puts the Länder under further pressure to make savings and is therefore certainly a plausible explanation as to the degree of differentiation of pay scales between the Länder (Knopp & Hagemeister, 2013: 146; 151). Divergences in the levels of pay being offered to Beamte for similar roles around the country since the 2006 reforms have been one of the more obvious areas for comparison over the years since the reforms were enacted, spawning numerous comparison websites offering salary calculators and such like.10 The evidence clearly shows the evolution of differentiation. At A9 level, salaries across the Länder in 2019 made for a e3250 annual differential between the best payer (Saxony) and the worst (Berlin), with colleagues in Saxony doing similar jobs taking home 11% more every month than their counterparts in Berlin. But these are the extreme cases. A move between two other Länder might not entail such a radical reduction in salary. For instance, a professional in the A9 category moving from NRW to Brandenburg in 2019 would only have lost e377 per year. An A9 professional moving from Bavaria to MVP the same year would have meant only an annual drop in income of e858. Thus the evidence on competition offered by remuneration at the Land level needs to be qualified by analysis of some wider considerations. As Fig. 1 shows, there has been a degree of divergence across the territory of Germany, though not perhaps to the extent that some of the campaigners against decentralisation were predicting at the time of the reforms. The leaders in terms of real levels of remuneration are, as to be expected, the most economically successful Länder, notably Bavaria and Baden Württemberg. These are however, also the Länder with the highest costs of living in Germany. However, since 2014, remuneration in Saxony has outstripped that even of these particular economic leaders. It is interesting to note that there is no discernible East–West divide on public service pay over the years since the 2006 reforms. While pay levels were still a federal formulation until 2006, Beamte in the East German states earned only 92.5% of their West German counterparts’ salary, justified on the basis of differences in economic development and fiscal capacity after reunification (Fassbender, 2003). This pay level split has been eradicated since the federal reforms, as the Länder has taken over control of their own salary structures, allowing the former East German Land of Saxony to become one of the top payers. No other 10 Interview with a senior Land government official, Schleswig Holstein, 9 November 2012.

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Chart Title 2900 2700 2500 2300 2100 1900 1700 1500 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 Baden-Wurttemberg

Bavaria

Berlin

Brandenburg

Bremen

Hamburg

Hesse

Mecklenburg-Lower Pomerania

Lower Saxony

North Rhine Westphalia

Rhineland Palatinate

Saarland

Saxony

Saxony Anhalt

Schleswig Holstein

Thuringia

Fig. 1 Evolution of gross monthly pay for Beamte at grade A9 (Source Own calculations from data available at https://oeffentlicher-dienst.info/)

salient territorial cleavages emerge from the data on the development of remuneration levels across the Länder; there is no North–South divide, no clear-cut divide between net contributors and net recipients under the financial equalisation system, nor is there a city state/large state divide, all of which might possibly have been expected from an initial interpretation of events. There is also no clear party political division over levels of pay; Christian Democrat-led Länder has not developed higher salary scales than SPD-led Länder. If anything, there is a slight suggestion in the data that points to Christian Democrat-led administrations offering lower levels of civil service remuneration than those with left-leaning coalitions (Dose & Wolfes, 2016: 267). As civil service pay is low down the priority list for Land finance ministers, even Social Democrat ones, observers note a degree of “gespielte Demokratie” (democratic theatrics) involved, in that the major decisions have already been taken.11 11 Interview with dbb Land union representatives, Rhineland Palatinate, 7 November 2012.

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When we compare the levels of Beamte wage increases against key indicators of fiscal capacity in the Länder, namely Land-level GDP and public debt levels, there are, however, some interesting results (Table 1). In broad terms we can see a correlation between levels of public debt in particular and salary provisions for Beamte; the greater the degree of public debt per capita in any given Land, the lower pay scales are likely to be. Take for instance the city state of Berlin, where public debt has been a salient political issue for the past few decades. Here, levels of public debt per head of the population in 2018 amounted to e15 037, one of the highest in Germany. In terms of public spending, this degree of indebtedness, in the context of the application of the debt brake in particular, places a huge constraint on wage increases and explains in large part why civil servants here are the worst paid in Germany. All three of Germany’s city states struggle more with public debt than the larger Länder, and consequently do not have the capacity to pay more to their Beamte. Table 1

Land-level GDP and public debt, 2018

Land

GDP 2018 (million Euro)

GDP per capita 2018 (Euro)

Total level of debt 2018 (million Euro)

511,420 625,161 147,057 73,722 34,294 120,332 292,016 44,914

46,279 47,946 40,568 29,411 50,389 65,603 46,719 27,905

44,009 14,613 54,403 11,004 21,730 34,362 40,396 7653

4022 2069 15,037 5967 29,834 13,041 6344 5831

296,164 705,066

37,118 39,358

58,718 167,167

7603 7606

149,148 35,961 126,364 63,504 97,074 63,804

36,573 36,243 31,008 28,685 33,555 29,739

30,637 13,812 1409 19,932 30,913 14,646

7331 13,659 2675 8692 9709 6721

Baden-Wurttemberg Bavaria Berlin Brandenburg Bremen Hamburg Hesse Mecklenburg-Lower Pomerania Lower Saxony North Rhine Westphalia Rhineland Palatinate Saarland Saxony Saxony Anhalt Schleswig Holstein Thuringia Source Statistisches Bundesamt

Level of Land debt per inhabitant 2018 (Euro)

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The success of the former East German Land of Saxony can also be partially explained by analysis of its fiscal capacity. Saxony has not struggled with the large residual debts which have plagued so many of its neighbours, and has a relatively successful economy, based predominantly on the automotive industry. The lower level of public debt enjoyed by Saxony means that it is not under the same pressure as other Länder to cut public spending in order to meet the limits imposed by the debt brake, and therefore has the capacity to facilitate increased spending on public servants, as can be see in Fig. 1. What, then, has been the net effect of the introduction of a new competitive system on Beamte pay? Given the small differentials observed here, there is limited evidence to underpin the suggestion that decentralisation of Beamtenrecht has introduced anything like a “race to the top” in the area of public service pay, or even an “ascending spiral” of competitive increases, such as was feared during the centralisation moment of the early 1970s. Competition is found to be between the civil service and other potential careers, rather than with other Länder.12 Even though Bavaria, for instance, pays civil servants in the top tier amongst the Länder, remuneration is generally lower than in the private sector, but comes with greater job security. In other Länder where there is greater budgetary pressure, a conscious choice has been taken to compete on conditions of work in order to lose fewer of their workforce to the private sector, or conceivably, to other Länder. RLP, for instance, has put in place a number of new measures since 2006 to make work and family life more compatible, support parttime work and support home working.13 Career “Tourism” While the pay levels have diverged somewhat since the 2006 federal reforms on Beamtenrecht, this has not prompted a significant degree of “career tourism” amongst Beamte. In border areas, there is some limited degree of exchange; movement between Berlin and Brandenburg is relatively common, though not markedly more than already occurred prior to

12 Interview with CSU official, Munich, 4 December 2013. 13 Interview with senior official in the State Chancellory, Rhineland Palatinate, 9

November 2012.

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2006.14 Indeed, in some professional areas, especially the police or financial administration, there is a requirement to find an exchange partner, a Beamte from elsewhere who wants to do a job swap.15 This naturally limits mobility. Beyond salary levels, the issue of securing the professional status of Beamte itself is in fact more of a draw for something akin to “career tourism”.16 For instance, unlike most other Länder, Berlin does not automatically give its teachers Beamte status, prompting them to look at teaching positions in commutable Brandenburg as a good career move. The Land of Saxony experimented with reducing the number of its teaching appointments to Beamte status and started a low-level exodus to neighbouring Bavaria amongst its teaching professionals. This then prompted the Land to reverse its plans on Beamte status for teachers and to keep staff in the Land.17 It is in the area of attracting new entrants to the civil service profession that competition between the Länder has been fiercest, resulting in some tensions between the Länder. There have been two main points of competition. The first is variation in the level at which newly qualified staff are appointed into the profession, and secondly, the direct “poaching” of newly qualified staff through advertising campaigns and marketing directed at this target group.18 These issues have a potential for greater impact given the higher degree of geographical mobility amongst this cohort than elsewhere in the civil service. Some of the more prosperous Länder have been able to appoint newly qualified Beamte at a higher grade in their civil service. For new entrants to the profession, this is an attractive proposition, and there has been a degree of “shopping around” by these graduates in order to take advantage of the best offers. To cite one example, there was discussion in RLP not long after the federal reform about reducing entry-level pay for police officers to Beamte grade A8 (less) rather than A9 (more). At first Minister President Kurt Beck was reluctant to move away from this idea, but then 14 Interview with Land government official, Schleswig Holstein, 5 November 2012. 15 Interview with dbb Land union representatives, Rhineland Palatinate, 7 November

2012. 16 Interview with senior official in the State Chancellory, Rhineland Palatinate, 9 November 2012. 17 Interview with CSU official, Munich, 4 December 2013. 18 Interview with Thüringer Beamtenbund, 20 November, 2012; Interview with senior

official in the State Chancellory, Rhineland Palatinate, 9 November 2012.

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he realised that he risked losing his newly trained police (that the Land RLP had paid to train) to neighbouring NRW who would pay at A9.19 Poaching has been a more publicly recognised issue since the reforms. New starters to the public service do not share the ties to a particular work location as older Beamte, thus the issue of salary scales at the entry point into the profession is one where competition is real. The economically stronger Länder are able to offer new entrants a higher entry point into the professional career frameworks and hence salary structures. Experience on the ground suggests that amongst this group of civil servants, the federal reforms have been directly responsible for driving higher levels of competition,20 despite what Unions see as a direct affront to the constitutionally enshrined requirement to achieve equivalence of living conditions.21 Competition for newly trained teachers has been particularly evident. In Thüringen, for instance, there are only two formally recognised teacher training institutes, one each in the cities of Erfurt and Jena. Baden Württemberg paid to have posters advertising teaching positions and inviting young people to “move to Baden Württemberg” were put up around the colleges and at the main train stations. This did create tensions within the Bundesrat as the training of teachers is costly to the Länder. A similar poster campaign in Mainz became an issue for political debate.22 Overall, therefore, we can see that autonomy over decision-making on Beamte pay has led to a degree of policy innovation at the Land level. The Länder have engineered moves to be competitive in areas other than salary, to compensate for lower budgetary resources and to compete with the private sector. Rhineland-Palatinate, for instance, has tried to enhance its competitiveness by paying an Abwanderungszulage.23 Nonetheless, competition for a competent public service workforce is not excessive and does not provide any substantive evidence of a race either to the bottom or to the top in terms of public sector pay or working conditions.

19 Interview with dbb Land union representatives, Rhineland Palatinate, 7 November 2012. 20 Interview with Thüringer Beamtenbund, 20 November, 2012. 21 Interview with Thüringer Beamtenbund, 20 November, 2012. 22 Interview with dbb Land union representatives, Rhineland Palatinate, 7 November

2012. 23 Interview with legal team, dbb, Berlin, 20 September 2012.

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Career Structures and the Systems of Service Classes Since the 2006 Reforms The decentralisation to the Länder of responsibility for career pathways within the Beamte created specific, Land-level legal formulations for the management of career structures and the various systems of service classes (Laufbahngruppensystem) within the civil service. While this did present the Länder with an opportunity both to overhaul an outdated framework and to prioritise local preferences, it also established the potential for competition between the Länder. Differences in promotion standards could encourage individuals to move location as a means to advance their careers at a different pace. The previous, Germany-wide framework for career structures had set out different groups of structured career pathways, and moving between these was fraught with administrative and technical difficulties (Gottschall et al., 2015: 21). The priority across all of the Länder since 2006 has been to simplify these arrangements and allow for a more flexible and more transparent process. Under the previous federal framework, four different career structures for civil servants had been set in stone: • • • •

Einfacher Dienst (basic level public service) Mittlerer Dienst (middle ranking public service) Gehobener Dienst (elevated public service) Höherer Dienst (higher level public service).

Entry into each of these service classes was determined by the individual’s level of qualifications; professional experience was not taken into account. So for instance, in order to be employed in the basic category of public service, an individual would need a high school diploma. Entry into the highest level of public service by contrast would require any individual to have completed a Masters-level university qualification. Within each of these categories of service classes there was a complex system offering around 125 possible individual career pathways, all of which were specified in the regulations. There were significant formal hurdles for movement between them, based very much on the length of service as opposed to competence or professional merit. Thus the debate on decentralisation of the law on career structures in the context of the federal

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reform process of the early 2000s came at a point in time where legislative renewal and modernisation of the sector were overdue.24 There were further, external pressures for reform of this system; the first of these was the impact of EU anti-discrimination law, which underscored the need for German law to move away from a system of age-based promotion.25 The second was that the regulations on career pathways needed to become more flexible in order to accommodate the changes within the German higher education system and the move towards the Bachelors/Masters system being introduced in accordance with the EU Bologna Process (Richter & Gamisch, 2009: 97). It is therefore not surprising that following the federal reforms of 2006 and the decentralisation of competence for this issue area, the Länder sought to loosen this strict framework. Across the board, the new Land-level laws on Laufbahnrecht have introduced a performance-based promotions system and have all remodelled the old framework in order to make career advancement contingent on experience rather than age. Addressing the complexity of the career structures system as a priority, Bavaria was one of the first Länder to bring forward Land-level legislation on this issue in 2010, with its new Leistungslaufbahngesetz (Law on performance- based Career Pathways). This removed the system of service classes entirely and created instead one single framework for the management of career pathways. This was entirely performance-related, allowing for promotion on the basis of merit as opposed to age and length of service which had characterised the previous national system. Individuals entering the profession in Bavaria were as a result assigned to one of four different qualification levels on the basis of their formal level of education. Below this level, Bavaria reduced to six the number of subject-centred thematic pathways, with further changes made to the way in which Beamte could be promoted, offering the possibility of “modular qualification” instead of a traditional examination. In a clear example of policy learning, this model was subsequently adopted by Rhineland-Palatinate,26 when it introduced its Landesbeamtengesetz (Land civil service law) in

24 Interview with Land government official, Schleswig Holstein, 5 November 2012. 25 Interview with senior official in the State Chancellory, Rhineland Palatinate, 9

November 2012. 26 Interview with dbb Land union representatives, Rhineland Palatinate, 7 November 2012.

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October 2010. Such reform moves were part of a bid to both modernise the profession and to make it more attractive vis-à-vis the private sector.27 This drive towards greater flexibility is reflected in other areas of the legislative framework which the Länder have developed to manage Beamte career structures. New, and again more flexible, arrangements were introduced to allow applicants looking to apply for positions from outside the civil service to join at a more senior level, where professional experience outside of the civil service could be taken into consideration. This had not previously been the case. Equally problematic under the old system was the limitation placed on an individual’s ability to change from one career pathway to another; the new Länder laws are all focused on lowering the hurdles involved, and seek to take into consideration further professional education for instance (Herzog, 2009; 102). There was a degree of collaboration at a horizontal level between the Länder on managing new frameworks for Beamte career pathways since 2006. In the early post-reform period, the 5 northern German coastal Länder of Bremen, Hamburg, Mecklenburg-Lower Pomerania, Lower Saxony and Schleswig–Holstein all worked together to establish a common approach, agreeing a joint framework consisting of simply two different service classes (Reintjes, 2019: 151). The first combines the previous lowest and middle level of public service; the second group embraces the two higher levels of service, the “elevated” category (gehobener Dienst ) and the higher service area. The only difference between the two is that for one service class, the equivalent of a university degree is required; the other does not require individuals to have completed tertiary education (Bundesregierung, 2018). Beyond this northern German alliance, the model they established was then adopted more widely around the country, by North Rhine Westphalia, Berlin, Saxony-Anhalt and Saxony. Both Saxony and Hessen removed one category in 2009, then new legislation in both Länder in 2013 lowered this to two, whereas Baden Württemberg, Hessen and Thuringen stuck with the previous, federal system of Laufbahn groups, but abolished the lowest category, the “basic level public service”. They have thus (re-) created a three-tier group system for career structures. The only remaining Länder to have retained the four-tier career pathway group system are Saarland and Brandenburg (Reintjes, 2019: 152). 27 Interview with former advisor to the Minister President of Bavaria, 5 December 2013.

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Table 2

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New career pathway group structure

Number of career pathway groups

Länder in which this framework has been implemented

1 2

Bavaria, Rhineland-Palatinate Sachsen-Anhalt, Schleswig–Holstein, Hamburg, Bremen, Niedersachsen, Berlin, Sachsen, North Rhine Westphalia, Mecklenburg-Vorpommern BW, Hessen, Thuringen Brandenburg, Saarland

3 4

Overall, the direction of travel overall in the Länder has been towards a reduction in the number of career pathway categories and a simplification of the career pathway system in general, with greater flexibility for transfer between the levels. There are four different approaches in evidence at the Land level. We can categorise groups of approaches as follows: 1) The Länder which have created a single career pathway. 2) Länder who have reduced their career service system to 2 groups of career pathways. 3) The Länder who simply got rid of the basic/entry-level category and have ended up with 3 career pathways. 4) The Länder who have consciously decided to leave the system as it stood and operate a 4-tier system (Reintjes, 2019: 146). Analysis of the new framework for managing career structures at the Land level across Germany shows that post-reform, there are now 4 different systems of career pathway structures in operation (Table 5.2). The most radical departure from the old federal model since the 2006 reforms is seen in both Bavaria and RLP, where a single career pathway system has been established with modular qualification. This was seen at the Land leadership level in RLP as a means of facilitating promotion on merit and increasing the transparency on what is required to achieve certain positions in the civil service.28

28 Interview with senior official in the State Chancellory, Rhineland Palatinate, 9 November 2012.

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The most popular approach amongst the Länder has been the option of scaling back to two the number of career pathways. All of the northern coastal Länder alliances have introduced this framework, as have Sachsen-Anhalt, Berlin and Saxony. As in other policy areas, these Länder cooperated on a collaborative common template (Musterentwurf) which was subsequently adopted into Land-level law. Only three of the Länder chose simply to get rid of the lowest category of public service, the basic level public service and leave the remaining three category system operational. Simply continuing the former model applicable under the old federal regulation has not been a popular option at the Land level. Only two Länder, Brandenburg and the Saarland have decided simply to retain the old system of four categories of service class (dbb, 2014). All of the new Länder laws have sought to develop a more flexible and broader understanding of the term “career pathway” itself. Under the old federal law, the BRRG, individual career pathways were linked to specialisations and previous study; the new legislation moves away from this strict disciplinary approach and makes accommodations for people who may have studied related disciplinary fields, specialised in related areas or had some kind of further education or training on a specific issue. The Länder laws on career structures for Beamte drafted since the federal reforms of 2006 have also eradicated the previous distinction between “Fachrichtungslaufbahnen” (career pathways based on a specialist knowledge or expertise/specialisation” and “Regellaufbahnen” (‘ordinary’ or non-specialist pathways). Yet despite the reforms which the decentralisation of competence for Laufbahnrecht, the emergent landscape of various categories of “types” of public service careers around the country has actually served to reduce flexibility at the level of the individual Beamte. While levels of pay may be a prime motivator and driver of inter-Länder mobility for Beamte, it is in fact the growing incompatibility of career structures between the Länder since the federal reforms that is regarded as the biggest constraint. A 2018 survey of Beamte found that 48 per cent of respondents held divergences between the Länder on career structures in their professional area to be problematic for mobility, more so than varying levels of remuneration (Dose et al., 2018: 47). In their view, the decentralisation of control over Beamte employment conditions had indeed made it more difficult for, if not prevented entirely, individuals moving between Land employers.

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In line with the “laboratories of democracy” expectation that decentralisation of policy competence generates innovation, certain actors, even within the trades unions—who were positioned firmly against decentralisation of Beamte pay and conditions at the time of the federal reform— there is a view that Länder activity on Laufbahnrecht has brought about some positive ideas for change.29 But the same unions have also highlighted a number of areas where policy divergence may prove harmful to the workforce. The unions have emphasised that divergent legislation may actually reduce flexibility between the Länder and cause problems for individuals’ careers; for instance, age limits for certain positions now tend to vary between the Länder, as well as between the Länder and the federal-level civil service. The maximum age for achieving Beamte status now varies around the country, and this so-called Verbeamtungsgrenze has become an area of competition between the Länder too, particularly in the recruitment of talent from outside the public sector.30 Overall, the opportunities afforded to the Länder to overhaul the way in which career opportunities are developed for Beamte has led to the development of remarkably similar new frameworks, which probably speaks more as wider reflection of how these needed indeed to be modernised to accommodate new social contexts more appropriately. The differences are at the margins; on major issues, such as the very notion of running a system of formal career pathways, congruence can still be found across the board. The role of the new federally applicable Beamtenstatusgesetz is also not to be underestimated as a significant means by which a substantial degree of coherence within the system post-2006 has been guaranteed.

7

Evaluation and Discussion

At a basic level, the decentralisation of competence for Beamte pay, career structures and pensions provision has given the Länder what they wanted. Berlin and Brandenburg wanted to reduce their costs, and they have achieved this. The economically stronger Länder such as Bavaria and Baden Württemberg wanted to be able to pay more to their Beamte

29 Interview with DGB leadership team, Berlin, 15 October 2012. 30 Interview with dbb Land union representatives, Rhineland Palatinate, 7 November

2012.

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in order to attract good people, and they have also achieved this aim. However, the distinction between the two large groups of public servants Beamte and other public sector employees (Tarifbeschäftigte) continues to exist. As with other policy fields, the reform of federalism in the area of Beamte regulation has not initiated a race to the top or to the bottom, as some critical voices argued at the time. Rather, where there has been competition, it has been a competition about ideas—who has the best new ideas on how to manage particular issues. As with higher education in Germany (Chapter 1, in this volume), it is notable that the decentralisation of competence came at a point in time when there was a pressing need for “modernisation” of the sector. Decentralisation and the transfer of policy responsibility from the federal government to the Länder to some extent fostered a degree of policy innovation as a driver in that modernisation agenda, albeit with the potential for divergence across the state. Indeed, some observers regard the federal reforms themselves as the key drivers which ultimately engineered long overdue reforms in the organisation of public service employment in general (Gottschall et al., 2015: 23). In the absence of comprehensive public sector reforms in Germany, it was changed in the institutional context—the federal reforms of 2006—that had a major impact on the German public employment regime. The changes which have been implemented in the area of Beamte regulations in the Länder since the reforms decentralised competence for these areas have tended not to follow strict party political lines. Only on the margins are there limited examples of party political differences playing a role. For instance, within the SPD there has been more internal agreement reached on issues of pay increases, with key Länder leaderships agreeing to adopt the Rhineland-Palatinate model of a four-year agreement on pay and a 1% annual increase, regardless of what is decided in the other Länder.31 This provides the Länder with greater predictability in their budget. There was an attempt at a northern coastal Länder alliance, which cross-cut parties and coalition governments and shaped regional thinking on career structures, though it was issue specific and did not outlast the project.32 Finally, the SPD-led Länder have tended to approve

31 Interview with legal team, dbb, Berlin, 20 September 2012. 32 Interview with legal team, dbb, Berlin, 20 September 2012.

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more regulatory changes in the area of Beamte pay than the Länder with different parties in power.33 However, expectations that decentralisation of responsibility for law on Beamte would serve to increase competition between the Länder on Beamte, for instance, are somewhat restricted by the lack of mobility of labour.34 Where this does matter, however, is in the area of entry to the profession; moves to relax and to vary the entry points into the profession between the Länder meaning that well qualified new graduates for instance may shop around.35 Overall, competition across Germany—for people, on entry-level pay, pay scales, limits on the upper age limit for acquiring Beamte status, the sort of factors that a public sector workforce will notice, is territorialised now. In Rhineland-Palatinate, for instance, officials readily admit that the Land government has to consider decisions in relation to other, particularly neighbouring, “competitor” Länder and the decisions being taken there.36

8

Conclusions

The simple effects of the federalism reform on Beamte pay are straightforward to observe: across pay grades, there has been a differentiation, with poorer, more indebted Länder tending to lag the farthest behind. Indeed, for the purposes of better understanding the dynamics of “races” to the bottom or to the top unleashed as a result of a change of decision-making authority, it is striking to note that partisan difference is less influential in shaping levels of Beamte pay than the fiscal position of the Land (Dose & Wolfes, 2016). There is a rough descriptive correlation between the level of pay and the amount of budgetary pressure. This is unsurprising, and budgetary pressures have been strengthened since the 2009 agreement on a “debt brake” for the Länder (Turner & Rowe, 2013). In interviews, four further factors were highlighted by policy-makers, politicians and interest groups as influencing each Land’s decisions on pay

33 Interview with legal team, dbb, Berlin, 34 Interview with legal team, dbb, Berlin, 35 Interview with legal team, dbb, Berlin, 36 Interview with legal team, dbb, Berlin,

20 September 2012. 20 September 2012. 20 September 2012. 20 September 2012.

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rates.37 Firstly, the degree of competition with other professions will vary from Land to Land, according to the state of its labour market. There will be greater pressure to raise pay for Beamte in Bavaria, with its lower unemployment rate, than there will be in Berlin. Secondly, the timing of elections may play a role, with politicians in more of a hurry to raise Beamte pay in the run-up to an election. The CSU, after losing its overall majority in Bavaria in 2008, launched something of an offensive to win back their support, for instance. Third, differences in living costs within Germany play something of a role (and are mentioned by Bavarian politicians and lobbyists, in particular, to justify their higher pay). There may be a rough, descriptive correlation here, although of course living costs vary very substantially within Länder as well and yet, with the exception of a very modest supplement in Munich and the surrounding region, there is no differentiation within the Länder. Fourth, there are some variations in the institutional arrangements in each Land. In Bavaria, there is a special “public service committee” of the Landtag, which gives affected interest groups greater access to politicians and thus arguably greater influence. In other Länder, the interior committee (Innenausschuss ) is concerned with the affairs of Beamte, where they are unlikely to enjoy the same prominence as the rather more glamorous concerns of crime and policing. Equally, in some Länder the interior ministry takes the lead in this area (as at the federal level and in North Rhine Westphalia, for instance), while in others it is the finance ministry (arguably a tougher negotiation partner, although senior politicians, in particular the finance minister, are always likely to be involved in the “big decisions” about pay, and having discussions directly with the finance ministry avoids buck-passing). In summary, then, there appears to be some differentiation of Beamte pay after the federalism reform within Germany, based upon socioeconomic context and also political priorities. It is far less clear, however, that competition between the Länder has been stimulated by the reforms. Competition exists much more between public service on the one hand and the private sector on the other than between the Länder, and only at the margins was there any evidence of the sort of “poaching” which would point to an upward “race” on pay—perhaps in areas with an acute shortage. There is limited mobility amongst Beamte in Germany, but 37 Interview with Land government official, Schleswig Holstein, 5 November 2012; Interview with CSU official, Munich, 4 December 2013; Interview with senior official in the State Chancellory, Rhineland Palatinate, 9 November 2012.

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applications for a move tend overwhelmingly to be for personal reasons (and are sometimes, as in the police service, restricted by inter-Land agreements); the complexity of the new, variable arrangements for career structures around the country have served further to reduce demand for inter-Länder transfers. There are two circumstances when mobility prompted by differences in pay levels has, however, become visible: at the start of individuals’ careers, and in areas very close to a Land boundary. There are some interesting parallels with prisons policy in the way in which the Länder have to vary degrees experimented, and also collaborated (Holland-Letz & Koehler, 2012). A working group developed between a number of—in this instance, territorially contiguous—Länder paved the way for a common Musterentwurf to be drafted; other Länder, and as with prisons policy, again the richer, southern Länder, worked independently on their own model of legislation. There is also evidence of policy learning at the Land level, with good practice informing the development of legal arrangements in other Länder. In summary, in the case of pay for Beamte, there is no evidence of “upward” competition on pay, as gave rise to the federal government taking responsibility for this area of policy in 1971, and there is some evidence of downward pressure arising from decentralisation as politicians seek to shift expenditure to areas with a greater electoral reward. However, there is evidence, variously, of differentiation according to the context (socio-economic, institutional and most importantly fiscal) and political priorities in each Land, as well as of policy learning in wider law on Beamte.

References Arends, H. (2017). Equal living conditions vs. Cultural sovereignty? Federalism reform, educational poverty and spatial inequalities in Germany. Publius: The Journal of Federalism, 47 (4), 672–706. BMI (2019). Beamtinnen und Beamte. Retrieved January 14, 2020, from https://www.bmi.bund.de/DE/themen/oeffentlicher-dienst/beamtinnenund-beamte/beamtinnen-und-beamte-node.html ) Bosch, G., Mesaros, L., Schilling, G. & Weinkopf, C. (2012). The public sector pay system and public procurement in Germany. IAQ. dbb (2014). Dienstrechtsreformen der deutschen Länder. Retrieved August 30, 2021, from http://www.dbb.de/fileadmin/pdfs/2014/140811_regelaltersg renzen_laufbahnsystem.pdf

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Deutscher Bundestag (2005). Bundestag-Drucksache 16/129. Retrieved May 25, 2021 from https://dejure.org/Drucksachen/Bundestag/BT-Drs._ 16/129 Deutscher Bundestag Wissenschaftliche Dienste (2018). Übersicht über das Laufbahnrecht des öffentlichen Dienstes. WD 6 – 3000 – 104/18. Deutscher Bundesrat (2006). Stenografischer Bericht 824. Sitzung. Berlin, Freitag, den 7. Juli 2006, Retrieved January 25, 2022, from www.bundes rat.de DGB Bundesvorstand (2006). Bundesinnenminister Wolfgang Schäuble über Sinn und Zweck der Föderalismusreform. Wettbewerb um die besten Köpfe. Informationen für Beamtinnen und Retrieved February 26, 2020, from http://www.landesbeamte.de/media/pdf/Info_0609_72.pdf Dose, N., & Wolfes, F. (2016). Die Höhe der Beamtenbesoldung in den Länder. Der Versuch einer Erklärung: Parteiendifferenzhypothese oder Verschuldungsdruck? Zeitschrift Für Vergleichende Politikwissenschaft, 9, 267–293. Dose, N., Burmester, C. & Wolfes, F. (2018). Das fragmentierte Dienstrecht der Bundesländer und die Mobilität der Beamten: Eine empirische Untersuchung zu Beamtentauschverfahren, Mobilitätsanreizen und Mobilitätshemmnissen nach der Föderalismusreform. Leibniz Information Centre for Economics. Fassbender, B. (2003). Die Entscheidung des BVerfG über die Besoldung in den neuen Ländern. Neue Justiz, 11 (3), 568–572. GEW (2006). Folgen der Föderalisierung. Retrieved March 7, 2020, from http://www.gew.de/bildungssystem/foederalismus/folgen-der-foederalismu sreform Gottschall, K., Kittel, B., Briken, K., Heuer, J.-O., Hils, S., Streb, S., & Tepe, M. (2015). Public sector employment regimes—Transformations of the state as an employer. Palgrave Macmillan. Herzog, J. (2009). Gestaltung des neuen Laufbahnrechtes. Das Beispiel der Norddeutschen Küstenländer. Der Personalrat, 3, 101–103. Holland-Letz, A. & Koehler, M. (2012) Aufstiegs- und Entwicklungsmöglichkeiten in Bund und Ländern nach der Föderalismusreform I . Retrieved November 11, 2020, from http://www.zbr-online.de/abstra cts/2012/holland_letz.html Keller, B. (2010). Arbeitspolitik im öffentlichen Dienst. Ein Überblick über Arbeitsmärkte und Arbeitsbeziehungen. Berlin: edition sigma. Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen Ordnung (2003). Stenographischer Bericht, 3. Sitzung. Berlin, Freitag den 12. Dezember 2003. Retrieved January 25, 2022, from www.bundesrat.de Knopp, L. & Hagemeister, B. (2013). Aktuelle Befunde zu den Auswirkungen der Föderalismusreform I auf Landesbeamte. Landes- und Kommunalverwaltung, 23, 145–151.

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Lemmel, U. (2010). Effizienzsteigerung durch Verwaltungsreform—Praktische Erfahrungen einer Reformbehörde. Der Öffentliche Dienst, 12, 285. Peters, C. (2008). Das Dienstrecht des Bundes nach der Föderalismusreform. Recht im Amt, 97–100. Reintjes, M. (2019). Dienstrechtsreformen der deutschen Länder: Eine vergleichende Politikfeldanalyse. Springer Fachmedien. Reus, I. & Vogel, S. (2018). Policy-Vielfalt zwischen den Bundesländern nach der Föderalismusreform I: Art, Ausmaß und Akteure (online appendix). Zeitschrift für Vergleichende Politikwissenschaft, 12, 621–642. Online appendix available at https://link.springer.com/article/10.1007/s12286-018-0406-9. Richter, A., & Gamisch, A. (2009). Die neuen Hochschulabschlüsse Bachelor and Master im Eingruppierungsrecht des öffentlichen Dienstes. Recht Im Amt, 2009(32), 97–103. Seeck, E., & Rieger, R. (2011). Neues Laufbahnrecht der Norddeutschen Küstenländer. Recht Im Amt, 2011(1), 1–9. Statistisches Bundesamt (2020). Öffentlicher Dienst: Zahlen, Daten, Fakten. Fachserie 14, Reihe 6, Tabelle 2.1, Stand 30.06.2020 https://www. bmi.bund.de/DE/themen/oeffentlicher-dienst/zahlen-daten-fakten/zah len-daten-fakten-node.html;jsessionid=8F39E2883B86502FE77836FD6AB 13E10.2_cid373?cms_showtable=1 Turner, E., & Rowe, C. (2013). Party servants, ideologues or regional representatives? The German Länder and the reform of federalism. West European Politics, 36(2), 382–404. Walther, S. (2013). Reformen der Beamtenversorgung aus ökonomischer Perspektive. Dissertation, Deutsche Universität für Verwaltungswissenschaften Speyer. Wissenschaftsförderung Sachsen (2021). Sachsens Wirtschaft – Eine Erfolgsgeschichte. Retrieved December 8, 2021, from https://standort-sachsen.de/ de/standort/wirtschaft Die Zeit (2018, June 12). Streikverbot für Beamte bleibt bestehen. https:// www.zeit.de/arbeit/2018-06/bundesverfassungsgericht-streikverbot-fuer-bea mte-bleibt-bestehen

CHAPTER 6

The Changing Face of German Parties in the Federal System

1

Political Parties in the German Federal System

In his important work on political parties in the German federal system, Gerhard Lehmbruch (2000) highlighted the potential contradiction between the logic of party competition in the German federal system, which points to conflict, and the logic of federalism itself, which is intended to resolve conflict and achieve consensus both vertically (between the federal government and the Länder) and horizontally (between the Länder themselves). As we discuss elsewhere in this book, the view of German federalism as being focused principally on achieving consensus is rather misleading, and certainly in the context of heightened differences between the Länder, as well as their greater policy autonomy, appears less accurate a characterisation still. Indeed, a significant reason for the federalism reforms of 2006 being introduced lay in the fact that the logic of party competition was perceived to be “blocking” the German state, with policy conflict being able to be unlocked by passing more powers into the exclusive competence of one or the other tier of government. Nonetheless, political parties in a federal system fulfil a number of important functions. Firstly, they provide an arena in which politicians of the same party colour in different Länder or at different tiers of government can try to resolve conflicts. Indeed, this role becomes more © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Rowe and E. Turner, Decentralising Policy Responsibility and Political Authority in Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-29479-2_6

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important in the context of a more diverse territory: where, say, the interests of Saxony-Anhalt on the one hand, and Baden-Württemberg on the other, may be opposed on distributional questions, shared membership of a governing party may provide a basis for their resolution. Secondly, they fulfil an important role in political recruitment, providing personnel for Land parliaments and governments (both at the level of ministers and state secretaries but also, to some degree, senior civil servants). Thirdly, they also provide a structure for decision-making in the Bundesrat, with party groups seeking to reach agreement before the plenary. Fourth, a federalised structure of political parties can allow them to reconcile the need for a broadly coherent programme ideologically with a degree of regional flexibility. Parties in the Länder can vary in their programmatic approach while still retaining the distinctive national “brand”. An important question, therefore, is the relative importance of national “brand” to regional flexibility in German political parties. This meshes with the wider debate about the nature of German federalism. Those who emphasise, with Hesse (who talked of the “unitary federal state”, (Hesse, 1962), the “unitary” aspects of the system would logically also emphasise the unitary aspects of the party system. Land elections would, on such a view, have a distinctly “second-order” quality, very much in the shadow of the position of parties nationally, and while there might be variation at the margins between units of the same party in different Länder, ideological coherence would predominate. Conversely, those like Jeffery (e.g. Jeffery, 2005) who emphasise that the federal system reflects and is shaped by a growing level of territorial differentiation, would point to greater levels of divergence within political parties. So if Germany really has seen a shift in its territorial politics, we would expect to see changes in several aspects of its party system in the Länder. Each of these will be discussed in this chapter. First and foremost, Land parties would enjoy a growing level of autonomy from the centre, and there would be greater levels of divergence between different Landesverbände (state branches) of the same party. Secondly, we would expect different coalition choices to be made by different parties in the same state. Thirdly, we would expect to see differences in party organisation. Fourth, in terms of voting behaviour and reflecting both the stronger role of the Länder in policy-making, but also the differentiation within political parties, we would expect state rather than national-level factors to dominate Land elections. Fifth, we would expect to see the growth

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of more powerful, high-status regional politicians. These would manifest themselves, for example, on party executives and would generally be more prominent; we would also expect politicians from the Land level to become members of the federal government without a spell as an MP being required. Sixth, we would expect that voting in the Bundesrat to be based on factors other than narrow partisan interests (with Land governments voting with the federal government when they share the same party composition, and against it when they do not). More generally, understanding the way in which the Bundesrat shapes decisions will be important in understanding the role of parties in contemporary German federalism more generally. Sitting above these particular questions is an overarching puzzle: to what extent is there a “regionalisation” of the German party system, with distinctiveness existing within the same national party? And, if there is greater distinctiveness, to what extent can parties still fulfil a function of coordination, vertically and horizontally? The remainder of this chapter will consider each of these aspects. It starts with a discussion of the extent of regional variation within each of the German parties, turning then to coalition politics, party organisation, “second orderness”, the status of Land politicians and the operation of the Bundesrat. It considers whether there is any sense of a “new territorial politics” being observable in party systems in the Länder.

2 Regional Distinctiveness in German Political Parties While research on German political parties has tended to focus on the national level, there has been a range of studies over the years, either focusing on particular parties or looking across the range (Bräuninger & Debus, 2012; Müller, 2009; Schmid, 1990; Turner, 2011; von Blumenthal, 2010) which have looked below the national level and which have identified a degree of variation in the positioning of different Landesverbände. Müller, for instance, concludes his study of the relationship between the socio-economic character of states and the Landesverbände of the parties by observing that: One central outcome of this analysis is that the programmatic orientations of state party organisations are dependent on their affiliations with a particular national party. Despite a certain programmatic diversity, German sub-national parties seem to be first and foremost state party organisations.

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Nevertheless, both national conflicts and territorial conflicts contribute to the intra-party heterogeneity. (Müller, 2009: 379)

In other words, while Landesverbände of parties are recognisably part of the same family, there are variations depending on both what he calls “national conflicts” (the extent to which particular groups—church-goers and trade union members—are present in the Land) and also “territorial conflicts”, namely differences in the socio-economic composition of each Land. Müller notes that this rather went against the grain of party research at the time, which suggested that parties were increasingly “nationalising” and that regional identities were “conservative anachronisms” (Müller, 2009: 367). As we argue above, with the federalism reforms but also the onset of the pressures which gave rise to those reforms, such an expectation appeared misplaced and Müller’s finding was intuitive. It is worth examining variations within each political party in turn, looking at the extent to which their Landesverbände differ. The CSU The CSU in Bavaria is a separate political party which only organises in one Land, and is in that sense not comparable to the other, national political parties. However, in broad terms the expectation of the “new territorial politics” claim, we would expect the CSU to be especially assertive in terms of regional interests, and to practice sharp differentiation from the rest of German Christian Democracy. Bräuninger et al. (2020: 83–88) note that the CSU has used the particularities of its position to forge a distinctive policy agenda (more socially conservative, while economically rather moderate), to identify a “perceptible symbiosis” (ibid.: 83) between the Bavaria and itself, and to use its position to reinforce its role as a representative of Bavarian regional interests. At a national level, the CSU has sought to “flex its muscles” on regular occasions. Two flagship policies illustrate the point: in the 2009–2013 period of CDU/CSU-FDP coalition at a federal level, party pushed to introduce Betreuungsgeld, under which, in summary, parents who chose not to avail themselves of state-funded childcare would receive financial recompense, provided they did not receive state-funded benefits. This reflected the CSU’s commitment to conservative values, and specifically not wishing to promote a model whereby parents who chose to look after

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their children at home, rather than use a nursery, were financially disadvantaged. In the 2013–2017 coalition, the CSU pushed for road tolls to be charged to foreign motorists (Pkw-Maut ), on grounds of equity, since German motorists had to pay in other countries (because of its proximity to Austria, this message of “fairness” had a particularly strong resonance to Bavarians). In fact, both policies ended up in legal difficulties: the Federal Constitutional Court found that the federal government had exceeded its competences by introducing the Betreuungsgeld, while the Pkw-Maut was found to contravene EU law. Neither legal challenge came as a huge surprise, but indeed this strengthens the point that the CSU felt it needed to have its own, high-profile projects, firmly rooted in its perception of the values and priorities of its voters. A further bout of CSU assertiveness came in the third grand coalition, which commenced in 2017. In the summer of 2018, Federal Interior Minister and then-leader of the CSU Horst Seehofer launched a “Master Plan” on asylum policies, which, amongst other less contentious moves, included the reintroduction of national border controls in certain circumstances, as a way of preventing asylum seekers already registered in other countries coming to Germany. This led to a major spat with Chancellor Angela Merkel (CDU), and a period in which the coalition threatened to unravel. Merkel was, in the end, able to secure some agreement both on further EU measures to reduce the movement of asylum seekers between countries, bringing the conflict to an uneasy close. In September 2018, Seehofer again was part of a coalition conflict, initially standing by Hans-Georg Maaßen, the controversial head of Germany’s Office for the Protection of the Constitution, after the latter questioned established accounts of far-right protests in the city of Chemnitz. Seehofer only reluctantly released Maaßen from his role in the organisation and offered him instead the post of State Secretary in the Interior Ministry. It happened that, in the end, Maaßen’s further conduct made his position untenable and he was dismissed from his new role, but the conflict heightened the appearance of tensions between the CSU, the CDU and the SPD, and indeed acted as a catalyst for the resignation of SPD leader Andrea Nahles. The CSU had a disappointing election result in 2018 in Bavaria, losing over 10% and attaining just 37.2% of the vote, its worst result since 1950. Seehofer was replaced by Minister President Markus Söder as party leader, and initially Söder put a lot less emphasis on conflict with the CDU: indeed, a less combative tone was observable towards the end of the Land election campaign. For a time, the party emphasised points of

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regional distinctiveness (for instance, in the area of environmental policy and in supporting rural infrastructure), in a way less at odds with the CDU. However, this situation only lasted until the Coronavirus pandemic (discussed fully in Chapter 5 in this volume), when profound tensions between the CDU and CSU once again surfaced, first on the substance of measures to control the pandemic (with CSU leader Söder and CDU leader Armin Laschet in very public disagreement), and then over which party leader would get the nod as chancellor candidate of the CDU/CSU. While the outcome of this process—that Laschet was selected in spite of Söder’s far stronger poll ratings—is a powerful illustration of the limits to the CSU’s authority, the latter’s very existence is a reminder of the territorial nature of the German party system, and the greater assertiveness of the CSU in recent years provides support to claims of a new territorial politics in the party system. The CDU Discussions of policies at the Land level (e.g. Müller, 2009; Schmid, 1990; Turner, 2011; von Blumenthal, 2010) have found that the CDU varies quite considerably from Land to Land. Schmid (1990) pointed to the different types of CDU Land party: southern German parties (in Baden-Württemberg, Rhineland-Palatinate and the Saarland) were influenced by Catholic social doctrine such that they adopted more conservative social policies but more moderate economic policies. This relates to the context of higher levels of Catholicism in those states. Their northern counterparts (Bremen, Hamburg, Schleswig–Holstein) adopted more market-liberal economic positions and were less conservative socially. In Hesse, the party started in the more “southern” camp but became more conservative across both dimensions; in North Rhine Westphalia, the party positioned itself as the CDU’s “social conscience”, while in Lower Saxony it was a sometimes divided hybrid, reflecting divisions within the state (Debus & Müller, 2013: 157). Debus and Müller (2013) link these continued differences to the proportion of Catholics in each Land, and also to the degree of urbanisation, with more socially conservative social positions and more market liberal positions likely to be found in more rural Länder. They also found that when controlling for other factors, eastern Länder were less market liberal in their approach to economic policy.

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Other recent analyses (Bräuninger & Debus, 2012; Bräuninger et al., 2020) confirm this picture of internal heterogeneity within the CDU. The latter analysis (which covers all party manifestos between 1990 and 2019) intriguingly points to more conservative social positions being taken by eastern Land parties. At first sight, this might seem puzzling: examples of issues covered by this dimension include abortion, homosexuality and euthanasia (ibid.: 61–62), and in each case we might expect western Länder, with a far higher proportion of Catholics than in the more secular east, to embrace more conservative positions. However, such an approach neglects other specificities of the eastern position: attitudes towards migration have been consistently more sceptical (and these would also be captured by “social” attitudes), and the party has faced more challenges from far-right parties, most recently the “Alternative for Germany” discussed below, which would also prompt it to move in a more conservative direction on social issues. It is useful, on the basis of Bräuninger et al.’s (2020) data, to point to some of the Land parties adopting the most distinctive positions. Hamburg appears to be a particular outlier, adopting by far the most socially liberal positions of any CDU state party, and, alongside the Saarland, amongst the most centrist (least conservative/liberal) on economic policy. Bräuninger et al. (ibid.: 114) note that “the political culture in the Hanseatic City of Hamburg has been considered liberal since the 19th century”, and suggest this shapes the programmes of all the parties except the Alternative for Germany (AfD). This did not prevent the CDU, in 2004, from entering coalition with the right-wing party PRO (Law and Justice Offensive, or Partei Rechtsstaatliche Offensive) and the FDP—the first centre-right-led coalition in the state since 1957. This alliance broke down in dramatic fashion in 2003 when the governing CDU mayor, Ole von Beust, dismissed the PRO party leader as a minister, and the latter made reference to von Beust’s homosexuality in his subsequent press conference. The affair did von Beust no harm at all, and the CDU won a majority of the seats at the resulting election in early 2004. Subsequently, the CDU formed the first coalition on state level with the Greens in 2008 and 2010. Although that coalition collapsed and in more recent years the SPD has proven stronger in the state, the CDU has retained its socially liberal orientation. The Saarland is another apparent outlier, with its (historically strong) CDU adopting consistently more centrist (that is, less economically

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liberal) positions on economic policy, while also (albeit with less consistency) embracing more socially liberal positions than most CDU state parties. The case for linking the moderate stand on economic policy to the influence Catholic social teaching (as Schmid, 1990 did) is strong: the presence of large number of working class, unionised, Catholic voters surely shaped the CDU’s programmatic choices, and with Peter Müller and then Annegret Kramp-Karrenbauer, the party’s Minister Presidents were proponents of a more centrist CDU course nationally. Similar to the Saarland, the CDU in North Rhine Westphalia is noteworthy as taking a moderate stance on both economic and social issues (Bräuninger et al., 2020: 139–146). Germany’s largest state has in recent years acquired a reputation as a stronghold (Stammland) of the social democrats, but this belies the CDU’s strength, with the party leading the state for all but two years between 1947 and 1966, and being ahead of the SPD in vote share at every election between 1947 and 1975 with just one exception: as in the Saarland, working-class Catholicism provided the basis of the CDU’s support. The SPD grew stronger in the state, even winning a majority of seats in 1980, 1985 and 1990. The CDU in response adopted moderate policy positions, even positioning itself to the left of the SPD on economic policy and adopting a more liberal stance to the SPD on social policy at the 2000 state election in its programme (ibid.: 146), although the CDU’s unsuccessful election campaign in that year, under Jürgen Rüttgers, is better remembered for the slogan Kinder statt Inder (“Children not Indians”), a protest at the red-green federal government’s proposed green card migration scheme (Der Spiegel, 2000). Such polemic was not to be found in the CDU’s successful campaigns in the state in 2005 (under Rüttgers) and 2017 (under Armin Laschet), both of whom emphasised their centrist credentials. As the largest CDU state party, its centrist positioning was also important in shaping the CDU’s leadership choices on a federal level after Angela Merkel stepped down from the party leadership in 2018. For the 2018 leadership contest, the state party did not offer a recommendation to its delegates, although both the defeated candidates (Friedrich Merz and Jens Spahn) came from the state, unlike the eventual winner, Annegret Kramp-Karrenbauer, who offered a more centrist approach (Neue Westfälische, 2018). For the contest in 2021 (delayed from 2020 due to Coronavirus), the party nominated its leader in the state, Armin Laschet, ahead of the more conservative Merz and Norbert Röttgen, who also came from the state (Neue Westfälische, 2020), again eschewing a more conservative tilt nationally, and later in

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2021, it positioned itself powerfully in favour of Laschet as chancellor candidate and against CSU leader Söder. By contrast with North Rhine Westphalia, Hesse was, from the 1980s until 2010, associated with a much more conservative CDU on both economic and social policy dimensions. The party’s nationalist conservative “steel helmet” (Stahlhelm) faction was prominent, as was the long-time Hesse politician Alfred Dregger who went on the become leader of the CDU/CSU in the Bundestag in the 1980s (cf. Bräuninger & Debus, 2012: 93). Manfred Kanther, a federal interior minister from the state, took up this mantle, and it was continued by Roland Koch, who became CDU leader in the state in 1998, becoming Minister President a year later and fighting election campaigns on issues where polarisation with the SPD was to be found, such as dual nationality in 1998, and criminality by foreigners in 2008 (Bräuninger & Debus, 2012: 94; Turner, 2011). It is perhaps surprising, therefore, that in 2014 the CDU decided to enter an alliance with the Greens, but this was predated by a more socially liberal election programme in 2013, and a distinct shift by the party’s leader in the state, Volker Bouffier, away from being a hardliner towards a more consensual, “state father” (Landesvater) figure. The picture which emerges is that federal dynamics are of real significance in the CDU, there is an ideological variation on both economic and social policies, and this is reflected in both programmatic choices in the Länder and in the influence state parties bring to bear nationally. The other major area of choice—and dispute—is around coalition politics and the acceptability of alliances, which came into particularly stark relief in Thuringia in 2020—an issue discussed below. The autonomous and distinctive position of the state parties was also reflected in the approach of different minister presidents in the Coronavirus pandemic, an issue discussed in Chapter 5 in this volume. The SPD Peter Lösche and Franz Walter memorably described the Social Democratic Party of Germany (SPD) as “loosely coupled anarchy” (Lösche & Walter, 1992). In a subsequent essay, Lösche unpacks the term, pointing first to “decentralisation, fragmentation and flexibility”, secondly to the heterogeneity of voters, members and functionaries, thirdly to programmatic and ideological diversity and fourth, an aim of assembling a

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coalition across class and confessional lines to win elections (Lösche, 1992). On the latter score, the SPD had faced a difficult period: by the time of the 2017 federal election, the party’s vote share had declined to a record low; between 2017 and 2021 it had also fallen in 15 of the 16 Land elections (the sole exception being a 4.3% increase in the vote share in 2017 in Lower Saxony). Yet beneath this position of decline, there are significant variations. The SPD is at its weakest in three eastern Länder (SaxonyAnhalt 8.4% in 2021; Saxony 7.7% in 2019; Thuringia 8.2% in 2019) and in the two large, prosperous western Länder of Bavaria (9.7% in 2018) and Baden-Württemberg (11% in 2021). Its position in much of northern Germany is stronger, notably in the city state of Hamburg (39.2% in 2020), Lower Saxony (36.9% in 2017), Mecklenburg–West Pomerania (30.6% in 2016), Schleswig–Holstein (27.3% in 2017), Bremen (24.9% in 2019) and Brandenburg (26.2% in 2019). Most strikingly, the party has in recent years polled consistently well in Rhineland-Palatinate (35.7% in 2021, barely a decline compared to the previous election in spite of a very difficult national backdrop). There is no complete correlation between the SPD’s election results and its presence in Land government, although in principle it is much more common for the party which tops the poll in a Land to lead the government. In 2021, in every Land this is the case, in the past there have been exceptions, including the brief interregnum in Thuringia in 2020 discussed below, the period between 2013 and 2017 in Lower Saxony (the CDU topped the poll but a coalition between SPD and Greens was formed), and between 2011 and 2016 (the CDU topped the poll but a coalition between Greens and SPD was formed). So in states when the SPD has won, it is likely to lead the government. However, in particular in the more fragmented party systems in the eastern Länder it may obtain ministerial office as a junior coalition partner with only a low vote share: examples include Saxony between 2004 and 2009, when it entered government as a junior partner of the CDU with a vote share of just 9.8%, in Thuringia from 2009 onwards, first as a partner of the CDU, then as a partner of the Left Party and Greens, in spite of vote shares of 18.9% (2009), 12.4% (2014) and 8.2% (2019), and Saxony-Anhalt. In that state, the SPD has been consistently in power since 2006, as a junior partner of the CDU from 2006 to 2016 then with the Greens added to the mix from 2016 to 2021 and with the FDP from 2021 although its results

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declined sharply in the 2016 election (down from over 20% in 2006 and 2011 to just 10.6% in 2016 and then 8.4% in 2021). As with the CDU, it is worthwhile to look at some of the outliers in programmatic terms. It is apparently, both from the analysis of Bräuninger et al. (2020: 194), and also more recently by the Regional Manifestos Project (regionalmanifestosproject.com), that the eastern Länder have a particular profile, likely to adopt more centrist (that is, less left-wing) views on economic policy and in particular more conservative views on social policy—although on both counts, on Bräuninger et al.’s scoring, Saxony is the most left-wing/liberal and less out of line with the other Land parties. This may reflect a desire to distinguish the party from the Left Party, which is stronger in the eastern Länder, and also appears to reflect a similar instinct to the CDU on social issues in appealing to an eastern electorate where the propensity to vote for the far right is higher. In both Berlin and Bavaria in more recent years, the party has adopted economically more left wing and socially more liberal programmes, in comparison with previous periods since 1990 but also in comparison with other state parties. In Berlin, this reflects a more left-wing activist base (cf. Tagesspiegel, 2020a), although said base has had to coexist with distinctly moderate candidates for the position of governing mayor (the equivalent of Minister President in other states); similarly in Bavaria (cf. Handelsblatt, 2018), where in addition the party’s structural weakness means little to no prospect of winning seats directly, relying on list places and thus a particular incentive to appeal to party members rather than voters. In Hesse, Land party is noted for its ideological division: the region of South Hesse has a particular reputation for left-wing programmatic positions (Bräuninger et al., 2020: 124), other parts of the state much less so. This played out in spectacular fashion in the period between 2006 and 2008: the narrow winner of a non-binding vote amongst party members to be the party’s candidate for Minister President was (centrist) Jürgen Walter, but he was very narrowly defeated by (left-winger) Andrea Ypsilanti at the party conference which took the formal decision. During the 2008 election campaign, the party ruled out any cooperation with the Left Party, but upon finding that the only prospect of removing the incumbent CDU Minister President, Roland Koch, from office, Ypsilanti proposed forming a minority government with the Greens, relying on Left Party support. This course was backed by the state party conference, but failed when four SPD parliamentarians declared they would not

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back Ypsilanti in the vote in these circumstances—she resigned, and new elections followed, bringing substantial losses for the SPD. By contrast, state parties in Hamburg, Lower Saxony and RhinelandPalatinate have a more moderate reputation (supported more strongly by the programmatic analysis in the Regional Manifestos Project than by that presented by Bräuninger et al. (2020). This may owe something to the opposite dynamic identified in Bavaria—that because the party stands a realistic prospect of winning seats directly, and therefore there is more incentive to appeal outwards (to voters) rather than inwards (to members deciding the order of the list.1 The leaderships in each state have often reflected this preference: in Hamburg, Henning Vorscherau (who declined to form a coalition with the Greens, preferred by party members, and instead did so with a group led by a former CDU member called the STATT-Partei); the same could be said of Olaf Scholz (leader in the state from 2000 to 2004 and 2009 to 2018, and governing mayor between 2011 and 2018), while Scholz’ successor as governing mayor Peter Tschentscher was at pains to distance himself from the SPD’s leftwing national leadership in the 2020 election campaign (Tagesspiegel, 2020b). In Lower Saxony, Minister Presidents Gerhard Schröder and Sigmar Gabriel went on to become party leaders (and the former case, federal chancellor), with a clearly centrist orientation, which has been continued by the current leader and Minister President in the state, Stephan Weil (cf. Die Zeit, 2019), and for which Thomas Oppermann, one-time state minister who became SPD leader in the Bundestag also stood. In Rhineland-Palatinate, a pragmatic orientation was the hallmark of Minister President between 1994 and 2013 Kurt Beck, and his successor Malu Dreyer (2013 onwards), albeit in the latter’s case without having a high profile in internal debates over ideology. In summary, as with the CDU, the SPD presents a varied profile at the Land level, ranging from left-wing approaches (often but not always propagated from the opposition benches) through to avowed centrism (especially to be found in the eastern Länder and in some of those with the highest level of success). These reflect policy choices in the Länder but also the way in which representatives shape the SPD’s course nationally.

1 In Hamburg candidates for direct election stand in multi-member, rather than singlemember, constituencies, and there are also open lists, cf. https://www.hamburgische-bue rgerschaft.de/neues-wahlrecht/.

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Alliance 90/The Greens The (often-neglected) official name of the Greens, Bündnis 90/Die Grünen (Alliance 90/The Greens), points to one aspect of territorial difference within the party: “Alliance 90” refers to three former East German civil rights groups which formed an electoral alliance in the final two elections in the German Democratic Republic. Subsequently, these groups formed an alliance with the East German Greens to fight the 1990 Bundestag election, and then fully merged to become part of the Greens nationally. Nowadays, the Greens are weaker in western than eastern Germany (Tagesspiegel, 2018), but the nomenclature remains. The Greens have been known both for an emphasis on grassroots input into decision-making, and also for internal divisions, often formalised into a carefully negotiated balance between men and women, eastern and western politicians and those associated with the centrist Realo wing of the party, and those associated with the more left-liberal Fundi wing. The party has joint office-holders in many positions, to enable such an internal balancing act (Jun & Jakobs, 2021). This internal heterogeneity might also be expected to lead to some regional variations. The first red-green (SPD-Green) coalition was formed in Hesse in 1985 (Bräuninger et al., 2020: 119), which proved to be a strong state for the party thereafter. That coalition broke down after less than two years when Green environment minister Joschka Fischer resigned, following an dispute with the SPD about the licensing of a factory manufacturing components for nuclear power (Lagis-Hessen, 2021). After that point the state became known for its distinctly pragmatic Greens. It is striking in Bräuninger et al.’s analysis that in questions of economic policy, the party adopted positions only just to the left of the SPD, or indeed in 2009 slightly to the right of it (Bräuninger et al.: 293–294). This may partly explain the ability of the Greens to form a coalition with the CDU in 2014 (and renew it in 2019), in spite of the CDU’s conservative reputation in the state (although one which eroded after the 2013 election, as discussed above). The formation of this coalition still evidences the distinctly pragmatic flavour of Hesse’s Greens—they were not simply forming an alliance with the CDU, but it was the CDU of hardliners like Alfred Dregger and Roland Koch, in a state with a political culture distinctly resistant to cooperation between parties on the centreleft and those on the centre-right (Kronenberg, 2018: 32). Circumstantial factors played a role: there was an initial attempt for the Greens and

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SPD to form a coalition with the Left Party, but fiscal policy proved a major stumbling block; the SPD’s leadership also procrastinated, making space for the CDU’s charm offensive. Even on the most difficult issue— concerning Frankfurt Airport, a cause célèbre for the Greens for many years—an accommodation could be reached (Kronenberg, 2018: 34–35). And perhaps just as importantly, the CDU’s Minister President Volker Bouffier and Green parliamentary leader Tarek Al-Wazir seemed to strike up a rapport (which became obvious when, in the phase of exploratory talks, Bouffier accidentally put himself on first-name terms to Al-Wazir in a press conference; ibid.: 33). A similar, distinctly conservative flavour can be discerned in BadenWürttemberg, another important state party of the Greens. There, the party was the first to gain representation in a state parliament, and gradually made the journey from left-wing roots to a centrist political force (Bräuninger et al., 2020: 81). This path served the party well, coming second in the 2011 state election (behind the CDU), with 24.2% of the vote and able to form a majority government in coalition with the third-placed SPD. Wilfried Kretschmann, from 2011 the Greens’ Minister President, was able to increase his party’s share of the vote in 2016 (to 30.3%) and in 2021 (to 32.6%), building support stretching far beyond his party’s base, as a strong Landesvater figure. In 2021, some 77% of voters considered Kretschmann to be a good Minister President, with 74% thinking Baden-Württemberg was “in good hands” with him at the helm (Tagesschau, 2021). These conservative instincts also led Kretschmann to insist that his party renewed its coalition with the CDU (formed in 2016) rather than negotiate an alternative, “traffic light” alliance with the SPD and the FDP, as many amongst his party activists wished (SWR, 2021). Hamburg presents a contrasting picture. The Greens had a different name (Grün-Alternative Liste) until 2012, and for much of the period from their first entry into the state parliament in 1982 were identified with a left-wing, highly liberal agenda, and the SPD declined to entertain a coalition with the party (cf. Bräuninger et al., 2020: 111–117); this continued into the 1990s, with the manifesto in 1991 being coded as the third most liberal of any Green manifesto, in any state, in the period from 1990 onwards (ibid.: 295). Eventually the party entered the state government in 1997 for four years, helped by the fact that the more pragmatic elements of the party had gained ground. In 2008, the Greens formed the first coalition with the CDU at the state level (helped by the distinctly liberal approach of the CDU’s governing mayor,

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Ole von Beust), but this ended in 2010 after von Beust stepped down, and relations with his successor, Christoph Ahlhaus, hit rock bottom (Die Zeit, 2010). Although the party had moved towards the centre ground somewhat since the 1990s, it retains a strongly liberal flavour. The FDP Like the Greens, the FDP has tended to be weaker in eastern than western Germany, even though one of its most prominent post-war politicians, Hans-Dietrich Genscher, Germany’s foreign minister at the time from reunification, hailed from eastern Halle an der Saale, and won the seat directly at the 1990 Bundestag election—the sole occasion the FDP was able to have such a success since 1957. The party’s brand of economic and social liberalism finds fewer admirers in the east, and the absorption of two East German “block parties”, which recognised the leading role of the Socialist Unity Party (SED) in running the state, did not prove to be of benefit (cf. Roberts, 1999: 57–58). At the federal level, during the 1990s the FDP shifted from being equidistance to CDU/CSU and SPD, being closer to the former on economic policy and closer to the latter on social policy, to being a much more likely partner of the CDU, and with “social liberals” taking a marginal position. But at the Land level, a degree of heterogeneity can be observed. The eastern state parties have tended to embrace less liberal social positions (Bräuninger et al., 2020: 194), while in Hamburg and Schleswig–Holstein, the social positions adopted have been consistently more liberal than the other state parties (ibid.: 194). In Schleswig– Holstein in 2017, the FDP entered government with the CDU and Greens (a constellation for which coalition negotiations at the federal level failed later that year). In Rhineland-Palatinate, the FDP was in coalition with the SPD from 1991 to 2006, and again from 2016 onwards (this time with the Greens, as part of a “traffic light” coalition), with Bräuninger et al. (2020: 149) suggesting greater common ground between SPD and FDP than in other Länder. However, territorial diversity in the FDP appears less common than in other parties. That the FDP has been able to form, with relative ease, coalitions with both SPD and CDU may owe something to the relatively low level of competence of the Länder on fiscal policy, where dividing lines with the SPD are especially great.

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The Left Party (Die Linke) Like the Greens, the Left Party’s roots have a territorially diverse flavour. The party was the product of a merger between the Party of Democratic Socialism (PDS), which while it organised across Germany was the successor to the Socialist Unity Party (SED) in the GDR, and the “Electoral Alternative Social Justice” (WASG), which was formed in 2004/2005, in particular by former social democrats and trade unionists who were opposed to the then-SPD chancellor Gerhard Schröder’s Hartz reforms. The parties formed an alliance at the time of the 2005 federal election and formally merged in 2007. In practice, strong territorial diversity was observable within the PDS even before the merger with WASG. Its high membership in 1990s stemmed principally from former members of the SED, often amongst older age groups, in the eastern Länder, while in the western Länder this demographic was not present, and instead the party attracted more radical, left-wing members. To date, these divisions (east–west, and left– right) have shaped the party’s organisation (cf. Hough & Keith, 2019). In 2021 it was helmed by a leadership duo of Susanne Hennig-Wellsow (an easterner who had previously led the party’s parliamentary group in Thuringia, where it led a coalition government with SPD and Greens), and Janina Wissler, who joined WASG as a student, is a member of Hesse’s state parliament and is clearly on the party’s left. This is not to say that the only divisions in the notoriously fraction party are territorial—the major ideological divisions are also present, and do not always overlap into the category “pragmatic easterner, radical left westerner”. By way of illustration, conflicts in the late 2010s particularly revolved around the figure of Sarah Wagenknecht, joint parliamentary leader between 2015 and 2019, an easterner by birth, but politically based in North Rhine Westphalia. Wagenknecht (who has, since 2011, been in a relationship and latterly married to Oskar Lafontaine, the former SPD leader who was instrumental in developing the WASG as a credible force, and the merger with the PDS, and became Left Party parliamentary leader in the Saarland) is a controversial figure, initially part of the “Communist Platform” in the PDS, and much later courting controversy as a critic of the party’s sympathetic stance towards refugees and migrants, and the Black Lives Matter movement (FAZ, 2021). An earlier study by Koß and Hough (2006) also identified significant variation in the aims of the Left Party even within the eastern Länder.

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This heterogeneity is also evidenced in different approaches towards government participation. In 2021, the party was in government in eastern Thuringia, western Bremen and Berlin. In Thuringia, it is often observed that the party’s Minister President, Bodo Ramelow, takes positions very much akin to those favoured by left-wing SPD politicians: he emphasises his commitment to state rather than party interests, and even achieves positive approval ratings from CDU voters (Watson, 2019). Yet in Bremen, too, the Left Party was able to form a coalition with the SPD and Greens, which “overwhelmingly functions smoothly … the Left Party senators [ministers] … work so pragmatically and without ideology that at most they alarm their own party’s left wing, but not the broader population” (Frankfurter Rundschau, 2021). By contrast, in Hesse the relative reluctance of the Left Party to compromise (in fact on the specific issue of acceptance of the debt brake, on which the Left Party in Bremen was willing to compromise) led to the breakdown of coalition talks with the SPD and Greens in 2014, as discussed above, led to the emergence of the CDU–Green coalition in the state. In sum, the Left Party is characterised by a high level of internal heterogeneity. Some of this relates specifically to the territorial factors in Germany, with the roots of the PDS in East Germany and the SED, and therefore some historic support amongst those with a less negative view of the former regime (or a more negative view of the post-1990 period), higher levels of membership including those who were SED members, and a degree of pragmatism associated with having previously held positions of responsibility. However, within east and west there are other divisions, leading to sharp differences in the party’s approach across the German territory. The Alternative for Germany (AfD) The Alternative for Germany (AfD), formed as a party in 2013, has been, since the 2018 election in Hesse, represented in each of Germany’s 16 state parliaments, as well as being the largest opposition party in the Bundestag, which it entered in 2017. The party’s journey from one principally focused on disagreement with Eurozone bailouts to an antiimmigration, right populist force is well documented, as have been the intense factional struggles that have led the party’s founder and one of its leaders at the time of the 2017 election to leave the party (Siri, 2018). In one sense, regional dynamics in the party are less significant than for all its

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competitors discussed here, because it is not, in 2021, considered a potential coalition partner by any of the “mainstream” parties, and shows little inclination to challenge that view and reject extreme positions—indeed, if anything it is moving in the opposite direction. The party did manage to cause havoc in Thuringia in 2020 (discussed below), when it had a brief, decisive and disruptive influence on the election of the Minister President there. Attracting less prominence, there was an extensive debate in Saxony-Anhalt’s CDU parliamentary group about the relationship to the AfD: CDU parliamentarians threatened to vote with the AfD against any increase in broadcast license fees, which would, in turn, have collapsed the then CDU/SPD/Green coalition in the state, and also broken the CDU’s commitment not to cooperate with the party (DW 2020). However, there are two points worth observing in this discussion. The first is that within the AfD, it is noteworthy that the Flügel (“wing”), led by the party’s leader in the Thuringian parliament Björn Höcke, appears particularly well-represented in the eastern Länder. The group, in which Brandenburg politician Andreas Kalbitz also plays a leading role, was classed as a “suspected case of right-wing extremism” by the Office for the Protection of the Constitution in 2020 (Verfassungsschutz, 2020)—it publicly announced its dissolution later that year but the network may remain in place. In 2021, the Office for the Protection of the Constitution announced that, in addition to the parties in Thuringia and Brandenburg (where the Flügel had been dominant), Saxony-Anhalt’s and Saxony’s state parties were also being placed under observation (Tagesspiegel, 2021a, 2021b). It is also observed that the structure of the party’s electorate, and to some degree the party’s parliamentary groups, differs between east and west (cf. Schroeder et al., 2017), and the party achieves significantly better election results in eastern than western Germany: by way of illustration, at the 2019 European elections, the party scored 8.8% in the western Länder and west Berlin, but 21.1% in the eastern Länder. Secondly, even within eastern and western state parliaments, Schroeder et al. (Schroeder et al., 2017: 59) note differences in orientation: they distinguish between those parliamentary groups with a “parliamentary” and a “movement” orientation, and find examples of each in both eastern and western Germany. Therefore, even though—with one lapse in Thuringia and one nearmiss in Saxony-Anhalt—the AfD is excluded from government and indeed

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from any form of cooperation with other parties, and even though fragmentation in the party is not exclusively along regional lines, it is yet another example of the territorial heterogeneity of German parties. Other Parties In addition to the nationally organised parties discussed, and the CDU/CSU which, while two separate parties, forms one group in the Bundestag, there are a handful of relevant regional parties or parties which have only made a breakthrough in a limited number of Länder. One important instance is the Südschleswigscher-Wählerverband (SSW), which particularly represents the Danish minority in Schleswig–Holstein. The party is exempt from the 5% hurdle for representation at both Land and federal elections, as a result of negotiations between Germany and Denmark in the 1950s (Kellmann, 2010: 383); a position that was challenged (unsuccessfully) in the courts and also the subject of political criticism in 2005, when the SSW undertook to support a minority SPDGreen administration. In the end, the project ended in failure, most probably because one SPD parliamentarian did not vote for the alliance in a secret ballot (ibid.: 388–390). Between 2012 and 2017, it was part of the “coastal coalition” with SPD and Greens, taking on ministerial office for the first time—a logical step, in that there was clear programmatic alignment with the other coalition partners (Bräuninger et al., 2020: 175). Another relevant party is the “Free Voters” (Freie Wähler), an alliance of independent candidates which is, in 2021, represented in the state parliaments of Bavaria and Rhineland-Palatinate, with an equivalent group (not part of the national organisation) represented in Brandenburg. The national organisation’s policy platform combines a commitment to a greater decentralisation of power and more direct democracy with broadly conservative stances on economic and fiscal questions (Freie Wähler, 2012). In Bavaria, the group first stood in the state election in 1998, and gained representation from 2008 onwards, profiting from the relatively high numbers of independent mayors and councillors there (Münch, 2010: 156). In 2018, the party joined the CSU as a coalition partner: Bräuninger et al. (2020: 89) note that they are closely aligned with the CSU on economic policy but take a more liberal stance on social questions. In Rhineland-Palatinate, the party gained representation in the

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Landtag for the first time in 2021, with a manifesto with a strong “localist” flavour, concentrating on improvements to rural infrastructure and the financial position of local government (Fitzpatrick, 2021). In Brandenburg, the party gained representation in 2014 (it won a seat directly, meaning that the 5% hurdle for representation did not apply), and its support increased to over 5% at the 2019 election. The policy approach of the party is rather more socially liberal than its Bavarian counterpart (cf. Bräuninger et al., 2020: 102), and its 2019 election programme laid particular emphasis on improving the situation of refugees and migrants (BVB-FW, 2019). In sum, the ability of “independent” local politicians to organise at a state level, becoming relevant actors in coalition formation and possessing the ability to promote local political concerns and also flex their policy appeal according to circumstances in the state, has been a growing phenomenon in German federalism in the 2000s. By contrast, there have also been parties which have gained representation at the Land level but subsequently departed the parliamentary stage. Examples include the Pirate Party, which gained representation in four state parliaments in 2011 and 2012, but is no longer represented, and also various far-right groups including the DVU, NPD and Republikaner. The ability of such groups to come and go reflects the greater ease of gaining representation at the Land, compared to federal level, and further enhances the territorial diversity of Germany’s party system.

3

Coalition Politics

The foregoing discussion points to the tremendous diversity of coalitions in the German Länder. Table 1 shows the position in August 2021 and their number of 69 votes in total. This represents a stark contrast with the 1970s, when Land governments were formed by CDU/CSU or SPD on their own, in coalition with the FDP, or with each other: the days of the 2 + 1 party system. The rise of the Greens in the 1980s took Germany to a 2 + 2 party system, adding to the complexity, which has continued with the rise of the PDS and then Left Party, Free Voters and also the AfD (not because it is part of a coalition itself, but because it makes it harder to form a twoparty coalition with a majority, making three-party coalitions—unheard of in the 1970s, much more common). Bräuninger et al., (2020: 215–227) investigate factors underpinning coalition decisions at the Land level. They note that the national-level

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Table 1

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Bundesrat composition in August 2021

State

Coalition

Number of votes

Baden-Württemberg Bavaria Berlin Brandenburg Bremen Hamburg Hesse Mecklenburg–West Pomerania Lower Saxony North Rhine Westphalia Rhineland-Palatinate Saarland Saxony Saxony-Anhalt Schleswig–Holstein Thuringia

CDU/Green CSU/Free Voters SPD/Left Party/Green SPD/CDU/Green SPD/Green/Left Party SPD/Green CDU/Green SPD/CDU SPD/CDU CDU/FDP SPD/Green/FDP CDU/SPD CDU/Green/SPD CDU/SPD/FDP CDU/Green/FDP Left Party/SPD/Green (minority)

6 6 4 4 3 3 5 3 5 6 4 3 4 4 4 5

Source Bundesrat

politics plays a role (albeit one which has reduced over time), as there is a lower propensity to form coalitions which are different to the colour of the national government. However, the preference of the party in the region is also important: there is a tendency to continue a coalition which already exists, to reflect coalition preferences expressed before the election and to form coalitions which reflect the alignment of manifestos at a regional level. Coalition politics testifies to and also strengthens the territorial diversity of the German party system and indeed the wider federal system. Diverse coalitions reduce the prospect of aligned majorities in Bundestag and Bundesrat, making “Durchregieren”—that is, governing without constraint, by the federal government impossible (although the support even of aligned Land governments cannot be taken for granted). Moreover, as discussed in the section on individual parties, they highlight variations within Germany of the same party, with different choices being made. The complex dynamics of coalition formation, but also the awkward interplay between Land and federal-level forces, was thrown into sharp

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relief by events in Thuringia in 2020 (for a discussion, cf. Gray et al., 2021). In October 2019, the Left Party came first in the state election, but the existing coalition between Left Party, SPD and Greens fell short of a parliamentary majority (the AfD was the second-largest party, highlighting its effect of blocking the formation of other coalitions). Negotiations involving the CDU and FDP with the incumbent Minister President, Bodo Ramelow of the Left Party failed; it initially appeared (Der Spiegel, 2019) that the CDU’s leader in the state was open to some sort of deal, but was reminded that this was against the CDU party conference decision that the party would not form coalitions or otherwise cooperate with the Left Party or the AfD. Instead, Ramelow successfully concluded negotiations with the SPD and the Greens and hoped that this would gain endorsement as a minority government, on the basis that CDU and FDP would abstain from voting to provide stability in the state and keep the AfD from power. The first stage in this process was the election of the Minister President, by secret ballot. In the first two rounds, Ramelow won the votes of Left Party, SPD and Green parliamentarians, but was two votes short of the majority needed; the AfD’s candidate received support just from his group, while CDU and FDP parliamentarians abstained. The shock came in the third round of voting, in which a plurality of votes would suffice. In this round the FDP stood its own candidate, Thomas Kemmerich, and he appeared to receive support from the CDU, his own FDP and also crucially the AfD (who left their own candidate on the ballot, but who received no votes). Kemmerich was duly elected. This threw Germany—and by no means just Thuringia—into a political crisis, as, for the first time in a German state, the votes of the AfD had been decisive in choosing a Minister President. Responsibility for what happened was murky: various CDU politicians expressed surprise that the AfD had not voted for its own candidate and felt entrapped (Die Zeit, 2020a). At first, federal FDP leader Christian Lindner congratulated Kemmerich, but was then forced into a volte-face and demanded his resignation just days later. Chancellor Merkel spoke of an “unforgivable course of events”, while then CDU leader Annegret Kramp-Karrenbauer saw the move as a breach of the party conference’s decision banning cooperation with the AfD. A key question was just how much the leaderships of CDU and FDP in the state knew of the likelihood of the possibility that the AfD might vote for Kemmerich. The latter said that he had discussed his candidacy with Lindner extensively, while Kramp-Karrenbauer said she

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had warned Thuringian politicians of this danger (TAZ, 2020). Some elements in the CDU in the state, however, had previously regretted the reluctance to countenance cooperation with the AfD (Die Welt, 2019) and would have been happy to accept Kemmerich as Minister President. The affair proved especially costly to some political careers: Christian Hirte, a CDU politician and the federal government’s commissioner for east Germany, resigned after a tweet congratulating Kemmerich on his election, though he later took over as CDU leader in Thuringia, after Mike Mohring, leader at the time of the drama, stepped down (Die Zeit, 2020b). More notably, Annegret Kramp-Karrenbauer announced she was stepping down following this episode, after having demonstratively failed to be able to assert her authority over the Thuringian CDU before and after the Kemmerich debacle (Tagesschau, 2020). These federal consequences point to the ramifications that state politics can have for the wider German system, especially when it involves such a sensitive topic as the relationship to the AfD. But it also points to the difficulty of reconciling different preferences at different territorial levels, and the intense difficulty of forming coalitions in six-party systems. As one newspaper commentary at the time put it: That Mike Mohring, the CDU state and parliamentary leader, is now standing by the rubble of his political career, is also the result of a dilemma that he could not resolve: from above, from Berlin, strong anti-AfD pressure. From below, and from the grassroots, and from his own parliamentary group, strong pressure to move closer to the AfD. … [After the 2019 election] the political reality in an east German state stood suddenly in complete opposition to the decisions of the CDU at a federal level. (Die Zeit, 2020a)

The episode was a powerful reminder of the significance of the territorial dimension of the German party system.

4

Voting Behaviour in Land Elections

There is a lively debate about “second orderness” of non-national elections (cf. Schakel & Jeffery, 2013). A first-order election is a national election, and a second-order election is an election, usually at a subnational level but sometimes at, for instance, the EU level, which fulfils three criteria (cf. Jeffery & Hough, 2001). First, there will be a lower

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turnout (as voters perceive less is at stake). Second, voters may experiment with smaller or newer parties. Thirdly, governing parties (at the national level) are likely to lose support mid-term. It is important to distinguish this precise claim of “second orderness” from a more general claim that voters’ partisan alignments relate to their preferences on the national political stage, and that regional factors do not matter. Jeffery and Hough’s discussion of trends in the 1990s found secondorder trends were still present, albeit that they discerned some weakening of them: “Länder elections seem to have become less second order than they were” (Jeffery & Hough, 2001: 93). They found variability between elections: sometimes the federal scene cast a long shadow, in other cases regional factors were clearly at work. A number of later studies confirm the rather nuanced picture. For instance, Müller (2018) examines state elections between 2013 and 2017, noting that turnout was lower (except for that held on the same day as the federal election), that the CDU, as the leading party in the federal government, struggled until the day of the federal election approached, and that minor parties tended to do better (although he points to the greater salience of the migration issues in 2015 and 2016, which also explains higher levels of AfD and other far-right support). Finally, though Müller notes (ibid.: 311) that the results point to the “significance of truly regional factors in Land elections”, especially highlighting the success of the Greens in the state of Baden-Württemberg. Baethge et al. (2019) analyse the 1949–2017 period, and find both antiincumbency effects (i.e. governing parties at the federal level do worse at the Land level) and “contamination” effects (i.e. gaining power or votes at the Land level is hard when the party is in government at the federal level). There are three interesting twists: they do not find any change in the pattern in more recent years, they do not find that government support dips most towards the mid-term of an election and they find anti-government sentiment in Land elections is especially high in times of grand coalitions (between CDU and SPD or vice versa), and towards junior coalition partners. This rather plausible finding suggests natural supporters of the party will be especially aggrieved at the compromises necessary, and feel a particular desire to “punish” it. State elections since 2017 seem to confirm this mixed picture. In Lower Saxony, just weeks after the federal election in which the SPD gained its worst post-war result, the party was victorious. At the federal election, the SPD got just 27.4% in the state 36.9% (up 4.3% in the previous Land election, also in 2013). An exit poll (Tagesschau, 2017)

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particularly highlighted the popularity of the SPD’s incumbent Minister President, Stephan Weil (who would have won a direct election with 50% of the vote, compared to 35% for his CDU opponent) and a desire for a continued SPD-led government in the state (52% wanted an SPDled government, just 39% wanted a CDU-led government). The same poll also pointed to education policy—squarely a Land competence— being the most important issue to voters (56% mentioned it). A number of other elections did see the CDU and SPD being punished: Bavaria and Hesse in 2018 saw major losses for both parties, as did Berlin, Thuringia and Saxony in 2019, and Hamburg in 2020 (albeit with the SPD losing less ground than national polls would have suggested, thanks to its strong standing in the state). Bremen in 2019 saw SPD support slip and the CDU increase (contrary to the second-order hypothesis), but the former remained the largest party and was able to form a coalition with the Greens and Left Party and remain in office. There were a number of interesting exceptions, too. In Saxony-Anhalt in 2021, the CDU gained ground substantially, perhaps as a result of anti-AfD tactical voting. Rhineland-Palatinate in 2021 was interesting: while the SPD lost a little support (0.5%) compared to the previous election, polls suggested that the extremely popular incumbent Minister President, Malu Dreyer, successfully turned the state around for the SPD (in a direct election, the exit poll suggested she’d have won 57% of the vote, compared to 30% for her CDU opponent and with 69% of voters agreeing she was a “good Minister President”—Tagesschau, 2021). Baden-Württemberg in 2021 showed a similar level of support for the incumbent Green Minister President in the state, while CDU and SPD lost some ground, in accordance with the “second-order” expectation. In sum, this discussion shows that Land elections are by no means disconnected from the wider federal picture; rather, the balance between Land-specific and federal factors seems to vary between different elections in different Länder. Obviously—as discussed early in this chapter— there are sharp variations in support across the German territory for different parties (with the SPD very strong in Hamburg and—more unexpectedly—Rhineland-Palatinate, and very weak in Bavaria and BadenWürttemberg, for instance). Beyond that, though, there is the potential for successful campaigns to be fought on regional issues, allowing a party to buck a national trend.

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5 The Land Level in Party Organisations and Cabinet Recruitment As discussed in the previous section, there has been a trend (pointed to by Jeffery & Hough, 2001: 92) for Landesväter (“state fathers”) to emerge, with an appeal characterised by apparent concern for the wellbeing of the state over partisan advantage, and a consequence attraction to voters beyond those who naturally identify with the party in question. Back in the 1990s, they pointed to CDU politicians Bernhard Vogel and Kurt Biedenkopf, as well as the SPD’s Manfred Stolpe and Gerhard Schröder prior to his election as federal chancellor. For Hough and Jeffery, this represents a “growing tendency towards a personalisation of politics” (ibid.: 92), including at the regional level—they particularly pointed towards this in the east. There is no scholarly definition of a Landesvater, and arguably some of the most highest profile state politicians could have ticked this box: Johannes Rau, the SPD’s long-standing Minister President of North Rhine Westphalia, the CDU’s Ernst Albrecht of Lower Saxony, or looking back further, the CDU’s Franz-Josef Röder of the SaarLand (1959–1979), or the SPD’s Georg August Zinn of Hesse (1950–1969)—longer serving Bavarian CSU Minister Presidents such as Alfons Goppel (1962–1978), Franz-Josef Strauss (1978–1988) and Edmund Stoiber (1993–2007) might have lacked some of the appeal beyond their natural party allies of other state fathers, but also developed a strong, regionally based incumbency. In more recent years, the list grows: undoubtedly, Kurt Beck (1994–2013) and Malu Dreyer (2013 onwards) of the SPD in Rhineland-Palatinate would achieve that designation, as would the Green Baden-Württemberg Wilfried Kretschmann (2011 onwards). Interestingly, though, there seems to be a near-universal appreciation of incumbent minister presidents. By way of illustration, and to take elections between the 2017 and 2021 Bundestag elections, we can compare the score at exit polls of the incumbent when voters are asked their views of Minister Presidents (Table 2). In none of these elections was there a change in the party leading the Land, although in Bremen Carsten Sieling (who with Söder scored the lowest figure) stepped down as a result of the SPD’s losses. In these circumstances, with high levels of popularity and (for those who have won at least one election) a degree of electoral legitimacy, the ability of Minister Presidents to hold sway in their respective parties is significant.

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Table 2 Comparison of satisfaction ratings of incumbent Minister Presidents September 2017–August 2021 Year

Land

Score saying “is a good Minister President”

2017 2018 2018 2019 2019 2019 2019 2020 2021 2021 2021

Lower Saxony Bavaria Hesse Saxony Brandenburg Thuringia Bremen Hamburg Baden-Württemberg Rhineland-Palatinate Saxony-Anhalt

Weil (SPD) 67% Söder (CSU) 49% Bouffier (CDU incumbent) 64% Kretschmer (CDU incumbent) 70% Woidke (SPD) 59% Ramelow (Left Party) 70% Sieling (SPD) 49% Tschentscher (SPD) 67% Kretschmann (Green) 77% Dreyer (SPD) 69% Haseloff (CDU) 70%

Scores available at tagesschau.de

Detterbeck argues that in both CDU and SPD, the influence of Minister Presidents is likely to be greater while the party is in opposition, and said that in both 2004 and 2008 “most of the SPD [minister presidents] were little more than marginal figures at the federal party level” (2011: 255). While at the time of writing both parties were in the federal government, Minister Presidents like Dreyer (SPD), Bouffier (CDU) and Kretschmann (Green) were certainly influential figures. Amongst the leaderships of Germany’s parties, there is strong representation of the state level. By way of illustration (and drawing on the relevant party websites), in the CDU, there is a Präsidium (core executive) of 15, of whom at the time of writing (August 2021) seven are holders of ministerial office at the Land level. They are joined by any CDU Minister Presidents who are not members in their own right. In the wider party executive, of the 26 members additionally elected, 15 are holders of Land-level ministerial, parliamentary or party office, with others coming from a local government background. In the SPD, amongst the party’s Präsidium, there is a slightly weaker representation of the Land level (five out of 13 members’ main political role is at the Land level, excluding Klara Geywitz, who was a state parliamentarian until 2019 and at the time of writing did not hold elected office), while of the 22 additional executive members, 7 principally have a Land role. This represents an increase in the influence of Land politicians compared to the

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period investigated by Detterbeck in the 2004–2008 period (Detterbeck, 2011). Moreover, the wide geographical spread of membership is noteworthy:, even if Land parties’ representatives are Bundestag members: as Detterbeck put it, “although there are no ex-officio members within the SPD leadership, it would be quite misleading to believe that there are no informal rules concerning the representation of regions, political wings and social groupings” (ibid.: 255). In the Greens, there is a smaller party executive (consisting principally of politicians active at the federal level), and a Parteirat (party council), where at the time of writing 6 of the 16 politicians represented held office principally at the state level. The Land level continues to be a source of cabinet ministers at the federal level. Table 3 notes the background of the federal cabinet in August 2021): So of the 15 current federal cabinet ministers, six had a background squarely in Land politics, with one having made a cameo. Several more (such as Karliczek and Braun) had a career in local government. So as with key party committees, recruitment to governmental roles draws on those active at both the federal and the Land level. This short discussion points to the ongoing importance of the Land level in German parties’ organisations, as well as to the federal cabinet. This is reflected in formal structures, but also in the high standing of prominent regional politicians, with incumbent minister presidents likely to enjoy a significant incumbency bonus.

6

Operation of the Bundesrat

In considering the role of the Bundesrat, with its substantive veto of legislation which affects the Länder, discussion has often drawn on competing logics—of cooperation, driven by the structure of German federalism, and of competition, based on the quest for partisan advantage (Lehmbruch, 2000: 9; also Schmedes, 2019). In the former scenario, deals can be forged across party lines so that legislation can get through, having been amended in such a way as to reflect the interests of the Länder. In the latter, legislation cannot pass unless there are overlapping majorities in Bundestag and Bundesrat (and indeed constitutional reforms will be especially unlikely as they would require two-thirds majorities in both chambers to pass). In this discussion, where we consider the extent to which Länder go beyond national partisan considerations in voting in the Bundesrat, our

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Table 3

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Personal background of federal cabinet members, 2021

Name/Party

Role

Political background

Land-level experience?

Angela Merkel (CDU) Olaf Scholz (SPD)

Chancellor

MP

No

Governing mayor of Hamburg (Minister President equivalent) and minister Interior Minister Minister President

Yes

Foreign Minister Economics and Energy Minister Justice and Families Minister Federal Labour Minister Federal Defence Minister

Land parliamentarian and minister MP and federal minister MP and federal state secretary

Yes

MP

No

Land parliamentarian and minister

Yes

Federal Agriculture Minister Federal Heath Minister Federal Transport Minister

MP then Land parliamentarian

Yes

MP

No

MP

Federal Environment Minister Federal Education Minister Federal International Development Minister

Land parliamentarian and minister

No (excluding short period as assistant to Minister President) Yes

Horst Seehofer (CSU) Heiko Maas (SPD) Peter Altmaier (CDU) Christine Lambrecht (SPD) Hubertus Heil (SPD) Annegret Kramp-Karrenbauer (CDU) Julia Klöckner

Jens Spahn (CDU) Andreas Scheuer (CSU)

Svenja Schulze (SPD)

Anja Karliczek (CDU) Gerd Müller (CSU)

Finance Minister/Vice Chancellor

Yes

No No

MP

No

MEP then MP

No

(continued)

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Table 3

(continued)

Name/Party

Role

Political background

Land-level experience?

Helge Braun (CDU)

Head of Chancellery

MP

No

Source Federal Government and personal websites

interest is not simply in identifying whether the Bundesrat does, or does not, approve government legislation. Certainly, if all legislation fell at times when there were not congruent party majorities in Bundesrat and Bundesrat, that would be evidence of national party interests trumping regional concerns. But the assertion of regional interests could be compatible with either voting through, amending, or voting down legislation. As this discussion will show, in recent years the Bundesrat has with very few exceptions not voted down legislative proposals outright, and has also significantly reduced the use of the formal instrument to resolve conflict, the Vermittlingsausschuss (conciliation committee), in favour of resolving issues informally. As discussed above, the Bundesrat has now got a far greater diversity of coalitions than was the case in the days of a three-party, and then a fourparty system in Germany. This might be expected to make the passing of legislation harder. Such a view is implicitly or explicitly proposed by those who hypothesise that Germany has become a “blocked republic” (cf. Der Spiegel, 2002. For a critical view, Rossmann, 2016). Yet recent discussions (cf. in particular Schmedes, 2019; also Schmedes, 2017) suggest this has not been the case. Schmedes analyses legislative proposals going from Bundestag to Bunderat in the 17th (2009–2013) and 18th (2013– 2017) sessions of the German parliament. In the 17th period (cf. ibid.: 75–88), 844 laws were proposed by the Bundestag, of which 553 arrived at Bundesrat. In 43 cases, the conciliation committee had to become involved, as agreement could not be reached. It was noteworthy that of these 43 cases, 42 came in the quite short period of time—between February and September 2013—in which the A-Länder (those led by the SPD) got a majority. Of the 553 laws just ten were not agreed upon at all. Moreover of these ten, four did not require Bundesrat agreement and just fell away at the end of the legislative period (ibid.: 80). There was only one law which was completely blocked even after attempts to

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resolve the matter at the conciliation committee—about tax matters with Switzerland and a related amnesty (ibid.: 82–83). The Bundesrat is also in a position to send legislative proposals to the Bundestag. There were, in total, 82 such proposals sent, of which only 17 were agreed. Some of these reflected political positioning in the period when the A-Länder had a majority, but others (Schmedes highlights a 2013 proposal from all Länder about cooperation between the federal government and the Länder on EU questions; cf. ibid.: 87) reflected a genuine difference of views between the chambers. The pattern in the 18th legislative period was, according to Schmedes (ibid.: 88–101) even more stark. 727 laws were proposed to the Bundestag, of which 555 went to Bundesrat; 553 were discussed in BR, just 3 went to the VA and 548 ended up being signed off, so just 7 of the laws proposed to the Bundesrat did not receive assent. In three of these seven cases, the matter at hand was the ratification of some EU laws, and a disagreement later considered at the Federal Constitutional Court—so the difference between the chambers was technical rather than of substance. In the remaining four cases (ibid.: 92) there was genuine political disagreement. For instance, one vote concerned the recognition of three countries in the western Balkans as “secure states of origin”, from which asylum applications would routinely be refused. This law only passed once the Green–Red government in Baden-Württemberg dropped its opposition (a reflection of the centrist positioning of the Greens in the state, discussed above). A later law on three Algeria, Morocco and Tunisia fell after the Greens’ opposition held firm. There was a further law on asylum seeker support which fell after Greens, other than in BadenWürttemberg and Hamburg, refused to support it. Schmedes (ibid.: 95–96) suggests that the Greens were, in effect, caught between territorial and partisan logics: there were bound into discussions on the asylum legislation, but sometimes needed to look like they were not joining the consensus of the other parties. Two other laws were withdrawn by the government pre-emptively, as they would not pass the Bundesrat— one concerning assistance with legal processes, and another on support for children and young people; in both cases, the Länder felt financial implications were present which had not been adequately addressed. A rather striking aspect of the 18th legislative period was the dramatic decline of the number of calls on the conciliation committee (more than tenfold compared to the previous four years). This in particular reflects much more frequent meetings of the Conference of Minister Presidents

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with the Chancellor, in which decisions could be taken—a body which gained further prominence during the Coronavirus pandemic. Such meetings were timetabled to be held quarterly, but between 2013 and 2017, there were 64 such meetings (ibid.: 46); amongst the issues considered were financial relations between the federal and Land tiers of government, and legislation on refugee matters in 2015 (ibid.: 47–48). It also points to the use of more informal areas of conflict resolution—both within and between parties—rather than deploying the formal structures (cf. also Lennartz & Kiefer, 2014). There are regular pre-meetings between ALänder (those led by the SPD, now generally augmented by the Greens and Left Party) and the B-Länder (those led by the CDU/CSU). In addition, coordination on a particular issues is often led by a representative of a particular Land in the Bund—who can be a minister, state secretary or other officials (Schmedes, 2019: 51). Representatives of the Länder meet weekly, preceded by a pre-meeting amongst A-Länder and B-Länder, and these are also joined by representatives from the relevant party where it does not field the relevant representative. There is a separate weekly (telephone) meeting of the heads of state chancelleries, against divided between A-Länder and B-Länder, by telephone, and further meetings of minister presidents and the deputies divided by party. There are three important conclusions to be drawn from this discussion. The first is that Land governments do not, as a matter of course, always act in line with narrow partisan interests. As Schmedes puts it: “Party political considerations play a role in decision-making but they can be overshadowed by federal aspects or Land-specific interests” (Schmedes, 2019: 101). This will vary from issue to issue: Lennartz and Kiefer (2014: 185) argue that “The more Land interests are affected, the more limited is the willingness to support positions based on general political orientations at a federal level. In such cases, important Land issues outweigh other considerations”. Secondly, there has been a significant shift away from the conciliation committee, as the formal way of resolving conflict between the two chambers, in favour of the Minister Presidents’ Conference (MPK) meetings with the chancellor, but also a plethora of informal intra- and inter-party gatherings. Thirdly, and flowing from the first point, attempts to cast Germany as a “blocked republic” owing to the presence of the strong second chamber, reflecting the interests of the Länder, are well wide of the mark. Parties do bring their interests—and their values to bear—but Land considerations are also highly relevant.

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Conclusion

In all its aspects: the character of individual political parties, coalition politics, voting behaviour, political recruitment and party organisation and the operation of the Bundesrat, we can see that the sub-national level is extremely important in structuring party politics in Germany; we can also see that political parties play an important role in reflecting sub-national political divides and indeed enabling vertical and horizontal cooperation. There are differences in the programmatic and coalition choices of parties across the German territory, reflecting differences in social structure and political views, as well as different historical trajectories, although parties retain a common identity—a family resemblance—rather than being incoherent. The sub-national level also plays a strong role in party organisation nationally, and the presence of strong Minister Presidents (who enjoy high poll ratings and an incumbency advantage at elections) also means that informally, as well as within party structures, regional voices play an important role. The Bundesrat has become a political arena hosting a diverse range of coalitions, and is important in integrating the perspectives of the Land governments in decision-making—yet this does not lead to a “blocked republic”—rather, most laws pass, but with amendments proposed by the Länder when they see their interests affected. Regional, rather than narrowly partisan considerations, are especially important in this arena.

References Baethge, C., Dallendörfer, M., & Kaiser, A. (2019). Federal-level government participation and state-level electoral performance: A party-based analysis of land elections in Germany 1949–2017. German Politics, 28(4), 583–601. Bräuninger, T., & Debus, M. (2012). Parteienwettbewerb in den Bundesländern. VS Verlag. Bräuninger, T., Debus, M., Müller, J., & Stecker, C. (2020). Parteienwettbewerb in den deutschen Ländern (2nd ed.). VS-Verlag. BVB-FW. (2019). Landtagswahlprogramm 2019. https://bvb-fw.de/landtagsw ahlprogramm/ Debus, M., & Müller, J. (2013). The programmatic development of CDU and CSU since reunification: Incentives and constraints for changing policy positions in the German multi-level system. German Politics, 22(1–2), 151–171.

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Der Spiegel. (2000, May 2). Der ewige Verlierer muckt auf. Der Spiegel. https:// www.spiegel.de/politik/deutschland/cdu-der-ewige-verlierer-muckt-auf-a73408.html Der Spiegel. (2002, September 20). Die blockierte Republik. Der Spiegel. https://www.spiegel.de/politik/die-blockierte-republik-a-46f4a013-00020001-0000-000025211792 Der Spiegel. (2019, October 29). Ausgebremst. Der Spiegel. https://www.spi egel.de/politik/deutschland/mike-mohring-in-thueringen-koalition-mit-lin ken-wieder-ausgeschlossen-a-1293875.html Detterbeck, K. (2011). Party careers in federal systems: Vertigal linkages within Austrian, German, Canadian and Australian Parties. Regional & Federal Studies, 21(2), 245–270. Die Welt. (2019, November 13). Umstrittener Mohring-Vize gewinnt Kampfabstimmung. Die Welt. https://www.welt.de/politik/deutschland/article20 3465074/Thueringen-Umstrittener-CDU-Fraktionsvize-Michael-Heym-wie dergewaehlt.html Die Zeit. (2010, November 28). Schwarz-Grün in Hamburg am Ende. Die Zeit. https://www.zeit.de/politik/deutschland/2010-11/cdu-gruenehamburg/komplettansicht Die Zeit. (2019, November 24). Stephan Weil warnt vor Wahl von Saskia Esken. Die Zeit. https://www.zeit.de/politik/deutschland/2019-11/spd-vor sitz-wahlempfehlung-weil-kuehnert Die Zeit. (2020a, February 7). Tage, an denen etwas zu Ende geht. Die Zeit. https://www.zeit.de/politik/deutschland/2020-02/thueringencdu-afd-fdp-mike-mohring-thomas-kemmerich/komplettansicht Die Zeit. (2020b, September 19). CDU wählt Christian Hirte zum neuen Landesvorsitzenden. Die Zeit. https://www.zeit.de/politik/deutschland/ 2020-09/thueringen-christian-hirte-cdu-vorsitz-mike-mohring-landespar teitag FAZ. (2021, April 10). Riexinger kritisiert Buch von Wagenknecht. Frankfurter Allgemeine Zeitung. https://www.faz.net/aktuell/politik/inland/str eit-bei-den-linken-riexinger-kritisiert-buch-von-wagenknecht-17286548.html Fitzpatrick, J. (2021). Freie Wähler. https://www.bpb.de/politik/wahlen/wersteht-zur-wahl/rheinland-pfalz-2021/326013/freie-waehler Frankfurter Rundschau. (2021, September 4). Bundestagswahl: Wo Rot-RotGrün Reibungslos funktioniert. Frankfurter Rundschau. https://www.fr.de/ politik/bremen-rot-gruen-rot-reibungslos-90957567.html Freie Wähler. (2012). Unsere Demokratie erneuern – der Mensch im Mittelpunkt: Grundsatzprogramm der Bundesvereinigung FREIE WÄHLER. https://www. freiewaehler.eu/unsere-politik/grundsatzprogramm/

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Müller, J. (2009). The impact of the socio-economic context on the Länder Parties’ policy positions. German Politics, 18(3), 365–384. Müller, J. (2018). German regional elections: Patterns of second-order voting. Regional & Federal Studies, 28(3), 301–324. Münch, U. (2010). Bayern – Hochburg konservativer und föderalistischer Parteien. In A. Kost, W. Rellecke, & R. Weber (Eds.), Parteien in den Deutschen Ländern: Geschichte und Gegenwart (pp. 128–160). Beck Verlag. Neue Westfälische. (2018, November 22). Delegierte aus NRW-CDU sprechen sich für Kramp-Karrenbauer aus. Neue Westfälische. https://www.nw.de/nac hrichten/zwischen_weser_und_rhein/22304908_Delegierte-aus-der-NRWCDU-sprechen-sich-fuer-Kramp-Karrenbauer-aus.html Neue Westfälische. (2020, October 31). NRW-CDU nominiert Laschet und Spahn. Neue Westfälische. https://www.nw.de/nachrichten/zwischen_weser_ und_rhein/22890338_NRW-CDU-nominiert-Laschet-und-Spahn.html Roberts, G. K. (1999). Ist ein neues Parteiensystem entstanden? Mehr Wandel als Kontinuität. In K. Eckart & E. Jesse (Eds.), Das wiedervereinigte Deutschland: Eine erweiterte oder eine neue Bundesrepublik? (pp. 53–64). Duncker & Humblot. Rossmann, R. (2016, October 12). Zu bunt. Süddeutsche Zeitung. Schakel, A. H., & Jeffery, C. (2013). Are regional elections really ‘second-order’ elections? Regional Studies, 47 (3), 323–341. https://doi.org/10.1080/003 43404.2012.690069 Schmedes, H.-J. (2017). Regieren im semi-souveränen Parteienbundesstaat. Die administrativen und politischen Koordinierungsstrukturen in der Praxis des deutschen Föderalismus. Zeitschrift für Parlamentsfragen, 48(4), 899–921. Schmedes, H.-J. (2019). Der Bundesrat in der Parteiendemokratie: Aufgabe, Struktur und Wirkung der Länderkammer im föderalen Gefüge. Nomos: Baden-Baden Schmid, J. (1990). Die CDU: Organisationen, Politiken und Funktionsweisen einer Partei im Föderalismus. Leske & Budrich. Schroeder, W., Weßels, B., Neusser, C., & Berzel, A. (2017). Parlamentarische Praxis der AfD in deutschen Landesparlamenten (WZB Discussion Paper SP V 2017-102). Siri, J. (2018). The alternative for Germany after the 2017 election. German Politics, 27 (1), 141–145. SWR. (2021, April 2). Vorentscheidung zu Koalition getroffen: Grüne in Baden-Württemberg wollen mit CDU weiterregieren. SWR Aktuell. https:// www.swr.de/swraktuell/baden-wuerttemberg/gruene-baden-wuerttembergwollen-koalition-mit-cdu-100.html Tagesschau. (2017, October 15), Niedersachsen: Landtagswahl 2017 . Tagesschau https://www.tagesschau.de/wahl/archiv/2017-10-15-LT-DE-NI/index. shtml

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Tagesschau. (2020, February 10). Doppelt gescheitert. Tagesschau. https://www. tagesschau.de/inland/kramp-karrenbauer-ruecktritt-101.html Tagesschau. (2021, August 17). Welche Politiker überzeugen Wähler? Tagesschau. https://www.tagesschau.de/wahl/archiv/2021-03-14-LT-DEBW/umfrage-kandidaten.shtml Tagesspiegel. (2018, November 6). Grünes Licht: nur im Osten nicht. Der Tagesspiegel. https://www.tagesspiegel.de/themen/agenda/der-hoehen flug-der-gruenen-gruenes-licht-nur-im-osten-nicht/23458132.html Tagesspiegel. (2020a, October 21). Da muß zusammenwachsen, was nicht zusammen passt. Der Tagesspiegel. https://www.tagesspiegel.de/politik/gif fey-und-die-berliner-spd-da-muss-zusammenwachsen-was-nicht-zusammenpasst/26291926.html Tagesspiegel. (2020b, February 23). Alleingang an der Alster. Der Tagesspiegel. https://www.tagesspiegel.de/berlin/das-erfolgsrezept-der-spd-in-hamburgalleingang-an-der-alster/25575836.html Tagesspiegel. (2021a, January 26). Verfassungsschutz beobachtet AfD in SachsenAnhalt. Der Tagesspiegel. https://www.tagesspiegel.de/politik/partei-wirdrechtsextremer-verdachtsfall-verfassungsschutz-beobachtet-afd-in-sachsen-anh alt/26852104.html Tagesspiegel. (2021b, February 2). Verfassungsschutz im Freistaat sieht rechtsextreme Tendenzen. Der Tagesspiegel https://www.tagesspiegel.de/politik/sae chsische-afd-als-verdachtsfall-eingestuft-verfassungsschutz-im-freistaat-siehtrechtsextreme-tendenzen/26874740.html TAZ. (2020, February 6). Lindners Legende. TAZ. https://taz.de/Die-FDPund-Thueringen/!5658334/ Turner, E. (2011). Political parties and public policy in the German Länder: When parties matter. Palgrave Macmillan. Verfassungsschutz. (2020). Bundesamt für Verfassungsschutz stuft AfDTeilorganisation “Der Flügel” als gesichert rechtsextremistische Bestrebung ein. Press Release. https://www.verfassungsschutz.de/SharedDocs/pressemit teilungen/DE/2020/pressemitteilung-2020-1-afd.html von Blumenthal, J. (2010). Im Zweifel für die Einheit(lichkeit)? Determinanten landespolitischer Entscheidungen. In J. von Blumenthal & S. Bröchler (Eds.), Föderalismusreform in Deutschland: Bilanz und Perspektiven im internationalen Vergleich (pp. 177–196). VS-Verlag. Watson. (2019, October 26). Landtagswahl in Thüringen: Warum Ramelow alles richtig macht – und trotzdem zittern muß . Watson. https://politik.wat son.de/deutschland/th%C3%BCringen/778794119-thueringen-experte-erk laert-bodo-ramelow-und-sein-erfolgsrezept-es-klingt-banal

CHAPTER 7

Germany and the COVID-19 Pandemic

1

Introduction

When the world was confronted by the COVID-19 pandemic, beginning for most countries in 2020, there were significant debates about the ability of different structures of government to handle the pandemic. Some of these debates compared the differing abilities of democracies and nondemocracies, but the role of different tiers of government also featured. A federal system of government could, in the management of the pandemic, be both an opportunity but also a problem (Behnke, 2020). As Vampa put it, “The question of how, in the face of a crisis, decision-making power should be balanced between national and sub-national governments was not a trivial one and had important social, political and economic implications” (Vampa, 2021: 601–602). On the one hand, regions (or indeed local authorities) could choose policies to align with the health situation that they faced—reflecting the ability of federal systems to fit policies to local circumstances (Münch, 2021). They might also have the greater bureaucratic capacity to implement health protection measures effectively: for instance, in a regularly cited piece, Oltermann points to Germany’s network of public health offices as having been able to draw on the resource of local, independent laboratories quickly to scale up testing (Oltermann, 2020).

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Rowe and E. Turner, Decentralising Policy Responsibility and Political Authority in Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-29479-2_7

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More debatably, in handling the pandemic there were judgements to be made—for instance about the correct balance between health protection measures and incursions upon citizens’ liberties—and the decentralisation of power could lead to a situation both with more local, visible political accountability, and a closer alignment of policies to citizens’ preferences in the area concerned. The claim that federal structures are likely to protect individual freedoms might also be considered a benefit, as additional veto points in a political system, and the fragmentation of political power, constrain the ability of the state to enact change. Münch also argues that regional administrations might have greater experience in handling disaster situations, so giving them responsibility in a pandemic could lead to better outcomes than in a centralised process. She also suggests that the oft-mooted advantage of federalism—that it leads to competition for good outcomes—could apply in the case of pandemic management (Münch, 2021). Yet there are some significant potential downsides: the first is that policy decisions in one part of territory will affect those elsewhere, beyond where political accountability is held—a state which chose not to impose restrictions to contact a disease would, unless there was no outward mobility, see its citizens infect those in other jurisdictions. The clear flip side of fragmenting political power is also clear: where swift and expansive changes in the law are required, federal systems might be expected to respond more slowly, to the detriment of their populations. There is a risk of a wide range of policies being adopted, causing confusion and consternation amongst citizens (cf. Behnke, 2020: 13), with apparently inexplicably variations between different parts of a territory undermining public support for government action. Additionally, as Münch points out, there could be two other dangers from federalism: the proximity of local lobbies (for instance, hoteliers or restaurant owners) to those taking decisions could adversely influence the balance between the protection of health and economic interests. Moreover, different territorial units might end up competing for scarce resources (for instance, raising the price of protective equipment), leading to greater costs and a potentially inappropriate allocation of those resources (Münch, 2021). This chapter is structured into seven sections. The next section sets out the background of the pandemic in Germany, including the division of powers between different tiers of government. Each of the three following sections then considers a different phase of the pandemic, specifically in relation to Germany’s federal structures. The first phase will cover the

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early stages of the pandemic to the end of 2020, during which federalism was often considered to play a positive role. The second phase runs from the start of 2021 until the summer of that year, covering the period when federal arrangements came under greater pressure and rules were to a degree recentralised. The third phase offers a brief discussion of the period when vaccinations became more prevalent, from July 2021 until March 2022. In doing so, each section will grapple with the questions posed in this wider volume, looking at the extent of policy differentiation in the Länder and its drivers. The sixth section discusses public opinion on the division of labour in handling the pandemic, while the conclusion considers what the management of the pandemic tells us about German federalism more widely.

2

Pandemic Management in German Federalism

Germany’s Basic Law includes a list of areas covered by “concurrent legislation” (konkurriende Gesetzgebung ) in Article 74, including “measures to combat human and animal diseases which post a danger to the public or are communicable”. Under this provision, the Länder are free to legislate until such time as the federation passes its own law. The initial legal framework for handling the pandemic was the Federal Infection Protection Law (Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen, or Bundesinfektionsschutzgesetz) of 2000 (implemented in 2001). This modernised Germany’s legislation, much of which otherwise dated back to 1961 and a law on the spread of “plague”. It formally recognised the Robert Koch Institute as Germany’s public health agency, which “has the task of developing concepts for the prevention of communicable diseases as well as for the early detection of infections and the prevention of their spread” (Federal Infection Protection Law 2.4.1). It had specific tasks including the provision of guidelines and information on the prevention of spreadable disease, preparation and communication of epidemiological evaluations to all the relevant authorities (Federal Infection Protection Law 2.4.2). In fact, the institute was founded in the nineteenth century, and gained further powers in 1994 when the Federal Health Agency was disbanded, after it failed to prevent the infection of patients with contaminated blood products (Robert Koch Institut, 2019). The institute played a prominent role in advising politicians and civil servants on the pandemic in Germany.

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The law also establishes different roles for federal and Land authorities. Interestingly, in the justification of the law, it was stated that the federal authorities needed a strong role: The aim of effectively combating infectious diseases can only be achieved when common rules to prevent the transmission of infectious diseases apply in the whole German territory. Land-level legislation … would prevent effective measures against transmissible diseases if there were different provisions, or no provisions, from Land to Land. … A federal law is therefore required to achieve comparable living conditions in the federal territory. (Bundestag, 2000)

The final sentence gives the constitutional justification for having federal legislation, rather leaving this as a Land-level competence. Article 23 of the Federal Infection Protection Law makes plain that the “competent authority” (which may be the federal government) can restrict various constitutional rights (including the right to personal freedom, the right to freedom of assembly and the inviolability of the home). However, Article 32, on the issue of ordinances, makes it plain that the governments of the Länder are empowered to restrict these constitutional rights in the interests of controlling communicable diseases, or indeed may delegate the issuing of such ordinances. As a consequence, the legal framework sees a division of labour, with the federal government able to legislation, but the Länder (or sub-Land-level authorities if the power is delegated to them) responsible for implementation by means of secondary legislation (cf. also Münch, 2021). While not the principal subject of this chapter, it is also noteworthy that authorities below the Land level at times ploughed their own furrow; “some of the strictest rules were passed by counties [Landkreise] that didn’t want to be told what to do by their Land governments” (Gloger & Mascolo, 2021: 178). At the very start of the pandemic, on 25 March 2020, the Federal Infection Protection Law was amended by the Bundestag (with the broad cross-party agreement, although the Left Party and the Alternative for Germany abstained). It ascertained that there was a “national pandemic” (epidemische Lage von nationaler Tragweite) and granted new powers to the federal health ministry and the federal government to issue new regulations, for instance to secure the supply of medication and medical personnel, without needing agreement from the Bundesrat; the Federal Interior Ministry also gained new powers to restrict entry to Germany

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(Bundestag, 2020). However, it was striking, at least in the early months of the pandemic, that the federal government tended to leave the issuing of such regulations to the Länder and not make use of this newly granted competence (Behnke, 2020: 14). The Federal Infection Protection Law was further modified in 2021, extending the rights of the federal government to issue its own ordinances: a change that will be discussed in section four. The legislation also linked the ability of legislators to restrict basic rights to the threat of the spread of infectious disease. This opened the way for many legal challenges to the relevant legislation to be presented to the German courts, often on the grounds that the restrictions on constitutional rights were disproportionate compared to the scale of the threat—a list of over 750 such court cases is available (Etl-Rechtsanwälte, 2022)! For instance, in mid-2020 the Upper Administrative Court in Münster overturned additional restrictions in the county of Gütersloh, introduced in response to a major outbreak at the meat producer Tönnies (Süddeutsche Zeitung, 2020). In October of the same year, administrative courts also overturned a closing time imposed on pubs and restaurants in Berlin, and on restrictions on overnight hotel stays in Lower Saxony and Baden-Württemberg by Germans coming from areas with high levels of infection (FAZ, 2020). In a retrospective verdict, even Bavaria’s lockdown in April 2020—early on in the pandemic—was ruled in 2021 to be “disproportionate” and even “inappropriate” (Berliner Zeitung, 2021). Of course, the pandemic posed an unprecedented test to the legal framework of pandemic management in post-war Germany. The classic division in German federalism, between federal legislation and Land-level implementation (through secondary legislation) was tested to the limit, as were co-ordinating mechanisms. While the legislation was amended in 2021 (giving more power to the federal government), tensions between different tiers of government have remained.

3 The First Phase of the Pandemic (February to December 2020): Federalism Working Well? Several cases of COVID-19 arrived in Germany in February 2020, with the spread substantially underway by the middle of the following month (Gloger & Mascolo, 2021). On 12th March, there was a meeting of the Conference of Minister Presidents (Ministerpräsidentenkonferenz—hereafter MPK), initially called to discuss energy policy with the chancellor

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(Gloger & Mascolo, 2021: 57). In normal times, the MPK would meet four times a year, with two meetings of those meetings involving the federal chancellor (cf. Land NRW, 2022). Over the course of the pandemic, these meetings—which initially took place face-to-face but at times became virtual—became a crucial site of coordination between the federal government and the Länder. It is striking that the MPK is a relatively informal structure of coordination: it does not have a permanent secretariat, instead being serviced by the Land holding the chair, nor is there any permanent representation in Berlin. In taking decisions, it had informally moved from requiring unanimity to considering positions—on most but not all topics—supported by at least 13 Länder to be agreed (Behnke, 2021: 43). Over time, the MPK had grown in importance as a site of coordination, supplanting the role of the Conciliation Committee of Bundestag and Bundesrat. But in the pandemic its role expanded, both substantively and in terms of its public profile. In the period between March 2020 and March 2021, four meetings would have been expected, two of which would also be attended by the Chancellor, but in fact it gathered some 26 times (Behnke, 2021: 43). Behnke also notes that the method of working of the MPK changed: meetings were in practice convened by the federal government, and attended by the Head of Chancellery, various federal state secretaries, and also academic experts as required. The emphasis shifted from being principally an instrument of horizontal coordination (although this role had in any case diminished earlier in the Merkel era), and towards vertical coordination between the federal government and the Länder (Behnke, 2021: 43). Moreover, the heads of the chancelleries of the federal government and the Länder set up their own series of meetings, drawing in federal ministers as required, to prepare the ground for the meetings of the MPK with the chancellor (Gloger & Mascolo, 2021: 184). The meeting of the MPK with the Chancellor on 12th March reached an agreement to close schools and nurseries, and restrict gatherings between people across Germany, with very swift implementation: all schools were closed from 15th March, and restrictions on gatherings, and on access to care and nursing homes, were also agreed and implemented within a matter of days (Behnke, 2020: 12). Behnke concludes from this swiftness that “In times of crisis, federal co-ordination of activity hardly leads to delayed reactions. Nearly all measures judged necessary were implemented across the board in just a few days” (Behnke, 2020: 13). Gloger and Mascolo, on the basis of interviews with participants

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in that first conference, talk of a “reinforcing dynamic” (Sogwirkung ), whereby what one Land decided, other Länder would feel compelled to emulate (Gloger & Mascolo, 2021: 59–66). Bodo Ramelow, the Left Party Minister President of Thuringia, recalled that he travelled to the meeting opposed to the closure of schools, but after hearing from the epidemiologists, he changed his mind: “We asked the experts ceaselessly. And with every answer it dawned on me that we had arrived in a storm that nobody amongst us had ever experienced before. And then we just took the decisions that we felt we had to take” (Die Zeit, 2020a, quoted in Gloger & Mascolo, 2021: 60). Interestingly, several of the Minister Presidents, including Ramelow, took the scientific evidence, notably from the high-profile virologist Christian Drosten, to support immediate closure of schools, whereas Drosten later claimed that he had only advised school closures in areas of high infections (Gloger & Mascolo, 2021: 61). Prior to the meeting on 15th March, some Länder had already begun to introduce restrictions. Bavaria, in particular, put itself at the head of the curve. This was partly driven by the conviction of the Minister President, Markus Söder, who put himself at the head of “team caution” amongst Minister Presidents (Behnke & Person, 2022: 76), but also by the relative proximity of Bavaria to Ischgl in Austria, a ski resort where much transmission in the early weeks of the pandemic took place (Felbermayr et al., 2021). In a thorough analysis of developments in 2020, Behnke and Person (2022) codify the strictness of measures in each Land to prevent the spread of the virus on a scale of 0 (no restrictions) to 100 (the maximum level of restrictions). Their analysis encompasses seven broad areas: hygiene rules including masks; restrictions on contact and on gatherings; childcare and schools; trade and commerce; gastronomy; tourism; and sports and leisure (Behnke & Person, 2022: 68). Their descriptive statistics point to variation over time, as the pandemic ebbed and flowed, but also between the Länder, with the highest levels of standard deviation coming at the start of the year, when restrictions were being introduced, and at the end, when they were being reintroduced. However, even at the height of the summer differences between the Länder are readily observable (Behnke & Person, 2022: 72). They test two specific explanatory variables: one is the severity of the pandemic in the Land in question, the other is the party composition of the Land government. The former, they find, only has a rather weak link to levels of strictness (Behnke & Person, 2022: 79). The picture in terms of the partisan composition of

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the government is more complex: while there does not to be a systematic difference between governments of the left and governments of the right, there is a difference between the positions of governing parties on “law and order”. The CDU/CSU and SPD were more likely to adopt demanding restrictions (reflecting their relative willingness to restrict civil liberties), whereas Land governments with FDP, Green Party or Left Party membership were more cautious, reflecting their relative reluctance to restrict civil liberties (Behnke & Person, 2022: 79). Behnke and Person conclude that “noticeable policy variation exists between the Länder”, that “federalism does indeed contribute to the fact in Germany that pandemic management is not uniform”, but at the same time that “variations between the Länder are not too big” (Behnke & Person, 2022: 78). This picture of, at least in the early months, relatively successful coordination, with manageable differences in outcome, should not underplay the extent of disagreement and frustration that at times characterised the process. Some of that disagreement occurred within the political family of the CDU/CSU. Angela Merkel had, in 2018, made it clear she would not stand for re-election, but after a period of internal turmoil, not helped by the suspension of in-person party conferences during much of the pandemic, the question of who the party’s chancellor candidate remained unresolved until April 2021. This played out in disagreements between CSU leader Söder and Armin Laschet, Minister President of North Rhine Westphalia and CDU leadership contender (a role to which he was elected in January 2021), with Söder in this period urging restrictions, and Laschet pressing for their relaxation. In the April meeting of the MPK, Laschet presented his own paper, having assembled his own team of expert advisors (Gloger & Mascolo, 2021: 188), and in the media he criticised virologists and indeed Merkel herself (Focus, 2020a). Merkel responded by warning in the CDU’s Präsidium (meeting of key party leaders) of the risk of “orgies of discussion about re-opening”, choosing only slightly more restrained language in the Bundestag. Her officials privately resented that, in their view, Minister Presidents, notably Laschet, were happy to hide behind the chancellor when restrictions were being imposed, but wanted to lead the way when the relaxation of restrictions was in prospect (Gloger & Mascolo, 2021: 188). Later in April 2020, which brought a further meeting of the MPK with the Chancellor and key ministers, disagreement continued to be

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evident. Stephan Weil of Lower Saxony criticised decisions’ patchy implementation in the Länder. While Merkel pushed for a united front on restrictions, believing that if one a concession was made in one Land, citizens in other Länder would press to follow suit. Woven into this mix were also local concerns: for instance, Berlin and Hamburg raised concerns about their zoos, Baden-Württemberg was worried about large numbers in some outdoor spaces, while Manuela Schwesig of Mecklenburg–West Pomerania, where case rates were relatively low, pressed for the re-opening of some restaurants which, at that point, were closed (Gloger & Mascolo, 2021: 188). In early May, Saxony-Anhalt went ahead unilaterally with a significant loosening of restrictions on contact, allowing groups of up to five people to meet up. This was criticised by Berlin’s SPD governing mayor, Michael Müller, who noted that it came in between regular meetings between the Länder and the federal government, by Markus Söder, who declared himself unhappy at the constant “flow of new decisions and relaxations” (Focus, 2020b), and indeed by Merkel herself (Gloger & Mascolo, 2021: 196). By the time of a virtual meeting between Merkel and the Minister Presidents in early May, she had clearly become frustrated at the various concessions being offered by Minister Presidents. Die Zeit commented at the time that whereas at one point Länder were racing to tighten up their restrictions, now they were competing to relax them, and that the Minister Presidents had “forced Merkel out of lockdown”, and required her to accept a new paradigm of “flexible federalism” (Die Zeit, 2020b). Green Party joint leader Robert Habeck gave an interview in May 2020 in which he suggested that some Minister Presidents had “destroyed the authority [of the chancellor] in an almost tragic way”, because they “pressed ahead and went their own way without co-ordination”. He attributed this desire partly to federal policy failures (such as not introducing its own instruments to combat the virus quickly enough), but also to the lack of a clear long-term plan. The vacuum was filled by the Länder and, according to Habeck, this incoherence damaged citizens’ trust in the system as a whole (Tagesspiegel, 2020). In this new paradigm of “flexible federalism”, an additional “emergency brake” was introduced, whereby contract restrictions would be tightened if the number of cases in a particular county rose over 50 per 100,000 inhabitants (apparently Merkel’s chief of chancellery Helge Braun favoured a lower level, as it reflected the upper limit of the level at which the tracing of contacts of infected people was feasible). Even

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this mechanism proved contentious—city states were sceptical because they compromised just one county and would therefore need to lock down the entire population (Gloger & Mascolo, 2021: 197). However, eventually the Länder agreed to this, and to a relaxation in contact restrictions to allow meetings between two households, although Saxony-Anhalt retained its more generous rules: Merkel though at one point declared herself “near to giving up”, referring to the never-ending process of negotiation, rather than threatening to resign (Gloger & Mascolo, 2021: 196). To illustrate further the difficulties of coordination even at this moment when Germany was perceived to be relatively successful, the same meeting struggled to find agreement on the date when the German football league, the Bundesliga, could resume, again with an irritable discussion, and again with variations in the interests of the Länder. For example, Saxony-Anhalt’s Minister President Haseloff talked about the unfair treatment of the third division, and of the eastern Länder in general, calling it a “lack of solidarity”, while Laschet pointed to the problems of large clubs in the fourth division, and Söder and Andreas Bovenschulte from Bremen quarrelled about the length of time needed for training before matches could resume (Gloger & Mascolo, 2021: 199–202). This challenging dynamic continued later in the year. The summer saw arguments about private gatherings, with Merkel unable to reach an agreement with the Länder on restrictions, and in the end politicians just appealed to the public to consider the scale and necessity of their gatherings (Gloger & Mascolo, 2021: 255). Similarly there were disagreements about restrictions on large events, there was further debate about the Bundesliga, and Hamburg and Saxony-Anhalt pressed for the ability to hold Christmas markets in the winter (Gloger & Mascolo, 2021: 256– 257), while at the meeting on 29th September between Chancellor and Minister Presidents, Michael Kretschmer from Saxony expressed opposition to any changes, and declined to tighten rules for social gatherings in areas where the number of infections rose (Leipziger Zeitung, 2020), while at the same time announcing his intention for Christmas markets to go ahead. Kretschmer was quoted as saying that he found “the whole thing which we are discussing today completely unnecessary” (cited in Gloger & Mascolo, 2021: 257), to the frustration of the chancellery and some other Länder, which felt it undermined the narrative that

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cooperation was necessary for the pandemic (Gloger & Mascolo, 2021: 258). This fractiousness was further evident into the Autumn, when some Länder banned hotel stays for people arriving from areas with a high level of infection (RBB, 2020), or even required them to quarantine for a period (Gloger & Mascolo, 2021: 280). This restriction covered some districts of Berlin, including the city centre, causing some politicians to run into difficulty upon their return from the capital. There was a spat between politicians about different levels of enforcement in the Länder, with CDU/CSU politicians lining up to criticise the federal authorities (Gloger & Mascolo, 2021: 280; Spiegel, 2020): Markus Söder talked about the state “losing control”, pointed the finger at its “strange system” of districts, and talked about a “dangerous level”, while the federal health minister Jens Spahn said that following the rules and wearing a mask meant you were “looked at as though you came from the moon”. Berlin’s Mayor Michael Müller hit back, drawing a comparison with the days when Berlin was “sealed off” during the Cold War (Gloger & Mascolo,2021: 281), and needling Söder about Bavarian mishaps on Coronavirus testing, while SPD General Secretary Lars Klingbeil accused Söder of being a “mini-Trump” who sought to divide the country, and pointed out that the high levels of infection in [CDU/CSU-led] Bavaria and North Rhine Westphalia had not been the subject of party political criticism (Spiegel, 2020). On 14th October, there was an in-person meeting between the Minister Presidents, the Chancellor and her key ministers and officials; it took place in the face of rising numbers of Covid cases. Agreement was reached on tightening restrictions in a number of ways: further restrictions on contact and tougher requirements to wear facemasks in cases where levels of infection were above 35 per 100,000, closure of bars and clubs, and restaurants to close early, in cases where infection levels were over 50 per 100,000, and further restrictions on events in areas with higher levels (Münchener Merkur, 2020). Yet beneath the surface there were significant tensions between vertically (between tiers of government) and horizontally. While Chancellor Merkel praised the agreement reached, the very next morning her Head of Chancellery, Helge Braun, took to the airwaves and appeared to suggest the new restrictions did not go far enough, stating that “We need to do more and be more cautious than what the Minister Presidents agreed yesterday”

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(Gloger & Mascolo, 2021: 285), seeming both to distance the chancellor from the decision and imply the outcome was satisfactory. Press coverage was also dominated by the fact no agreement was reached on restrictions on hotel accommodation for those travelling from areas with a high level of infection: Bavaria’s Markus Söder pressed for this, but was opposed by a cross-party group of Minister Presidents, ranging from the CDU’s Tobias Hans and Armin Laschet, through Malu Dreyer and Peter Tschentscher (SPD) to the Left Party’s Bodo Ramelow and following the meeting several Länder actually removed their restrictions on hotel guests (Münchener Merkur, 2020). Privately, figures across the political spectrum expressed irritation with Söder, suggesting he had failed to organise consensus in the earlier stages of the pandemic when he chaired the MPK, and was now seeking to distract attention from high levels of infection in Bavaria (Gloger & Mascolo, 2021: 287). The challenge of finding consensus continued throughout the autumn and winter. At the meeting of the MPK with the chancellor on 28th October, the pressure of rising case numbers was such that an agreement was reached that a “wave breaker” set of restrictions was necessary, including the closure of gastronomy, sport and cultural organisations but crucially not schools and nurseries, and it was agreed by all participants. However, even this unanimity should not suggest complete harmony: Daniel Günther (CDU) of Schleswig–Holstein declared himself against the closures of gastronomy, and Bodo Ramelow (Left Party) of Thuringia was extremely critical of the process, with papers coming late and a lack of parliamentary involvement (Gloger & Mascolo, 2021: 293). These new measures, too, failed satisfactorily to lead to a reduction in infections, but a further meeting of the MPK with the Chancellor on 16th November broke up without agreement on any tightening. The Länder in particular felt that some possible changes proposed by the federal government, such as people only being able to use public transport when necessary, or social distancing on school buses, were not realistic (Gloger & Mascolo, 2021: 306). The body reconvened on 25th November, and, in the face of continued high levels of infection, agreed that the “wave breaker” measures would be extended, and indeed restrictions on contact would be tightened, with a relaxation around the Christmas period (Bundesregierung, 2020a). Underneath this, however, there were differences between the Länder, this time over tightening of restrictions in schools. A cross-party group of Minister Presidents pushed back against

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proposals which would lead to national school closures, with Michael Müller (SPD, Berlin) quoted as saying this “would not be acceptable”, Laschet (CDU, North Rhine Westphalia) adding “Completely out of the question”, and both getting support from Dreyer (SPD, RhinelandPalatinate) and Bouffier (CDU, Hesse). By contrast, Ramelow (Left Party, Thuringia) and Kretschmer (CDU, Saxony), both of whom had previously rejected firmer measures, were more supportive, as the levels of infection in their own states had risen so dramatically (Gloger & Mascolo, 2021: 316). A compromise was reached—where some additional measures, not specified in detail, would be triggered by rates of over 200 infections per 100,000 people. Yet even at this juncture, there was territorial variation: Schleswig–Holstein, where infections were somewhat lower, did not tighten contact restrictions, unlike the remaining 15 Länder (Bundesregierung, 2020a). In the end, Germany saw out the rest of the year in a renewed lockdown following a further meeting between the chancellor and the Länder, including school closures, with only minor concessions from 24 to 26th December (Bundesregierung, 2020b). Had this not been agreed upon, Winfried Kretschmann (Green, Baden-Württemberg) had stated he would introduce his own lockdown; Minister Presidents from other particularly badly affected states, including Saxony and Bavaria, also pressed for this move (Südwest Presse, 2020), but this time it affected the whole country. What does this episode—from the start of the pandemic to the end of 2020—tell us about German federalism? As noted above, a rigorous quantitative analysis suggests there were territorial variations in regulations between the Länder, particularly related to the party composition of the government, yet these should not be over-emphasised: variations were “not too big” (Behnke & Person, 2022: 78). Moreover, this was a year during which Germany was the source of relative admiration— at least from abroad—for its management of the pandemic. However, contemporary reporting and subsequent studies paint a picture of significant tensions both horizontally and vertically. Often, these were smoothed over into common positions agreed between the federal government and the Länder at their regular, crucial meetings; sometimes, individual Länder differed in the extent to which they implemented these agreements; sometimes, disagreements were expressed either through the press at the time or through statements recorded in the minutes of the meetings; sometimes, no agreement could be reached and decisions were not taken. Behnke and Person (2022) also found that the different levels

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of infection from Land to Land did not really explain differences at a single point in time between different Länder: however, they do seem to have informed the positions taken by the Länder in the joint meetings between the MPK and the chancellor. Strikingly, too, these different stances often seemed to cut across party boundaries. At times, dynamics could be observed: Länder pressing for restrictions to be introduced, and then pressing for them to be relaxed, and there was a normative acknowledgement that coordination was desirable, but this rubbed up against differences stemming from different circumstances in each Land, party logics (and intra-party logics, at least in the cases of Söder and Laschet), and indeed differences of opinion on the part of those involved. An interview given by Bodo Ramelow, Left Party Minister President of Thuringia, in early January 2021 was noteworthy: he called for a “proper lockdown”, including sections of the economy which had not been affected, and noted that while previously he had regarded Chancellor Merkel’s warnings as an unwelcome imposition, “The chancellor was right and I was wrong” (FAZ, 2021a).

4 The Second Phase of the Pandemic: January 2021–July 2021: Recentralisation? The year 2021 started in lockdown with an early meeting between the Chancellor and the MPK on 5th January. The extension of lockdown measures until the end of the month was agreed upon, as was a tightening of restrictions in counties and cities where there were more than 200 cases of Covid per 100,000 people (Bundesregierung, 2021a). However, variations in the approach of different Länder remained readily apparent. Rules on contact varied at the margins: for instance, while each Land allowed households to meet one person from another household, with Schleswig–Holstein falling into line having previously (cf. Section 3) been an exception, in Hamburg, Saxony-Anhalt and Thuringia there were no exceptions for children, in several Länder, including Bavaria, Mecklenburg–West Pomerania and North Rhine Westphalia, there were exceptions where childcare was being provided, and in Bremen (up to age 12) and Saxony (up to age 14) children were completely exempted from this restriction. Similarly, there were variations in how far travel outside a person’s area of residence was permitted: in Hesse, travel beyond 15 km from someone’s residence was barred except for some defined exemptions involving work or care, in Bavaria, such travel was banned for

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touristic purposes, while in Bremen and Hamburg, no such ban was introduced, and in Rhineland-Palatinate, the decision was delegated to local authorities in areas with high levels of infection (FAZ, 2021b). There were also differences in the approach to schools and nurseries. While most Länder adopted the model of closing schools, with some exceptions for pupils taking their school-leaving exams (Abitur), and offering emergency childcare for key workers in classes 1 to 6, Bremen adopted a different approach (FAZ, 2021b). It allowed parents to choose whether to send their children to school, but positively encouraged them to do so, particularly in primary school. Nurseries were also kept open. Media interviews with Bremen’s education senator, Claudia Bogedan (SPD), shed some light on this distinctive position (Morgenpost, 2021; News4teachers, 2021). Two features of Bremen played a role: infection rates at the time were substantially lower than in other places (75.2 cases per 100,000, compared to levels many times that in southern Germany), and also moving to online lessons was a particular challenge given Bremen’s levels of deprivation (with a third of children growing up in poverty, including many refugees), as children had less access to appropriate equipment. It was also clear, though, that this reflected a political judgement by Bogedan, who argued that the danger posed by infection in schools was only part of the issue, and that consequences in terms of the lack of social contact amongst children, leading to delayed development, depression and even in some cases problems of addiction or child abuse, was the flip side of schools being closed. She particularly criticised Green Party politicians who argued for “zero Covid” strategies on the one hand, the logic of which pointed to more closures of schools, but then commented on the damage to children on the other. Measures around school closures were the source of some disagreement at the next meeting of the Minister Presidents with the chancellor on 19th January, although in the end the Länder knuckled down and largely extended closures, with the exception of Bremen, which kept schools open, albeit operating with alternative in-person and online lessons (Hansestadt Bremen, 2021). In the run-up to the conference, there had been some disagreement expressed by SPD-led Länder, specifically doubting the wisdom of curfews across all of Germany (although in this, they were also supported by Daniel Günther of Schleswig–Holstein, where cases were lower), and with the extension of requirements to wear medical-grade (FFP2) masks, the SPD pressed for these to be issued free of charge to those on lower incomes—another instance of territorial and

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partisan priorities being brought to bear (Tagesschau, 2021a). At the next meeting, on 10th February, the chancellor and Minister Presidents agreed on the extension of the lockdown measures until 7th March (initially an extension until 14th March was proposed by the chancellery, but the Länder pushed back); hairdressers would reopen somewhat earlier on 1st March—over a week later than proposed by the Länder. Strikingly, decisions on the reopening of schools were left to individual Länder— a proposal criticised by the German Teachers’ Association, suggesting that differences in the approach undermined public acceptance of political decisions and created more uncertainty for parents, teachers and pupils (Deutschlandfunk, 2021). There was disagreement between the Länder about reopening strategies, with Hamburg, Bavaria and BadenWürttemberg (led by SPD, CDU and Greens, respectively) reportedly arguing for caution and against raising false hopes, while others wanted to force the pace (Die Zeit, 2021). The context of the next meeting, on 3rd March, was challenging, with infections having fallen less than hoped (Spiegel, 2021a). It agreed on further measures for reopening, with some immediate relaxations upon meetings between households, and the prospect of further relaxations when infection levels in a state or region fell below 50 infections per 100,000—measures described by the Spiegel as “capitulation in the face of the infection dynamic, public pressure, and the failure [of the chancellor and Minister Presidents” (Spiegel, 2021a). At the same time, restrictions were proposed to revert to the previous level of stringency if infections went above 100 per 100,000 (Bundesregierung, 2021c). Disagreement at the conference was particularly focused on an argument between the Federal Finance Minister (Olaf Scholz, SPD) and Markus Söder over the extent to which the Länder would contribute to financial rescue packages (Süddeutsche, 2021). In the official record of the meeting, several Länder made their own statements on the agreement: Saxony declared the “unconditional opening” that was agreed was “not reasonable” in the light of infection levels compared to the proportion of the population which had been vaccinated (Bundesregierung, 2021c: 12), while Thuringia urged a departure from focusing on infection levels along as a trigger for unlocking (Bundesregierung, 2021c: 12), and Lower Saxony and Saxony-Anhalt put a joint statement that they would need to consider recent legal judgements about the proportionality of restrictions in their implementation and that they considered the agreement to be “a framework”, rather than something more definitive (Bundesregierung, 2021c:

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13). Moreover, decisions on further relaxation of contact restrictions over Easter were deferred until the next meeting on 22nd March. That meeting—and its aftermath—brought about a significant moment in the territorial politics of the pandemic. Case numbers had risen, driven by a new Coronavirus variant (B1.1.7), such that the German average was over 100 cases per 100,000—the level at which restrictions should have been tightened. Hamburg reinstated further restrictions, but other Länder held off, with Armin Laschet suggesting the break was “not automatic”, and Brandenburg speculating that the trigger might move from 100 to 200 cases per 100,000 (Deutsche Welle, 2021; Spiegel, 2021b). In the run-up to the meeting, views between the different actors varied: the chancellery for instance proposed a tightening of restrictions and also a presumption in favour of a night-time curfew until 5 am, which in the run-up Saxony-Anhalt ruled out. At the meeting, there were divisions along territorial and party lines: in particular, the coastal Länder (Mecklenburg–West Pomerania, and Lower Saxony, led by the SPD, and Schleswig–Holstein, led by the CDU) proposed allowing people to stay in self-contained holiday accommodation in their own states, but this was rejected by Saxony (CDU) and Hamburg (SPD), who called for a tighter restrictions. The meeting had to be adjourned for several hours while a sub-group consisting of Merkel, Olaf Scholz, Markus Söder and Michael Müller negotiated (Spiegel 2021c). In the end, an agreement was reached which would extend restrictions further until 18th April, with tightening expected in areas where cases were over 100 per 100,000— thus reducing the level of private contacts that were permitted, and closing some cultural facilities, zoos and shops that had only recently reopened (Bundesregierung, 2021d). Additionally, in the small hours of the morning, a new proposal put forward by Merkel was signed off, which would institute a further, substantial shutdown of public life—the socalled Osterruhe, or “Easter Calm”, with the closure of retail (excluding supermarkets on Easter Saturday only), and a firm instruction to stay at home as far as possible. Church services would also only take place online (Bundesregierung, 2021d). This idea brought strong criticism, notably from business lobby groups which made strong hostile representations in private (FragDenStaat, 2021), and questions about the practicality of the move. These concerned would happen to the wages of workers who faced an enforced day off, and the possibility of the Saturday when supermarkets opened being a “superspreader” event. Less than 48 hours after the agreement was reached,

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Merkel announced that the Osterruhe would not go ahead. In a televised address, she “accepted full responsibility”, and that while the measure was proposed with good intentions, “the idea of an Osterruhe was a mistake. It was my mistake, and my mistake along. Since at the end of the day I have ultimate responsibility by virtue of my office” (Spiegel, 2021d). While Merkel earned some praise for her honesty, there was a strong sense in a public commentary that the fiasco had shown the limits of taking decisions in lengthy meetings between the chancellor and Minister Presidents, sometimes dragging on through the night, and this form of negotiated federalism could not continue. The day after the summit, the Tagesspiegel commented: Hours of negotiations, breaks, and tired eyes: the long night of the MPK is politics’ own fault. For months there has been no common line, just the individual interests of the Länder. One asks how a European community of solidarity should come about, if this can’t even be achieved in Germany. For instance the northern Länder are more interested in their own infection rates than the situation in intensive care in Germany as a whole. (Tagesspiegel, 2021)

Stern meanwhile suggested federalism was not to blame, but rather leading Minister Presidents fighting a battle over the chancellorship, and citing the Rolling Stones: “It’s the singer, not the song” (Stern, 2021). The image of the meetings had not been helped by a late night social media interview in which Bodo Ramelow, the Left Party Minister President of Thuringia, had admitted to playing “Candy Crush” during meetings of the MPK (Spiegel, 2021e). In the light of this fallout and continued high levels of infection (around 141 per 100,000 on 13th April), the Federal Government proposed amendments to the Federal Infection Protection Law which sharply reduced the scope of the Länder to exercise their discretion. Meanwhile, a proposed further meeting between the Chancellor and the Minister Presidents on 12th April was cancelled. The amended law introduced a “Federal Emergency Brake” (Bundesnotbremse), which directly brought in restrictions at certain levels of infection, rather than leaving these to the discretion of individual Länder, who might or might not implement them (Bundesregierung, 2021e; Spiegel, 2021f). Amongst the measures was a curfew (unless there was a good reason for being outside) between 10 pm and 5 am—with an exemption for individual

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sports until midnight, and restricting contacts beyond the family to just one person if infection levels were over 100 per 100,000. Schoolchildren would be tested twice a week, and schools closed if infections went over 165 per 100,000. Initially, a higher level was proposed by the cabinet but the number was reduced after input from politicians specialised in health policy (Taz, 2021). Supermarkets and other essential retail could be openly provided masks were worn and numbers restricted, but other shops could only open on a “click and meet” basis if infections were between 100 and 150 per 100,000 and would have to close above that level. Restaurants and bars could only open for take-away and delivery; use of a hairdresser would be permitted but only with a recent negative test result (Bundesregierung, 2021e). The measures would expire on 30 June 2021 unless otherwise extended. The proposed law was deemed not to require the assent of the Bundesrat (although that view was challenged by some legal analysts—cf. Grefrath, 2021). However, the Bundesrat could have delayed its implementation and required the formation of a conciliation committee had it so wished. Its debate on 22nd April, the Bundesrat unanimously not object in this way (Bundesrat, 2021). It also rejected two proposals which raised substantive objections: the first was from Bremen lamenting the lack of testing for employers where workers could not be based at home: a demand often coming from the SPD and other centre-left parties (Bundestag, 2021a). The second was from Schleswig–Holstein, urging a wider range of indicators on which to base restrictions than just the number of cases per 100,000. It considered aspects of the measures disproportionate and also noted (presumably for reasons related to the nature of infections in the state) that no distinction could be made between high levels of infection driven by clusters, such as in intensive agriculture, and those related to high levels of the population at large (Bundestag, 2021b). Yet while the Bundesrat did not object to and delay the proposals, the debate pointed to a sharp deterioration in the relationship between the federal government and the Länder (Bundesrat, 2021). There appeared to be a strong sense of frustration at the fact that after the Osterruhe fiasco, for which Merkel had publicly accepted responsibility, the Länder seemed to be being made a scapegoat with their discretion taken away. This view was shared across party lines. First up was Volker Bouffier (CDU, Hesse), who regretted that the Länder had not had the chance

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to negotiate upon and improve the law, and argued that some of the triggers for restrictions were hard to comprehend (Bundesrat, 2021: 149). However, Bouffier was broadly supportive of the aim, noted that it would always have been possible for the federal government to issue its own regulations, and it had chosen not to do so, so, he said, “I am often asked if the Länder are having their power taken away. That is absolute rubbish” (Bundesrat, 2021: 147). Stephan Weil (SPD, Lower Saxony) reflected critically on recent months. He criticised (unnamed) Länder for criticising and departing from measures only just agreed in meetings with the chancellor, which then put their neighbours under pressure to follow suit: “We made our own lives difficult … and it was not … good for the reputation of federalism” (Bundesrat, 2021: 151). But Weil also criticised the federal government: After some meetings in recent months … [the impression of unity] was not there, because the federal government very clearly expressed the view that it wanted things to have gone very differently. What sort of persuasion [of the public] should come from that sort of communication? (Bundesrat, 2021: 152)

Reiner Haseloff (CDU, Lower Saxony) was substantially more critical: he defended the process of the past year in which negotiations between federal government and Länder took place, and could take account of regional differences (Bundesrat, 2021: 152). According to Haseloff, the justification of this law was that the Länder had been too slow, or had failed entirely, to implement regulations leading to a “patchwork”, yet he argued that recent meetings between the chancellor and the Minister Presidents had shown that there was a willingness on the part of the Länder to act swiftly and that the new law would make the “patchwork” more extreme (Bundesrat, 2021: 153). He added: This law and the discussion to justify it have caused heavy damage, which will prove hard to repair, to our cooperative federalism, as we have experienced it for decades. The process supports all those who always preferred centralising elements. It discredits the process of forming an opinion amongst Minister Presidents, who are able to … produce rules that can be quickly and effectively implemented … in preparing legislation for the Bundestag and the Bundesrat. (Bundesrat, 2021: 153)

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Concluding, Haseloff stated that while Saxony-Anhalt would not object to the law (“it would just cause a delay, not help or hinder it”), he considered “Today is a low point in the political culture of the Federal Republic of Germany” (Bundesrat, 2021: 154). Michael Müller (SPD, Berlin) was less negative (“This law is an important building block, nothing less and nothing more” (Bundesrat, 2021: 156), while Tobias Hans (CDU, Saarland), picked up on the issue of a decline in vertical cooperation again: “This law is a turning point in the way we have tackled the pandemic so far”. For Hans, while the law on its own did not mean “the cancelling of federalism”, as it needed to change with the times and that could even be seen as a form of dynamism in federal arrangements, he noted that the French had looked on with admiration at the German federal model in tackling the pandemic: “It was considered a strength of the federal system, to be able to respond to challenges, including in the pandemic, in a targeted and flexible way, and to do so locally” (Bundesrat, 2021: 156). Bodo Ramelow (Left Party, Thuringia) pointed to work the Länder had done through horizontal cooperation to develop a plan for restrictions to be increased or reduced, and sarcastically observed that the Chancellery could at least have found someone with work experience to pick these up and develop a common plan (Bundesrat, 2021: 161). It fell to Federal Health Minister Jens Spahn (CDU) to respond to the debate. Spahn argued that if there appeared to be disunity, then public acceptance of measures would be reduced—pointing to the mix of restrictions on hotel stays to support his case. Spahn contended that: At the moment in which we allow the impression to arise that there is no common action based on common understanding, then co-operation [on the part of the population], trust and acceptance will fall apart. How coherent communication can occur … following the general criticism along with letting this law go through, I don’t know. It is going to be a challenge.

Even with the decision to recentralise, variation in approaches did not come to an end. An experimental project in the city of Tübingen, which allowed shops, theatres and schools to remain open with regular testing, was outlawed, but a similar project in two of five districts of the Saarland could continue. In Hamburg, for instance, “click and meet” shopping was not allowed (continuing the previous provision in the state), even

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though it would have been permitted under the Bundesnotbremse. Bavaria continued to close schools at a level of 100 cases per 100,000, not 165, as foreseen by the new law, and did not allow people to go jogging until midnight. Meanwhile, though, Länder such as Mecklenburg–West Pomerania, North Rhine Westphalia, and Berlin, which had less stringent restrictions in place, had to tighten them up (Tagesschau, 2021b). The Bundesnotbremse expired on 30 June 2021 as planned (RND, 2021), with the level of infections having reduced dramatically (and thus in the Länder life had gradually returned to something much more approaching normal). However, the waves of the pandemic in early 2021 illustrated, even more sharply than the debates in 2020, the limits of the German cooperative federalism. Länder pursued divergent interests (which could be explained by a mixture of party politics, internal political positioning, territorial interests and indeed political conviction), relations with the federal government became fraught, and in the end the negotiated (albeit patchily implemented) agreements between the federal government and the Länder were largely replaced by national rules.

5 Restrictions in a Time of Rising Vaccination Rates: July 2021–March 2022 With rising vaccination rates as the year 2021 went on, policy-makers had to grapple with a new challenge: how to implement restrictions based on whether someone was vaccinated, had undergone a recent negative test, or was recently recovered from Covid. The newly elected federal governing coalition of SPD, Greens and FDP agreed to allow the declaration that there was a “national pandemic” to expire (Tagesschau, 2021c), and this happened on 25 November 2021, although BadenWürttemberg’s Green Minister President, Winfried Kretschmann, called for its reinstatement days later, arguing that otherwise there were inconsistencies in the instruments the Länder could use to contain the virus: apparently theatres could still be closed, but brothels would have to remain open (Tagesschau, 2021d). A snapshot in mid-November 2021 shows a variety of rules in place between the Länder (Tagesschau, 2021e). Some Länder applied “2G” rules, which would only allow those who were either vaccinated, or recently recovered, to enter such venues as restaurants, hotels, museums, galleries and festivals. Amongst these more restrictive Länder were BadenWürttemberg, Bavaria, Berlin, Brandenburg, Hamburg (which tightened

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its rules from 3G) and Saxony. Hesse, the Saarland and Saxony-Anhalt had a less restrictive 3G model (which allowed unvaccinated people to enjoy the same rights if they had a recently negative test), and Bremen had no such restrictions in large parts of its territory on account of its relatively low rate of infection. Other Länder adopted hybrid options: for instance, Rhineland-Palatinate had a firmer “2G + ” rule (vaccinated or recovered and with a negative test or booster vaccination), but then allowed mask rules in such venues to be less strict. Noting the variety of rules, and with a sense that the situation had again become a “patchwork” without justification, the Minister Presidents, outgoing chancellor Angela Merkel, and incoming chancellor Olaf Scholz, met on 18th November and agreed on a common approach (Bundesregierung, 2021f). This stipulated “3G” rules at work and in public transport, as well as the requirement to wear masks on the latter. Beyond that, the level of hospitalisations would trigger other restrictions—starting with 2G for events and gastronomy, with a level over 3 patients per 100,000, moving to 2G + with a level over 6, and further measures being available to the Länder with a level over 9. With numbers still rising, albeit more slowly, a further meeting of Minister Presidents with the outgoing and incoming chancellor took place on 2nd December, tightening the rules once again around cultural venues, this time making them “2G” regardless of the level of infection, and also extending 2G rules to shops. Gatherings were to be banned at a new year, and traditional fireworks were not to be sold (Bundesregierung, 2021g). On 21 December, the Minister Presidents met again, this time tightening the rules around major sporting events (no spectators permitted from 28th December if not before), and around the size of private gatherings (Bundesregierung, 2021h). Even so, Saxony and Baden-Württemberg added a note to the minutes arguing that the measures agreed were insufficient, and calling for new powers for the Länder to introduce further measures. In the case of Saxony, the number of cases was substantially higher than in the rest of Germany; in BadenWürttemberg, levels were only just above the average, and presumably the criticism was based on political conviction rather than the particular circumstances of the Land (Robert Koch Institute, 2021). Notwithstanding the relatively common approach, critics (e.g. The European, 2022) still pointed, however, to inconsistencies: for instance, in some Länder, people who had received a booster vaccination were not required to have a test prior to visiting a gym, in others they were. There

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were also disparities in the length of time a citizen needed to wait before a booster jab was needed to take effect. Quarantine rules varied between the Länder, and while in some cases (Berlin, Brandenburg, Mecklenburg– West Pomerania and Saxony-Anhalt), the start of Christmas holidays in schools was brought forward in the light of high levels of infection, in others schools remained open until the anticipated start of the holidays as normal. The Federal Infection Protection Law was again amended in March 2022, following a meeting of Minister Presidents with the Chancellor on 16th February (Bundesregierung, 2022). This anticipated most measures coming to an end on 20th March. Some disquiet amongst the Länder was recorded, with five recording various comments or objections on the minutes—although these were not all to do with restrictions, but for instance about a requirement for care workers to be vaccinated: a particular challenge for Saxony, where vaccination rates were relatively low. The amended law (provisions of which would only last until 23 September 2022, unless extended) allowed additional restrictions to be imposed in “hotspots”, which might be a part of a city, a county or an entire state, where levels of infection posed a particular threat, especially to the capacity of the hospital system. Mecklenburg–West Pomerania, and Hamburg, immediately declared themselves to be hotspots (Tagesschau, 2022), although they were by no means the Länder with the highest level of infection, and instead therefore reflected a political view that restrictions ought to be kept in place (Südwest Presse, 2022). Even in this more relaxed period, therefore, some of the trends which had developed in the federal system could continue to be observed. There were regular attempts at coordination, with a continued desire to have common rules, or at least common thresholds at which more demanding restrictions would kick in. At the same time, different policy choices were made by the Länder, both on the basis of their views on the right way to handle the pandemic (which often cut across party lines), and also the circumstances in their particular Land. This led to variation, and an element of “patchwork” in the regulations imposed, for reasons that, at times, could seem arbitrary to the general public. Horizontal and vertical tensions were readily evident, and certainly the most cooperative form of federalism, witnessed at the very start of the pandemic, had not returned, even though the issues were rather less highly charged.

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6 The Pandemic, Public Opinion, and the Nature of German Federalism As the foregoing discussion makes clear, the pandemic led to significant press and public attention being given to Germany’s federal architecture, with in particular the MPK’s meetings with the Chancellor and key ministers having an especially high profile—not surprisingly, since they took decisions that were to have an immense impact upon citizens’ lives. Moreover, as the third section of this chapter outlines, there is strong reason to believe that Markus Söder and Armin Laschet sought to use these meetings to raise their own profiles as potential chancellor candidates for the CDU/CSU in the 2021 federal election. It is an interesting question, therefore, whether the pandemic shifted attitudes in the population towards the federal system. In particular, it might be expected that the period of disharmony would lead to dissatisfaction with the system as a whole, while it is an open question whether citizens would express a preference for decentralised rules, allowing flexibility and the accommodation of local circumstances and preferences, or a common national framework. Before turning to specific polling about federalism, three broad trends can be identified that are of relevance in the background. The first is that the period of the pandemic led to significant volatility in party preferences.1 In early 2020, the CDU/CSU (with 27% in January) was only narrowly ahead of the Green Party (23%), with the SPD (14%) trailing well behind. However, the early months of the pandemic led the CDU/CSU to surge ahead (as high at 40% in June), before falling sharply from late March 2021 onwards, going as low at 24% in May. The Osterruhe fiasco will not have helped, and in particular Armin Laschet had extremely weak approval ratings (with his criticism of Merkel not endearing him to the German public), yet was still selected as chancellor candidate. The Greens, in opposition at the federal level, were able for much of the time to profit from the pandemic, but in the end the SPD, still trailing in third place in July 2021, saw its support rise and the party ended up in front at the 2021 federal selection. Secondly, for much of the period, there was public support for the existing level of regulation, and where there was disagreement, citizens generally wanted tougher rather than weaker rules. Politbarometer had 1 Regular national polls of voting intention can be reviewed at www.wahlrecht.de; references here are to the Politbarometer.

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a regular poll on whether restrictions were over the top, about right, or too lax (Statista, 2022). Support for the prevailing level of regulations was regularly over 50%. This figure was never overtaken by those who wanted regulations to be more lax, but on four occasions the figure who wanted restrictions to be tougher overtook those who were satisfied: December 2020 (when politicians appeared slow to send Germany into a Christmas lockdown), April 2021 (just after the Osterruhe situation and at exactly the time the Bundesnotbremse was being proposed) and twice in November 2021, just before the new federal government was formed and when politicians again seemed slow to react to changing circumstances. At the same time, there was a rump (10% at the start of the pandemic, and never lower than 14% after the start of 2021) who felt restrictions were over the top. Thirdly, satisfaction with pandemic management by the federal government and the Länder was extremely high at the start of the pandemic, but dropped off sharply. At the start of the pandemic in the spring 2020, around 90% of Germans were satisfied with the performance of the federal government, but by March 2021, just 41% declared themselves satisfied with the federal government, 41% with the Länder, with 56% considering the federal government was doing a bad job and 51% the Länder. Indeed, around this fraught period, satisfaction with the two tiers considered together also dropped off sharply: 55% were critical (compared to 43% a month before), and just 38% were positive, down from 52% (Forschungsgruppe Wahlen, 2021a). There is a similar trend reflected in general satisfaction with the federal government (not with particular reference to Coronavirus): the government enjoyed ratings at or over 78% approval between May 2020 and January 2021, but this dropped down to 60% in March 2021, recovering somewhat thereafter (Forschungsgruppe Wahlen, 2022). Unfortunately, there is very little systematic polling over time about federalism, and what surveys there were appeared to point in different directions. A handful of polls were conducted around the time of the Osterruhe issues at Easter 2021. The March 2021 Politbarometer (Forschungsgruppe Wahlen, 2021a) found that 41% were in favour of Osterruhe policy measure and 54% were against—a strikingly high level of support given that Merkel had already cancelled the proposal at the time the poll was taken, and issued a public apology. Moreover, 28% of voters thought she actually emerged strengthened from the episode, compared to 27% who thought she was weakened, and 41% who thought

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it made no difference. The April 2021 Politbarometer (Forschungsgruppe Wahlen, 2021b) found extremely strong support for the federal government setting Coronavirus rules in the future (at the time when the Bundesnotbremse was being proposed). Overall, 68% wanted the rules set by the federal government, compared to 28% favouring the Länder (the latter including 55% of AfD supporters). Interestingly, this support for the federal government on the principle of who should take decisions is not reflected in the view taken of one of the most prominent measures it proposed, namely the curfew from 10 pm to 5 am: 44% were in favour, 53% against. A similar survey, by Civey for the Spiegel, also in April 2021, found a high level of support for the Bundesnotbremse: 67% in favour, 30% against (Spiegel, 2021g). A survey a couple of weeks earlier (with fieldwork on 28 and 29 March 2021) found more balanced opinion about regional flexibility, although this possibly reflected the way the question was posed: 49% felt that the agreement between the federal government and the Länder on tightening restrictions when rates rose should be rigidly applied, while 48% were in favour of regional flexibility (Tagesschau, 2021f). A couple of other polls flesh out reasons why citizens might favour the role of the federal government here. A poll at the end of March 2021 showed that some 63% of Germans felt they had lost track of what was allowed and what was not, compared to 36% who did not feel so afflicted (Tagesschau, 2021f). Polls in April and May 2021 also showed discontent with communication about Covid restrictions: 72% were dissatisfied in April, with 65% remaining so in May, compared to just 27% satisfied in April and 32% in May (Tagesschau, 2021f) (Tagesschau 2021g). These feelings of uncertainty about what is allowed, and potentially confusing signals from politicians (both things frequently alluded to in public commentary and by politicians themselves, as referenced in the Bundesrat debate cited above) would reflect classic downsides of having different rules in different parts of the territory, being communicated by different actors and could point towards a public preference for a unitary solution. However, there was one other major survey conducted on citizens’ views of federalism more widely, with fieldwork in the first two weeks of May 2021—and thus a few weeks after the Osterruhe saga and the centralisation of power in the infection protection law (Köcher, 2021). The headline finding was that 47% of Germans were in favour of common rules across Germany, while 37% thought the Länder should be able

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to develop their own rules. This actually reflected a significant shift compared to previous surveys in 2019 (59% for common rules, 29% for developing own rules), in 2013 (62% for common rules, 22% for developing own rules) and 2007 (60% for common rules, 30% for developing own rules): support for decentralisation in Germany thus appeared to have grown since the start of the pandemic. Support for common rules was substantially greater in 2021 in eastern Germany (52% for common rules, 31% for developing own rules) than in western Germany (46% as against 38%). However, the pollster states (without providing specific data) that this reflects a bigger increase in support for “developing own rules” in the east compared to the west (Köcher, 2021: 2). There was also a rise in 2019 in the number of people agreeing with each of the seven statements about federalism (Table 1): In 2021, 65% of respondents agreed that “although they don’t do everything right, Land governments are closer to the problems and worries of citizens, and politicians in Berlin are too far away”, compared to 17% disagreeing. When it came to general satisfaction, 41% were very Table 1 Support for statements about the advantages of federalism (Köcher, 2021: 27) Statement For many tasks the Länder are better suited, as they know the local situation better Political decisions take longer, because the federal level and the Länder have to negotiate compromises It’s often not clear whether the federal level or the Länder are responsible for something Regional particularities and traditions, which distinguish the Länder from each other, could be better recognised Many political decisions are lazy compromises, because both the federal and the Land levels have to agree Political power is dispersed and so nobody has too much power There is competition between the Länder for the best ideas and concepts, and Germany as a whole benefit from that

Support % (2013)

Support % (2021)

64

68

50

70

49

61

38

46

35

47

35

45

22

32

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or quite satisfied with politics at the federal level, but 53% were dissatisfied; 57% were very or quite satisfied with politics at the Land level, but 38% were dissatisfied (Köcher, 2021: 30). The 2021 survey also drilled down into views about which particular policy areas should be organised centrally or by the Länder (Köcher, 2021: 22). Tax rates achieved the highest score to be decided centrally (88%), shop closing times the lowest (38%). There were two areas related to the pandemic included in the questions: 69% thought that measures to tackle the pandemic should be decided centrally and 56% thought that the organisation and implementation of the vaccination should be centrally run. Renate Köcher, who led this survey, concludes that the pandemic increased awareness of federalism, and led to more clearly defined views amongst the population, both in terms of its positive and negative aspects (Köcher, 2021: 7). So uncertainty about who is responsible for what, slow decision-making and the sense that lazy, lowest-common-denominator compromises will be agreed, are all more keenly felt by the population, but so too are advantages of federalism, such as understanding of local circumstances by decision-makers in the Länder, and the dispersal of political power. There was also a firm sense of Land-level politicians being more in touch with local people: 39% believed the Land level was more in touch with citizens’ worries and wishes, compared to just 6% saying that the federal government was more in touch (21% didn’t know, 34% felt that neither was) (Köcher, 2021: 29). The Federation of Civil Servants (Deutscher Beamtenbund) also conducted a poll in May 2021 about the division of competences in the federal system (DBB, 2021). Detailed data is not publicly available, nor is their data in historical comparison, but the punchline is comparable, with 51% wanting a shift towards more power for the federal government, compared to 41% supporting the status quo. In conclusion, therefore, such polling that exists points to four key trends. First, there was significant satisfaction with the cooperative federalism and management of the pandemic in its early days, which reflected well on both federal and Land tiers of authority. Secondly, as the situation became more fraction, dissatisfaction grew, and there was public support for recentralising authority. The Länder were more likely to be blamed than the federal government (especially when they swam against the tide of public opinion by urging a relaxation of measures, or resisting tightening—public opinion was consistently “pro-restriction”). Thirdly, however, the pandemic raised the prominence of federal arrangements,

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made citizens more aware both of their advantages (e.g. responsiveness to local concerns, dispersal of power), as well as their potential disadvantages (e.g. slower decision-making, lazy compromises because of the need for agreement across tiers), and there was a feeling that Land politicians were more in touch with local opinion. Against this background, public opinion towards federalism, while it appeared at times contradictory (agreeing that Land politicians were much more in touch than those in Berlin, but that power should be centralised, for example), and still favoured more centralisation of power, was less hostile towards federalism than before. Even though German federal arrangements did not give a good account of themselves, especially in the first half of 2021, the more the public became aware of them, the more were able to see the advantages of federalism.

7

Lessons of the Pandemic for German Federalism

This chapter has considered the drivers and extent of variation in response to the COVID-19 pandemic in Germany, the way in which the institutions of federalism sought to cope and adapt, and the response of public opinion. Throughout the pandemic, there were variations in the rules to which citizens were expected to adhere, according to the Land in which they lived. Behnke and Person’s conclusion, cited in the third section of this chapter, that policy variation existed, federalism meant that pandemic management in Germany was not uniform, but that “variations between the Länder were not too big” is an important reminder that, by honing in on points of difference, there is a risk of over-emphasising this and downplaying commonality (Behnke & Person, 2022: 78). For instance, focusing on marginal variations in the time at which a citizen might go jogging, or the number of people who could meet in a park, risk obscuring the fact that similar restrictions were in place (on jogging, or on meetings) throughout all of Germany. At the same time, the COVID19 restrictions represented an unprecedented incursion into the choices made by citizens, and so awareness of, and interest in, even quite small variations was understandable. This discussion has shown that differences existed throughout, in spite of the process of coordination, and that these were motivated by the situation in each of the Länder, questions of political judgement and the political context (shaped by the upcoming federal

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election and the desire to gain profile and popularity on the part of some Minister Presidents), as well as by some apparently arbitrary differences. Party politics played a role at the margins, but could certainly not be boiled down to left–right differences, and indeed divisions were often very visible within the CDU/CSU-led, and SPD-led Länder. The institutions of federalism evolved as a result of the pandemic. Most notably, meetings of the Chancellor and key ministers with the Minister Presidents became far more frequent, they evolved in format (often taking place online rather than in person, and bringing in expert advisors), and became an important decision-making nexus. As discussed in Chapter 6 in this volume, there was already a trend towards informal negotiation between the chancellery and Minister Presidents in preference to the use of the conciliation committee of Bundestag and Bundesrat, but the pandemic accelerated this way of working. It also strengthened the role of the Head of Chancellery, Helge Braun, as a leading vertical coordinator, and the working group of Land chancellery representatives gained in importance as well. Scientific advisors were also embedded in these arrangements more than was previously the case, and indeed Länder created their own advisory bodies. Yet the limits of these institutions were also exposed, and ultimately the decision to amend the Federal Infection Protection Law in March 2022 reflected the failure of these new institutions of cooperative, coordinating federalism to achieve the desired results. This law also served as a reminder that it is possible for a federal law to recognise territorial variation: the law passed in March 2022 did not require common rules across the territory; rather, it required a common approach across the territory to different levels of infection in different places. In considering the benefits and weaknesses of federal systems in handling the pandemic, this discussion also sheds some light, supporting a nuanced view that both positive and negative implications became apparent. As has been demonstrated, the Länder certainly took advantage of the ability to align policies to their health situations, but also to their political views of what policies should be. This led to responsiveness to public opinion in each Land, but also to incoherence which the public found confusing, and ultimately unacceptable. As the pandemic went on, and as political disagreements became greater, political decisions became hard to take and the quality of decision-making, culminating in the Osterruhe fiasco, appeared to suffer. The difficulty in reaching an agreement might be considered an advantage, as it slowed instincts to curb citizens’

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rights at pace, but it ended up frustrating a German public where opinion was very consistently on the side of introducing restrictions for the public benefit. In any event, Germany’s courts also proved themselves regularly to be a check on political power, by frequently striking down regulations agreed upon at a political level. This relates, too, to the impact of the pandemic upon public opinion. In the early days, matching the admiration of the German system from abroad, the public was very satisfied with the handling of the pandemic. Yet this changed relatively quickly, dissatisfaction with all tiers of government grew, and the negative consequences of federalism certainly played their part. Nonetheless, as this chapter demonstrates, the pandemic has not led to a rejection of the German federal system, nor of diversity in policy across the territory—indeed, support for allowing diversity appears to have increased somewhat, and Land-level politicians were more likely to be perceived to be in touch than “Berlin”. The pandemic shone a light on the federal system, its strengths and its weaknesses, and the response of public opinion was suitably nuanced. Taking a step back, the handling of the pandemic confirms a number of themes discussed elsewhere in this volume: that territorial diversity, while it should not be overstated, is a key feature of the German system, that party politics and territorial factors are relevant in understanding political choices, and that while there is horizontal and vertical coordination, with informal areas becoming more important, these do not close down the space for policy variation. Given the rise in the prominence of federal politics during the pandemic, this period is sure to shape German federalism into the future.

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Etl-Rechtsanwälte. (2022). Über 750 Gerichtsentscheidungen zum Coronavirus/Covid-19. https://www.etl-rechtsanwaelte.de/aktuelles/erstegerichtsentscheidungen-zum-coronavirus FAZ. (2020, October 16). Corona-Politik vor Gericht. https://www.faz.net/ aktuell/politik/inland/corona-politik-vor-gericht-ausgehen-und-uebernach ten-17004872.html FAZ. (2021a, January 7). Die Kanzlerin hatte Recht, und ich hatte Unrecht. https://www.faz.net/aktuell/politik/inland/bodo-ramelow-gesteht-fehlerim-kampf-gegen-corona-17135034.html FAZ. (2021b, January 10). Welche Regeln in den BundesLändern gelten. https://www.faz.net/aktuell/gesellschaft/gesundheit/coronavirus/welchecorona-regeln-in-den-verschiedenen-bundeslaendern-gelten-17139706.html? printPagedArticle=true#pageIndex_2 Felbermayr, G., Hinz, J., & Chowdhry, S. (2021). Après-ski: The spread of coronavirus from Ischgl through Germany. German Economic Review, 22(4), 415–446. Focus. (2020a, April 28). Laschets Rundumschlag: CDU-Mann greift Kanzlerin, Virologen und eigene Kommunen an. https://www.focus.de/politik/deu tschland/bei-anne-will-armit-laschet-rundumschlag-gegen-merkel-virologenund-kommunen_id_11929859.html Focus. (2020b, May 4). Aufweichung der Kontaktbeschränkungen SachsenAnhalts absurde Corona-Fünfer-Regel: Nicht mal Politiker kennen sich aus. https://www.focus.de/politik/deutschland/aufweichung-der-kontaktbesch raenkungen-nur-fuer-grosseltern-gedacht-die-absurde-corona-fuenferregel-insachsen-anhalt_id_11951450.html Forschungsgruppe Wahlen. (2021a). Politbarometer März 2021. Forschungsgruppe Wahlen. Forschungsgruppe Wahlen. (2021b). Politbarometer April 2021. Forschungsgruppe Wahlen Forschungsgruppe Wahlen. (2022). Legislaturperiode 2017–2021. https://www. forschungsgruppe.de/Umfragen/Politbarometer/Langzeitentwicklung_-_ Themen_im_Ueberblick/Politik-Archiv_1/Legislatur_2017_-_2021/#Arb eitReg FragDenStaat. (2021, August 5). Wie die Wirtschaft gegen CoronaBeschränkungen lobbyierte. https://fragdenstaat.de/blog/2021/08/05/ fur-den-kase-wie-die-wirtschaft-einfluss-auf-die-osterruhe-nahm/ Gloger, K., & Mascolo, G. (2021). Ausbruch: Innenansichten einer Pandemie— Die Corona-Protokolle. (Munich: Piper). Grefrath, H. (2021). Die Bundesnotbremse ist nicht zu Stande gekommen. Verfassungsblog, April 26, 2021. https://verfassungsblog.de/die-bundesnot bremse-ist-nicht-zustande-gekommen/ Hansestadt Bremen. (2021). Pressemitteilung: Senatsbeschluss zu Kita und Schulen für den Zeitraum vom 1. bis 14. Februar. https://www.gs-augsburger-strasse. de/wp-content/uploads/2021/01/2021-0121-Kita-und-Schule-Februar.pdf

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Köcher, R. (2021, May 20). Flickenteppich versus Bürgernähe. Institut für Demoskopie Allensbach. https://www.ifd-allensbach.de/fileadmin/kurzberic hte_dokumentationen/FAZ_Mai_2021_Foederalismus.pdf Land NRW. (2022). Organisation. https://www.land.nrw/mpk/organisation Leipziger Zeitung. (2020, September 29). Sachsen ändert Corona-Regeln nicht und will Weihnachtsmärkte. https://www.l-iz.de/leben/gesellschaft/2020/ 09/Dienstag-der-29-September-2020-Sachsen-aendert-Corona-Regeln-nichtund-will-Weihnachtsmaerkte-351574 Morgenpost. (2021, July 5). Schulsenatorin rechnet mit Lockdown-Politik ab. https://www.mopo.de/im-norden/bremen/schulsenatorin-rechnet-mitlockdown-politik-ab/ Münch, U. (2021, June 10). Der Bundesstaat in der Kritik: Pandemiebekämpfung im föderalen System, Akademie am Abend, presentation at Tutzing Civic Education Academy. Münchener Merkur. (2020, October 16). Nach Corona-Gipfel in Berlin: Erste BundesLänder schaffen bestimmte Regelung ab - Günther mit Vorstoß. https://www.merkur.de/politik/corona-merkel-deutschland-regelnnews-soeder-berlin-nrw-lockdown-zr-90068709.html News4teachers. (2021, January 7). Bremer Bildungssenatorin unterläuft den Gipfelbeschluss – sie empfiehlt Eltern, ihre Kinder in die Schule zu schicken. https://www.news4teachers.de/2021/01/bremer-bildungssenatorin-bog edan-spd-unterlaeuft-die-gipfelbeschluesse-sie-empfiehlt-eltern-ihre-kinder-indie-schule-zu-schicken/ Oltermann, P. (2020, April 5). Germany’s devolved logic is helping it win the coronavirus race. The Guardian. https://www.theguardian.com/world/ 2020/apr/05/germanys-devolved-logic-is-helping-it-win-the-coronavirusrace RBB. (2020, October 5). Tempelhof-Schöneberg gilt im Norden jetzt auch als Risikogebiet. https://www.rbb24.de/politik/thema/2020/coronavirus/bei traege_neu/2020/10/berlin-tempelhof-schoeneberg-risikogebiet-schleswigholstein.html RND. (2021, June 5). Die Corona-Notbremse läuft aus: Was ändert sich dadurch? https://www.rnd.de/politik/die-corona-notbremse-laeuft-aus-wasaendert-sich-dadurch-KBIT7PXG3FF7BBEFW6HY62WDAI.html Robert Koch Institut. (2019). Das Robert Koch-Institut: Eines der ältesten biomedizinischen Institute weltweit. https://www.rki.de/DE/Content/Ins titut/Geschichte/geschichte_node.html;jsessionid=0FFEA2FAD42533AACA 10717A8F9D78D5.internet071 Robert Koch Institute. (2021, December 16). Täglicher Lagebericht des RKI zur Coronavirus-Krankheit-2019 (COVID-19). https://www.rki.de/DE/ Content/InfAZ/N/Neuartiges_Coronavirus/Situationsberichte/Dez_2021/ 2021-12-16-de.pdf?__blob=publicationFile

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Spiegel. (2020, October 8). Klingbeil bezeichnet Söder als “Mini-Trump”. https://www.spiegel.de/politik/deutschland/corona-lage-in-berlin-lars-kli ngbeil-nennt-markus-soeder-nach-kritik-einen-mini-trump-a-d9eb34e1-ed05497e-b1f6-1308d69e67e1 Spiegel. (2021a, March 4). Gefühlt schlägt Verstand https://www.spiegel.de/ politik/deutschland/corona-lockdown-gefuehl-schlaegt-verstand-a-2fdc7ee0c675-48a4-8bf0-66b03186335d Spiegel. (2021b, March 19). Hamburg zieht die Notbremse. https://www. spiegel.de/politik/deutschland/hamburg-zieht-die-notbremse-a-43b43c002610-4a8e-ac06-f8d55185f1bf Spiegel. (2021c, March 22). Nach sechs Stunden Pause: Bund und Länder verhandeln wieder. https://www.spiegel.de/wissenschaft/medizin/coronanews-am-montag-rki-meldet-7709-neue-infektionen-und-50-todesfaelle-a-1e8 3d2b9-8fb4-4f59-bdf5-aa46e96e9a59 Spiegel. (2021d, March 24). Dieser Fehler ist einzig und allein mein Fehler. https://www.spiegel.de/politik/deutschland/angela-merkel-zur-gekipptenosterruhe-das-war-ein-fehler-a-d5738414-5ece-4936-ba71-0fdfbd65f843 Spiegel. (2021e, January 30). Sitzung mit “Candy Crush” und Sudoko. https:// www.spiegel.de/politik/deutschland/candy-crush-und-bodo-ramelow-wiepolitiker-sich-waehrend-sitzungen-ablenken-a-ac29f1ea-278b-4ca7-91db-683 310a255b5 Spiegel. (2021f, April 13). Regierung bringt Bundes-Notbremse auf den Weg. https://www.spiegel.de/politik/deutschland/regierung-bringt-bundesnotbremse-auf-den-weg-a-d8e983c0-7c63-4aa1-99fa-0c133efb4a61 Spiegel. (2021g, April 26). Große Mehrheit begrüßt bundesweite Coronahttps://www.spiegel.de/politik/deutschland/corona-notbre Notbremse. mse-mehrheit-begruesst-einheitliche-massnahmen-umfrage-a-58cbea77-940f45ae-bb84-639a2f28b4bd Statista. (2022, April 29). Bewertung der Corona-Maßnahmen von August 2020 bis Januar 2022 (Politbarometer). https://de.statista.com/statistik/daten/ studie/1234544/umfrage/umfrage-zu-corona-massnahmen-deutschland-pol itbarometer/#professional Stern. (2021, March 29). Nicht der Föderalismus ist schuld, sondern die Landesfürtsen im Wahlkampf-Modus. https://www.stern.de/politik/deutsc hland/corona-debakel--nicht-der-foederalismus-ist-schuld--sondern-die-lan desfuersten-im-wahlkampf-modus-30455430.html Süddeutsche. (2020, July 6). Gericht kippt Corona-Regeln. https://www.sue ddeutsche.de/politik/guetersloh-gericht-kippt-corona-regeln-toennies-1.495 9189 Süddeutsche. (2021, March 4). “Sie sind die der Kanzler von Deutschland, tun Sie nicht so”. https://www.sueddeutsche.de/politik/markus-soeder-olaf-sch olz-kanzler-mpk-kanzleramt-geld-schlumpfig-grinsen-1.5225022

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Südwest Presse. (2020, December 11). Merkel und die Ministerpräsidenten beraten offenbar auf Gipfel am Sonntag. https://www.swp.de/panorama/ naechster-corona-gipfel-sonntag-13-12-20-lockdown-deutschland-merkel-tre ffen-mit-ministerpraesidenten-bayern-bw-sachsen-schulschliessung-handel-gas tronomie-reisen-53700745.html Südwest Presse. (2022, April 5). Aktuelle RKI-Fallzahlen zu Inzidenz und https://www.swp.de/panorama/corona-zahlen-deutsc Neuinfektionen. hland-heute-aktuell-rki-fallzahlen-laut-dashboard-zu-inzidenz-und-neuinfekt ionen-am-5-4-22-63629561.html Tagesschau. (2021a, January 19). Über diese Regeln beraten Bund und Länder. https://www.tagesschau.de/inland/gesellschaft/faq-bund-lae nder-vorab-101.html Tagessschau. (2021b, April 24). “Bundesnotbremse”: was wann wo gilt. https:// www.tagesschau.de/inland/innenpolitik/faq-corona-notbremse-101.html Tagesschau. (2021c, October 27). Ampel-Parteien für Ende der Notlage. https://www.tagesschau.de/inland/innenpolitik/epidemische-lage-regelncorona-103.html Tagesschau. (2021d, November 30). Zusätzliche Corona-Maßnahmen in Sicht. https://www.tagesschau.de/inland/bund-laender-corona-plaene-103.html Tagesschau. (2021e, November 17). In welchem Bundesland gilt was? https:// www.tagesschau.de/inland/innenpolitik/coronavirus-regelungen-bundeslae nder-103.html Tagesschau. (2021f, April 1). Zuspruch für härteren Lockdown steigt. https:// www.tagesschau.de/inland/deutschlandtrend/deutschlandtrend-2575.html Tagesschau. (2021g, May 13). Grüne bleiben vor der Union. https://www.tag esschau.de/inland/deutschlandtrend/deutschlandtrend-2625.html Tagesschau. (2022, April 3). Diese Corona-Regeln gelten nun. https://www.tag esschau.de/inland/coronavirus-schutzmassnahmen-ende-101.html Tagesspiegel. (2020, May 31). Autorität der Kanzlerin „auf fast tragische Weise https://www.tagesspiegel.de/politik/robert-habeck-zur-coronazerstört“. politik-autoritaet-der-kanzlerin-auf-fast-tragische-weise-zerstoert/25874684. html Tagesspiegel. (2021, March 23). Bund und Länder versagen auf ganzer Linie. https://www.tagesspiegel.de/politik/wenn-nur-noch-der-harte-lockdown-ble ibt-bund-und-laender-versagen-auf-ganzer-linie/27031360.html Taz. (2021, April 21). Warum eine Inzidenz von 165? https://taz.de/Grenzw erte-fuer-Bundesnotbremse/!5768119/ The European. (2022, January 25). So absurd sind die Corona-Regeln in den einzelnen BundesLändern wirklich. https://www.theeuropean.de/stefangross/skurril-und-oft-unlogisch-deutschland-erstickt-im-corona-wirrwarr/ Vampa, D. (2021). COVID-19 and territorial policy dynamics in Western Europe: Comparing France, Spain, Italy, Germany, and the United Kingdom. Publius: The Journal of Federalism, 51(4), 601–626.

CHAPTER 8

Conclusions

The aim of this volume has been to explore the changing face of German federalism, in particular in the light of the 2006 federalism reforms, but also in the light of our view of the Federal Republic as a country which is more diverse across its territory than is often recognised. The policy areas which were affected by the reforms, and which we have subjected to closer examination, have proven to be a fruitful area for exploration. Supplementing this investigation, we have considered the changing landscape of party political competition across Germany, drawing out the increased salience of territorial differentiation as a factor worthy of fuller examination in any understanding either of federal politics in Germany or of party political competition in multi-level electoral settings. Finally, our analysis has been sharpened by a reading of the evolution of the COVID19 pandemic in Germany, and how regional differences became salient as the governance of the pandemic developed new modes of cooperation to meet shifting challenges. This chapter offers some concluding remarks which pick up the salient findings of our analysis and present some broader reflections on the implications of these insights, particularly with regard to decentralisation in federal systems, and to the dynamics of German federal politics in the contemporary era.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Rowe and E. Turner, Decentralising Policy Responsibility and Political Authority in Germany, New Perspectives in German Political Studies, https://doi.org/10.1007/978-3-031-29479-2_8

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1

Decentralisation and the Reform of German Federalism

Decentralisation with federal polities is a complex undertaking which is impacted by multiple competing and at points contradictory dynamics. As the case studies in this volume have shown, the German federal system, with its emphasis on consensual approaches to governance embedded in institutional design arrangements, makes this agenda particularly complicated. The debates surrounding the federal reform process of the early 2000s showcased differentiated thinking on the best route forward towards a more “effective” federal system, one on which competing approaches came to a head. If anything, the discussions which played out in the Federal Reform Commission of the early 2000s demonstrated how the normally salient cleavages between political ideologies, partisan ideologies, political parties, sectoral interests and territorial levels of political authority all failed to prove salient enough on any particular issue to drive through a clarity of approach and a common understanding which would have reframed the federal polity in a significant sense. What we do see, is that the normative understanding of German federalism as a set of multiple sovereign actors, engaged in a long-term process of mutual bargaining, remains symbolically powerful. The debates over the future of higher education, for instance, illustrate and showcase the extent to which sovereign actors—the Länder—derive their core identity precisely from being empowered in meaningful ways in particular policy fields. The below section reflects on these findings in detail.

2 Our Empirical Findings: Policy-Specific Dynamics with an Increased Visibility of Territorial Diversity This volume set out to explore what happens when empowered actors seek to decentralise and devolve power in particular policy areas within a federal polity—Germany. The analysis presented in each of our thematic chapters provides a mixed view as to the impact of such changes, and the extent to which federal dynamics have been significant in offering lasting and substantive governance changes in those particular policy fields. In the area of higher education, we find powerful external forces which served to inform the original reform agenda picked up in the federal Commission of 2003. A failure to find agreement in this policy area in

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and of itself ostensibly caused the reform Commission to fail. And yet, the changes which did ultimately result from this constitutional rethink, in 2006, fell far short of providing the legal framework required to meet the governance challenges in the sector at the time. The pressures to meet the demands in the sector for increased competitiveness in the global higher education market, to free universities from state control of internal governance within universities themselves and as such to “modernise” the system, were significant at the time of the reform Commission’s deliberations in the early 2000s. Since that point in time, these pressures have only amplified, and have continued to drive thinking within the sector on how best to advance the German higher education sector in its entirety. This has essentially meant that subsequent to the 2006 reforms, further policy revisions have been undertaken. Taken as a whole, this series of amendments have served to unpick the streamlining that the reforms of 2006 had set out. Regional capabilities for the governance of higher education institutions have become less of a rallying cry in the face of external pressures to which universities themselves have had to drive a response. In the area of social policy which we examined, that of care homes provision, we find core evidence that decentralisation does not equate to a decline or a reduction in standards, even less, a “race to the bottom”. On the contrary, our analysis underscores how certain institutional and social factors within the sector interact to establish a virtual race to the top. This is evidenced through a visible competition between the Länder to either regulate care homes more extensively or to produce the earliest piece of Land-level regulation to cover the sector right after the policy area was decentralised. Our analysis therefore serves to refute wider thinking in federal studies that posits a race to the bottom when regulatory capacity is shifted downwards. This is not the case here. Instead we can trace a direct effect between state fiscal capacity at the Land level across Germany and micro-level decisions within the policy field, such as the extent to which single rooms for residents should be provided by care homes. This in itself however does not equate to a race to the bottom. Taking the example of the German city states, whose budgets are in fact directly affected by changes in regulation, there is no evidence to suggest that policy-makers have been driven by budgetary rather than care-focused objectives. At a normative level, there is evidence also to suggest that public opinion has fostered an approach to care home provision that seeks to raise standards and deliver on locally relevant concerns, rather than to drive down standards in the interests of profiteering. As our analysis in Chapter 3 of

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this book illustrates in detail, public mistrust of private enterprises delivering social care, based on historic abuses and low standards, fed into the policy-thinking as the legislation was being drafted. This factor also explains how for instance the staff-care home patient ratio has scarcely been touched in Land-level legislation on care homes since decentralisation was brought about by the 2006 Federal Reforms, despite strong pressure from providers to alleviate the financial and capacity burden that this presents to them. Even though the issue of justice and prisons policy was not an area where the Länder were actively seeking decentralisation and greater Land-level powers, diversification since the reforms of the 2000s has been in evidence. But this reading needs to be understood in measured terms; once given the opportunity to produce their own prison laws, several Länder, and these tended to be the players who were more assertive about the need for greater decentralised authority across the piece, worked quickly to develop their own laws. Variations between their legislative output, as we explore in Chapter 3 in this volume, can be accounted for in particular by party politics, but also by structural and path dependence considerations. However, for the large majority of the German Länder, despite decentralisation, the evolutionary pattern of Land-level legislation in the area of justice and prisons policy has seen these evolve in similar directions, with only limited areas of substantial difference. This is unsurprising, given the extent to which there was informal, voluntary cooperation between the Länder themselves at the point at which new laws were being drafted, and illustrates to a large extent the normative understanding of harmonised standards across German federalism, a situation which public servants writing these new laws were conscious to adhere to. Party political leadership on policy has seen some marginal variation emerge, but this was not seen across the board, only where particular leaderships were keen and the coalition arrangements facilitated this. Further, some party-driven initiatives to take prisons policy in new directions were reversed following a change of government. We conclude that in this policy field, party politics matters. However, this does not account for all variations. Context, for instance, matters too; as the case of Baden-Württemberg’s provision for alternative provision of youth custody other than in a prison demonstrated, Land-specific factors can be influential in shaping new laws. After well over a decade of operation, differences between Länder laws appear

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to be concentrated to a significant degree on issues of symbolic importance, such as the aims of punishment, the status accorded to open prisons and the duty to work. Our conclusions also highlight the salience of budgetary capacity in driving substantive variation; as is the case in other policy areas in this study, commitments cannot wholly be enacted without the budgetary resources to actually enact those changes. Our exploration of the federalised practice of prisons and justice policy across Germany as a whole also throws up the importance of analysing the legislative change in its wider context. Just as budgetary positions can ultimately dictate the manner in which new legislative frameworks are operationalised in real-world settings, so too we can see how in practice the implementation of any new law is significant. Prisons laws on their own are not a good guide to the state of a Land’s prison system. This is most clearly exemplified by the case of open prisons, where the proportion of prisoners in an open prison is far lower than expected across the board, but there are big variations between Länder between those with nearidentical legal provisions on the subject. Conservative parliamentarians in this area have been glad to demonstrate their law and order credentials by passing more restrictive laws than what went before in national legislation, but the read-across to policy implementation is actually rather limited. While the idea of decentralising responsibility for civil service careers to the Länder might on the face of it look quite marginal to broader questions of federal balance, this area does in essence capture some significant dynamics of German public life and the very fabric of the practice of federalism in Germany. Allowing the Länder to establish their own pay scales has had an obvious effect: across pay grades, there has been a differentiation, with poorer, more indebted Länder tending to lag the farthest behind. What we identify in our analysis, is a rough correlation between the level of pay and the amount of budgetary pressure. This is unsurprising, and budgetary pressures have intensified further since the introduction of a “debt brake” for the Länder. This differentiation, however, relates less to ideological positioning by political parties, but rather to the competitive forces within the Länder, notably from employment opportunities in the private sector. There is less evidence that decentralisation of policy responsibility in the area of public service law has driven competition between the 16 German Länder themselves. It is striking that in this field, as with prisons and justice policy, public servants themselves voluntarily collaborated on the drafting of new legal

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frameworks for Land legislation, both for economies of scale and to facilitate the sharing of best practice, but also underscoring the extent to which norms underpin the public service ethos in any of the regulator fields which we analyse in the context of this study of decentralisation. In Chapter 5 in this volume we examined how the institutions of German federalism sought to cope with the pressures of the COVID-19 pandemic, how they adapted throughout the pandemic and the impact of public opinion. There were key differences in response between the Länder, in reaction to different public health conditions, but those variations, a more sober assessment acknowledges, were not huge. That is to say, differences in responses around Germany varied, but not as widely as in other countries. This conclusion is an important reminder that an overemphasis on points of difference risks marginalising the role of commonality. Differences matter, but so do similarities, and this wider view is important in developing a holistic reading of the dynamics of German federalism throughout the pandemic. The findings presented in Chapter 5 illustrate that territorial diversity, while it should not be overstated, is a key feature of the German system, that party politics and territorial factors are relevant in understanding political choices, and that while there is significant horizontal and vertical coordination in Germany, with informal areas becoming more important, these do not close down the space for policy variation. Political parties have shifted their strategic approach to federal gameplay on account of the new dynamics of the federal political order. These are however the result of wider societal shifts and the development of revised party political competition dynamics as new players have become more significant in both regional and national elections. The territory has always mattered within the German party system, and the existence of a powerful, regional voice at national level, the CSU, is core evidence of that claim. What we note in Chapter 6 in this volume, however, is that in conjunction with revised thinking on the operation and functional separation of authority in the federal system, party strategists have encouraged a more individualised, regionalised approach to electioneering; at the very least, the greater assertiveness of the CSU in recent years provides support to claims of a “new territorial politics” in the German party system. Our findings in this volume reflect and underscore the validity of scholarship that delivers a more nuanced interpretation of party politics in Germany, whereby a clearer understanding of the Landesverbände (Land-level party organisations) really matters. Contrary to the school of

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thought that suggests regional identities to be conservative anachronisms, we argue that both the federal reforms themselves and the social, political and economic pressures which gave rise to those reforms in the first place illustrate how territorial diversity can contribute significantly to intra-party heterogeneity. Overall, our empirical data showcases the scope for territorial policy variation within German federalism to deliver meaningful change in the governance of key sectoral policies that matter to citizens. The dynamics of change and the implications which we identify in our analysis here are themselves part of the rich and diverse pattern of the governing interactions which combine to make up the reality of federal governance. What, then, are the wider conclusions that we can draw from the study of Germany to federal systems more broadly?

3 Racing to the Bottom, the top---or Even to the Middle? The findings presented in this book illustrate how the notorious analogy of a “race to the bottom” that underpins academic scholarship on decentralisation needs to be qualified. The hard evidence presented in this study of German federal reform contradicts much of what the theorists of “races to the bottom” have traditionally held. Equally, much of the debate in German public life surrounding the federal reform process itself in the 2000s expressed concern over standards, suggesting that individualising responsibility at the Land level would simply unleash an unwelcome competitive dynamic within a consensually oriented political system, with disastrous consequences. By and large, those fears have been unfounded and there is virtually no evidence in the German case to suggest that decentralising policy responsibility will necessarily drive down standards. Quite the contrary, our findings conclude that in practice, federal reform in Germany and the separation of powers have led to competitions on public standards which have increased quality across the board. On the issue of public servants’ pay, for instance, we find key evidence of differentiation that does not have the same character as a “race”, because it does not appear to be founded on a competitive dynamic process. This in itself delivers important conclusions for broader federal studies. Interjurisdictional competition over the simple measures of highest pay and best working conditions is not as clear-cut as one might expect. Indeed, for the purposes of better understanding the dynamics of “races” to the

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bottom or to the top unleashed as a result of change of decision-making authority, it is striking to note that partisan difference is less influential in shaping levels of Beamte pay than the fiscal position of the Land (Dose & Wolfes, 2016). Further, in the case of care homes, we find clear evidence of a “race to the top”, with the Länder competing against each other to have the most exacting provision, passing power to the Länder, in areas where they previously were just responsible for policy implementation, may exert some upward pressure on standards, as legislators take a greater level of interest in the policy area and thus attach a higher degree of priority to it as a result. This certainly appears to have been a factor in increases in expenditure on therapy in youth prisons, for example. It is clear that amongst public sector officials who deliver these policies and implement the new legislation drafted at the Land level, there remains a strong national ethos, and a marked normative preference for common standards across Germany’s entire territory, with a rejection of “provincialism” or Kleinstaaterei. These serve to constrain the level of variation. We can see clear evidence of this in the area of prisons policy, where no sooner had the policy been passed to the Länder than ministerial officials from a majority of the Länder got together and cooperated on drafting a new template for prisons law. This also reflected the profound misgivings felt by this group about power being passed to the Länder in the first place (Turner & Rowe, 2013). What we find the clearest evidence of in our case study analysis, is a clustering around the median point in terms of policy choices. There is relatively little policy innovation that deviates wildly from a centrally coordinated “mean”. Instead of races to improve or to decrease standards across the board, what we find ultimately is evidence of a “race to the middle”. The German federal appetite has lead to a clustering in the centre ground across all of these policy cases, which suggests that no individual Land has the desire or the financial capacity to drive policy in a radically new direction. The contextual factors that sustain German federal practice—budgetary constraints, the party political system and the normative, historical understanding of consensus-oriented politics to name but a few—have all qualified any potential racing dynamic, to push policy choices in the direction of the relative security of the middle ground. This is not to say that specific examples of innovation and policy learning at the horizontal level between the Länder are not in evidence; rather these are the exceptions as opposed to the norms. Rhineland-Palatinate’s adoption of the Bavarian model of Beamte career progression is a case in

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point, as is the widespread interest in Bade-Württemberg’s Projekt Chance variant of open prisons for young offenders. However, the preference in the German Länder is to lean towards discussion and collaboration rather than picking up policies developed elsewhere. By unpacking the inherent dynamics of federal “races”, we can conclude that in the German system, overt inter-jurisdictional competition between the Länder is a marginal force. Of more significance are the contextual factors which serve to inform new legislative practice and the implementation of the new federal order.

4

Understanding Pressures for Diversity in a Reformed German Federal System

There are a number of significant pressures for diversity within German federalism which vary according to each policy area. These stem from the context of each Land and have shaped the nature of policy development subsequent to the federal reform. The wider context of new legislative authority needs to be considered, as our analysis has demonstrated. Indeed, a number of keys, Land-specific factors have helped to shape the nature of policy following the federal reforms. This perspective leads us to derive a set of contextual factors which, when considered in the round, offer a fuller understanding of policy variation under the new decentralised arrangements of German federalism since 2006. ● We find evidence of how path dependence serves to constrain policy variation to a significant degree. This can be seen in the case of prisons, where existing practice in each Land, such as with regard to the provision of open prison places for young offenders, was ultimately enshrined in and then legitimated by new laws. We also find evidence of similar practice in the case of care homes, where the structure of existing buildings is a constraint upon radical and immediate shifts in regulation; this meant that change can only really be achieved after a transition period. Moreover, as we explore in some detail in Chapter 2 in this volume, the legacy of historic federal legislation is also visible in the new Land-level laws concerning care homes.

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● We find that fiscal context matters, and it matters in particular with the introduction of a debt brake. Decisions on Beamte pay are most obviously shaped by the extent of funds available, though in the case of prisons as well, they continue to shape policy choices. ● Demographic and geographical factors impact on legislative decision-making. The nature of the population in each Land has to some degree shaped policy choices. For instance, the extent to which a wave of Beamte retirements is expected, or the diversity of the population of care home residents can frame and constrain policymakers’ decisions. Equally important are geographical factors; we find urban Länder under greater pressure to regulate shared houses where care is provided than are their rural counterparts, for example. ● Socio-economic context is significant in determining variation. This can, for instance, be seen in levels of Beamte pay, where decisions reflect the nature of the local labour market and thus the extent to which the public sector needs to compete with the private sector for staff, but also the cost of living. ● Partisan differences are not, on their own, enough to explain variation. Regional specifics intersect with partisan preferences to drive variation. Partisan differences can certainly be observed in new Land-level legislation on care homes and, most particularly, in law on prisons, where laws of SPD-led Länder look strikingly different to those governed by Christian Democrats. However, within the Christian Democrat family, as we might expect, there are variations; Bavaria has been found to adopt a more “hardline” prison law than, for instance, Lower Saxony. This in itself reflects differences in the ideological orientation of different CDU/CSU state parties. ● Highlighting the significance of territorial distinctiveness: The desire and capacity to “make a point”: as noted above, that is to say, the degree to which a particular Land government wishes to demonstrate its autonomy in a policy field, or favours cooperation with other Länder, also affects the extent to which policy then varies; Bavaria is much more likely to do its own thing than is, say, Bremen. This is partly traceable to the degree of political “assertiveness”, but also to differences in the capacity to draft and implement legislation autonomously, which is obviously greater in Bavaria than in Bremen. ● By contrast, there is almost no evidence of divergent public preferences driving policy differences following the federal reforms in the policy areas which we examine. Where public preferences are

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impactful, however, is in the indirect effects created by electoral politics. For instance, more conservative preferences on law and order policy, for instance, will reflect themselves in a greater likelihood to elect a Christian Democrat government, which will then in turn lead to the implementation of a harsher prison law.

5

The New Dynamics of German Federalism---future Look

The narratives of a “reform logjam” and an inability to reform itself, of Germany not being “fit” for the challenges of governance in the twentyfirst century, of federalism being the root cause of Germany’s laggard status as opposed to the more nimbly governed comparator European states at the turn of the last century, framed much of the broader thinking that fed into the Federal Reform Commission process. Public discourse in the run-up to the Commission’s work had taken on a very negative stand towards federalism itself, with public opinion surveys at the time highlighting the extent to which these proclamations of frustration on the part of the political elites were capturing the public mindset (Petersen et al., 2008). Understandably, reflections on the appropriate architecture of German federal governance became less of a public concern as the financial crisis of 2007 hit, followed by the Eurocrisis and the demands placed on Germany for economic leadership in an EU that was struggling to manage its single currency. Federalism became less of an aggressor in public discourse, as attention turned to crisis management solutions and means to demonstrate stability along with prudent fiscal management. Throughout the 2010s as well, federalism became less of an issue for public debate, as the German state was hit with multiple crisis, from austerity measures in the wake of the new stability mechanisms instituted to shore up the Euro, to the necessity of a “debt brake” as a means to stabilise fragile economic confidence, to the human face of crisis presented by waves of immigration into both Germany and the European Union. The cumulative “distractions” of these multiple sets of governance challenges together served to relegate thinking on the federal order to something of a back seat. The COVID-19 pandemic did, however, demonstrate to the public the significance of territorial variation and how the infrastructure of patterns

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of governance across territory could deliver meaningful variation. As we discuss in Chapter 6 in this volume, the differences in Länder approaches to crisis management throughout the pandemic, coupled with highprofile collaborative moments between the levels of political authority in Germany to define a joint response, brought questions of federal governance to the fore once again in the popular imagination. Polling institutes sought to capture public preferences on federalism, finding new evidence of a preference for increased collective action rather than the separation of responsibility that had been so much of the leitmotif in the early 2000s reform process (Der Spiegel, 2021). Whether these public attitudes were driven directly by particular crisis moments or accurately reflect wider societal thinking is something which warrants fuller exploration. What is clear, is that the adherence to an approach formulated on a strict separation of powers and a statutory ringfencing of spheres of competence between the levels is an approach rooted in the past. The significant challenges presented by developments in both German and global politics over the past two decades find an echo in contemporary discussions on the future of German federalism. The ringfencing imagery is associated with certain, leading public voices who no longer drive opinion in public discourse in Germany. Instead, what is more, commonplace is a more inclusive language, one which emphasises the need to develop a more effective intergovernmental cooperation machinery in order to withstand future potential governing challenges. It is more likely today that public voices will emphasise the need for adaptable frameworks, which allow for specialised responses. Any multi-level system depends on a delicate balance of shared responsibilities and individualised approaches, and as the resilience of German federalism is tested by future challenges, it is inevitable that the question of rebalancing this particular system will be revisited.

References Dose, N., & Wolfes, F. (2016). Die Höhe der Beamtenbesoldung in den Ländern. Der Versuch einer Erklärung: Parteiendifferenzhypothese oder Verschuldungsdruck? Zeitschrift Für Vergleichende Politikwissenschaft, 9, 267– 293.

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Der Spiegel (2021, April 1). Große Mehrheit befürwortet mehr Macht für den Bund. Der Spiegel https://www.spiegel.de/politik/deutschland/corona-gro sse-mehrheit-befuerwortet-mehr-entscheidungsmacht-fuer-den-bund-a-8e6 fd518-c77e-421a-a1d6-b1c4efeda2fb. Petersen, T., Scheller, H., & Wintermann, O. (2008). Public Attitudes towards German Federalism: A point of departure for a reform of German (Fiscal) federalism? differences between public opinion and the political debate. German Politics, 17 (4), 559–586. Turner, E., & Rowe, C. (2013). Party servants, ideologues or regional representatives? The German länder and the reform of ederalism. West European Politics, 36(2), 384–404.