Expertise and Participation: Institutional Designs for Policy Development in Europe [1 ed.] 303075328X, 9783030753283

Table of contents :
Acknowledgments
Praise for Expertise and Participation
Contents
List of Tables
1 Introduction
1.1 The Epistemic-Democratic Tension
1.2 The Quest for Integrated Institutions of Policy Development
1.3 Outline of the Book
1.4 State of the Art
References
Part I Empirical Case Studies
2 Methodology, Theory and Context
2.1 Research Strategy, Case Selection and Methods
2.1.1 The Object of Inquiry: Multi-level Arenas of Policy Advice and Consultation
2.1.2 Case Selection
2.1.3 Research Strategy and Methods
2.2 Normative Assessment Framework: Quality Criteria of Democratic Participation and Reliable Expertise
2.2.1 The Structure of the Assessment Framework
2.2.2 Democratic Participation
2.2.3 Reliable Expertise
2.3 The Bigger Picture: Norway, Germany and the European Multi-level Context
2.3.1 The Status of Political Participation in Norway and Germany
2.3.2 The Role of Expert Advice in Norway and Germany
2.3.3 Norway and Germany as European Consensus Democracies
2.3.4 Environmental Policy Development in the European Multi-level Context
References
3 The Cases
3.1 The Final Storage Committee
3.1.1 Democratic Participation in the Final Storage Committee
3.1.2 Reliability and Problem Adequacy of the Final Storage Committee’s Expertise
3.2 The Climate Protection Dialogue
3.2.1 Democratic Participation in the Climate Protection Dialogue
3.2.2 Reliability and Problem Adequacy of the Climate Protection Dialogue’s Expertise
3.3 The Climate Adaptation Committee
3.3.1 Democratic Participation in the Climate Adaptation Committee
3.3.2 Reliability and Problem Adequacy of the Climate Adaptation Committee’s Expertise
3.4 A Case-Comparative Perspective: Storylines and Explanations
3.4.1 The Cases’ Scores
3.4.2 The Cases’ Storylines
3.4.3 Conditions for Reconciling Ambitious Epistemic and Democratic Standards
References
Part II Institutional Design Lessons
4 Participant Selection Modes for Policy-Developing Collectives
4.1 Selection Mechanisms for Advisory and Consultation Bodies
4.1.1 Open Access
4.1.2 Random Selection
4.1.3 Voting
4.1.4 Targeted Recruitment
4.2 Multi-level Structures of Policy Advice and Consultation
4.2.1 A Leading Role for Intermediary Organisations
4.2.2 Principles for Hand-Picking Stakeholders
4.2.3 Access for Academic Experts, Civil Servants and Lay Citizens
4.3 Conclusion: Viable Participation Patterns and Selection Strategies
References
5 Stopping Rules in Political Settings
5.1 Collective Decision-Making Logics and Voting Rules
5.1.1 The Majoritarian, Competitive and the Consensual, Integrative Logics of Decision-Making
5.1.2 Majority Voting
5.1.3 Unanimous Voting
5.2 The Consensus Mode
5.2.1 How Does the Consensus Mode Work in Practice?
5.2.2 The Normative Value of the Consensus Mode
5.3 Conclusion: Approximating Agreement in the Phase of Policy Development
References
6 Mechanisms of Institutional Coupling
6.1 Basic Conditions of the Relationship Between Parent and Advisory Body
6.2 Democratic and Epistemic Dimensions of Coupling
6.2.1 Democratic Legitimacy Concerns in the Relationship of Sponsor and Advisory Arena
6.2.2 Epistemic Authority Concerns in the Relationship of Sponsor and Advisory Arena
6.3 Tensions Between Democratic and Epistemic Demands to Coupling
6.4 Institutional Mechanisms that Strengthen the Individual Normative Demands
6.4.1 Mechanisms of Autonomy
6.4.2 Mechanisms of Usability and Policy-Relevance
6.4.3 Mechanisms of Impact and Resonance
6.4.4 Mechanisms of Accountability and Control
6.5 Conclusion: Coupling Devices that Reconcile Epistemic and Democratic Demands
References
Part III Conclusion
7 Lessons for Democratic Governance
7.1 The Obscuring Effect of Transparency
7.2 The Virtues of Consensus in Collective Decision-Making
7.3 The Significance of Government Feedback and Responsiveness
7.4 The Key Role of Stakeholders in Reconciling Expertise and Participation
References
Index

Citation preview

PALGRAVE STUDIES IN EUROPEAN POLITICAL SOCIOLOGY

Expertise and Participation Institutional Designs for Policy Development in Europe

Eva Krick

Palgrave Studies in European Political Sociology

Series Editors Carlo Ruzza, School of International Studies, University of Trento, Trento, Italy Hans-Jörg Trenz, Faculty of Political and Social Sciences, Scuola Normale Superiore, Firenze, Italy

Palgrave Studies in European Political Sociology addresses contemporary themes in the field of Political Sociology. Over recent years, attention has turned increasingly to processes of Europeanization and globalization and the social and political spaces that are opened by them. These processes comprise both institutional-constitutional change and new dynamics of social transnationalism. Europeanization and globalization are also about changing power relations as they affect people’s lives, social networks and forms of mobility. The Palgrave Studies in European Political Sociology series addresses linkages between regulation, institution building and the full range of societal repercussions at local, regional, national, European and global level, and will sharpen understanding of changing patterns of attitudes and behaviours of individuals and groups, the political use of new rights and opportunities by citizens, new conflict lines and coalitions, societal interactions and networking, and shifting loyalties and solidarity within and across the European space. We welcome proposals from across the spectrum of Political Sociology and Political Science, on dimensions of citizenship; political attitudes and values; political communication and public spheres; states, communities, governance structure and political institutions; forms of political participation; populism and the radical right; and democracy and democratization.

More information about this series at http://www.palgrave.com/gp/series/14630

Eva Krick

Expertise and Participation Institutional Designs for Policy Development in Europe

Eva Krick ARENA Centre for European Studies University of Oslo Blindern Oslo, Norway

Palgrave Studies in European Political Sociology ISBN 978-3-030-75328-3 ISBN 978-3-030-75329-0 https://doi.org/10.1007/978-3-030-75329-0

(eBook)

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 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: Getty images: Adam Smigielski This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgments

This book has taken shape at the University of Oslo’s ARENA Centre for European Studies, where I enjoyed outstanding working conditions and was part of a lively and inspiring academic debate. I am very grateful for that and want to thank everyone at ARENA! Some people stand out: I collaborated particularly closely with Cathrine Holst within the research project EUREX. Thanks to Cathrine’s broad academic ken, her energy, integrity and generosity, this collaboration has been the most inspiring and motivating experience of my academic life. Åse Gornitzka brought me to ARENA in the first place and together we have co-authored several studies on questions of expertise and knowledge in European policy-making. Stine Hesstvedt has become a cherished discussion partner on a wide range of political and academic questions and I am indebted for the smart and honest comments she provided to several of my drafts. I would also like to thank Johan Christensen for an exceedingly rewarding co-authorship, his general kindness, support and optimism and many interesting debates. I am also very grateful to Johan P. Olsen for thought-provoking feedback on my work.

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Acknowledgments

He has a better memory, overview and analytical mind than any of us and discussions with him have been a real privilege. Two research stays during the last years have been essential sources of input and energy. I would like to thank in particular Marc Geddes, Kat Smith, Eugenia Rodrigues and Steve Yearly at the University of Edinburgh’s SKAPE Centre of science, knowledge and policy and Peter Munk Christiansen and Fabio Wolkenstein at the University of Aarhus’s Centre of public leadership for providing feedback on my work and for hosting and integrating me. It is very much appreciated. For different kinds of support during the last years I am grateful to a large range of people. This applies especially to Åshild Næss, Ida Hjelmesæth, John Erik Fossum, Asimina Michailidou, Morten Egeberg, Christopher Lord, Johanne Døhlie Saltnes, Julia von Blumenthal, Holger Straßheim, Matthew Wood, Vera Krick and, of course, Lars Leeten. This work would not have been possible without the generous funding by the German Research Council (Deutsche Forschungsgemeinschaft) and the Norwegian Research Council (Forskningsrådet).

Praise for Expertise and Participation

“Krick’s book provides the reader with a rare combination of an intelligent probe into the fundamental problem of the theory of democracy – how to reconcile democratic participation and reliable expertise – and meticulous empirical case studies of three exemplary exercises in public participation. The result is an unusually sophisticated analysis which does not shy away from practical conclusions.” —Prof. em. Peter Weingart,University of Bielefeld “Making public policy that combines expert advice and public input is no easy task. Eva Krick’s accessible and judicious book is full of insights on why it is so difficult, and how complex democratic societies can do better. Drawing on original empirical research, Krick develops nuanced lessons for the design of participatory expert advisory processes. The book offers an original and important contribution to democratic theory, policy studies, science studies, and related fields.” —Prof. Mark B. Brown,California State University, Sacramento

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Praise for Expertise and Participation

“Krick’s investigations illuminate the much-underestimated importance of hybrid policy advice bodies for democratic governance. Her grounded approach to institutional design is genuinely original, and truly advances our understanding of how experts, citizens and stakeholders (should) interact.” —Prof. Cathrine Holst,University of Oslo “In an era of increasing academic specialization, Krick makes a bold and successful effort to integrate issues usually held apart: Empirical studies of German and Norwegian cases, theory-development, normative assessment and constructive design proposals. On the basis of a wide theoretical perspective, important aspects of the conventional wisdom and key conceptualizations are challenged, supplemented and refined.” —Prof. em. Johan P. Olsen,University of Oslo

Contents

1

Introduction 1.1 The Epistemic-Democratic Tension 1.2 The Quest for Integrated Institutions of Policy Development 1.3 Outline of the Book 1.4 State of the Art References

Part I 2

1 3 7 11 13 15

Empirical Case Studies

Methodology, Theory and Context 2.1 Research Strategy, Case Selection and Methods 2.1.1 The Object of Inquiry: Multi-level Arenas of Policy Advice and Consultation 2.1.2 Case Selection 2.1.3 Research Strategy and Methods 2.2 Normative Assessment Framework: Quality Criteria of Democratic Participation and Reliable Expertise 2.2.1 The Structure of the Assessment Framework

25 25 25 28 31 34 34

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2.2.2 Democratic Participation 2.2.3 Reliable Expertise 2.3 The Bigger Picture: Norway, Germany and the European Multi-level Context 2.3.1 The Status of Political Participation in Norway and Germany 2.3.2 The Role of Expert Advice in Norway and Germany 2.3.3 Norway and Germany as European Consensus Democracies 2.3.4 Environmental Policy Development in the European Multi-level Context References 3 The Cases 3.1 The Final Storage Committee 3.1.1 Democratic Participation in the Final Storage Committee 3.1.2 Reliability and Problem Adequacy of the Final Storage Committee’s Expertise 3.2 The Climate Protection Dialogue 3.2.1 Democratic Participation in the Climate Protection Dialogue 3.2.2 Reliability and Problem Adequacy of the Climate Protection Dialogue’s Expertise 3.3 The Climate Adaptation Committee 3.3.1 Democratic Participation in the Climate Adaptation Committee 3.3.2 Reliability and Problem Adequacy of the Climate Adaptation Committee’s Expertise 3.4 A Case-Comparative Perspective: Storylines and Explanations 3.4.1 The Cases’ Scores 3.4.2 The Cases’ Storylines

37 46 55 55 62 68 70 72 87 87 89 96 99 100

105 108 110

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Contents

3.4.3 Conditions for Reconciling Ambitious Epistemic and Democratic Standards References Part II 4

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129 131

Institutional Design Lessons

Participant Selection Modes for Policy-Developing Collectives 4.1 Selection Mechanisms for Advisory and Consultation Bodies 4.1.1 Open Access 4.1.2 Random Selection 4.1.3 Voting 4.1.4 Targeted Recruitment 4.2 Multi-level Structures of Policy Advice and Consultation 4.2.1 A Leading Role for Intermediary Organisations 4.2.2 Principles for Hand-Picking Stakeholders 4.2.3 Access for Academic Experts, Civil Servants and Lay Citizens 4.3 Conclusion: Viable Participation Patterns and Selection Strategies References Stopping Rules in Political Settings 5.1 Collective Decision-Making Logics and Voting Rules 5.1.1 The Majoritarian, Competitive and the Consensual, Integrative Logics of Decision-Making 5.1.2 Majority Voting 5.1.3 Unanimous Voting 5.2 The Consensus Mode 5.2.1 How Does the Consensus Mode Work in Practice?

137 138 138 140 143 145 146 147 151 153 156 158 163 165

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5.2.2 The Normative Value of the Consensus Mode 5.3 Conclusion: Approximating Agreement in the Phase of Policy Development References 6

Mechanisms of Institutional Coupling 6.1 Basic Conditions of the Relationship Between Parent and Advisory Body 6.2 Democratic and Epistemic Dimensions of Coupling 6.2.1 Democratic Legitimacy Concerns in the Relationship of Sponsor and Advisory Arena 6.2.2 Epistemic Authority Concerns in the Relationship of Sponsor and Advisory Arena 6.3 Tensions Between Democratic and Epistemic Demands to Coupling 6.4 Institutional Mechanisms that Strengthen the Individual Normative Demands 6.4.1 Mechanisms of Autonomy 6.4.2 Mechanisms of Usability and Policy-Relevance 6.4.3 Mechanisms of Impact and Resonance 6.4.4 Mechanisms of Accountability and Control 6.5 Conclusion: Coupling Devices that Reconcile Epistemic and Democratic Demands References

Part III 7

180 184 188 195 196 199

200

202 203 206 206 208 209 212 214 218

Conclusion

Lessons for Democratic Governance 7.1 The Obscuring Effect of Transparency 7.2 The Virtues of Consensus in Collective Decision-Making

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7.3 The Significance of Government Feedback and Responsiveness 7.4 The Key Role of Stakeholders in Reconciling Expertise and Participation References Index

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List of Tables

Table 2.1 Table 2.2 Table 2.3 Table 3.1 Table 3.2 Table 3.3

The normative assessment framework of democratic legitimacy and epistemic authority Three bodies of democratic participation Three bodies of reliable expertise Structure of the case studies The three cases’ scores on democratic legitimacy and epistemic authority Key dynamics in the cases

35 39 50 88 122 129

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1 Introduction

This book is about the role of expertise and participation in modern policy-making. It explores the relationship of these increasingly important and partly conflicting sources of legitimacy, and aims at their reconciliation by means of institutional design. The book zooms in on a particular phase of the policy cycle and a particular kind of political organisations: The focus lies on arenas of policy advice and consultation that are set up by the state in order to agree on policy recommendations. The key question the book deals with is how these institutions should be organised so that they generate reliable, sound and policy-relevant knowledge and at the same time integrate the viewpoints of all those affected. There is a broad range of arenas of policy advice and consultation, which differ, inter alia, in terms of their composition and authority. They go under various names in political practice, such as ‘consensus conferences’, ‘policy dialogues’, ‘advisory committees’, ‘minipublics’, ‘expert councils’ or ‘citizen forums’, and they form an important auxiliary governance structure, through which external societal viewpoints are fed into the early stages of the policy-making process, i.e. the policy development phase. In many political systems, and especially in the © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 E. Krick, Expertise and Participation, Palgrave Studies in European Political Sociology, https://doi.org/10.1007/978-3-030-75329-0_1

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consensus-democratic polities in focus in this book, these arenas have important coordination functions. In research, such structures have been analysed mainly from the perspectives of democratic theory, science studies and public administration. These perspectives have each tended to focus on particular subtypes of advisory structures and they are so far scarcely interrelated, even though most real-life cases are hybrids. This book takes an integrated look at different kinds of arenas of policy advice and consultation. It analyses the potential of complex, multi-level and hybrid structures that bring together experts, citizens, stakeholders, policy-makers and practitioners in a joint quest for consensual policy suggestions through a range of different layers and channels. Based on insights from theories of democracy, knowledge, science, organisation and decision-making as well as case studies from the context of Norwegian and German environmental policy, the book draws institutional design lessons about three key organisational parameters: (a) The modes of participant selection, (b) the internal, collective decisionmaking rules and (c) the coupling of advisory bodies with representative institutions. The design lessons provide pragmatic guidance about how to efficiently set up and run ‘participatory expert bodies’ that strike a balance between high epistemic and democratic standards. The book furthermore develops theory about the relationship, the tensions and the reconcilability of knowledge and democracy, the interdependence of participation and representation, the political embedding of participatory and advisory endeavours and the status of consensus in collective decision-making. This introductory chapter first elaborates on the problem that this book responds to: The ‘epistemic-democratic tension’ that lies in the concurrent need for specialised knowledge and for extended public participation in modern governance (1.1). It then argues why advisory and consultation arenas that consist of various, closely integrated levels have a special capacity to ease this tension in the phase of policy development (1.2). Finally, after an outline of the book’s different parts (1.3), the state of the art, which the book builds on and develops, is illustrated (1.4).

1 Introduction

1.1

3

The Epistemic-Democratic Tension

The relationship of knowledge and democracy and between experts, civil society and the state is a key debate in political sociology and political science that has lately often been discussed under headings such as ‘epistemic democracy’ (Estlund and Landemore 2018), the ‘democratisation of expertise’ (Nowotny et al. 2001), the ‘accountability of experts’ (Holst and Molander 2017) or ‘citizen experts’ (Tesh 1999). An epistemic-democratic tension lies in the specialisation and independence logic of reliable expert knowledge on the one hand, and the equality and inclusion imperative of democracy on the other, and it seems to leave us with the unsatisfactory choice between notoriously suboptimal democratic rule or elitist rule of the knowers. This tension has recently been exacerbated by modern society’s growing reliance on expertise for solving increasingly complex and technical collective problems (Kitcher 2011; Turner 2014), by the detachment of an increasing number of ‘de-politicised’ expert bodies from political control (Curtin 2007; Vibert 2007), by the crisis of confidence in representative channels of democratic participation (Fischer 2009; Saward 2010) and subsequent public calls for more direct citizen involvement (Meriluoto 2017; Polletta 2016). The growing reliance on specialised knowledge in ‘the age of expertise’ (Fischer 2009, p. 1; see also Jasanoff 2011, p. 622) is linked to several broader societal developments: The last decades have seen a sharp and steady increase of access to information and scientific knowledge as well as rising levels of education and attainment around the world (Bornmann and Mutz 2015; Meyer et al. 1997; OECD 2017). A global shift towards ‘knowledge societies’ is reflected in the increasing numbers of knowledge-producing organisations and the rise of independent expert bodies (Vibert 2007). These shifts are likely to have contributed to changes in ideas about what constitutes ‘good governance’ and to have pushed governance towards ‘expertisation’, i.e. the growing reliance of modern policy-making on specialised, often researchbased expert advice (Gornitzka and Krick 2018). There is a widely held belief in modern societies that a sound knowledge basis helps to ensure the quality of public policies. As Meyer et al. (1997, p. 152) observe,

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states ‘make valiant efforts to live up to the model of rational actorhood’, and they build policies on the ‘ceremonial’ value of expertise (Meyer and Rowan 1977) to retain credibility and legitimacy. Being perceived as uninformed, irrational and not evidence-based can become a strain on public institutions’ reputation (Carpenter 2010). While the relevance of expertise and a general rationality mandate for public policymaking may not be a new theme (see, e.g., Douglas 2009), some recent shifts have intensified these demands. The management of contemporary high-pace technological change and the regulation of risks associated with it make expert knowledge ever more indispensable (Christensen and Holst 2017). The ongoing expansion of state functions, the subsequently growing complexity of policy-making and a concurrent tendency to minimise state administration have extended the demand for external, outsourced policy advice, as Lentsch and Weingart (2011b, pp. 5–7) point out. This together with the relatively recent emergence of a sciencebased policy advice market have accelerated ‘expertisation’ pressures during the last two decades. But this is not an unambiguous development that goes only one way. Partly as a response to these ‘expertisation’ trends, pressures to ‘democratise’ policy-making by ‘opening up’ knowledge production to the public have increased. What ‘democratisation’ amounts to when it is invoked is very often not specified, and there seem to be at least as many dimensions to it as to the notion of democracy. The rise of powerful, de-politicised, technocratic bodies in modern systems of governance has spurred concerns about accountability deficits and triggered calls to strengthen the transparency, social embeddedness and democratic control of expert bodies (Busuioc 2009; Curtin 2007; Krick and Holst 2019). With influential concepts such as ‘post-normal science’ (Funtowicz and Ravetz 1993), ‘mode-2’ (Nowotny et al. 2001) and the ‘co-production’ of knowledge (Jasanoff 2003), science (and technology) studies have pointed out the need to involve the public into epistemic (or ‘sense-making’) practices in order to increase the validity, usefulness and legitimacy of policy advice and expertise-based governance.1 These 1

To be sure, the idea of opening up or democratising public knowledge production is not new (see for instance the notion of (participatory or collaborative) ‘action research’ originally

1 Introduction

5

notions have partly been taken up by policy-makers and complemented by other concepts, such as ‘open science’ and ‘citizen science’, which are both strongly promoted by the EU these days. The concepts differ in the degree of authority they hand over to ‘ordinary citizens’, and not always have responses to technocratic structures and the omnipresence of expertise in public policy-making taken a constructive turn. Indeed, they currently often come in the shape of fierce populist criticism, open hostility and general contempt towards elites and experts. Recent democratisation pressures have been fuelled by the crisis of confidence in the traditional model of representative democracy. With decreasing voter turnout, declining trust in state institutions and a dwindling organisational degree of societies, public demands to tap into new sources of legitimacy, participation and responsiveness and to reform state institutions and the inter-institutional balance have been raised more loudly (Fischer 2009, p. 49; Saward 2010, pp. 82ff.). Building on the direct model of democracy, invocations of a ‘democratisation’ of policy-making or a ‘deliberative’, ‘participatory’ turn in governance practices (Krick et al. 2019; Lövbrand et al. 2011; Jasanoff 2003) usually focus on an increasing involvement of ‘the public’ and ‘ordinary citizens’ into policy development through petitions and referenda on single issues or within public fora such as consensus conferences, town hall meetings or online consultation tools (Brown 2009; Fischer 2009; Fung 2003, 2006; Urbinati and Warren 2008).2 These channels of public participation are generally seen as a means to strengthen the legitimacy of public policies, to contain controversy and generate self-determined, genuinely democratic and broadly accepted decisions as well as more target-oriented and enforceable regulations (Fung 2006; Hansen and Allansdottir 2011, p. 609; Irvin and Stansbury 2004, p. 55; Jasanoff 2011, p. 621; Maasen and Weingart 2005, p. 5; Papadopulos and Warrin 2007, pp. 446–450). Across Europe and the US, policy-makers have coined by Lewin 1946), but the movement seems to have gained momentum during the last two decades. 2 For these kinds of participatory formats that mainly target ‘ordinary citizens’ and the ‘general public’ instead of established stakeholders, the attributes citizen or public are used in this book (e.g. ‘citizen forum’, ‘public’ or ‘citizen participation’, ‘citizen involvement’, ‘public input channels’).

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strongly reacted to this public demand since the 1990s by setting up a growing number of participatory programmes in all kinds of fields, with a special focus on technological change and large infrastructure projects (Brown 2009, p. 220; Hagendijk and Irwin 2006, p. 167; Lengwiler 2008, p. 194; Irvin and Stansbury 2004, p. 56; Webler and Tuler 2000, p. 566). The rationales behind these two pressures—the demand for more extensive public participation and the demand for expertise-based policies—are likely to draw governance practices into two different directions.3 There are considerable tensions between these two normative demands that raise doubts about their compatibility: On the one hand, the principle of inclusion and equality that underlies democratic participation demands the involvement of everyone affected, irrespective of competences and knowledge. Yet, complicated problems that call for complex analyses can strain the capacities of lay people to interpret the information they receive, to know their preferences vis-à-vis these issues, and act accordingly (Dahl 1994, p. 31; Hauptman 2001, p. 401; Urbinati and Warren 2008, p. 390). When dealing with questions of risk that arise from technological innovation, the room for genuine citizen involvement and open deliberation can be limited. The need for efficient and effective decision-making can further rule out extensive consultation, public participation and democratic audits of expertise, which tend to be time-consuming and demanding (Maasen and Weingart 2005, p. 10). Besides, particularly innovative, deliberative citizen inclusion is burdened with a heavy ‘class bias’ that distorts the democratic quality of such endeavours and (further) privileges the better-off in society (Fung 2006, p. 67; Irvin and Stansbury 2004, p. 59; Lijphart 1997, pp. 1–2; Papadopulos and Warrin 2007, p. 455; Ryfe 2005, p. 52; Steiner 2012, p. 49; Urbinati and Warren 2008, p. 405; Young 2000, p. 34). 3

As working definitions, which will be refined in the course of the book (political) participation shall refer to the involvement of those affected by policies into policy-making through referenda, party membership, elections, demonstrations, citizen assemblies, etc. Democratic participation qualifies this involvement according to certain criteria of democratic worth. Expertise, synonymous to expert knowledge, refers to the specialised knowledge that is held by experts, i.e. those considered particularly knowledgeable, competent or experienced in a certain domain. Reliable expertise qualifies these knowledge claims according to criteria of epistemic worth (see Chapter 2.2 in particular for a more thorough debate of these key concepts).

1 Introduction

7

The dependency on experts, on the other hand, constitutes a democratic challenge, since expertise is intertwined with the idea of specialisation and thus elitist by nature (Moore 2017). Experts can be very influential, but they are neither always neutral and objective, nor are there usually formal sanctioning channels in place for holding experts accountable (see Brown 2009; Fischer 2009; Jasanoff 2011; Mansbridge et al. 2012). When experts and non-experts interact, this creates further problems: ‘Science’ or ‘academia’ as society’s main knowledge provider and ‘the public’ as the prime source of citizen participation represent two traditionally unrelated realms of society (Jasanoff 2003, p. 235) and there is often a ‘noticeable tension between what scientists and technologists consider feasible and what the broader public finds acceptable or desirable’ (Hansen and Allansdottir 2011, p. 609). What is more, when lay people collaborate with experts on the formulation of policies, the quality of policies might suffer because ‘people may not possess enough specialised knowledge and material resources’ (Jasanoff 2003, p. 237). They may lack both the habitus and terminology of expert discourses (Young 2000, p. 53), and knowledge hierarchies can ultimately translate into power hierarchies to the advantage of experts.

1.2

The Quest for Integrated Institutions of Policy Development

This book aims at giving equal consideration to epistemic and to democratic quality demands and it strives at their reconciliation. It asserts that the answer to the epistemic-democratic tension should not be to favour one set of normative standards over the other. Nor should it be to let experts, politicians and civil society actors deliberate in separate venues. Against the outlined double normative perspective, the book works on tangible, empirics- and theory-based institutional solutions to the tension for the phase of policy development. This is a phase of the policy cycle that provides many access points for experts and civil society. Yet, it is also the phase, where the demand for democratic participation and expert input can clash particularly strongly. Advisory institutions therefore need to be carefully organised in a way that

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ensures broad participation and respectful interaction of experts and non-experts without compromising these arrangements’ independence and problem-solving capacity (see also Holst and Molander 2017; Krick 2019). The response to this challenge is far from obvious. One answer has been given by systems perspectives on deliberative democracy. The general argument goes that the three functions of deliberative democracy, described as the ‘ethical’, ‘epistemic’ and ‘democratic’ function (Mansbridge et al. 2012), do not have to be fulfilled by every single political institution, but can be distributed between institutions within a system. Different venues can share the work, with some being better at delivering on expertise, while others represent the people well, and again others resolve conflicts of interest and negotiate implementable solutions (Christiano 2012). Yet, there are problems connected to such a division of labour. If the venues are not well interconnected, the different views of stakeholders, scientists and citizens will not be confronted with each other and this can reinforce hierarchies and power imbalances, lead to understanding and translation problems and reinforce the dichotomy of citizens and experts (Brown 2009, p. 253; 2014, p. 64; Chambers 2017, p. 266). Setting up a single committee that brings together experts, civil society actors and policy-makers to deliberate (i.e. decide by weighing reasons) on a specific policy issue, also has striking disadvantages. As shown by studies on collective decision-making, the size of the group would have to be quite small for deliberations to be meaningful, inclusive and sincere (Bächtiger et al. 2005 p. 236; Coleman 1990, p. 381; Papadopulos and Warrin 2007, p. 451; Ryfe 2005, p. 51). A highly limited number of seats, however, is likely to produce elitist structures, to confine the diversity of both societal viewpoints and (academic) knowledge and to provide little access for the general public. The answer discussed in this book are arenas of policy advice and consultation that involve experts, lay citizens, stakeholders, policymakers and practitioners within a multi-layered , but closely integrated structure. A multi-layered structure can consist of a range of channels of input for different actor groups and subtasks. It may be quite complex and attribute differentiated participation rights to different kinds of

1 Introduction

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actors. Yet, as long as constant feedback loops are in place between the different levels and channels of input, such structures have a pronounced potential to meet a multiplicity of epistemic and democratic aims at the same time. By bringing together different types of policy actors within one and the same integrated structure that is characterised by the interactive pursuit of a joint policy solution and by being thoroughly embedded into the policy process, deficits of one venue can be effectively balanced by a neighbouring venue with a different participation structure. In integrated collective processes of deliberation, experts can potentially be held to account during the process, hierarchies between experts and citizens moderated, perspectives exchanged, compromises found and voices integrated into a joint, and, ideally, consensual proposal. There is a good chance that problematic dichotomies between societal groups are dissolved and divergent perspectives mediated. In small groups and direct interaction, mutual learning can occur, policy options can be negotiated and shared framings be developed. This is important for the power balance between professionals and lay people, organised and nonorganised citizens, partisan and non-partisan actors, because the framing of problems sets the course for future debates and possible solutions. All the involved actor groups can potentially benefit from such collective endeavours: ‘Lay citizens’ need specialised input to generate informed, sound policy suggestions; experts need public input to identify pressing issues, respond to societal demands and link up to ‘experiential expertise’ and ‘local knowledge’ (Fischer 2000; Meriluoto 2017); policy-makers need the perspectives of stakeholders, citizens and experts to develop effective and acceptable policy solutions. The key question of this book is how multi-layered advisory arenas should best be institutionally designed, i.e. how the overall structure and its components should be set up, arranged, regulated and run, so that they operate in harmony with a wide range of democratic and epistemic standards. Following Olsen’s understanding, institutional design shall refer to acts of purposeful (usually organisational) intervention when (re)constructing institutions (Olsen 1997, p. 205; see also Hendricks 2016, p. 44). To be sure, interventions are not always successful, but an idea of success underlies design thinking: The perspective is explicitly normative and aims at improvement. It is also empirical in that it does

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not only set up an ideal, but also discusses tensions pertaining to the respective parameter and aims for empirical realisation (see also Goodin 1996, p. 34). A key question is then how to navigate tensions and how to realise empirically what may be clear theoretically.4 ‘Institution’ not only pertains to legal rules, but also to collective practices, customs, roles and routine ways of action and interaction that empower, constrain and structure actor behaviour in such a way that a certain outcome can be expected (March and Olsen 1989, 22ff.). Institutions may be more or less formalised and they may be enforced by coercion or be part of a code of appropriate behaviour that is learned through socialisation and education. The term can also relate to a more complex system of rules, such as constitutions or languages, and in the context of this book, it often overlaps with ‘organisation’.5 In democratic governance and research, increasing efforts have been made to respond to the most notorious shortcomings of advisory and consultation institutions, such as the frequent lack of impact and the ‘social privilege’ bias of participatory endeavours (Steiner 2012, pp. 33, 49) or the detachment of expert bodies from scrutiny and control (Brown 2009, p. 240). Examples of such efforts are attempts at opening up advisory processes and linking expert bodies to the public (see, e.g., Holst and Molander 2017; Krick and Holst 2019; Lord 2019), coupling public deliberation fora more closely to government units (Curato and Böker 2016; Hendriks 2016; Mansbridge et al. 2012), flattening knowledge hierarchies and thus increasing the pool of available knowledge (see, e.g., Brown 2009, 2014; Fung 2006; Warren and Pearse 2008; Warren 2002) or experimenting with participant selection techniques to maximise inclusion (Smith and Setälä 2018; Steiner 2012). The book seeks to learn from these debates on ‘democratic innovations’, the ‘social ties’ of expert bodies, and the ‘democratisation’ of science and expertise as well 4

The general assumption in this book is that civil servants can, and usually do, make conscious choices about how to organise advisory formats and that they are prepared to learn and react to public demands and academic suggestions. Yet, certainly, not every decision is entirely thoughtthrough or strategic, and bounded rationality, information deficits, blind spots and biases are general conditions of social life. 5 ‘Organisation’ relates to a collective that is characterised by a common purpose, some kind of leadership structure and a certain permanence and our design suggestions pertain to advisory bodies which are also organisations.

1 Introduction

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as from the here-conducted in-depth case studies of multi-level advisory arrangements that aimed very high in both epistemic and democratic terms. Although this book discusses ‘best ways’ of designing policy advice and consultation arenas, there is nonetheless not one solution that fits all. The developed design suggestions are meant as corridors. They stand for particularly suited ways of striking a balance between epistemic and democratic expectations and can be used as general guidelines or yardsticks for decisions on the composition, the decision rules and the embedding of advisory arenas, but they also leave room for adapting institutional designs to different contexts. Individual (multilevel) advisory arrangements need to be adjusted to the context they operate in and they may have to be re-designed when the policy issue they deal with or the participation patterns change. The main political players, the affected viewpoints and the notion of ‘the public’ differ from system to system and from policy field to policy field and this needs to be reflected when setting up and operating advisory rounds.

1.3

Outline of the Book

The book is organised in two parts, the first one consisting of empirical case studies, the second of theoretical studies that deal with key institutional design questions surrounding the use of policy advice and consultation in policy-making. The whole book concentrates on three key organisational parameters of advisory arenas—(a) their participation patterns, (b) their processes of decision-making and deliberation and (c) their embedding or coupling with the environment. These organisational parameters pervade both the epistemic and the democratic legitimacy dimension and they structure both the case studies and the theory chapters of the second part of the book. In part I of the book (‘Empirical case studies’), real world examples of multi-level policy developing arenas are analysed in terms of their epistemic and democratic merits. In in-depth studies of three cases that aimed very high in both epistemic and democratic terms, normative

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tensions and ways of dealing with them are identified and material for the second part of the book is harnessed.6 Key questions leading part I are: How ‘good’ was the individual practice of policy development in democratic and epistemic terms? Which problems occurred? How were tensions between normative standards moderated?7 The first chapter of part I, Chapter 2, prepares the case studies in methodological, theoretical and policy-contextual terms. It develops a normative assessment framework that guides the case studies in Chapter 3. The three cases from the enviornmental policy field in Germany and Norway are first analysed one-by-one and then from a comparative perspective that outlines key practices and mechanisms that the policy-developing arenas used to deal with multiple and partly conflicting normative objectives.8 In part II of the book (‘Institutional design lessons’), three theoretical arguments are developed on how to strike a balance between epistemic and democratic demands. Building on theoretical knowledge and insights from a range of case studies, it responds to three central politicalsociological questions of institutional design that pose themselves when trying to create ‘participatory expert bodies’: How should these arenas be composed when epistemic and democratic standards are given equal value (Chapter 4)? How should they decide collectively, which decision rules should they follow (Chapter 5)? How should they be organised and embedded into the policy process (Chapter 6)? More specifically, Chapter 4 theorises on the ideal participation patterns and the selection mechanism(s) that produce them. Chapter 5 discusses the merits of stopping rules that bring decision processes to a close and the social norms that sustain them. Chapter 6 deals with the most appropriate coupling mechanisms between advisory bodies and their ‘sponsor’ or appointing authority.

6

The cases are the German ‘Final storage committee’ and ‘Climate protection dialogue’ and the Norwegian ‘Climate adaptation committee’. 7 For the detailed research questions guiding the case studies, see Chapter 2.2 (‘Normative assessment framework’). 8 See Chapter 2.1 for the case selection strategy and Chapters 3.1–3.3 for the in-depth case studies, and Chapter 3.4 for the comparative perspective.

1 Introduction

1.4

13

State of the Art

The book builds on and adds to a range of bodies of research and theory. It particularly closely links up to democratic theory, social theories of knowledge and science, as well as organisation and decision theory.9 The following section lines out how the different parts of the book relate to current research. The normative assessment framework that guides the empirical, first part of the book is particularly theory-rich (see Chapter 2.2). Its democratic legitimacy criteria are drawn to a large extent from the substantial body of democratic theories that discuss aspects of participation, representation, deliberation and inclusion. While most individual contributions to democratic theory focus on one specific legitimacy aspect, this book builds particularly strongly on studies that attend to the internal tensions and normative dilemmas of democracy (e.g. Brown 2009; Fung 2006; Ryfe 2005; Steiner 2012; Urbinati and Warren 2008; Young 2000). Deliberative democratic theory has naturally been very useful for analysing the democratic legitimacy dimension of the advisory processes and they have fed into both the assessment framework and the theoretical arguments developed in part II (see, e.g., Chambers 2005; Fung 2006; Hendricks 2016; Mansbridge et al. 2012; Young 2000). Some of the works in the field also touch on questions of expertise and the epistemicdemocratic relationship and this book builds on these considerations (Brown 2009; Fischer 2009; Holst and Tørnblad 2015; Landemore and Estlund 2017; Mansbridge et al. 2012; Moore 2017; Young 2000). Yet, the focus of deliberative democracy lies usually on the epistemic qualities of the deliberative procedure, while the qualification of the individual expert or the problem-solving quality of the expertise itself - which are

9

There are some works and authors that stand out because they have been exceedingly valuable for the reflections in this book. This pertains particularly, but of course not exclusively, to the works by Mark B. Brown, Frank Fischer, Archon Fung, Cathrine Holst, Sheila Jasanoff, Jane Mansbridge, Johan P. Olsen, Jürg Steiner, Nadia Urbinati, Marc Warren, Peter Weingart and Iris Marion Young. These authors are numerously cited within the book, but these references cannot fully give credit to the influence they have had overall.

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just as central to the perspective of this book - are not analysed in systematic terms (see also Biegelbauer and Hansen 2011; Brown 2009; Fischer 2009 for these lines of arguments). This book’s assessment framework therefore complements democratic theory perspectives with philosophical and sociological works on the value and validity of expertise. Social epistemology helps to theorise on the trustworthiness and competence of the individual expert (see, e.g., Fricker 1998; Goldman 2001; Gelfert 2011) and the sociology of knowledge and science provides important insights about the policyscience-nexus (e.g. Beck 2012; Beck and Forsyth 2015; Nowotny et al. 2001; Jasanoff 2003; Lentsch and Weingart 2011a; Maasen and Weingart 2005; Straßheim 2013). These perspectives do usually not consider the collective, political dimension of expertise production or questions of institutional design, however. While they sometimes invoke a ‘democratisation of expertise’ (Nowotny et al. 2001; Jasanoff 2003), they tend to stop short when it comes to political challenges of implementation, democratic dilemmas and the constraints of collective decision-making, which is why these perspectives are complemented by the aforementioned works in democratic theory. In addition, both parts of the book link up to empirically-oriented studies for the purpose of formulating indicators of democratic and epistemic worth, for identifying tensions between different quality standards and identifying favourable institutional designs. The complex, multilayered arenas of policy deliberation and advice in focus here have so far not been the explicit object of social scientific research. Yet, there is a substantial body of empirical research on ‘minipublics’ and other participatory governance arrangements, which usually build on democratic theory (e.g. Bächtiger et al. 2005; Curato and Böker 2016; Fung 2006; Hansen and Allansdottir 2011; Irvin and Stansbury 2004; Rowe and Frewer 2000; Steiner 2012), as well as works on ‘expert bodies’ and other policy advice arrangements, which are usually rooted within public administration and science studies (see, e.g., Brown 2009; Haas 2004; Jasanoff 1990, 2005b; Krick and Holst 2019; Lentsch and Weingart 2011a; Veit et al. 2017). These bodies of work will be built on and interconnected.

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The theory-building part II of the book draws on a range of additional bodies of research: Most notably, Chapters 4 and 5 tap social science theories of collective decision and organisation (e.g. Buchanan and Tullock 1962; Kelsen 1955; Krick 2017, 2018; Manin 1997; Novak 2014; Offe 1983; Olsen 1972; Risse 2009; Stone 2009; Romme 2004; Steiner and Dorff 1980; Urfallino 2012, 2014), and Chapter 6 additionally links up to delegation and principal agent theories, in particular (e.g. Busuioc 2009; Carpenter 2010; Curtin 2007; Lavertu and Weimer 2011; Verhoest et al. 2004).

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Buchanan, James M., and Gordon Tullock. 1962. The Calculus of Consent: Logical Foundations of Constitutional Democracy. Ann Arbor: University of Michigan Press. Busuioc, Madalina. 2009. “Accountability, Control and Independence: The Case of European Agencies.” European Law Journal 15 (5): 599–615. Carpenter, Daniel P. 2010. Reputation and Power: Organizational Image and Pharmaceutical Regulation at the FDA. Princeton: Princeton University Press. Chambers, Simone. 2005. “Measuring Publicity’s Effect: Reconciling Empirical Research and Normative Theory.” Acta Politica 40: 255–266. Chambers, Simone. 2017. “Balancing Epistemic Quality and Equal Participation in a System Approach to Deliberative Democracy.” Social Epistemology 31 (3): 266–276. Christensen, Johan, and Cathrine Holst. 2017. “Advisory Commissions, Academic Expertise and Democratic Legitimacy: The Case of Norway.” Science and Public Policy 44 (6): 821–833. Christiano, Thomas. 2012. “Rational Deliberation Among Experts and Citizens.” In Deliberative Systems: Deliberative Democracy at the Large Scale, edited by John Parkinson and Jane Mansbridge, 27–51. Cambridge: Cambridge University Press. Coleman, James S. 1990. Foundations of Social Theory. Cambridge, MA: Belknap Press. Curato, Nicole, and Marit Böker. 2016. “Linking Minipublics to the Deliberative System: a Research Agenda.” Policy Science 49: 173–190. Curtin, Deidre. 2007. Holding (Quasi)autonomous EU Administrative Actors to Public Account European Law Journal 13 (4): 523–541. Dahl, Robert A. 1994. “A Democratic Dilemma: System Effectiveness Versus Citizen Participation.” Political Science Quarterly 109 (1): 23–34. Douglas, Heather. 2009. Science, Policy and the Value-Free Ideal . Pittsburgh: University of Pittsburgh Press. Estlund, David, and Helène Landemore. 2018. “Epistemic Value of Democratic Deliberation.” In Oxford Handbook of Deliberative Democracy, edited by André Bächtiger, John S. Dryzek, Jane Mansbridge, and Mark E. Warren, 113–131. Oxford: Oxford University Press. Fischer, Frank. 2000. Citizens, Experts and the Environment. The Politics of Local Knowledge. Durham and London: Duke University Press. Fischer, Frank. 2009. Democracy and Expertise. Oxford: Oxford University Press.

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Holst, Cathrine, and Silje Hexeberg Tørnblad. 2015. Variables and Challenges in Assessing EU Experts’ Performance.” Politics and Governance 3 (1): 166– 178. Irvin, Renee A., and John Stansbury. 2004. “Citizen Participation in Decision Making: Is it Worth the Effort?” Public Administration Review 64 (1): 55– 65. Jasanoff, Sheila. 1990. The Fifth Branch. Science Advisers as Policymakers. Cambridge, MA: Harvard University Press. Jasanoff, Sheila. 2003. “(No?) Accounting for Expertise.” Science and Public Policy 30 (3): 157–162. Jasanoff, Sheila. 2005a. “Judgment Under Siege: The Three-Body Problem of Expert Legitimacy.” In Democratization of Expertise? Exploring Novel Forms of Scientific Advice in Political Decision-Making, edited by Sabine Maasen and Peter Weingart, 209–224. Dordrecht: Springer. Jasanoff, Sheila. 2005b. Designs on Nature. Science and Democracy in Europe and the United States. Princeton. Princeton University Press. Jasanoff, Sheila. 2011. “Quality Control and Peer Review in Advisory Science.” In The Politics of Scientific Advice: Institutional Design for Quality Assurance, edited by Justus Lentsch and Peter Weingart, 19–35. Cambridge: Cambridge University Press. Kelsen, Hans. 1955. “Foundations of Democracy.” Ethics 66 (1): 1–101. Kitcher, Philip. 2011. Science in a Democratic Society. New York, NY: Phrometeus Books. Kosack, Stephen, and Archon Fung. 2014. “Does Transparency Improve Governance?” Annual Review of Political Science 17: 65–87. Krick, Eva. 2017. “The Myth of Effective Veto Power Under the Rule of Consensus. Dynamics and Democratic Legitimacy of Collective Decisionmaking by “Tacit Consent”.” Revue Négociations 27 (1): 109–128. Krick, Eva. 2018. “The Epistemic Quality of Expertise. Contextualised Criteria for the Multi-source, Negotiated Policy Advice of Stakeholder Fora.” Critical Policy Studies 12 (2): 209–226. Krick, Eva. 2019: “Creating Participatory Expert Bodies. How the Targeted Selection of Policy Advisers Can Bridge the Epistemic-Democratic Divide.” European Politics and Society 20 (1): 101–116. Krick, Eva, and Cathrine Holst. 2019. The Socio-political Ties of Expert Bodies. How to Reconcile the Independence Requirement of Reliable Expertise and the Responsiveness Requirement of Democratic Governance.” European Politics and Society 20 (1): 117–131.

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Krick, Eva, Johan Christensen, and Cathrine Holst. 2019. “Between ‘Scientisation’ and a ‘Participatory Turn’. Tracing Shifts in the Governance of Policy Advice.” Science & Public Policy [online first] https://doi.org/10.1093/sci pol/scz040. Landemore, Hélène. 2017. “Beyond the Fact of Disagreement? The Epistemic Turn in Deliberative Democracy.” Social Epistemology 31 (3): 277–295. Lavertu, Stéphane, and David L. Weimer. 2011. “Federal Advisory Committees, Policy Expertise, and the Approval of Drugs and Medical Devices at the FDA.” Journal of Public Administration Research and Theory 21 (2): 211–237. Lehmbruch, Gerhard. 1975. “Consociational Democracy in the International System.” European Journal of Political Research 3 (4): 377–391. Lengwiler, Martin. 2008. “Participatory Approaches in Science and Technology: Historical Origins and Current Practices in Critical Perspective.” Science, Technology and Human Values 33 (2): 186–200. Lentsch, Justus, and Peter Weingart. 2011a. The Politics of Scientific Advice: Institutional Design for Quality Assurance. Cambridge: Cambridge University Press. Lentsch, Justus, and Peter Weingart. 2011b. “Introduction: The Quest for Quality as a Challenge to Scientific Policy Advice: An Overdue Debate?” In The Politics of Scientific Advice: Institutional Design for Quality Assurance, edited by Justus Lentsch and Peter Weingart, 3–18. Cambridge: Cambridge University Press. Lewin, Kurt. 1946. “Action Research and Minority Problems” Journal of Social Issues 2 (4): 34–46. Lijphart, Arend. 1997. “Unequal Participation: Democracy’s Unresolved Dilemma.” The American Political Science Review 91 (1): 1–14. Lord, Christopher. 2019. “No Epistocracy Without Representation? The Case of the European Central Bank.” European Politics and Society 20 (1): 1–15. Lövbrand, Eva, Roger Pielke, and Silke Beck. 2011. “A Democracy Paradox in Studies of Science and Technology.” Science, Technology, & Human Values 36 (4): 474–496. Maasen, Sabine, and Peter Weingart. 2005. “What’s New in Scientific Advice to Politics?” In Democratization of Expertise? Exploring Novel Forms of Scientific Advice in Political Decision-Making, edited by Sabine Maasen and Peter Weingart, 1–19. Dordrecht: Springer. Manin, Bernard. 1997. The Principles of Representative Democracy. Cambridge University Press.

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Part I Empirical Case Studies

2 Methodology, Theory and Context

2.1

Research Strategy, Case Selection and Methods

This subchapter describes the methodology of the case studies in terms of case selection, research strategy and methods. It starts by defining the object of inquiry in more detail.

2.1.1 The Object of Inquiry: Multi-level Arenas of Policy Advice and Consultation The organisations in focus in this book are set up by governments or parliaments (the ‘sponsor’ or ‘parent body’) to deliberate and agree on joint policy recommendations. A generic term for these kinds of organisations is used in this study, namely: arenas of policy advice and consultation.1 They can be composed of actors from various backgrounds, 1 Abbreviated generic forms are also sometimes used as alternatives (such as ‘advisory body’ or ‘consultation arena’).

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 E. Krick, Expertise and Participation, Palgrave Studies in European Political Sociology, https://doi.org/10.1007/978-3-030-75329-0_2

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such as interest groups, NGOs, scientists, civil servants, politicians, ‘ordinary citizens’, entrepreneurs and ‘practitioners’. In political practice they go under a variety of names such as ‘policy dialogues’, ‘expert commissions’, ‘consensus conferences’, ‘public inquiry committees’, ‘enquete commission s’, ‘minipublics’ or ‘citizen panels’. These are neither selfexplanatory nor protected terms, and the naming of an advisory body can be used by the parent body to send a message to an audience. Some of these titles point out the expertise-aspect, others emphasise public involvement or societal interests, again others stress the aim of interaction, dialogue and consensus-building. As mentioned in the preceding chapter, research on these organisations is fairly divided between studies on participatory arrangements such as randomly selected ‘minipublics’2 or online consultations on the one hand and studies on policy advice, expertise and advisory committees on the other (notable exceptions are Brown 2009 and Fischer 2009). The first cluster of arenas tends to be studied from a perspective of deliberation and participation, while policy advisory committees have primarily been the subject of public administration and science studies. Yet, a case can be made that the line between ‘advice’ and ‘participation’ is far from clear-cut. In the policy realm, both can be seen as forms of input by externals, i.e. agents that do not belong to the system of government in the narrower sense. What is more, most real-life advisory bodies are hybrid s that interlink the realms of academia, policy-making and the public. Therefore, an encompassing perspective on these organisations is taken here and all state-sponsored advisory bodies in the policy development phase are called quite plainly ‘arenas of policy advice and consultation’—irrespective of whether they may have been tailored more explicitly towards involving ‘the public’ or lean towards independent advice, for instance.

2

The term ‘minipublic’ these days often pertains quite specifically to randomly selected public deliberation fora, such as ‘consensus conferences’, ‘citizen juries’ or ‘planning cells’ in research (see Brown 2009, p. 251; Steiner 2012, p. 33), and this book follows this understanding. Yet, some authors also use the term in a more general sense for participatory settings that target the ‘the public’, and include town hall meetings and online debate fora that allow open access into the definition (see, e.g., Fung 2003, p. 338f.).

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The arenas in focus are special cases of policy advice and consultation bodies in some sense because they combine multiple layers and channels of input. The complex structures make it easier to integrate a large number of people and a variety of actor groups (such as academics, political parties, interest groups, civil servants, NGOs, lay citizens, practitioners) in a shared quest for a joint, consensual solution to a specific policy problem. Within the multi-layer structure, individual layers or sub-arenas may lean more towards academic expertise (say, an expert panel) or more towards citizen participation (an online debate forum, for instance). But all the layers are interconnected through transmission channels and a shared purpose (the mandate) and this makes the advisory bodies in focus here particularly auspicious in dealing with the epistemic-democratic challenge. Such multi-layered deliberative arrangements seem to spring up to an increasing extent in both governance contexts in focus here: A new study of the Norwegian context for instance demonstrates a tendency towards linking up classic expert commissions with annexed public deliberation fora and online consultation tools, which can be read as a response to the ongoing ‘participatory turn’ in policy-making (Krick et al. 2019). For the German context, recent studies have emphasised a general extension, hybridisation and informalisation of an advisory system that opens up to more diverse formats (Czada 2014; Veit et al. 2017). These empirical developments correspond to a trend in deliberative democracy studies, where attention has shifted away from isolated participatory formats, such as minipublics, towards a systems perspective that takes interconnections of deliberative fora and their political embedding into account (see, e.g., Curato and Böker 2016; Mansbridge et al. 2012). Arenas of policy advice and consultation, whether multi-level or simpler structures, do not possess decision-making authority, but formally have advisory powers only. A binding decision and further input legitimacy needs to be provided by the representative body that has set up the arena and seeks the advice. Since the advice often develops considerable de facto impact on policy-making, public debate or agenda-setting, advisory arenas are nonetheless a force to be reckoned with (Brown et al. 2005, p. 85; Maasen and Weingart 2005, p. 15). Especially formats that have been publicly visible can gain quite a reputation and it can be

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costly for policy-makers to deviate from the advice without an explanation (Lavertu and Weimer 2011, p. 232; Papadopulos and Warin 2007, p. 460). In any case, it is generally considered good practice to respond in some way to the received advice. The status of an advisory arena’s report and its likely impact also depend on the coupling with the system of government (see Chapter 6 in particular) and—especially in the consensus-oriented systems of Norway and Germany—the degree of conciliation it radiates (see below and Chapter 5). When advisory arenas integrate a broad range of different perspectives, actor groups and knowledge sources, they can add to the coordinated policy-making that consensus democracies depend on (Lijphart 2012).

2.1.2 Case Selection The cases selected for empirical analysis are the ‘Final storage committee’, the ‘Climate protection dialogue’ and the ‘Climate adaptation committee’. They all combine different levels and arenas of policy advice and consultation in a complex arrangement and bring together a range of different actor types. The first two cases were set up by the German Parliament and by a German government department, respectively, and delivered their reports in 2016. The Climate change adaptation committee was established by the Norwegian environmental department and delivered its report in 2010. The Climate protection dialogue and the Climate adaptation committee dealt both with the implications of man-made climate change on all sectors of society and suggested policy responses, but their mandates differed in scope. The first worked on suggestions to mitigate greenhouse gas emission quite generally, while the latter focused on the adaptation of the state planning system to climate change. The Final storage committee’s mandate was also relatively confined. It was tasked to agree on criteria and a procedure for finding a repository for highly radioactive waste. The three cases in focus in the first part of this book were selected, for one, because they represent quite different structures and therefore qualify well for an analysis of organisational success conditions. The Final

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storage committee and the Climate adaptation committee were, at their core, both classic committee structures with an array of loosely annexed channels of external citizen and expert input. The Climate protection dialogue was a network-like structure that involved different types of actors (stakeholders, lay, non-organised citizens, state representatives) through separate forums that were brought together within a so-called delegate committee and supported by scientific service providers.3 The cases were also selected because they seem (from the outset) to qualify as ‘best practice’ examples of reconciling ambitious epistemic and democratic standards. This means that they look very promising in both democratic and epistemic respects at a first glance, judging from those characteristics that are visible without conducting intensive case studies, such as the arenas’ self-descriptions or their membership lists. All cases provided for thorough scientific support, strove for broad inclusion and conciliation between affected interests, linked up with the general public and were committed to a high level of transparency. Whether the promising cases actually succeeded in delivering on both dimensions and how they dealt with tensions between the standards, needs to be analysed in detail, however. It can be expected that all real-world cases suffer from some insufficiencies and tensions when standards are high and complex. While it is surely also imaginable to learn from less ambitious or even bad examples, the here-applied ‘best-practice’ approach has the benefit of avoiding to apply standards to the cases that are external or marginal to them. Besides, it is likely that institutional design solutions are easier to identify when processes run relatively smoothly and the number of insufficiencies is lower, as expected in the selected cases. All selected arenas dealt with environmental issues, more precisely climate protection and nuclear waste policy. These are questions where the need for technical, scientific knowledge and pressures to extend public participation clash particularly strongly and the double epistemicdemocratic challenge can thus be studied under a microscope: The policy fields are characterised by many uncertainties and high risks. The

3

There were many further organisational differences, but since their description is an aim of the study, this will not be elaborated on at this point.

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issues in focus are highly technical and complex and expertise is therefore paramount for finding suitable solutions. At the same time, they are publicly contested, have redistributive implications and thus call for added societal inclusion and coordination efforts. In the environmental policy field, influential environmental pressure groups have been pushing strongly for a ‘participatory turn’ in policy-making all across Europe (Lövbrand et al. 2011; Krick et al. 2019). The success of these efforts is reflected by the codification of the demands in both national and international conventions and guidelines of environmental policymaking (see, e.g., BMU 2019; UN 1998 as well as Chapter 2.3). Political commitment to public participation and transparency has become strong in the field of environmental policy and on many issues within the field, including nuclear waste storage and climate protection, practices of deliberation and public appraisal are now quite firmly established in many European countries. By selecting cases from Norway and Germany, and embedding them into the European multi-level system, the study’s design cuts across the usual distinctions between EU and non-EU countries, between EU studies, national governance studies and comparative studies and between Nordic and other European countries. Although no systematic country comparison is conducted (see next section), the study’s design emphasises similarities between the countries that the usual comparative distinctions would not reveal because Germany and Norway are rarely part of the same study. The perspective sheds light on the European type of ‘consensus democracy’ of which both Norway and Germany are prime examples, its coordinated, multi-level ways of policy- and sense-making and the key role of arenas of policy advice and consultation in these systems more specifically. As Chapter 2.3 will elaborate, the countries share many additional similarities when it comes to the status of participation and expertise in political debates and practices and the embedding of the policy-making processes into EU and international law.

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2.1.3 Research Strategy and Methods The empirical studies (presented in Chapters 2.3.1–2.3.3) follow the interpretive methodological logic of qualitative case analyses. Through comprehensive investigations of three policy processes, in the midst of which three arenas of policy deliberation and advice stand, ‘thick descriptions’ (Geertz 1973) (or probably more accurately: thick examinations) of the phenomena are conducted that allow an in-depth understanding of the cases’ ‘dynamics’ or ‘storylines’. The case studies pursue three aims: Assessing the individual cases’ normative scores, explaining them and drawing institutional design lessons. First, an in-depth analysis of the normative achievements of the three cases is conducted. This is led by an assessment framework, which covers an epistemic and a democratic quality dimension, spans six normative criteria and specifies the corresponding indicators (see Chapter 2.2). The indicators that guide the empirical studies are based on a wide variety of relevant bodies of theory and they have been refined and adapted in an iterative process of comparing theory and data. The assessment framework not only guides through the research process, helps the researcher to keep an overview and allows a systematic incase-assessment. It also provides the basis for comprehensible cross-case comparison and discloses the judgements made as much as possible. Second, the research aims at explaining the different achievements, or ‘scores’, of the three cases in democratic and epistemic terms. An understanding of the individual cases’ dynamics is key for developing explanations and, for that matter, the study follows in many respects the qualitative inquiry method of process tracing (see, e.g., Waldner 2012). By tracing the process of policy development from agenda-setting and arena-set-up to report-delivery and (possible) implementation caseinternally (at first), the dynamics present within a single setting can be uncovered and a sequence of causal events (Nullmeier 2019) or ‘causal pathway’ (Gerring 2011) can be reconstructed. Such a causal pathway demonstrates ‘how things hang together’. It shows how the cases reached the respective scores, points at (un)favourable and unfavourable conditions and helps uncover mechanisms that link key factors.

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Third, the study aims at drawing conclusions about mechanisms and conditions of achieving high scores and reconciling the multiple normative demands. They are delineated from the causal pathways uncovered during within-case analyses, substantiated through cross-case comparison, and, especially in the second part of the book, developed into theoretical arguments that link up to a wider scope of additional, more specialised bodies of theory (e.g. theories on voting rules, on legitimate representation or the delegation of authority). Since in-depth case study research aims at maintaining and harnessing the holistic nature of empirical phenomena, it has to deal with complex interdependencies between numerable factors. A consistent, systematic and transparent approach is therefore paramount for attaining reliable conclusions about causal relationships. In this study, this means first and foremost that normative standards are made as transparent as possible and applied systematically. Second, the detailed case descriptions provide for comprehensive and plausible narratives that make it traceable how the individual scores came about, how tensions were dealt with and why exactly cases differ. It also adds to the clarity, comprehensibility and reproducibility that the focus is narrowed to three selected analytical levels of political arenas (i.e. participation patterns, decision process, environmental coupling) and to conditions that can be influenced by design efforts. In contrast to social-psychological or emotional mechanisms, for instance, the focus on organisational and institutional conditions extends the scope and usefulness of the findings because, these factors can (relatively easily) be adjusted intentionally and thus reproduced. To be sure, every small-n-study suffers certain problems of representativeness when compared to large-scale cross-case comparisons. An in-depth comparison of three cases does not achieve sample representativeness and will not reveal causal laws. The standards of reliability and generalisability adhered to here differ from the quantitative paradigm. They rely first and foremost on the rigour, depth, transparency and consistency of the empirical analysis. Besides, in terms of generalisability and the scope of propositions one has to distinguish between the descriptive normative assessments and the explanatory elements. The description of the three cases’ normative scores does not claim to be

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generalisable across the universe of advisory processes. Yet, the revealed conditions and mechanisms promise to hold a certain value beyond the cases in focus because they are likely to be reproducible—or avoidable—and to therefore yield similar results in comparable contexts. This partly has to do with the adjustable nature of organisational and institutional conditions, as mentioned above, but also with the ‘best practice’ approach to case selection and the comparison of three relatively similar cases. The selection of cases is critical in case-based research and this study follows the strategy of outstanding cases (e.g. extreme situations, critical incidents and striking organisations, see Fiss 2009, p. 427) of the same kind. It focuses on multi-level advisory and consultation arenas that aimed very high in terms of both expertise and transparency, and, judging by structural criteria, also seemed to score pretty high (see above). It is important to note that the study is not designed as a systematic country comparison. It is not the aim of the study to find out differences between countries. It aims at describing (mainly organisational and institutional) differences between the respective advisory arenas in organisational and normative terms, at finding out why some cases scored higher than others on the two dimensions and how tensions between normative standards were in some cases moderated. On top of insights about the conditions of successful policy advisory procedures, the in-depth studies conducted here also shed light on some background features that the countries share, i.e. coordinated decision-making and the merits of multi-level arenas of policy advice and consultation.4 Successful case studies tend to combine evidence from multiple sources and foster triangulation across different data sources (Fiss 2009, p. 427). To that effect, the study builds on several pillars of data: First, over 50 expert interviews with appointing authorities, members of the advisory arenas and policy observers; second, participant observations

4 Despite many similarities of the two contexts, there are of course also a range of institutional and cultural differences, not only between the countries, but also between the climate policy field and the nuclear waste storage issue or between classic committee structures and more network-like advisory structures. If relevant, these differences will be taken into account and described in the case studies.

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in the two more recent cases; third, several hundreds of official documents such as the mandates of the advisory arrangements, their reports, minutes, participation lists, the (in some cases mandated) studies and material the advisors worked with, the statutory bases of these organisations and the regulations and codes regulating their operation or laws implementing the proposals; fourth, media reports and civil society statements about the respective policy process, which help to embed the advisory process and understand conflict lines. The data is interpreted following a theme-based version of qualitative content analysis that is particularly suited for the theory-led, targeted analysis of documents and expert interviews and the aim of process tracing (Froschauer and Lueger 2003). The ‘themes’ that structure the content-analysis are the criteria of ‘good’ expertise and participation described in the study’s normative framework. They build on a wealth of theoretical debates, are specified by empirical insights and broken down into clearly stated, contextualised indicators that can be applied to the cases (see Chapter 2.2). The interpretation follows a qualitative inquiry logic that strives for ‘theoretical saturation’, i.e. a point of relative assurance where no further ideas or facts come up that contradict the developed understandings of the empirical phenomena (or, if they do, are openly dealt with in the analysis).

2.2

Normative Assessment Framework: Quality Criteria of Democratic Participation and Reliable Expertise

2.2.1 The Structure of the Assessment Framework This subchapter develops the normative assessment framework that guides the case studies. It allows to systematically analyse and make transparent how ‘good’ the empirical advisory processes were in epistemic and democratic terms. The framework is structured in the following way: It consists of two overarching normative dimensions and two guiding principles, three analytical levels that structure both dimensions in the same

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Table 2.1 The normative assessment framework of democratic legitimacy and epistemic authority Normative dimensions (and principles)

Analytical levels (a) Participation patterns

(b) Process (c) Coupling of with the deliberation environment

Democratic legitimacy (Democratic participation)

Equal involvement of the affected

Fair, inclusive deliberative procedures

Epistemic authority (Reliable expertise)

Trustworthy and diverse advisors

Thorough, reasonbased epistemic practice

Potential resonance of the advice in the political sphere Potentially problem-solving advice

way, a range of assessment criteria and even more empirical indicators (see Table 2.1). These layers will be distinguished in the following and some key concepts will be defined. The framework and the book in general distinguish between two key normative dimensions: The dimension of epistemic authority and the dimension of democratic legitimacy. Both are relational concepts of worth, i.e. they depend on being recognised as valid (by democratic subjects or recipients of testimony, for instance), they are comparative phenomena and they are normative in the sense of assuming certain standards or values. Democratic legitimacy denotes the acceptability of claims to political authority from the standpoint of the rule of the people, while epistemic authority relates to the validity of knowledge claims (see Chapter 2.2.3). These broad and abstract normative dimensions are in a first step broken down into two normative principles that capture the essence of what epistemic authority and democratic legitimacy mean in processes of policy advice and consultation. These two principles are termed reliable expertise and democratic participation. What they entail exactly will become clear in the course of this subchapter. For the moment, two concise definitions shall suffice: ‘Democratic participation’ means that all those affected by a political decision have a chance to influence it, whether directly or through representatives. The epitome of

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‘reliable expertise’ are well-justified, problem-adequate and consensual claims supported by a plurality of trustworthy experts. Both notions are compounds of the same three analytical levels (or parameters): a) the level of the participation patterns of the advisory arena, b) the level of collective decision-making and deliberation and c) the political embedding or coupling of the advisory body with the socio-political system (see Table 2.1). In accordance with these analytical levels, the assessment criteria that are developed in the course of the chapter and broken down into indicators relate to the properties of individual and collective actors (those involved in policy advice and consultation), the actors’ practices and interactions (the advisory and consultation process) and the way the outcome of interaction is taken up by the environment (the impact of the policy advice). Table 2.1 gives an overview of key elements of the framework. The criteria will be discussed and presented in more detail in the next sections and operationalised by means of presenting empirical indicators. The distinction between the epistemic and democratic dimension can appear blurry because, partly, similar factors matter in the two dimensions but take different shadings: For instance, the properties of the involved individuals are a key factor for both epistemic authority and democratic legitimacy. Yet, from a democratic perspective it is the affectedness and representativeness of a person that makes her input valuable, while from an epistemic perspective it will be her competence. For another example, from both perspectives, an individual’s viewpoint does not have the same authority as a collective’s position. Yet, on the epistemic dimension, it has to do with the higher validity and reliability of generalisable, shared knowledge claims. On the democratic legitimacy dimension, a group’s consensual position might not be ‘truer’, but if it represents the integrated position of those affected, it rightly assumes influence on political decisions. Despite these overlaps between democratic and epistemic quality criteria, it is nonetheless possible and a key aim of the study at hand to keep them analytically apart and analyse these dimensions independently from each other—not least to learn more about their relationship, the tensions between them and the room for reconciliation. This means that within the dimension of epistemic authority, knowledge quality, not

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democratic quality shall count, and vice versa. This may seem trivial, but for this study’s perspective it is important to orient the quality criteria of expertise towards epistemic validity, not democratic legitimacy, public involvement or political robustness, which are alternative criteria discussed with reference to the role of expertise in the policy context and which are often blended with democratic concerns in existing studies (see, e.g., Jasanoff 2003; Lentsch and Weingart 2011a; Nowotny et al. 2001). The criteria and indicators suggested have to be understood as contextualised, i.e. they are attuned to the specific kinds of collective bodies in focus here. If we were looking at another political institution, such as parliamentary standing committees or elections, the questions of democratic legitimacy and epistemic authority would pose themselves differently and other indicators would play a role. For instance, since policy advisory arenas typically have no legal authority, the question of impact is important for both epistemic and democratic concerns in this context, but it would not be as relevant for parliamentary activities. The assessment framework furthermore takes into account the importance of coordination for political decision-making in the two countries analysed. This means that the criteria fit the political and epistemological cultures of consensus democracies with their need for coordination and compromise and their corporatist power structures, but they would not necessarily sit as well with the ‘civic epistemology’ of Westminster democracies, for instance (see Chapter 2.3).

2.2.2 Democratic Participation In its most simple way, (political) participation can be defined as the variety of voluntary actions by those outside the system of government that aim at influencing policies or politicians (Gabriel and Völkl 2005, p. 528; Huntington and Nelson 1976, p. 3; Kaase 1997, p. 160; Verba et al. 1995, p. 38). Despite very positive connotations and a general ‘participatory enthusiasm’ (Polletta 2016; see also Krick et al. 2019; Meriluoto 2017) in modern societies, there is usually little agreement on what constitutes ‘good’ participation (Fischer 2009, p. 101), and this has

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to do with participation not necessarily being particularly ‘democratic’ or ‘good in itself ’ (Brown 2009, p. 223): If election turnout falls to very low degrees, if only the very privileged get involved in policy-making, or participatory endeavours are completely detached from actual political decision-making and amount to ‘token exercises’, the democratic quality of participation is compromised. Besides, there is a wide spectrum of expectations towards participation, reaching from the relatively humble aspiration of being informed or asked for one’s opinion over to the idea of genuine empowerment. To qualify as democratic participation, some straightforward conditions need to be met: ‘Participation is democratic when every individual potentially affected by a decision has an equal opportunity to affect the decision’ (Warren 2002, p. 693). In other words: ‘The normative legitimacy of a democratic decision depends on the degree to which those affected by it have been included in the decision-making process and have had the opportunity to influence the outcomes’ (Young 2000, pp. 5–6). In both of these normative definitions, two dimensions of participation shine through: An inclusion or equality dimension and an effectiveness or impact dimension, which could also be called the input and output dimension of participation. This two-dimensional understanding of ‘good’, i.e. democratic participation, can be found, implicitly or explicitly, in normative democratic theory and empirical participation analyses, and in both moderate and so-called radical approaches (Fung 2006, p. 66; Gabriel and Völkl 2005; p. 528; Krick 2014, p. 10f.; Marien et al. 2010, p. 140; Rowe and Frewer 2000, pp. 12, 14; Pateman 1970, p. 42; Verba et al. 1995, p. 1; Warren 2002, p. 693; Young 2000, p. 24). Despite being relatively straightforward, this understanding of democratic participation, when thought through, integrates many of the key norms of democratic self-rule, as will become clearer below. It is a notion of participation that is complementary, not opposed to representation and therefore also considers questions of accountability.5 It extends 5 Representation means to speak, act or be present for another person or group. Whether the representatives mirror those they stand for statistically, have been authorised to act or stand in accountability relationships, are important normative questions that denote the legitimacy of the representation. Accountability is the requirement of representatives to answer to the represented and accept some responsibility for failure to advocate the interests of the represented.

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beyond mere participation patterns, i.e. the structure of involvement, and allows attention to the practice of deliberation in participatory fora and the ‘substantive’ (or ‘de facto’) inclusion of all voices in the decision process. It furthermore includes an effectiveness (impact or output) dimension alongside the obvious input or equality dimension. The following sections spell out what democratic participation amounts to when broken down to criteria and indicators (see also Table 2.2 for an overview). The focus lies first on the equality dimension, and more Table 2.2 Three bodies of democratic participation Analytical dimensions

(a) Participation patterns

(b) Process of deliberation

(c) Coupling with the environment

Quality criteria

Involvement of the affected

Inclusive deliberations

Indicators

- Inclusion of all seriously and permanently affected viewpoints, either directly or through representatives - Legitimate representation (based on accountability relations or descriptive similarity; at least one representative per viewpoint needs to be present) - Additional, low-threshold public input channels - Sufficient public insight into advisory process

- Participants show mutual respect - All involved have an equal voice - Absence of silencing, suppression or de facto exclusion of viewpoints - Commitment to reason-based deliberation - Explicit consensusorientation - Reasonable procedural transparency

Potential political impact - Interaction, transmission, feedback and scrutiny channels between government, deliberating arena and the public - Resonance of suggestions in the political realm (policy change, agenda-setting effects, etc.)

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specifically on participation patterns (a) and on the deliberative process, (b) and then on the impact dimension (c). One of the key constituents of democracy is equal involvement. It decisively adds to realising democratic self-rule. The idea of equal involvement not only benefits the individual citizen because everyone gets the chance to influence decisions (effects of empowerment and selfefficacy). It also has important collective implications, since it endorses the democratic undertaking on a larger scale (and of course it also has epistemic effects, see Chapter 3.2.3). (a) While the equal involvement norm might seem straightforward at first glance, it is actually not easy to realise if it pertains to every citizen (or every inhabitant) co-deciding on simply everything that needs to be decided. As a first qualifier of equal involvement, many definitions of democratic participation, including the ones given above, emphasise the affectedness criterion, which takes as its starting point the interests that are affected by a political decision. According to this logic, those not concerned do not have to be involved. Determining the circle of affected interests is certainly a challenging task. It is not straightforward or selfexplicatory and it depends on the substance of decision-making. It has to be established anew in every case and, of course, the decision content can change, not least with the composition of the group (Goodin 2007, p. 52). This book follows Fung’s (2013, p. 247ff.) dynamic and pragmatic understanding of the principle of affected interests, which keeps the boundaries of the affected round to some extent flexible and limited to ‘regularly or deeply’ affected ‘important’ interests (see also Rowe and Frewer 2000; Warren 2002; Young 2000, pp. 5–6).6 If we accept the criterion of affected interests, the next question then is how and to what degree those affected are to be involved. While it might seem ideal at first glance to let everyone concerned decide directly on every issue, in modern mass democracies, ‘no person can be present 6 While Goodin states that the principle of affected interests requires ‘giving virtually everyone everywhere a vote on virtually everything decided anywhere’ (Goodin 2007, p. 68), I contend that the principle actually limits the scope of involvement somewhat. Not everyone is in fact affected by virtually everything everywhere. Besides, whether everyone is to vote, i.e. decide directly on questions of concerns, is an issue that can be considered independently of the affectedness condition (and I do this here).

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at all decisions or in all decision-making bodies whose actions affect her life’ (Young 2000, p. 124) and the idea of direct participation in all these decisions thus seems ‘fanciful’ (Dahl 1994, p. 32; see also Fung, 2006, p. 66). Because of constraints of time, motivation and other resources as well as the complexity of many political problems, people can only directly participate in some decisions on certain selected issues, while in all other cases ‘stakeholder’ or ‘delegated participation’ (Warren 2002, p. 686; see also Ansell and Gash 2007), i.e. indirect participation through representatives, needs to be the rule. The need to select representatives is exacerbated by the limited seats that the advisory and consultation arenas looked at here can provide. Whenever a selection needs to be drawn and delegates are chosen, questions of representativeness, i.e. legitimate representation, pose themselves. There are different ways of ensuring that representation is legitimate. The most relevant forms for the cases looked at here are the following: a) Descriptive representation relies on the similarities between the selected and those they stand for. It is usually applied to basic demographic criteria such as age, sex or educational background and realised by random selection. b) Substantive representation relies on acts of authorisation and accountability between the selected and their constituency, which can be more or less direct and formalised (Brown 2009; Krick 2014, 2020; Pitkin 1967; Saward 2010; Urbinati and Warren 2008; Young 2000). Both ways of ensuring the representativeness of delegates are demanding. The first presupposes a relatively large sample and relies on an ‘identity notion’ of representation (Young 2000, p. 126ff.; see Chapter 4 for a more thorough discussion). The second relies on a certain degree of organisation, and ideally, a membership structure as well as ongoing, close relationships between delegate and constituency. Public input fora such as online consultation tools or citizen conferences often do not fulfil such representativeness criteria. They do not necessarily have to be ruled out for that reason, because the low entry threshold may open access to so far undiscovered perspectives and resources. Yet, one should not generally assume that the voices raised through these channels legitimately stand for others and attribute high authority to them on that basis. To ensure meaningful participation through public input channels

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in particular, transparency in terms of disclosure of accessible, assessable and comprehensible information (here: publicly available, authentic and comprehensible documentation of the advisory process and all relevant scientific and official documents) is important, because it minimises information asymmetries and is a requirement of effective scrutiny by the attentive public (Etzioni 2010, p. 399; Gutmann and Thompson 1996, p. 95; Lövbrand et al. 2011, p. 480). (b) Of major importance for substantiating equal involvement in the cases looked at is the quality of the deliberation process when developing policy proposals. Equal access and participation patterns are one thing, but at the level of interaction, various mechanisms of exclusion can reduce the ‘structural’ representativeness of a group again and lead to ‘internal exclusion’ of those formally involved (Young 2000, p. 55). Being present alone does not suffice for meaningful participation, to speak and be heard is what counts in deliberative settings (Webler and Tuler 2000, p. 576). For that matter, the deliberation process needs to be fair, inclusive and cooperative, reason-based, reasonably transparent and oriented towards consensus. Fair and inclusive procedures of communication and decision-making are characterised by mutual respect and by giving an equal voice to all. All participants have an ‘equal opportunity to influence the process, have equal resources, and [are] protected by basic rights’ (Mansbridge et al. 2010, p. 65). A joint commitment to consensus (expressed in speech or in rules of procedure, for instance) can safeguard the sovereignty of participants since it balances power relations, stipulates inclusive and cooperative processes and fosters decisions that everyone can live with (Ansell and Gash 2007, p. 557; Fung 2006, pp. 67, 69; Young 2000, p. 2). Coercion is illegitimate: ‘Participants should not try to change others’ behaviour through the threat of sanction or the use of force’ (Mansbridge et al. 2010, p. 66; see also Steiner 2012, p. 37). Reason-giving is required and central to good deliberation and these reasons need of course be listened to and formulated in a way that others can understand (Mansbridge et al. 2010, p. 65f.). An expansive concept of reasons that is not limited to rational arguments in the narrow sense but includes other means of expression and consideration (such as stories, humour or demonstrations) and does not devalue embodied

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and passionate speech styles, can add to the inclusiveness of deliberation and compensate for social privilege (Fischer 2009, p. 193; p. 200ff.; Mansbridge et al. 2012, pp. 4–5; Young 2000, pp. 39f., 53ff.). Questioning the rationality imperative that has been described as culturally biased and benefitting white, educated, middle-class men (Young 2000, p. 40), can not only compensate for social privilege. It can also open up the deliberation to perspectives and styles of interaction that are less confrontative, undermining and aggressive (Fischer 2009, p. 203) and thus more adequate for consensus-oriented settings and cultures. What may sound easy is actually not as straightforward. Many of these quality conditions are ambiguous, complex and in some way contested, and several potentially conflict with each other. For instance, there is a certain tension between the authority of consensus and the ubiquity and legitimacy of societal and political conflict. Conflicts of interest are a fact of life and constitutive of pluralist democracies, and contestation is an important part of the deliberative process and should not be suppressed. Scholars have rightly pointed out that ‘a careful review of evidence’ does not guarantee consensus and that disagreement cannot be eliminated by being rational because ‘reasonable people can disagree’ (Rosen 2001, p. 70f.) even after long debates. Irresolvable disagreements exist and deliberation occasionally only leads to clarifications of conflict and to ‘structuring of disagreement’ (Mansbridge et al. 2010, p. 68). Sometimes majority decisions stand at the end of a good deliberation process (Mansbridge et al. 2010, p. 69; see also Manin 1987, p. 360), and ‘complete agreement’ is surely very rare (Young 2000, p. 118). Yet, this does not change the fact that consensus is the superior outcome from an equality perspective, and that in discursive processes that try to avoid coercion, ‘reasoned consensus’ is the most desired end point that closes down contestation and concedes collective decisions (Lövbrand et al. 2011, p. 485). Besides, while reaching consensus can and should not be forced (Mouffe 2013, p. 8; Young 2000, p. 108), voluntary commitment to finding a joint, widely backed solution already makes deliberations more cooperative and inclusive (Fung 2006; Krick 2017; Mansbridge et al. 2012; Young 2000). To be sure, in policy-making, understanding each other or structuring disagreement is not enough, because decisions about the way forward

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need to be made. In the contexts analysed here, a whole bundle of issues are usually debated and this opens up room for a range of conflict management strategies, such as temporary displacement of conflicts, reframing or package deals. A certain tension also exists between ‘levels of inclusion’ and ‘levels of civility’ in group decision-making (Mansbridge et al. 2012, p. 19). The quality of deliberation rises with face-to-face communication, mutual recognition and understanding, careful arguing, reasoning and convincing others and such processes work better in relatively small collectives (Bächtiger et al. 2005, p. 236; Lafont 2015, p. 46; Papadopulos and Warin 2007, p. 451; Ryfe 2005, p. 51). Another tension has been described between the civility of deliberations and the amount of publicity (Steiner 2012, p. 125ff.). There is a widely acknowledged danger that public gaze leads to ‘demagoguery, misinformation, inflammatory rhetoric and flattery, put in the service of a predetermined agenda’ (Chambers 2005, p. 256; see also Lafont 2015, p. 46). If deliberations are public, especially stakeholders will communicate with their constituency. They will be less likely to concede to other viewpoints and at the same time more inclined to tell their clientele what it wants to hear. Although successful negotiations thus depend on a certain degree of discretion, closed doors is not an ideal solution, because transparency is an important precondition of public scrutiny. Some authors have suggested to let some parts of the debate play behind closed doors while others remain open to the public eye (Goodin 2005), or ‘to leave the door ajar’ (Landwehr 2010, p. 105f.) so that at least the attentive public (not the all-encompassing ‘general public’) and journalists can listen in. It also seems reasonable to distinguish between different forms and stages of transparency, e.g. to avoid ongoing ‘policy control’ and give preference to ex ante and ex post access to online available, authentic documentation of the advisory process (Busuioc 2009; Krick and Holst 2018; see also Chapter 6 for a more thorough debate). (c) Impact or effectiveness of democratic participation is more or less guaranteed when citizens participate through elections that develop direct binding force. The question of impact becomes more urgent when one looks at deliberative, consultative and advisory channels of participation, which do not have the authority to take legally binding decisions.

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For that matter, studies of participatory governance, expertise and policy advice have pointed out that the input provided through such consultative channels of participation needs to at least have a chance to spillover to (Steiner 2012, p. 43) or resonate in the political sphere (Hansen and Allansdottir 2011, p. 611; see also Fung 2006, p. 66; Krick 2014, p. 11; Marien et al. 2010, p. 140; Rowe and Frewer 2000, pp. 12, 14; Warren 2002, p. 693, Young 2000, p. 24). In its most direct form, resonance relates to policy change but it also involves softer or indirect forms of impact, such as agenda-setting, the connection of previously unconnected social sites and actors, the formation of a shared identity between some of those involved (‘brokerage’, see Loeber et al. 2011, p. 602f.) as well as increased publicity and raised public sensitivity towards concerns of particular social groups (Brown 2009, p. 254). This does not mean that every participatory practice must be guaranteed an immediate effect. In fact, whether impact is desirable in individual cases hinges on input qualities and the epistemic value of the respective deliberations (Fung 2003, 2006; Krick 2018; Lafont 2015). What is important is that participation is meaningful and serious, not ‘pseudo-participation’ (Pateman 1970, p. 68f.) that is set up as a token exercise or for manipulation purposes (Fischer 2009, p. 74; Young 2000, p. 24). To be taken seriously and potentially resonate, consultative and advisory participatory formats need to be firmly embedded into the policy process (Fung 2006; Rowe and Frewer 2000). Such embedding can be ensured by establishing or stabilising ongoing relationships between the advisory arena and its environment. A key way is to provide for institutional coupling (Mansbridge et al. 2012, p. 23; see also Hendricks 2016) with representative, authoritative political institutions. This can mean to provide for organisational linkages that facilitate two-way communication between participants of an advisory setting and policy-makers as well as the wider public and that perpetuate the relationship through processes of mutual influence, adjustment and account-giving (Brown 2006, p. 213; Irvin and Stansbury 2004, p. 59; Krick 2020, p. 8; Lentsch and Weingart 2011c, p. 371). For public input fora such as randomly selected minipublics, coupling is particularly important (though often neglected, see Steiner 2012, p. 33ff.), because

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these formats tend to be more informally institutionalised than classic expert commissions7 (see Chapter 6 for more details). Summing up, this book suggests to assess the democratic legitimacy of political participation by analysing, first, the inclusiveness of patterns of participation and the deliberative procedure. Key questions for this input or equality dimension of participation are: Has the processes involved all the affected, directly or through stakeholders? Was the deliberation fair, inclusive, reason-based, consensus-oriented and recently transparent? It further assesses the output dimension of participation and judges the resonance and coupling of arenas of policy advice and consultation with their environment, by asking: Has the endeavour had the chance of developing impact in the wider political sphere?

2.2.3 Reliable Expertise Before quality criteria for reliable expertise are specified, some key epistemic concepts need to be discussed. ‘Expertise’ is distinguished from ‘science’ and a pragmatic notion of ‘knowledge’ is adopted. On that basis, an understanding of ‘good’, i.e. reliable expertise is developed and operationalised (i.e. criteria and indicators are specified). Expertise shall be understood as the specialised knowledge that experts hold (see also Pfister and Horvath 2014, p. 311) and ‘expertise’ is therefore used synonymously to ‘expert knowledge’ in this book. While it is of course ‘notoriously difficult to identify, beyond controversy, who are experts and who are non-experts in different cases’ (Holst and Molander 2017, p. 237), one can say that the social status of an expert is usually attributed to individuals who are considered to have better analytical skills, more knowledge, training or practical experience in a certain field than others (Holst and Molander 2017, p. 237f.; Jasanoff 2005, p. 211; Nowotny et al. 2001; Pierson 1994, p. 401; Straßheim 2008, p. 292). As mentioned above, both ‘expert’ and ‘expertise’ are relational, comparative and normative concepts and their appropriateness or validity depends

7 Expert commission shall refer to the ideal type of an advisory body that is quite formalised, scholarly composed and mainly deals with scientific and technical issues.

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partly on being recognised by others. ‘Expertise is always about something that is relevant to an audience’, or required by it (Rip 2003, p. 420; see also Beck 2012, p. 11; Jung et al. 2014, p. 403; Krick 2015, p. 490). It is further characterised by its advisory nature (Nowotny 2001, p. 151; Pfister and Horvath 2014, p. 311; Straßheim 2013, p. 68f.), its applicability and its practical use (Haas 2004, p. 573; Krick 2015, p. 490; Scholz 2009, p. 188). Expertise therefore relates to something that is to some extent original, non-ubiquitous and not held by everyone (hence ‘specialized’ knowledge). One would usually not use the term for everyday knowledge acquired by doing something often (e.g. switching on the light), if this knowledge is not useful for others. Although academics certainly are an important type of expert, it is broadly acknowledged in science studies (and beyond) that science is not the only source of useful expertise in the policy context (see, e.g., Collins and Evans 2002). What is more, science has repeatedly disappointed the expectation of generating ‘neutral’ knowledge because of personal biases, dependencies and more general limits of knowing the truth (Holst and Molander 2017, p. 237ff; Jasanoff 1987, 2005). ‘Purity notions’ of scientific knowledge and the idea of ‘science speaking truth to power’ have been countered—within science (and technology) studies, in particular—by calls for a ‘democratisation’ of expertise that includes various kinds of knowledge from different backgrounds (Jasanoff 2003; Nowotny 2001). Indeed, many other professionals can provide relevant expertise in the policy realm. Key amongst them are stakeholders and civil servants. There are also many non-certified sources of expertise, and under certain conditions, the expert status can also apply to ‘lay’ citizens who hold ‘experiential expertise’ or ‘local knowledge’ (Beck and Forsyth 2015, p. 15; Collins and Evans 2002, pp. 238, 266; Fischer 2000, p. 193ff.; Maasen and Weingart 2005, p. 14; Meriluoto 2017, p. 295).8

8 ‘Local knowledge’ can be defined as the specialised insights that users of a locality, such as farmers or residents, hold. It is to a large degree ‘experiential’ or ‘experience-based’, i.e. obtained through practice, and not through training and research.

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Because expertise and science are not the same thing and because of the relevance of non-scientific experts in the policy realm, the epistemic quality of expertise cannot simply be subjected to the science’s sophisticated internal mechanisms of quality control, such as its ‘peer review’ publication system, its numerous gatekeepers and the restricted processes of entry (Jasanoff 1987, p. 196; Turner 2014, p. 282ff.). Even the science’s distinctive methods of analysis and modes of conduct have limited value when we look at settings that collectively agree on policy advice by applying procedures of deliberation and bargaining and that are therefore subjected to the logics of social choice, political power and group dynamics. Whether provided by scientists or non-scientific experts, expertise that instructs policy-making needs to answer to quite different validity standards than scientific results. For instance, while scientific results need to jump the publication hurdle, for which, amongst other things, their ‘originality’ counts (Lentsch and Weingart 2011c, p. 365), expertise that is meant to guide policy decisions is considerably more useful and reliable when it represents scientific consensus. When formulating epistemic quality criteria for expertise (i.e. trying to capture what is ‘good’ or ‘reliable’ expertise), it helps to clarify the concept of knowledge underlying the idea of expertise. Knowledge has been defined differently for different purposes and from different viewpoints, for instance in a functionalist way as the ‘collective agreement of closure of a debate’ (Gelfert 2011, p. 301), or as interpretations and convictions from an interpretive point of view (Nullmeier 2013, pp. 22– 23). The most common definition of knowledge within epistemology is arguably that of ‘justified true belief ’. To distinguish knowledge claims clearly from other (authority) claims, and to allow (normative) judgements of their value, this truth-orientation is important. This does not mean, however, that it would be easy to identify immediate expressions of this truth, which can be assessed directly. First of all, quite generally speaking, there are only very few cases in which the question of truth arises and where we can easily determine whether something is true or not. When it comes to issues that are contested, that touch upon social matters and are complex, there is typically no simple way of determining whether knowledge claims are true. For instance, whether my laptop sits in front of me, I can know for a fact because of the sensual experience

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of using my eyes and hands. It is usually not a knowledge question that needs to be answered, however. That it has over 500 GB storage space, I can be pretty sure of, although even there I am unable to prove it and have to trust its information sheet and the fact that its producer has not been caught for fraud in this respect. When it comes to slightly more complex statements, such as ‘Germany is the world’s strongest export economy’, the truth-degree of this statement depends at least on the definition of ‘export’. The positive connotation of the word ‘strong’ in this context may also be contested and because of the lacking time-reference, the implied eternal validity is doubtful. Such limits of knowing the truth pertain exceedingly to the kind of epistemic claims that this study looks at. The expertise generated in policy advice settings only very rarely merely consists of simple and uncontested factual information about the world. Instead, it is usually complex, value-laden and often particularly sought after in situations of risk and uncertainty. Moreover, at the heart of the reports, which policy advisory and consultation arenas produce, are suggestions on how best to act and decide, and not statements of facts that can easily be proven right or wrong. The matter that makes up the bulk of a policy advisory report are usually not ‘epistemically esoteric statements’ (Goldman 2001, p. 94) that are observationally verifiable by everybody. What is more, an ‘expert-layperson dilemma’ (Goldman 2001, p. 89ff.) typically arises when appraising expert statements: Since specialised knowledge is per definition only held by very few and since we are therefore usually not experts in the respective field ourselves, we are usually unable to judge the validity of expert claims directly (Fischer 2009, pp. 2–3; Holst and Molander 2017, p. 237ff.; Scholz 2009, p. 199; Turner 2014, p. 34f.). For all these reasons, the knowledge claims looked at here tend to remain to some extent contested and subject to perspective and largely defy (simple) truth/falsity-classifications. This does not mean that the truth-orientation and the knowledge notion have to be given up, but that epistemic proxies need to be applied that are adjusted to the contexts and kind of knowledge in focus. When developing these more specific epistemic quality criteria, it helps to base one’s understanding of knowledge on a pragmatist point of view and conceptualise it as a normative concept that is used to allow orientation in

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the world . From that perspective, valid expertise (i.e. the knowledge form looked at here) needs to be reliable, i.e. trustworthy, reason-based and potentially problem-solving (in the respective situation). What this means for the three analytical dimensions and which indicators can be deduced, is spelled out in the following (see also Table 2.3 for an overview). The focus lies first on patterns of expert involvement (a), then on the epistemic practice of deliberation (b), and then on the problem-solving capacity of the generated expertise (c). Table 2.3 Three bodies of reliable expertise Analytical dimensions

Criteria

Indicators

(a) Participation patterns

(b) Process of deliberation

(c) Coupling with the environment

Plurality of experienced, competent, independent experts vis-à-vis the issue in question - Plurality of professional and disciplinary backgrounds - Track record of experience, competence and practice in the field - Affiliation with politically independent, not-for-profit organisations - Minimisation of biases, open dealing with conflicts of interests - Default criterion: individual track record of non-deception

Reason-based debate of all relevant expert standpoints

Problem-solving capacity of the advice from policy-makers’ and experts’ perspectives

- Open dispute and confrontation of all voices - Commitment to justification of viewpoints and thorough problem analysis - Serious dealing with experts’ opinions - Access to and use of necessary scientific, technical assessments

- Policy-makers’ perspective: Politically relevant, applicable, consolidated, implementable, enforceable suggestions - Scientific perspective: Suggestions address the problem, rely on technically accurate calculations, on peer-approved, thorough analysis and adequate methods

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(a) Relating to individual experts, reliability or trustworthiness is ‘enshrined in the figure of the good informant’ (Fricker 1998, p. 163). It is, for one, indicated by a professional track record of competence, proficiency, practice and ‘cognitive success’ (Goldman 2001, p. 106) in the particular knowledge field, and thus by training, work experience, academic degrees and professional affiliations for instance (Fricker 1998; Fung 2006; Goldman 2001; Holst and Molander 2017; Jasanoff 2005; Lentsch and Weingart 2011b, c; Mansbridge et al. 2012; Pierson 1994; Young 2000). Another crucial indicator of expert trustworthiness is independence from private interests, financial concerns and political ties, signified, e.g. by affiliation with not-for-profit research-oriented organisations, such as universities, and a certain distance to the appointing authority (Goldman 2001, p. 93; Haas 2004, p. 576; Lentsch and Weingart 2011b, p. 15; 2011c, p. 361; Rowe and Frewer 2000, p. 14; Verhoest et al. 2004, p. 105). Full-time academics with a long-standing research focus on the issue in question are arguably amongst the most experienced, specialised and competent, and also usually amongst the most independent from private interests, financial concerns and political ties. When stakeholders are attributed the role of experts, they may fulfil the practice- or the ‘cognitive success’-criterion rather easily, but fare less well in terms of independence, because (in their second role of ‘societal representative’) they are expected to be ‘interested’ and have ties with certain societal perspectives. For these types of actors, the minimisation of biases, critical scrutiny and an open dealing with potential conflicts of interests gain importance (Haas 2004, p. 575; Lentsch and Weingart 2011c, p. 366). The competence and independence criteria can be combined with a minimum standard or default criterion, i.e. an individual record of ‘non-deception’ (Fricker 1998, p. 163) or of ‘past reliability’ (Brown 2014, p. 53). Arenas of policy advice and consultation are not individual endeavours of expertise production but collective practices, and on this collective level, epistemic value lies in involving a plurality of trustworthy experts from all relevant fields, disciplines and sectors. As a large range of scholars have argued, the diversity of viewpoints expands the knowledge base beneficially (Beck 2012, p. 305; Beck and Forsyth 2015, p. 15; Goldman 2001, p. 105; Guston 2005, p. 77; Jasanoff 2003, p. 161; 2005, p. 220;

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Mansbridge et al. 2012, p. 17; Moore 2017, p. 20; Straßheim and Kettunen 2014, p. 268). ‘By including multiple perspectives (…), we take a giant step towards enlarging thought’ (Young 2000, p. 117) and towards arriving at wise and just solutions to collective problems (ibid, p. 118). Broad inclusion ‘teaches each the partiality of their own and reveals to them their own experience as perspectival’ (ibid, p. 116). It challenges the interpretive superiority of structurally privileged positions, reveals unstated assumptions and potentially opens up the ‘echo chamber’. Broad inclusion of viewpoints or ‘epistemic justice’ (Fricker 1998, p. 173) can be regarded as not just fairer, but also conducive to the ‘verific value’ (ibid.) of expertise, the approximation of truth and the stability and solidity of knowledge claims (Beck 2012, p. 305; Brown 2014, p. 57; Mansbridge et al. 2012, p. 17), not least because a diverse group is likely to comprehend and reflect a subject matter better than a homogeneous group. (b) The reliability of expertise also strongly builds on the quality of the ‘epistemic practice’ (Fricker 1998, p. 173) of deliberation, i.e. the collective action of gathering knowledge, justifying inferences and accepting claims as the group’s view (see also Sirtes et al. 2011, p. 7). The deliberative epistemic practice of advice production should seriously deal with all relevant expert standpoints. This is indicated by an open debate of all expert voices, access to necessary scientific assessments, thorough problem analysis and justification of viewpoints and expertise claims (see Fischer 2009, p. 198ff.; Goldman 2001, p. 93; Jasanoff 2005, p. 219ff.; Lentsch and Weingart 2011b, p. 15; 2011c, p. 368; Mansbridge et al. 2012, p. 13ff.). Of very high salience for epistemically valuable deliberations is open (yet fair) dispute. Diversity is not enough; debate, contestation and ‘mutual criticism’ (Manin 2005, p. 18) make the most of it. Practices of contestation motivate epistemically valuable processes of justification, ‘by challenging opponents to give more robust arguments and reasons, unearthing new information and exposing inconsistencies’ (Moore 2017, p. 54). In consensus-oriented settings, joint commitment and reciprocal relationships can create an atmosphere of forced harmony that can make it difficult to speak up and utter a counter-argument. Yet, open confrontation needs to be legitimate and possibly even encouraged within the boundaries of mutual respect. Of course, as important as it

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is to ‘open up’ debate, it is to ‘close it down’ again in order to allow for collective commitment (Lövbrand et al. 2011, p. 485). What a ‘relevant expert standpoint’ is can of course become an issue of contestation and the round of experts should therefore be open to diversity and adjustment. Besides, as argued above, reasons and justification should not be understood narrowly and rational arguing and explicit reason-giving not be overestimated. For one thing, there are other means of expression, justification and arguing, such as demonstrating, persuading, non-lingual showing, narratives and humour (Fischer 2009, p. 193; p. 200ff.; Mansbridge et al. 2012, pp. 4–5; Young 2000, p. 53ff.), which can be just as valid or convincing as purely rational arguing and may open up the epistemic practice to non-standard perspectives. For another, a low level of explicit reason-giving can be an indicator of low stakes or little contestation around an issue (Holst and Tørnblad 2015, p. 168). (c) The problem-solving capacity of the advice produced has to do with its ‘robustness’ (Lentsch and Weingart 2011c; Nowotny et al. 2001), i.e. with being uncontested, comprehensible, relevant, consistent and the product of a struggle for political and epistemic authority. Robust claims to expertise are tested for validity by a broad range of societal agents and scientists in real-world contexts (Beck 2012, p. 11; Fischer 2009, p. 199; Haas 2004, pp. 573, 368; Mansbridge et al. 2012, p. 18). For the above explained reasons, it is not suggested to assess the truth degree of expertise but to apply epistemic proxies and rely on the judgement of scientific experts and policy-makers, who are, for the contexts in focus here, considered eligible to analyse and recognise the usefulness and problem adequacy of expertise. The perspective of policymakers can tell us something about the political relevance, usefulness and applicability of policy suggestions. This pertains to how implementable the policy recommendations are within the given regulatory regime, how enforceable within the given sanctioning regime and whether there will be political support for the solution and sufficient funding (Krick 2018). For political applicability and relevance, especially in consensus-oriented systems that rely on coordinated policy-making, like the Norwegian and the German political systems, the degree of consolidation of the policy advice is a very important factor. While an overemphasis of harmony

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can frustrate thorough debates, reaching ‘consensual closure’ on policy advice has often been read as an indicator of consolidated, widely verified knowledge (Beck and Forsyth 2015, p. 6; Gelfert 2011; Goldman 2001, pp. 93, 97; Guston 2005, p. 65; Haas 1992, pp. 2, 3; Jasanoff and Wynne 1998, p. 19; Lentsch and Weingart 2011c, p. 367; Mansbridge et al. 2012, p. 18). Other scientific experts in the respective field of knowledge can assess the accuracy, rigour and soundness of the analysis and whether the developed expertise answers to the original problem and potentially solves it (Fricker 1998; Goldman 2001; Haas 2004; Lentsch and Weingart 2011c). If different experts make conflicting claims, we are confronted with the novice-two expert problem (Goldman 2001, p. 90), i.e. the inability of the observer to judge the validity of diverging expert claims directly. Yet, if we follow Goldman’s suggestion to ask as many experts as possible (Goldman 2001, p. 93; see also Fricker 1998), weigh contradictory arguments carefully against each other and aim at a state of inquiry where expert opinions reaffirm each other and converge, a balanced judgement seems possible (Krick 2018, p. 218f.). Of course, policymakers may not be neutral assessors, but neither are academic experts in every case. What is important here is that a range of epistemic quality criteria are combined and made transparent to counter the knowledge asymmetries that underlie the expert-layperson dilemma (see Haas 2004 for a more thorough debate). To sum up, this book suggests to look at the knowledge-related qualities of policy advice and consultation arenas by asking: How competent, independent and diverse was the round of involved experts? Was the epistemic practice reason-based, fair, thorough and allowed for open contestation? This perspective on experts’ trustworthiness and the quality of their epistemic practice should be complemented by perspectives that judge the problem-solving capacity of the outcome of the advisory processes by asking: How relevant, usable and expert-approved was the developed expertise?

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The Bigger Picture: Norway, Germany and the European Multi-level Context

Before the case studies will be presented in Chapter 3, this subchapter contextualises the cases further by describing the political and epistemological regimes of Norway and Germany in more detail. It zooms in on the status of participation and expertise in the national public debates and political practices, embeds the three environmental policy processes in focus into the European and international framework of governance and describes the shared consensus-democratic background of the two countries. Since this book combines cases from two different national contexts, it needs to provide the necessary background for understanding the cases. It is interesting to see how very similar ideas and dynamics play a role in the two contexts when it comes to political participation and the role of experts in policy-making and how both systems pivot on consensus and coordination, while the differences, looked at though the selected lenses, are rather marginal or seem to manifest themselves above all on the level of rhetoric. Given Germany’s central position in European and world politics and Norway’s rather marginal position outside the EU, the extent to which both countries underlie the same EU regulations and international commitments is also striking.

2.3.1 The Status of Political Participation in Norway and Germany When one looks at the status of participation in Norwegian and German public debate and political practice, one sees much more resemblances than differences. In both countries, political elites have been increasingly concerned over the last two or three decades about the weakening legitimacy of key institutions of representative democracy, manifesting itself in overall decreasing voter turnout and membership in political parties, for instance. The concern is accompanied by a general acknowledgement of shifts in civil society and advocacy activities from more

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permanent forms of commitment in organised groups over to engagement in network-like structures that focus on individual issues and bind activists only for individual events (such as protests and petitions). Notable is also a growing awareness on the side of policy-makers of the need for alternative ways of interconnecting political elites and the people between elections and there is an ongoing search for alternative channels of engagement that can complement (and possibly also revive) the corporatist and representative channels of participation. Both countries have strong corporatist legacies and long-established permanent structures of interest group involvement into policy-making that have not been fully consumed by the decline of corporatism in the 1990s. Organised groups continue to be valued for their efforts in engaging people, brokering their needs and perspectives and co-shaping political agendas and decisions. Stakeholders access the realm of policymaking through a range of channels, such as parliamentary hearings and lobbying networks, and in some fields, they have been attributed autonomous decision-making authority (e.g. wage settlements). In advisory and supervision boards and committees, the most established interest groups, such as trade unions and employers’ associations, often have reserved seats, and even in consultation structures that target the wider public, it is very often in fact organised interests that seize the opportunity to get involved. At the same time, a new emphasis on ‘ordinary citizens’, ‘lay people’ and ‘individuals’ characterises current political debate in both countries. While the meaning of these buzzwords is not always made explicit, they all seem to point to involving the marginalised (i.e. socially deprived and less often heard voices), the ‘general’ public (which extends beyond the ‘interested’, ‘engaged’ or ‘attentive’ public that already participates voluntarily in public and political affairs), as well as those not connected to (established) organised groups. In both contexts, and this is by no means unique to the two countries, the ‘participatory turn’ (Krick et al. 2019) is closely interconnected to pushes for more ‘transparency’ in policy-making.9 Transparency can 9 It is interesting how in this way, two ideas interlink—and probably reinforce each other—that have been described as ‘quasi-religious’ (Hood 2006, p. 3) and ‘sacrosanct’ (Day 1997, p. 421)

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in its least demanding form be understood as public access to state affairs, public authorities and political decision-making and is often considered a prerequisite for meaningful grassroots involvement. Both countries have committed to the international open government partnership (OGP) that promotes improved government openness, accountability and responsiveness to citizens using a benchmarking system of regular assessments and action plans. Both Norway and Germany enacted freedom of information (FOI) acts, but Norway was amongst the first countries worldwide in the 1970s, while Germany was amongst the last. Complying with the Aarhus convention10 and European Directive 2003/4/EC on public access to environmental information in particular, both countries enacted environmental information acts that go beyond the freedom of information acts (Norway in 2003 and Germany in 2005). Germany is known to have many deficits in implementing the laws, and this has repeatedly been criticised by opposition parties (see, e.g., Bundestag Printed Papers [BTPP] 17/412 [2009] and 19/14596 [2019]). Data protection and third-party interests are often used as arguments against information disclosure in Germany, and inquirers are frequently scared off by the high potential fees of attaining the required information. Yet, the last OGP report attests considerable efforts on the part of Germany in implementing its action plan, on closing gaps between ambition and reality and opening government to public participation and insight (OGP 2020). Norway was a founding member of OGP and, like other Nordic countries, started its membership with a high baseline of openness and transparency (OGP 2019, p. 1). Norwegian governments often flag ‘openness’ as a key goal, but a recent study also notes Norway’s relatively slow pace in implementing its open government national action plan and explains this by pointing to a widespread understanding of Norway being ‘open enough already’ (Wilson 2019, p. 15). in contemporary debates about legitimacy and good governance, and that do not always receive the required nuanced assessment and reservation, but are sometimes idealised to some extent (see also Chapter 2.2 and Chapter 7). 10 ‘Aarhus convention’ refers to the UNECE convention on access to information, public participation in decision-making and access to justice in environmental matters, Aarhus, Denmark 25.06.1998, https://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf.

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In both countries, the extension of direct democratic channels of participation is an issue, advocated in particular by parties to the farther right and left of the political spectrum. In Germany, the legal hurdles for referenda have been lowered successively and decisively during the last 30 years on both state and local level and civil society has used this opportunity for initiating a growing number of referenda.11 In Norway, direct democratic channels exist, and are used on the local level in particular, but their relevance seems to be slightly decreasing.12 Public pressure is also increasing in both countries to move from less influential, less deliberative participation channels (e.g. consulting or informing the public in town hall meetings) to more dialogue-oriented, cooperative, activating forms (such as consensus conferences and citizen juries), extended online access and more responsible roles for citizens. In both political debate and research, such forms are usually discussed as complements, not as replacements of representative democracy. In the ideal case, these formats have the potential to empower people, tap idle resources, function as ‘schools of democracy’ and raise awareness of the logics, the frequent trade-offs and constraints of political decision-making. By bringing together people from very different backgrounds that would not normally intersect (let alone deliberate with each other on political issues), these modes of engagement can also function as antidotes to the increasing fragmentation of the public into likeminded echo-chambers. In Germany, a range of pressure groups (such as ‘Mehr Demokratie e.V.’ or ‘Netzwerk Bürgerbeteiligung’) push for these more direct and deliberative forms of participation and have become important political players lately. A consultancy market for participation mediation and facilitation has also developed and numerous private 11

On the local level, 7503 citizen referenda were initiated between 1956 and 2017 and more than half of them between 2003 and 2017 alone (Mehr Demokratie e.V. 2018, p. 7). A similar tendency can be observed on the state level with the numbers of referenda rising from ca. 10 per decade from the 1940s to the 1980s, to 125 in the 1990s, 151 in the 2000s and 170 between 2010 and 2018 (Mehr Demokratie e.V. 2019, p. 15). 12 On the local level in Norway, there have been about 20 initiatives per year since 1980 (mostly on alcohol restrictions, (official) language regulations and merging of municipalities), with a slightly falling tendency, except for an exceptional peak of 204 referenda in 2016 when municipalities voted on district merging, as opposed to 8, 5 and 7 in 2017, 2018 and 2019, respectively (https://www.ssb.no/folkavs_kostra).

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companies as well as not-for-profit organisations that often call themselves ‘research institutes’ are now engaged in promoting and realising citizen engagement practices, meanwhile reinforcing the demand to some extent.13 By many of these actors, random selection is understood as the best way to gain representativeness and a range of practitioners and service providers in the field promote it by publishing position papers and guidelines for its application (see, e.g., Allianz Vielfältige Demokratie and Bertelsmann foundation 2017; IFOK 2020). A surprising recent example that underlines the prominence of the idea in Germany is an initiative by the head of Bundestag, Wolfgang Schäuble, who commissioned the NGO ‘Mehr Demokratie e.V.’ with setting up a ‘citizen council’ (‘Bürgerrat’) on the federal level, made up of citizens who are chosen by lot to deliberate on Germany’s role in the world and provide advice to parliament on this question (Schäuble 2020). This initiative is quite remarkable, given that Schäuble represents the conservative Christian Democrats and the older generation of politicians who do not usually make their mark by promoting direct or deliberative democratic institutions, but tend to emphasise representative channels of participation. In the Norwegian context, selection by lot to participatory formats is not unknown (see the ‘byborgerpanel Bergen’ or the recent citizen juries (‘borgerjury’) in Oslo and Bergen in the field of urban planning), but it is much more slowly gaining momentum and has not (yet) become such a widespread norm. Baldersheim et al. (2017, p. 208) endorse this for the whole of Scandinavia when they write that randomly selected minipublics have not taken root to the same extent in the Nordic region as in many other European countries. These different approaches to the up-and-coming substantive forms of engagement are also reflected in a comparative OECD study published in 2020 that focuses on ‘innovative citizen participation and new democratic institutions’. In this report, Germany is amongst the most active countries in engaging citizens within deliberative, randomly selected fora (such as citizen juries, 13

See for professional service providers in this field the list compiled by Netzwerk Demokratie e.V. (https://www.netzwerk-buergerbeteiligung.de/professionelle-anbieter-der-buerge rbeteiligung/). The line between ‘research institutes’, think tanks, pressure groups and consultancies is a particularly fine one here.

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consensus conferences or planning cells), while Norway is amongst the least active (OECD 2020, p. 19). In both countries, many see the local level as the ‘nucleus of democracy’ and strive for ‘local autonomy’ (or ‘local democracy’) to strengthen self-rule, self-efficacy, sovereignty and subsidiarity. Both countries have signed the European Charter of local self-government as well as its additional protocol on the right to participate in affairs of a local authority (Council of Europe 1985, 2009). The centre-periphery cleavage has decisively contributed to structuring Norwegian politics since the development of the party system and the issue of local self-rule regularly reappears as a salient issue, most recently in the course of the Solberg governments’ centralisation reforms that allocated more power to the central government and the regions. Despite the arguably more pronounced attention to the issue in Norwegian political debate, the actual degree of local autonomy is in fact even slightly higher in Germany, when considering the countries’ score on the local autonomy index (LAI) developed by Ladner et al. (2018). With a score of 77,4, Germany ranks fifth (trumped by Finland, Sweden, Liechtenstein and Switzerland), and Norway, with a score of 73,8, ranks ninth. Both countries are thus amongst the leading countries in that respect in Europe. In both contexts, the idea of extended ‘citizen’ or ‘public participation’ is bigger in some policy fields than others. Among the fields that stand out particularly, are planning, environmental, health as well as science and technology policy: In science and technology policy, especially risk-prone and ethical questions have been subject to public scrutiny and demands for closer engagement, such as stem cell and GMO research, nuclear waste management or the handling of biohazards. In the field of technology assessment, both countries have established ‘boards of technology’ (Germany in 1990, Norway in 1999) to advise policy-makers on the basis of scientific advice, but also to consult with ‘ordinary’ people and civil society stakeholders. In urban and land use planning processes, both countries have relatively extensive and long-established, legal guarantees of informing and consulting the public. There are numerous guidelines for participation in local planning available online, some issued by public authorities, some

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by civil society organisations. Two recent surveys among civil servants in both Norway and Germany indicate that traditional forms of informing the public (media, townhall meetings, websites), rather than engaging them more actively in dialogues are most frequently used (Doga 2017, p. 10; Pollytix and NeulandQuartier 2018, p. 4). Especially in Germany, public pressure is growing to go beyond the participation channels required by law and complement traditional engagement opportunities with innovative, deliberative forms. The aforementioned survey indicates a shift towards a more genuine participatory culture in planning processes, with younger civil servants being much more in favour of extended participation and experiments with a steadily growing number of informal, innovative formats (Pollytix and NeulandQuartier 2018).14 In the environmental field, consulting the public has been backed by international agreements such as the Aarhus convention (UN 1998) or the EU’s efforts on promoting citizen science in environmental policy (see European Commission 2018) and it seems to be almost imperative now. Public pressure for extended involvement pertains particularly to the most contested issues and public authorities seem particularly inclined to open up and coordinate with citizens in fields that depend on people’s individual compliance and cooperation, such as greenhouse gas mitigation measures or the extended use of renewable energy. The respective government departments in both countries have become forerunners in experimenting with new formats of citizen engagement and linking up with a growing number of increasingly powerful environmental groups who push strongly for more direct citizen participation and organise visible forms of protest (e.g. on wildlife conservation, deforestation and grid extension). For another example, health policy in both countries is characterised by participatory structures, but they take different forms, most likely due to the different organisational set-up and funding of the two healthcare systems. The debate on participation in the tax-funded Norwegian healthcare system seems to be a bit more dynamic right now than in 14 To date, each municipality yearly initiates 8 participation procedures on average in Germany, 91% state they have used non-compulsory, innovative forms of engagement and the majority sees citizens as sought-after informants or advisors for policy-making (Pollytix and NeulandQuartier 2018).

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Germany, with new concepts of citizen engagement such as ‘user involvement’ and ‘co-production’ or ‘co-creation’ (‘samskapelse’) of public services (for instance in the area of elderly or child care), being seized and appreciated for their potential to extend the knowledge base and creating better, more efficient solutions as well as engaging and activating people (Christensen, Dag Arne et al. 2017; Kobro 2017; Torfing et al. 2016). In Germany, public participation is part of the very fabric of the social security system, which is based on the idea of self-government and gives insurees (i.e. the users of social care and services) inter alia the right to regularly elect representatives to social security monitoring boards (e.g. supervisory board of the statutory health insurance fund (‘Verwaltungsrat der gesetzlichen Krankenkassen’)). Yet, turnout has been decreasing since the 1990s, although some trust that the next election, which is (partly) held online for the first time, might invigorate the system. The system has also recently become more competition-oriented and this arguably enables insurees in the role of customers to make choices about the services they want and to co-shape the system.

2.3.2 The Role of Expert Advice in Norway and Germany In both countries, the media have taken up the recent debate on ‘fake news’ and ‘alternative facts’ from the US and discussed the relationship of truth, lies and politics from a new angle that takes populist developments and the corresponding scepticism towards established elites and institutions into account. Yet actually, despite considerable populist currents in both countries and solid support for rightwing populist parties,15 the political and epistemological cultures in Germany and Norway are still exceedingly less polarised than in the US or the UK—indicated by the strong cohesion during the first and second wave of the corona crisis with very high acceptance rates in both countries to the drastic restrictions, for 15

In the regular polls on national parliament voting intention, support for the German AfD (Alternative für Deutschland) has fluctuated between 3% in 2013 and a short high of 16% in 2018, and has been between 8 and 13% during 2020 (https://www.wahlrecht.de/umfragen/ forsa.htm). Support for the Norwegian FrP (Fremskrittspartiet) has sunk from a peak of over 30% in 2008 to between 10 and 13% in 2020 (http://www.pollofpolls.no/?cmd=Stortinget).

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instance, or by the ongoing ability of political parties to cooperate across political blocs. Both countries also show high levels of trust in (credentialed) experts, and science in particular. A direct comparison of the numbers that polls produce on this issue is not straightforward, not least because Norway and Germany do not tend to be subject to the same studies.16 What is more, the questions posed in the myriad of surveys on the issue of ‘trust in experts’ differ considerably, so that numbers are hardly comparable.17 In a Eurobarometer survey from 2005 both countries score comparatively high. 74% and 75% of respondent in Norway and Germany, respectively, supported the claim ‘Science and technology will improve the quality of life of future generations’ (European Commission 2005, p. 155). In an EU competitiveness report of 2011, the support expressed by the German public to the question ‘do you agree that science and technology make our lives healthier, easier and more comfortable?’, fell from 86% in 2010 to 57% in 2014, while Norway started from a lower level in 2010 (73%), but remained stable (75% in 2014) (European Commission 2011). During the corona pandemic, support of research and science peaked in both countries in April 2020, with almost 87% of Norwegian and 73% of German respondents answering positively to the question ‘How much do you trust in research (and science)?’ (Forskningsrådet and Kantar 2020, p. 13; Wissenschaftsbarometer 2020, p. 6). In both surveys, people were also asked about the most trusted social groups, and researchers came second after doctors in both Germany and Norway.18

16

Public opinion surveys conducted by the EU (Eurobarometer e.g.) are usually confined to the 28 member states, Germany tends to be compared to other big countries in Europe or the Americas (or to other German-speaking ones), while Norway is often part of intra-Nordic assessments. 17 The statements and questions that respondents have to answer to range from ‘People should trust their beliefs more than science all in all’ and ‘Science harms more than it benefits societies’ (both Wissenschaftsbarometer 2014, p. 8), ‘Science has made our lives healthier, easier and more comfortable’ (European Commission 2011, p. 464) to ‘How much do you trust independent research institutions?’ (Wissenschaftsbarometer 2019, p. 5). 18 This high trust in researchers as a social groups is for Germany confirmed by numbers from a 2001 Eurobarometer (European Commission 2001).

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While independent scientists in universities enjoy the highest levels of trust amongst experts in both countries,19 a broad notion of ‘expert’ that includes very specialised civil servants and often stakeholders with their in-depth sectoral knowledge is commonly used in both contexts. In line with this, mixed expert committees are key arenas for both public knowledge production and governance in Norway and Germany. In both states, there is a long tradition of setting up ad hoc advisory committees that are composed of interest representatives, researchers and civil servants (sometimes plus ‘practitioners’ or ‘political parties’) and strive for consensus on specific policy issues (Beck 2012; Christensen and Holst 2017; Christiansen et al. 2010; Jasanoff 2005; Krick 2015; Krick and Holst 2021). The policy advice they generate builds on a more diverse set of validity standards than policy advice produced by scientists alone (see Krick and Holst 2021 for more detailed discussions). It radiates the ‘double authority’ of a range of practical, technical and academic experts as well as representatives of social institutions (Jasanoff 2005; Dyson 2005; Krick 2015, 2019; Weingart and Lentsch 2008; Pattyn et al. 2019). The core of the Norwegian system of ad hoc policy advisory committees is known as Official Norwegian Reports (Norges offentlige utredninger—‘NOUs’, in English sometimes referred to as ‘green papers’). The reports of the NOU series are made available online and sent out to a hearing that is open to all interested parties. The use and management of policy advice, and of NOUs as a specific example, is governed by centralised ‘horizontal’ guidelines, issued by the government.20 Recent studies have shown a considerable ‘scientisation’ of the NOU system, indicated inter alia by a rise in the share of academics in these committees (Christensen and Hesstvedt 2019; Krick et al. 2019). The German system of ad hoc committees is considerably more opaque since there is no public register of such groups (as in Norway, the

19 The above cited Eurobarometer found 89% agreement in Germany and 91% agreement in Norway to the statement ‘what university scientists do has a positive effect on society’ (European Commission 2005, p. 49). 20 See Kommunal-og moderniseringsdepartementet (2016) and Direktoratet for økonomistyring (2018).

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EU, Sweden, the UK, the US and many other democracies).21 There are also no centrally issued administrative rules governing set-up and operation of ad hoc committees (apart from budgetary provisions). Yet, a range of (decentralised) rules of conduct have been developed by organisations that provide advice, such as state agencies, advocacy think tanks or academies of science.22 Most prominently, a high level interdisciplinary working group of the Berlin-Brandenburg academy of science issued guidelines of scientific policy advice in 2009 that have often been cited and debated, not least by social scientists who were members of the working group (Mayntz 2009; Lentsch and Weingart 2011a). Especially scientific advice is often provided by permanent, very scholarly ‘scientific advisory councils’ of which every department maintains at least one (Krick and Holst 2021). These structures are complemented by a system of issue-specific ad hoc committees and increasingly by more informal, network-like advisory structures (Czada 2014; Veit et al. 2017). As another expression of a traditionally wide understanding of experts one can read the important role of governmental agencies with a research mandate (or: departmental research institutes) in both the German and Norwegian knowledge regimes (Christensen, Johan et al. 2017; Campbell and Pedersen 2014). These agencies are linked to individual government departments, but operate at arm’s length from government and thus have considerable autonomy in their day-to-day decisions, which is part and parcel of their authority. Agencification, i.e. the process of converting ministerial units into semi-independent agencies, which has been the hot topic of public administration research during the last decades, happened with much less intensity and momentum in 21 The document that comes closest to a public register are the reports required by the Federal Act on the Appointment to Bodies (FAAB; ‘Bundesgremienbesetzungsgesetz’). This report is published once in a legislative period. It primarily details the share of men and women on public advisory and monitoring bodies and lacks systematic information on such fundamental variables as professional background or names of committee members, start or end date of the committee. It is limited to those advisory committees that the responsible ministry considers ‘essential’—and this generally does not cover even the most formalised and influential ad hoc committees. Further scattered information on committees can be found in a handful of responses to parliamentary inquiries over the past 20 or 30 years. 22 See, e.g., Bundesamt für Naturschutz (2014), Bundesamt für Straßenschutz (2017), HansBöckler-Stiftung (2015), Institut für Arbeitsmarkt- und Berufsforschung (2010), and National academy of science and engineering (acatech) (2015).

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Germany and Norway. Partly both governmental structures had a large number of semi-autonomous agencies already (Cingolani and Fazekas 2019, p. 551), partly agencies were converted into state-owned companies recently (Lægreid et al. 2013). Agencification was a far bigger issue on the EU level and in some other countries, like the UK, for instance, and the debate tied in with concerns about ‘technocracy’, i.e. the rise of increasingly detached, ‘depoliticised’ and powerful ‘non-majoritarian’ expert bodies. Concerns about the influence of non-accountable experts also characterise recent debates in both Germany and Norway, but as much as for their detachment (and ‘depoliticization’) are experts critically eyed for being political or partial, led by self-interest or biases and sometimes being completely wrong in their analyses—especially when engaging in the business of forecasting. In the political realm, expertise is certainly not only used for information and ‘enlightment’ reasons, but just as well for strategic purposes, as argumentative ammunition and to substantiate one’s position (Krick 2015; Weiss 1979, 1989). There is always also a strategic (or ‘political’) dimension to ‘knowledge utilization’ in public policy-making (Boswell 2008). This is not a particularly new phenomenon and it has to do with the ‘ceremonial worth’ intrinsic to expertise (Meyer and Rowan 1977) and the general ‘rationality mandate’ that both systems of governance are subject to (Krick and Gornitzka 2020; see also Chapter 2.1.2). There is a general expectation in modern societies that public policies should be based on evidence and facts, and informed by what experts have to say. Despite a considerable expertisation of both governance systems, when reading reports by advisory committees, listening to political leaders and news coverage, it seems that the narratives of ‘knowledge’- or ‘evidence-based policy-making’, and of the ‘knowledge-society’, ‘-economy’ and even ‘-democracy’ have been taken up with more vigour in the Norwegian political debate than in the German (see also Christensen, Johan et al. 2017; Holst 2014, 2017). Besides, there have been some changes in the advisory landscape of both countries that may accentuate the political or strategic use of expertise. In recent years, the market for consultancies, communication agencies and law firms in advising policy-makers has grown and the role of these providers of expertise has become both more visible as well as

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scrutinised in Germany and Norway. While these external advisors are appreciated by policy-makers for their ‘hands-on’ and ‘on-hand’ (in the sense of quickly available), highly policy-relevant and usable guidance, their use has been subject to a range of parliamentary inquiries in both Germany and Norway23 and to screening procedures by the countries’ audit offices.24 In both countries, emphasis has been on the high costs and necessity of hiring external advisors, the transparency of accounting for these practices, compliance with public procurement law, conflicts of interests and possible patronage in awarding contracts, negligence of the in-house expertise resources of the civil service and a possible ‘privatization’ of state authority when law firms are hired for drafting laws. In surveys, people show an awareness of the different sources of expertise. In the above-mentioned German science barometer of 2019, respondents show markedly lower levels of trust towards researchers working for industry and other private companies than towards those from independent research organisations, such as universities, and the Eurobarometer confirms this for both countries in 2005 (European Commission 2005, p. 155). When almost a majority of respondents to a Norwegian survey conducted in 2017 by the consultancy Kantar on behalf of the Norwegian research council supported the view that ‘research results are often bought by industry or public authorities and therefore not to be trusted’, this was first interpreted by the large newspaper Aftenposten as a sign of worryingly low and sinking levels of trust in expertise and science.25 Yet, not only was the survey widely criticised by researchers, inter alia for asking suggestive questions (Ørstavik 2017; Solbu et al. 2017; see also Karlsen 2017; Khrono 2017). The responses

23

For Germany, see BTPP 17/9266, 19/22400, 19/7066; for Norway see written inquiry (skriftlig spørsmål) 15:2147. 24 For Germany, see Federal audit office (Bundesrechnungshof ) BRH-Az: IV 1–2016 – 0490; BRH-Az: IV 3 – 2018 – 1018 / BU; for Norway see Audit office of Norway (Riksrevisjonen) doc no 3:6 (2016–2017)/ 3:6 (2016–2017) as well as the report by the foreign ministry’s main monitoring entity from 2017 (Sentral kontrollenhet 2017). 25 The survey and its exact numbers are no longer publicly available, but Aftenposten’s entry is https://www.aftenposten.no/kultur/i/zaJaq/Ny-undersokelse-Nesten-halvparten-av-nordmennstoler-ikke-pa-forskning (10.10.2017).

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can also be read as a sign of critical awareness of the relevance of financial and political independence when it comes to reliable expertise, the diversification of the landscape of expertise providers and the possibility to selectively refer to research to substantiate one’s own position.

2.3.3 Norway and Germany as European Consensus Democracies The many similarities described above often go unnoticed, because Norway and Germany are usually placed into different categories from a comparative perspective—or not compared at all. As mentioned before, Norway tends to be compared to other Scandinavian (or ‘Nordic’) countries, and Germany is usually compared to other large European or ‘Western’ countries or to the other EU member states. From a comparative perspective of regime types that focuses on ways of political decision-making, further similarities stand out that pertain to the political cultures and institutional set-up of the two states. While there are also non-trivial differences between the cases, Germany and Norway have often been described as consensus-oriented systems. This verdict can pertain to quite different variables, such as styles of policy-making, constitutional set-up, industrial relations or regimes of public knowledge production (see, e.g., Campbell and Pedersen 2014; Christiansen et al. 2010, p. 24; Greve et al. 2016, p. 15; Jasanoff 2005; Lijphart 2012). In Arendt Lijphart’s (2012) elaborate study of 36 political systems (‘patterns of democracy’), both countries clearly belong to the consensusdemocratic type. A consensus democracy is understood as a system of government that structurally disperses power in many ways and builds public policies on broad inclusion, proportionality, compromisebuilding and agreement between different societal and political viewpoints (Lijphart 2012, p. 2). The Nordic countries, the German-speaking and the Low countries form clusters of consensus-oriented systems in Europe, and the EU itself is another case in point. The consensusoriented regime type contrasts with the majoritarian, Westminster type that has spread from the UK to Commonwealth countries and that relies

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much more on competition, polarisation and adversarial styles of policymaking (see Mansbridge 1980; Olsen 1972; Steiner 1971 for similar distinctions between two opposing political styles; see also Chapter 5). On Lijphart’s (2012) ‘executive-parliament-dimension’, both Germany and Norway score high because of their systems of proportional representation, multiparty parliaments, coalition governments and (semi-)corporatist interest group relations. Not only are coalition governments between several parties the rule in both countries. What is more, Norway has been governed by minority governments for a while now that build on the support of extra-governmental parties for individual policy issues, while Germany has for more than a decade been characterised by very stable oversized governments (‘grand coalitions’) that cross the political spectrums. Both types of government depend on non-adversarial, non-polarised political relations and are examples of well-functioning coordinated systems. The two political systems additionally disperse power geographically to a considerable extent. Germany is a federal system and Norway is characterised by strong regional identities, differences and corresponding political liabilities as well as a high degree of local autonomy. Both systems comprise a large number of (potential veto-) players, forge supermajorities in the legislative process and developed policy-making styles that are characterised by ‘inclusiveness, bargaining, and compromise’ (Lijphart 2012, p. 2). This is, inter alia, reflected in voters’ general preference for a temperate political rhetoric. Confrontational styles of politicians are usually negatively sanctioned by the large majority of the population. Consensus-democratic politics have implications for the organisation of policy advice and consultation because governments in these systems depend on the pre-negotiation of public policies with external actors. Arenas of policy development that bring together a range of different actors have an important coordinating role for the functioning of consensus-oriented political systems. They can generate a kind of ‘negotiated expertise’ (Krick 2015), i.e. a ‘hybrid of a package deal and a knowledge-based solution’ (Krick and Holst 2021, p. 125) that is not only generated by experts, but also agreed upon by those concerned. The conflict resolution it stands for likely provides for smooth legislation and stakeholder compliance. Agreement and broad involvement not only

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facilitate binding and stable political decisions under institutional conditions that restrict majority rule. It also provides a more reliable basis for understanding the world, finding closure and developing valid solutions to problems and it thus has political as well as epistemic value.

2.3.4 Environmental Policy Development in the European Multi-level Context Because the roots and remedies of the climate change and the nuclear waste problem transcend borders, the policy issues this study looks at can be described as particularly transnational issues, on which competences are shared between different governance levels, i.e. the local, regional, national, European and global levels. The advisory arenas analysed operate on the national level of Germany and Norway, but they are embedded into the European system of multi-level governance. The analysed cases from Norway and Germany all deal with environmental policy issues and, in this field, the EU sets the frame, as legal and coordinating actor, as a funding and monitoring actor, as initiator and innovator and as a forum for national and transnational actors. Thus, the analysed policy issues have not only transnational and, in particular, European implications, they are also subject to EU regulations and coordination efforts. All analysed policy advice arenas refer to the European regulatory framework as well as international commitments in their reports, as guidelines, targets, obligations and frames of action. They operate within the European multi-level governance system and are strongly shaped and confined by European law. This does not only affect the German cases, with Germany as an EU member. It also applies to Norway, which is not an EU member but a member of the European Economic Area (EEA), adopts the bulk of EU regulations and thus underlies European law to almost the same extent as the average EU member state. In the environmental policy field, and especially climate and energy policy, cooperation is particularly close. On all issues dealt with in the advisory arenas in focus here, the EU has set parts of the legal framework, with legislation such as the EU emissions trading scheme, the environmental assessments

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directives, the renewable energy directive, the energy efficiency directive, the water framework directive, the spent fuel and radioactive waste management directive as well as international trade agreements and their deregulation and market opening commitments. In the environmental field, the EU also paves the way forward with joint action proposals such as the EU Commission’s white paper on climate adaptation in 2009, as well as softer governance mechanisms such as research and development (R&D) funding programmes on low carbon technologies, information exchange mechanisms (like the Roadex network on the management of low volume rural roads), and regular progress monitoring and reporting schemes (e.g. on emission reduction). Member states are required by the EU to adopt national energy and climate plans as well as consistent long-term strategies and Norway also committed to this. On the policy issues dealt with in this book, the EU also has a coordinating, monitoring and funding role. On climate adaptation, for instance, it seeks to integrate adaptation in key areas and coordinate efforts amongst EU member and EEA states and it contributes to building a shared knowledge base and a European reporting system. Because of its coordinating and framework-setting role and the transnational nature of the policy issues, the EU level also functions as a forum for national and transnational civil society and business actors in the sector. All policy development cases analysed here furthermore widely refer to EU statistics and studies in their reports. The EU level moreover sets the tone on how to interact with non-state actors in the phase of policy development. On expert advice and citizen consultation, the EU has adopted innovative and far-reaching regulations and codes, that are referred to as benchmarks by national actors (see also Fischer 2009, p. 73). Examples are the ‘Horizontal framework for Commission expert groups’ (European Commission 2016b), the rules of the ‘Transparency register’ (European Commission 2009) and the ‘Better regulation package’ for the operation of citizen engagement formats (European Commission 2016a). In environmental policy in particular, EU directives assure public access to information (see, e.g., Directive 2003/4/EC) and the EU promotes ‘citizen science’ in the field, thus interconnecting public engagement, co-production and ‘evidence-based

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policy-making’ efforts (see, e.g., European Commission 2018). Worth mentioning in this context are also the efforts by the EU Commission’s science and knowledge service (Joint Research Centre) at strengthening the ‘evidence-based policy’-scheme (European Commission 2015). The EU Commission is furthermore generally reflecting and working on the involvement of citizens into its own services, thereby following the ‘participatory turn’ in modern governance and aiming at ‘an effective way to connect citizens, experts and policy makers’ (Figueiredo Nascimento et al. 2016, p. 3). The here-analysed policy development processes are also subject to intergovernmental commitments that have partly been mentioned above. Key among them are the Council of Europe’s Charter of local selfgovernment and its additional protocol on the right to participate in affairs of a local authority (Council of Europe 1985, 2009), as well as the UN ‘Aarhus’ convention on participation and access to information in environmental policy. As OECD members, Norway and Germany are, as described, subject to the organisation’s ‘open government’ and transparency goals, and both countries participate in the open government partnership (OGP).

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Veit, Sylvia, Turid Husted, and Tobias Bach. 2017. “Dynamics of Change in Internal Policy Advisory Systems: The Hybridization of Advisory Capacities in Germany.” Policy Sciences 50 (1): 85–103. Verba, Sidney, Kay Lehman Schlozman, and Henry E. Brady. 1995. Voice and Equality: Civic Voluntarism in American Politics. Cambridge, MA: Cambridge University Press. Verhoest, Koen, B. Guy Peters, Geert Bouckaert, and Bram Verschuere. 2004. “The Study of Organisational Autonomy: A Conceptual Review.” Public Administration and Development 24 (2): 101–118. Waldner, David. 2012. “Process Tracing and Causal Mechanisms.” In The Oxford Handbook of Philosophy of Social Science, edited by Harold Kincaid. Oxford: Oxford University Press. Warren, Mark E. 2002. “What Can Democratic Participation Mean Today?” Political Theory 30 (5): 677–701. Webler, Thomas, and Seth Tuler. 2000. “Fairness and Competence in Citizen Participation. Theoretical Reflections from a Case Study.” Administration & Society 32 (5): 566–595. Weingart, Peter, and Justus Lentsch. 2008. Wissen, beraten, entscheiden. Form und Funktion wissenschaftlicher Politikberatung in Deutschland . Weilerswist: Velbruück Wissenschaft. Weiss, Carol H. 1979. “The Many Meanings of Research Utilization.” Public Administration Review 39 (5): 426–431. Weiss, Carol H. 1989. “Congressional Committees as Users of Analysis.” Journal of Policy Analysis and Management 8 (3): 411-431. Wilson, Christopher. 2019. “Multi-stakeholder Initiatives, Policy Learning and Institutionalization: The Surprising Failure of Open Government in Norway.” Policy Studies [online first]. https://doi.org/10.1080/01442872. 2019.1618808. Wissenschaftsbarometer. 2014. “Gesamtergebnisse.” https://www.wissenschaftim-dialog.de/fileadmin/user_upload/Projekte/Wissenschaftsbarometer/Dok umente/Ergebnistabellen_Wissbarometer2014_neu.pdf. Wissenschaftsbarometer. 2019. “Vertrauen in die Wissenschaft.” https://www. wissenschaft-im-dialog.de/fileadmin/user_upload/Projekte/Wissenschaftsba rometer/Dokumente_19/Einzelgrafiken/WB_Einzelgrafik_03_Vertrauen. jpg. Wissenschaftsbarometer. 2020. “Corona Spezial.” https://www.wissenschaftim-dialog.de/fileadmin/user_upload/Projekte/Wissenschaftsbarometer/Dok umente_20/2020_WiD-Wissenschaftsbarometer_Corona_Spezial_Ergebni spraesentation.pdf. Young, Iris M. 2000. Inclusion and Democracy. Oxford: Oxford University Press.

3 The Cases

The upcoming case studies are structured in the same way and follow the assessment framework detailed in Chapter 2.2. Each study starts by providing basic information about the advisory arena’s set-up, basic structure, background and mandate. Then, the democratic and epistemic dimensions are analysed. First, ‘democratic participation’ is assessed in terms of (a) the involvement of the affected, (b) inclusive, fair and equal deliberations and (c) the potential political impact of the advice. Then, ‘reliable expertise’ is assessed in terms of the criteria (a) plurality of experienced, competent and independent experts, (b) rational debates of all expert standpoints and (c) the problem-solving capacity of the advice (see Table 3.1).

3.1

The Final Storage Committee

The final storage committee (‘Kommission zur Lagerung hochradioaktiver Abfallstoffe’, also in short ‘Endlagerkommission’ [committee on the storage of highly radioactive waste]) operated between April 2014 © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 E. Krick, Expertise and Participation, Palgrave Studies in European Political Sociology, https://doi.org/10.1007/978-3-030-75329-0_3

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Table 3.1 Structure of the case studies

Democratic legitimacy dimension (‘Democratic participation’) Epistemic authoritydimension (‘Reliable expertise’)

Participation patterns

Process of deliberation

Coupling with the environment

(a) Involvement of all the affected

(b) Inclusive, (c) Potential political fair and impact of the equal advice deliberation

(a) Plurality of experienced, competent and independent experts

(b) Rational (c) Problem-solving debates capacity of the of all advice relevant expert standpoints

and July 2016. It was necessitated by the site selection law (‘Standortauswahlgesetz’) and managed by the German parliament’s (the ‘Bundestag’) administration. It assembled 34 members from the realms of civil society and business, research, political parties and Länder governments. The federal government took part as permanent observer. Committee decision-making was supplemented by a variety of public participation formats and by regular hearings of external experts. The consultancy ‘Demos’ was commissioned to develop a public input approach and implemented it together with further consultancies (‘E-fekt’, ‘Prognos AG’, ‘Zebralog’). The participatory formats were evaluated by two institutions of applied research with a specialisation in participatory procedures, i.e. ‘Dialogik gemeinnützige GmbH’ and ‘European Institute for Public Participation’ (EIPP) (Final Storage Committee 2016). The committee’s mandate was to develop a legitimate procedure for finding the safest possible final repository of highly radioactive waste in Germany, by way of deciding on criteria for the selection of a final repository, developing formats for public participation within the site selection process and evaluating the committee’s own statutory basis. This committee had several predecessors that dealt with the issue of site selection. Yet, all the preceding inquiry and advisory committees had not been able to settle the pronounced conflicts over the issue that go

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back to the late 1970s, when policy-makers largely neglected environmental concerns and decided authoritatively on Gorleben as the German site for final waste storage. Since then, waste-producing nuclear energy firms have invested billions into exploring this site while its suitability has been heavily questioned particularly by environmental and antinuclear groups and the Green party. The committee was now to assume a ‘white map’ (‘weiße Landkarte’) to neither exclude Gorleben from the beginning nor focus on it as a site.

3.1.1 Democratic Participation in the Final Storage Committee (a) Out of the committee’s 34 members, which had been jointly chosen by the two chambers of parliament, two took turns in chairing the committee, eight represented political parties with seats in Bundestag (in proportion to their parliamentary groups’ size), eight represented governments of the larger and most likely affected German Länder, eight represented research (‘Wissenschaft’) and eight represented societal interests. Only the latter 16 members had formal voting rights, according to the rules of procedure. The distinction of different member types goes back to the committee’s statutory basis, the site selection law, which further determines that the last group (societal interests) consists of two representatives each from environmental associations, religious communities, industry and trade unions. The double-headed chair was made up of a Social Democrat and a Christian Democrat, i.e. members of the two largest parties, who did not hold an office or parliamentary mandate during the phase of committee consultation. On the final storage issue, the interests of those doing business and those working in the electricity sector, as well as of those living in the vicinity of the site, stand out in the short run. In the medium and long run, public concerns of environmental protection and public health as well as the moral or ethical problem of burdening descendants with highly toxic waste for an unmanageable period of ca. 1 million years come to the fore.

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Both labour and business interests and those constituent states that are most likely sites of the final repository were represented and so were environmental concerns. Representatives from all political parties with seats in Bundestag span the political and societal spectrum and its views on the issue. Why the churches were given two seats is not immediately apparent, since they are neither particularly affected by the issue of final waste storage, nor do they have a particular authority to speak on ethical behalves in a secular state where less and less people are closely affiliated with the Christian churches. Overall, in the face of the encompassing ramifications for all domains of society for a virtually unlimited time span and the high stakes related to the issues the committee had to deal with, the ‘general public’ and future generations were underrepresented amongst the formal members of the committee. Apart from those in the role of ‘researchers’, the majority of committee members stood in close accountability relationships with the interests they were to advocate. Most were directly authorised by and accountable to their constituency, such as the trade unions, the political party and Länder government representatives, one of the church representatives and one environmental group (BUND), while for a minority the accountability relationship was less close.1 Through a range of deliberative, face-to-face public input channels, further agents were allowed to enter the advisory process. These channels were managed by consultancies and designed for different sections of the public (Demos and Prognos 2015, pp. 23ff.).2 A ‘citizen dialogue’ targeted the general public, three regional workshops with delegates from potentially affected regions and three workshops with young adults

1 For instance, one of the church representatives (Georg Milbradt) had no organisational affiliation with the churches, the delegates of Eon and RWE simply represented the management of two private companies and one of the environmental groups (‘Deutsche Umweltstiftung’) was not a membership organisation, but a foundation with no direct ties to a constituency, although it has convincingly advocated environmental issues in German society for some time. 2 These pre-defined ‘target groups’ were the general public (i.e. those not professionally or otherwise concerned with the topic (‘ordinary citizens’), the engaged, attentive or interested public (i.e. those interested and informed, but not professionally concerned with the topic), the expert or professional public, young adults, participation practitioners (e.g. from the municipalities), representatives of those regions that likely become storage sites as well as the so-called critical public (i.e. the anti-nuclear movement).

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and ‘participation practitioners’, an expert conference for the attentive/interested and professional public as well as a public conference on the draft committee report were held. Access to the public input formats was, as a general rule, open and supported by targeted recruitment. Usually, the consultancies in charge of the public participation processes sent invitations to a list of potentially interested groups, while access was not exclusive to those invited. Yet, when looked at more closely, there were distinct differences between the formats: For the ‘young adult workshops’, for instance, student services around Germany as well as schools and youth organisations in the region of Dortmund were addressed, and from the round of those who had responded to the invitation and applied for participation, the organisers selected young people with the aim of attaining a certain diversity in basic demographic terms (Dialogik and EIPP 2016, p. 33). Access to the expert conference was by invitation, sent to experts in waste storage, geology and planning science from universities, research centres and state agencies, as well as to citizen initiatives, NGOs, associations and companies, concerned with the issue of nuclear storage (Dialogik and EIPP 2016, p. 45). To recruit for the regional workshops, the respective regional public administration was addressed and asked to select and delegate representatives. In addition to these face-to-face fora, the committee could be addressed via (E-)mail and two different online tools were set up. The mail option and a general online debate forum did not produce serious debates or outcomes. Since the committee considered its online debate forum a failure, it was shut down (Final Storage Committee 2016, pp. 417ff.)3 and replaced by another, online forum that focused on debating the draft report and that was actively used. Access to the online fora was open and mainly used by interest groups (Demos and Prognos 2015, p. 44). When adopting standards of descriptive representation that emphasise the similarity between a deliberative forum and the population in 3 In the first online forum, civil servants checked every entry before publication. This was strongly criticized by participants and then stopped. Yet, this led to trolls taking over the forum in a destructive way and the debate forum was subsequently closed by the public administration.

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terms of demographic criteria, the selection was slightly distorted at the expense of the less well-to-do, younger people and women (Dialogik and EIPP 2016, p. 67). It was mainly not the ‘ordinary’ citizen that took part through these public involvement channels, but organised interests in the field. Yet, it had not been the aim to achieve descriptive representativeness, but to target specific groups that were seen as particularly affected by the issue, to involve as many people as possible and to promote public debate (Demos and Prognos 2015, p. 5). If statistical representativeness had been aimed at, random selection would have been the better method in combination with incentives and information campaigns, but this was explicitly not the case here (see, e.g., Demos and Prognos 2015, p. 38). From a perspective of substantive representation, one can say that affected perspectives were generally involved, although public interest groups could have been stronger. The process was criticised for not being able to involve the fundamentally critical anti-nuclear movement (also called ‘the critical public’ in the committee context) to a stronger extent (Final Storage Committee, 2016, pp. 417ff.; Dialogik and EIPP 2016; interview B). These groups had been offered a seat in the final storage committee, which they refused, but representatives of the movement did take part in the conference for the attentive and professional public, mentioned above. The committee furthermore included their viewpoints by way of a detailed document analysis of the groups’ online statements. The views of the anti-nuclear movement were also partly advocated by the state of Lower Saxony and by the party Die Linke. The committee opted for an extensive level of transparency and openness of its work compared to common practice in Germany (and beyond). Apart from the usual committee materials, such as agendas, membership lists, rules of procedures or expert opinions provided online (www.bundestag.de/endlagerkommission), unprocessed documentation of the negotiations allowed direct insight into the process. Online available were videos of all plenary sessions and audio recordings of all working group sessions, verbatim records of all sessions as well as the used and generated materials (studies, reports, surveys, evaluations, statistics, etc.). The committee sessions were streamed in real time on TV and could be visited and observed directly subject to prior registry with the

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committee’s administration. The committee’s website was all but userfriendly, however, which obscured the disclosed data again slightly (see also Dialogik and EIPP 2016, p. 19). (b) Fair and inclusive deliberation was fostered and achieved to a considerable extent within the final storage committee. Judging from participant observation, video and minutes’ analyses of selected sessions as well as interviews with committee members and guests (interviews A, B, C, D, E, F, G, H), the debates were generally characterised by mutual respect, joint consensual commitment and reason-based arguing styles. Speakers were usually not interrupted or otherwise discriminated. Yet, only very few participants adjusted their original positions during deliberations. Reaching consensus was the declared aim of the joint decision-making process, codified in the statutory basis of the committee, the site selection law (§ 3 Abs. 5) and the committee’s rules of procedure (§ 3). The law further provided for a fall-back-option of voting with a 2/3 threshold in cases where agreement could not be reached. The committee calls its result ‘broad consensus’, ‘agreement’ or ‘overwhelming majority’ (Final Storage Committee 2016, pp. 27, 30), and this consensual result deserves more attention, because by no means did every participant vote explicitly and positively for every part of the report. Voting and participation rights differed between groups and access channels and several decision rules were applied that facilitated sweeping consensus. While the annexed participation fora only developed non-binding input to the committee’s deliberations, only the 8 ‘researchers’ and the 8 interest representatives in the committee officially held voting rights. Yet, the committee interpreted this as applying only to the last reading of voting rounds, and this effectively rescinded the rules again. On its way towards a joint report, the committee voted on all the contentious issues with a 2/3 quorum, often in three readings. On all parts of the final report, dissenting opinions were allowed—and made use of by six members. The final report as a whole was then adopted by an act of joint public recognition (or ‘nostrification’, see Chapter 5) that left room for tacit disagreement and one of the members with voting rights withheld his support of the report in the end. It is not a minor issue that this was the representative of Germany’s largest environmental association BUND (Final Storage Committee 2016, p. 497), and it came

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as a surprise because the member in question had been contributing constructively to the deliberations throughout. Although there were dissenting voices on individual issues, the committee integrated a large range of societal and political groups and perspectives, when considering the deep divides on key questions. The result spanned political spectrums and ideologies and bridged the gap between Gorleben opponents and Gorleben supporters and it included the Green party, originally the advocate of the anti-nuclear movement. That all affected governmental departments had also been part of the process, at least as observers and informants, further facilitated legislation on the grounds of the report. Deliberation in the different, auxiliary public participation fora was overwhelmingly described as fair and respectful by participants in evaluations, only the lack of time for intense debates was sometimes criticised (Dialogik and EIPP 2016). Deliberations were consensus-oriented and the consultancies that managed and mediated the process were described as fair, professional, impartial and competent. They produced detailed records of the achieved results in the form of synoptic tables that gave an overview of all the policy recommendations put forward or developed by public fora, the source of the individual recommendations and the degree of consensus they reached. These tables were used by the final storage committee, which leaned on these results when discussing proposals. Thus, although multiple voices were involved through a range of channels, and there was no umbrella forum to pool this input, the synoptic tables served as a relatively efficient aggregation mechanism. (c) The committee and the public formats were coupled through a range of transmission mechanisms. In every face-to-face, public format, at least two committee members were to act as ‘ambassadors’ or ‘bridges’, i.e. provide insights into committee work during the participation endeavour and channel results back into the committee. The public input was dealt with in the committee on the grounds of systematic assessment. As mentioned above, the results collected in synoptic tables specified in detail the degree of consent, the source of the input and cross-references to sections of the committee’s report. On these grounds, clusters of topics and key issues were identified that were recurring in different formats, supported by many and/or matters of particular public

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concern. The synoptic tables were available via the committee’s website and thus open to public scrutiny. The committee gave detailed account of how it dealt with the participatory input. In its report, it describes the procedure of gathering and assessing the input as well as its positions vis-à-vis key issues comprehensively while also acknowledging the difficulties of incorporating a range of different voices (Final Storage Committee 2016, pp. 425–442). The transfer of the committee’s suggestions into legislation was transparent, particularly for the members of parliament (MPs) amongst the committee members who were directly involved in the legislative process and commented on it in public statements. The publicly available records of the parliamentary debates also reveal to a large extent how the suggestions were implemented and which formulations fell prey to further political struggles. The committee’s report was officially transmitted into the policymaking process when it was handed over to the Bundestag’s president on 05 July 2016. On the grounds of a draft by the Federal Cabinet, it was then dealt with as a cross-fractional legislative initiative (CDU/CSU, SPD, Grüne) in the environmental standing committee that also included committee members. The debates of the committee and its associated public fora clearly resonated in the political debate, especially public and parliamentary debates, and the report developed direct policy impact. Bundestag unilaterally took formal note of the committee’s report. According to several parliamentary groups in Bundestag, the committee’s decisions on a procedure and criteria for site selection were incorporated ‘one-byone’ into the revised site selection law (Bundestag (BT) Printed Paper 18/11647, p. 15; 18/11648, BT Plenary protocol 18/179, p. 181). The changes that were made vis-à-vis the report of the committee were minimal and they mainly responded to an additional interest group hearing.4 The law was adopted in cross-party agreement and extended 4

The changes related to the administrative structure responsible for the site selection and details of the future public participation in the search for a final storage site. To give a concrete example, the bill did no longer limit the search to a site for highly radioactive waste, but cut this adjective (https://www.bundestag.de/dokumente/textarchiv/2017/kw12-de-atommu ell-standortauswahl/496742).

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governmental majorities by far (only the party ‘Die Linke’ voted against). ‘Rarely is there so much agreement in this house as today’, a conservative MP stated (BT Plenary protocol 18/179, p. 181). That the report developed such impact very likely had to do with the close and constant coordination with political parties during deliberation and the high degree of agreement that was finally reached by the committee. Despite the deep divides, a compromise concerning the key conflict was found in the end that conciliates the camps to a certain degree: In the final report, Gorleben is neither excluded as a possible site, nor is it given priority and the outcome is supported as a package by all but one of the committee’s members with voting rights.5

3.1.2 Reliability and Problem Adequacy of the Final Storage Committee’s Expertise (a) When looking at the committee members’ track records of competence and experience, one can speak of an overall relatively high proficiency and pronounced experience related to the policy problems that the committee focused on. Those ‘on the scientific bench’ (in commission parlance) amongst the members reflected a plurality of different academic viewpoints on the issue. Yet, only a small majority of these individuals held a PhD and a majority did neither have a pronounced scientific track record of scholarly publications and research projects, nor were they affiliated with independent research institutions. While these members’ experience and expertise in questions of nuclear waste storage were generally acknowledged as sufficient, their independence was continuously questioned by members and observers. All interviewees agreed that these agents in the role of researchers were selected more for political than for academic reasons. They reflected Gorleben support and opposition in a balanced way. Many of the members had been involved in consultations and deliberations on this policy issue for decades, and 5 In September 2020, Gorleben was effectively excluded from the process of site selection. Based on the criteria that had been developed by the final storage committee, over 90 possible regions that qualified for a final repository in Germany were listed by the state-owned company responsible for the site selection process (‘Bundesgesellschaft für Endlagerung’), and Gorleben was not amongst them.

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were aware of the different arguments, standpoints and studies. All of them knew how policy-making works and they were believed to be able to build compromises despite their known positions on the Gorleben issue. The committee further invited domestic and international scientists, lawyers as well as experts from public agencies and state departments to a range of expert hearings on issues such as public appraisal of large infrastructure projects or the retrievability of nuclear waste. In addition, the committee consulted about 100 reports on a broad range of mainly technical, but also legal and political issues by external experts from state agencies, state-funded companies, independent research networks, centres and universities and a handful of private engineering companies. (b) Committee members were generally committed to thorough problem analysis and justification of their viewpoints. They had sufficient access to all kinds of input from a range of experts in the field and time to process this information. Several indicators imply that the committee overall seriously dealt with, assessed and incorporated scientific statements (see also interviews C, F). For instance, in direct succession to the individual hearing reports (each ca. 15 min.), committee members would ask for clarifications and make some critical remarks; after all presentations had been held, the committee members entered into debate with the invited experts and critically scrutinised their information and/or asked for further explanations or transfer to different settings. The report of a preceding committee, ‘Arbeitskreis Auswahlverfahren Endlagerstandorte’ (AK End), which had consisted of social and natural scientists (but not of stakeholders) and whose very scholarly recommendations could not be implemented at the time, was built on heavily in the debate. The Gorleben issue was a notable exception to the general rule of knowledge-based decision-making and rational arguing styles. On that issue, positions were solid and scientific studies were selectively received (interviews F, H). Open dispute and expressing reservations were legitimate and often encouraged by the chairs who explicitly asked the committee members to voice concerns and even personally addressed individuals they considered to have an air of discontent (with comments such as ‘Mr X seems to have a different view, would you share your thoughts?’). Conflicts were

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not openly supressed, but, if strong disaccord prevailed, the chair usually postponed the debate or transferred the development of a solution to a subgroup. Yet, there were two major conflicts that were also taboos, one of which was addressed finally—the site of Gorleben—while the other, the financing question, was dealt with by venue-shifting. It was transferred to another arena, the ‘Nuclear phase-out financing commission’ (‘Kommission Überprüfung der Finanzierung des Kernenergieaustiegs’). Participants of the public participation fora were sent information materials to prepare beforehand and all participatory events were accompanied by presentations and lectures that provided further input. In how far this reflected the academic state of the art on the issue and was balanced and comprehensive, or even taken up by the participants, cannot, however, be judged on the grounds of the available material. (c) The committee expanded its original mandate and additionally reflected on societal responsibility in the face of risks, on the history of nuclear power use and on how to deal with societal conflicts. Yet, the group did not make attempts to decide on the site itself, but generally stuck to its already quite contentious task of developing a procedure for site selection. It specified in detail the criteria for site selection to be applied as well as the bureaucratic and participatory structure that would accompany and manage this procedure and thus found hands-on, concrete answers. It agreed to a large extent on policy-relevant, sought after, useful and enforceable issues. Since it further integrated a large range of societal and political actors, it generated consolidated suggestions that took legal form in a quick and friction-free process soon afterwards. From the perspective of geologists, nuclear physicists and waste storage experts, the recommendations speak to the original problem and find a reasonable solution that complies with scientific standards. The committee agreed on that type of storage and those geological criteria that are scientifically most widely accepted (interviews C, F). While the report does not entail ‘scientific nonsense’, it may in parts not be precise enough from a scientific perspective and some changes have been made at the very last stage to accommodate political considerations, without considering the effects on other parts of the recommendations. In few places, the report is therefore now slightly inconsistent and entails some

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conditions that are not entirely convincingly argued for. Yet, overall, an ‘excellent piece of legislation’6 was developed that in essence echoes the highly acknowledged, scholarly suggestions by the 15 year older, preceding expert committee ‘AK End’.

3.2

The Climate Protection Dialogue

The climate protection dialogue (‘Dialogprozess zum Klimaschutzplan 2050’ [dialogue on the climate action plan 2050]) was a multi-layered advisory and consultation structure that operated between June 2015 and March 2016. It included lay citizens, interest groups, municipalities and the German constituent states (‘Länder’) in four separate, parallel participation strands and brought them together within a so-called ‘delegate committee’ at a later stage in the process. The mandate of the dialogue was to specify the intermediate climate protection goals for the period after 2020 in order to reach the internationally agreed maximum global warming goal, by detailing the next concrete actions towards reducing greenhouse gas emissions and initiating a transparent monitoring process (see BMU 2015). The Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety (BMU, for short also environmental department) tasked two consortia of contractors (led by consultancy firms with public deliberations and mediation experience) with the ‘project management’, which meant organising and facilitating the dialogues, drafting results and public communication.7 The official participants were assisted by boundary organisations at the science-policy nexus assigned to provide ‘scientific support’ on the issue of climate change and climate protection policies. These were mainly ‘Wuppertal Institut’ (WI)

6 See the statement by Prof. Reichert, BT expert hearing, 08 March 2017; https://www.bundes tag.de/dokumente/textarchiv/2017/kw10-pa-umwelt/494306. 7 The citizens dialogue was led by ‘IKU die Dialoggestalter’, supported by ‘ontopica eparticipation’, the other three dialogues and the delegate committee were managed by ‘IFOK’, with the support of ‘Wuppertal Institut’, ‘ifeu’ and ‘compuccino’.

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and ‘Öko-Institut’ (ÖI), who themselves were supported on individual issues by further institutes.8 The process was constantly evaluated: The government asked an advocacy think tank with strong corporate ties (Bertelsmann foundation) and a research-based consultancy for evaluations (Prognos 2017), and a third one was conducted for ‘Greenpeace’ by a Professor of Political Science (Rucht 2016).

3.2.1 Democratic Participation in the Climate Protection Dialogue (a) Access to the citizens’ fora of the dialogue was based on a combination of very broad, random invitation and self-selection.9 Access to the three separate so-called ‘professional’ fora (municipalities, Länder, interest groups) was based on the targeted invitation by the ministry,10 while additional interested parties were welcome to join. Although the ‘committee of delegates’ was not meant as a superordinate decisionmaking body, it had some coordination tasks and assembled 25 delegates chosen by lot or vote from the four strands of participation.11 The issue of climate protection is particularly cross-cutting and touches upon all kinds of ethical, environmental and economic issues as well as administrative levels. In line with this, all state levels were 8

The consortium headed by Öko-Institut was supported by ‘IREE’S (Institut für Ressourceneffizienz und Energiestrategien), which provided analyses for the industry sector and by ‘Fraunhofer Institut für System- und Innovationsforschung’ (ISI) on the issue of private households. Wuppertal Institut was supported by ‘ifeu’ (Institut für Energie- und Umweltforschung Heidelberg) on transport issues. 9 Out of the 75.000 citizens that were addressed via phone calls, 472 decided to take part in the “five citizens dialogue days”, which were complemented by open accessed online consultations, for which an additional 419 registered and provided more than 625 comments on the 77 developed policy measures. 10 The ministry invited on the grounds of a list of relevant and interested parties that it has established ties with. 11 The 12 citizen delegates had been chosen by lot amongst the ‘dialogue day’- and the onlineparticipants, while the professional fora elected their representatives and sent three delegates of the municipalities, two of the Länder level (leaving 1 seat empty), and four representatives each for business interests and ‘civil society’ (i.e. comprising the rest of the interest groups and NGOs).

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included, although the federal level only through observers who did not take part in the decision-making. Concerned public interests were represented by environmental and consumer groups, advocacy think tanks and charities, and ‘lay’, non-organised citizens were included in addition. Economic interests were represented by all kinds of professional, business and trade organisations as well as some trade unions. In numerical terms, private business and professional associations were overrepresented in comparison with ‘civil society’ or public interest groups. Since the dialogue was in principle open to any group that showed an interest, the imbalance may partly be explained by the lack of resources of public interest groups to engage in such a costly process. According to interviewees, lay citizens partly filled this gap and advocated issues like organic farming or animal welfare that were not represented by organised groups in the dialogue (interviews O, P). Given that the issues of climate change will affect future generations more than the present, one could argue that the younger generation was underrepresented amongst the ‘ordinary citizens’ and there was no specific pressure group representing their interests. Finally, political parties were absent from the process. Representatives of Länder and municipality administrations as well as the bulk of the present interest groups stood in accountability relationships with their constituencies. This substantive standard of representation did not apply to the non-organised citizens who were neither directly nor indirectly authorised to speak for an affected group and could not be held to account. This group did not fulfil standards of descriptive representation in terms of certain basic demographic features either. Because commitment essentially had to be voluntary and despite increased efforts to target younger strata of the population, highly educated, older men were clearly overrepresented (BMU 2016, p. 6).12 The consultation procedure was relatively transparent in terms of data access during the process and thus allowed meaningful, informed participation and public scrutiny. The three evaluations of the process were available online and documentation on the ‘website www.klimaschutzp lan2050.de’ during the process was relatively broad. Yet, there was no 12

More than 50% of involved ‘citizens’ had a higher education degree, for instance (BMU 2016, p. 6).

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unprocessed raw data and 1:1 documentation of the deliberations, which could have been provided, for instance, in the form of video recordings of the sessions, and the way the list of climate protection measures developed was criticised for being incomprehensive to participants (and probably even more so to external observers, see below). (b) The quality of deliberation differed between the four fora: In the municipal forum and the citizens’ dialogues, participants described the debate as respectful and consensus-oriented and positions were much less hardened than in the interest group and the delegate forum. In these latter two forums, decision-making was described as confrontational, polarised and even personally undermining by the participants (interviews O, P). Two relatively clear-cut and irreconcilable camps were opposing each other, the business interests on the one hand (and in particular the industry and trade associations BDI and DIHK13 ), which were against binding and far-reaching climate protection measures, and the rest of the participants on the other hand, with environmental groups and lay citizens at the far end. The facilitators managed to keep the atmosphere civilised and debate remained formally reason-based overall. None of the groups was excluded during the consultation process as a result of discriminating decision rules or lack of information. Yet, there was little room for mutual learning or concessions, several groups felt undermined and some even personally offended. As a result of feeling marginalised, particularly the large business associations increasingly withdrew from the debate and instead strengthened informal lobbying efforts vis-à-vis the federal government, particularly the Federal Ministry of Economic Affairs and Energy (Bundestag Printed Paper (BTPP) 18/11380; interviews O, S). They also challenged the competences and legitimacy of the involved citizens and partly accused the supporting service providers of not being neutral. Commitment to reaching consensus was minimal, and in the end, a report was produced that specified for every single of the listed climate protection measure, which forum supported the idea to what extent (majority, consensus, etc.). Footnotes added more details about the exact positioning of individual participants. It was particularly 13

‘Bundesverband der deutschen Industrie’ (Federation of German industries) and ‘Deutsche Industrie- und Handelskammer’ (German chamber of industry and commerce).

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the interest groups that did not want to see their positions absorbed into a consolidated, joint group decision, but insisted on marking their individual opinions on every single of the almost 100 suggestions of the final report. (c) The way the results developed out of the dialogue remained opaque to the majority of the participants, despite the service providers’ efforts to disclose this process (interview Q, Prognos 2017, p. 64). The list of measures came about in the following way: Suggestions from the different fora were sorted out by WI if they did not aim at reducing CO2 emissions, if they were considered ‘scientific nonsense’ or if they did not fulfil so-called ‘pragmatic criteria’.14 The pragmatic criteria meant that a measure had to (a) state who does what with whom when, (b) have ‘strategic’ character, (c) allow the realisation of a so-called ‘transformative path’ by giving incentives and removing barriers and (d) address primarily the government but also the EU and international level (WI 2016, p. 7). The scientific support providers made these criteria for merging or deleting measures transparent, by listing them in several documents. WI furthermore produced text documents and excel tables with overviews of the measures from different forums and at different stages. The various drafts of the so-called ‘consolidated’ measures (i.e. the results of the merging process) were on hand within the deliberations and the participants voted on them (WI 2016, p. 7; interviews P, R). However, and slightly paradoxically, all these disclosure efforts rendered the process so complicated that it became impossible to comprehend and thus obscured rather than illuminated the procedure. Besides, the criteria for sorting out suggestions were not unambiguous and they were expressed in a PR lingo that may not have been equally comprehensible for everybody. During the deliberation process, there was constant transmission between the dialogue and the ministry of the environment, which initiated and observed the process. Yet, the dialogue and the government did not stand in a two-sided relationship. Rather, the development of advice was uni-directional (from the dialogue to the government) and did not 14 Three of the suggested measures did not pass the last test (e.g. the suggestion to push nuclear fusion) (interviews P, R).

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successfully incorporate and commit important political players, such as others ministries and coalition parties. During the dialogue’s deliberations, at least two meetings were held (but poorly attended) with other, affected ministries to inform them about the proceedings and there was no direct connection to the parliament, since political party representatives did not participate. The dialogue’s results were officially channelled into the political process by being handed over to the minister of the environment in March 2016. On the grounds of the suggested measures, BMU then drafted a relatively ambitious climate action plan in April 2016 that entailed several of the dialogue’s suggestions. Amongst them were also rather concrete and far-reaching suggestions that had not been supported consensually in the dialogue, but by majority only (such as the suggestion to reduce meat consumption in the shorter run). Due to interventions by the departments of economic affairs, of transport and of agriculture and the chancellery during the interdepartmental coordination process, as well as lobbying efforts by business interest groups which called the list of climate protection measures ‘gruesome’ and ‘a horror catalogue’ and evoked the de-industrialisation of the German economy (Wirtschaftsrat 2016), later versions of the bill were seriously watered down and did no longer entail the original, concrete and ambitious goals (such as the reduction of meat consumption or the end of coal mining).15 No feedback was given ex post on how the recommendations were dealt with in the policy process, despite repeated announcements by the government to provide this (Bundestag printed papers (BT PP 18/9678, p. 3; BMU 2015, p. 5).16 Both at the closing conference in winter 2016 15 The drafting of the climate action plan went through different stages and many concessions were made during the process. For instance, the emission reduction goals for the different economic sectors (buildings, energy, agriculture, industry, transport, etc.) temporarily fell prey to business interests, but then found their way back into the final version. This had to do with the upcoming climate negotiations in Marrakesh (mid-November 2016) where the climate action plan was to be presented. This created pressure to agree on more concrete sector-specific goals if the government was to keep face on the international level. The minister of the environment made use of this bargaining chip by publicly blaming the other ministries of lack of commitment and calling on the chancellor to intervene. 16 These reassurances were reconfirmed in speech again and again by representatives of the ministry and documented in written form several times. For instance, in a parliamentary inquiry (BT PP 18/9678, p. 3), the government confirms that it will justify the implementation

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and the evaluation conference in summer 2017, the responsible ministry explained with regret that the government could not agree internally on delivering such a response. For many participants of the dialogue, this lack of feedback and the substantial watering down of the recommendations during interdepartmental coordination reflected a lack of political commitment to the dialogue on the side of the government and produced considerable frustration across the camps (interviews N, Q, S; Prognos 2017, pp. 37ff.). It seems unlikely that this disappointment could have been forestalled by a better ‘expectation management’ (Prognos 2017, p. 3). An expectation of some sort of feedback is not generally unrealistic in an advisory and consultation relationship and was reinforced by the sponsor’s reassurances. The vigour of the dialogue might have been increased by a higher level of consensual closure on the suggested measures. Yet, the results were not aggregated sufficiently to let the participants speak with one voice. Only about half of the suggestions, and often the more vague ones, were more or less supported by all included parties, while many were only backed by a majority within some of the forums, but usually failed to commit the business interests. The influence of the plan was probably further reduced by the limited public attention. Beyond the civil society institutions involved in the process, there was almost no public debate on the dialogue and little public pressure that could have supported its implementation. That the dialogue did not gain widespread public attention and was simply not known to a larger public has been traced back by the evaluators to minimal public promotion (Rucht 2016; Prognos 2017).

3.2.2 Reliability and Problem Adequacy of the Climate Protection Dialogue’s Expertise (a) The round of participants was not particularly experienced or knowledgeable vis-à-vis climate protection. The ‘professional’ participants mainly stood for the perspectives of their constituencies and were not or rejection of the recommendations publicly. According to the summary of the minister’s welcoming speech at the kick-off conference on 25/26 June 2017, she promised that she will account for how the results of the consultation process are dealt with (BMU 2015, p. 5).

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designated experts on climate change. Judging from their organisational affiliation, none of these professional participants fulfilled the criterion of political and financial independence. Those that entered the process through citizens dialogues were relatively highly educated individuals, and there is no reason to doubt their political and financial independence on the whole. About half of the citizen participants related to experience from their professional backgrounds during debates (interviews O, S), but they can hardly be called experts on the issues. Additional scientific support was provided by Wuppertal Institut (WI) and Öko-Institut (ÖI), which were themselves supported on individual issues by further institutes. These two institutions are applied research centres with extensive policy advice experience in the field of environmental, climate protection and energy policy. Their employees conduct research and many of them have academic track records, but, judging from these institutions’ websites, publication in independent, international, peer-reviewed outlets is less prioritised. Öko-Institut is associated with the green movement and known to lean towards the political left, and Wuppertal Institut has a focus on public education, dissemination and communication (Interviews K, R, P). The tasks of the scientific support were to (1) advise during the deliberations (both WI and ÖI), (2) provide scientific input (ÖI),17 (3) sort out suggestions that did not aim at reducing CO2 emissions, that did not address government or were considered ‘scientific nonsense’ (e.g. nuclear fusion) (WI), (4) draft joint lists of recommendations, thereby merging duplicates from the different fora (both WI and ÖI), and (5) assess the developed measures ex post in terms of the climate protection contribution, the expected costs and economic benefits, the next steps towards implementation as well as overlaps, synergies and conflicts with other measures (ÖI). The scientific support by ÖI and WI was considered useful and neutral by most participants. Yet, some business representatives constantly scrutinised this work and warned against the exclusion of certain views in the scientific assessments provided by ÖI and the drafts of climate protection measures provided by WI (interviews L, O, P; Prognos 2017, p. 64). 17 This input spanned overviews, e.g. on transformative paths and scenarios for the different sectors, to be presented at events, to be sent via email and to be uploaded in internal web forum.

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According to several interviewees, the service providers were continuously, and in some eyes incessantly, asked for more justification and disclosure of the development of measures during the dialogue’s events and in frequent phone conversations by business agents (interviews L, O, P). They also made it clear that they considered ÖI a biased choice, and WI was partly criticised for interfering too much and for not being transparent enough about the process of generating climate protection recommendations on the grounds of the dialogue. (b) The quality of the epistemic practice was limited by several factors. While open dispute was encouraged by the organisers, some of the participants withdrew more and more from the debate. Since openly interest-based arguments were not legitimate during the process, the arguing style was on the surface rational and reason-based but nonetheless clearly interest-motivated and often characterised by hidden agendas, according to participants (interviews M, O, S). Participants also described the debate as not building on a systematic assessment of a plurality of relevant research on the affected topics. If at all, reference to research in the debate was made selectively to substantiate certain political positions. The information and studies that ÖI fed into the process were not referred to or built on, but largely ignored and, by many participants, they were considered too complex and numerous (Prognos 2017, p. 46, interview P). The majority of participants felt they did not have the time to process the complex and technical matters, sufficiently discuss the problem and reflect on the manifold consequences before decisions had to be made (interviews O, P; Prognos 2017; Rucht 2016, p. 20). There was clearly a knowledge hierarchy between the citizens group and the professional participants, and the former’s relative lack of expertise and preparation frustrated more intense, informed debates and choices on the issue according to a majority of participants from all camps (Prognos 2017, p. 64). A considerable part of the citizens were also described as making bizarre and absurd, as well as radical suggestions (interviews L, O, P, S). Some participants perceived this as refreshing and cutting across the well-rehearsed disputes between politically experienced players, while for others this weakened the credibility of these agents and raised doubts about the idea of direct citizen participation altogether (interviews O, P, S).

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(c) The consultations were policy-relevant in that they were sought after by the government, dealt with a timely and pressing issue, produced an outcome that clearly addressed the government and answered to the original mandate. Yet, as partly described above, implementation was hindered by the divides within the government, the lack of involvement of political parties during the deliberations, the relatively low conflict resolution between the involved interests and viewpoints and the vagueness of those suggestions that all could agree on (interview P, R). This vagueness, but also the lack of time, made it difficult to seriously estimate monetary consequences, let alone solve distribution issues. From the perspective of environmental engineering and climate science experts, the problem-solving potential of the results was limited by several factors, although the recommendations did address the problem and were overall reasonable. As mentioned above, suggestions that were ‘scientific nonsense’ or not related to climate protection and global warming had already been sorted out during the dialogue process by the scientific support providers. In addition to the measures, the report entailed scientific assessments of each climate protection measure, written by ÖI, which detailed assumptions, data sources and limitations and helped to judge the reasonableness of the measures from a fact- and research-based perspective (interview R). Yet, ÖI was not able to base these assessments on thorough calculations and technically accurate analyses that would have been apt to their own scientific standards. This partly had to do with the vague character of the suggested measures and the many uncertainties that follow from this, with the limited expertise on the part of the participants and with the restricted timeframe the scientific support providers had for writing assessments ex post (interviews O, P, Q).

3.3

The Climate Adaptation Committee

The climate adaptation committee (NOU 2010:10—Tilpassing til eit klima i endring [Adapting to a changing climate]) was set up in January 2009 by the Norwegian Ministry of the Environment and delivered its report in November 2010 as part of ‘Official Norwegian Reports’

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(Norges offentlige utredninger), NOUs for short.18 NOUs are a longstanding and quite visible government report series, sometimes referred to as ‘green papers’. The NOU committee consisted of 17 members, including the chair person. It held 12 meetings with specialists on individual topics (such as drainage or energy) in Oslo and 7 regional conferences in other parts of Norway. It further held a so-called ‘open dialogue seminar’ and a seminar that launched the report (both in Oslo), and there were bilateral meetings of committee members and departments, agencies, research institutions and interest groups. After delivery, the report was sent out to public hearing (on 17 December 2010 with a deadline on 17 March 2011) by the environmental department, and more than 100 groups and institutions responded by sending their statements. A government white paper (‘Stortingsmelding’ [St.meld./Meld.St.]) on climate change adaptation followed the committee report in 2013 (St.Meld. 33 2012–2013). The publication of results in an official government report, the hearing process and the subsequent government white paper are part of the standard procedure when governmental advisory committees in Norway are set up as an NOU. The set-up of the committee responded directly to the Norwegian government’s climate strategy of 2008 (‘Klimatilpasning i Norge’ [climate adaptation in Norway]), which consisted of three goals. The first of its goals (i.e. to map Norway’s vulnerability to climate change and include climate change considerations in societal planning) was to be tackled by appointing the climate change adaptation committee in focus here. The committee’s official mandate can be summarised as analysing the effects of climate change on Norway and suggesting measures to adapt. The committee narrowed down its mandate to adapting the planning system and state infrastructure by regulatory and technical means and to knowledge gathering and generating.

18

‘Norges offentlige utredninger’ translates directly as ‘Norwegian public inquiries’ or ‘Norwegian public committees’, but has been given the official English title ‘Official Norwegian reports’ on the government’s website.

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3.3.1 Democratic Participation in the Climate Adaptation Committee (a) Climate change adaptation can be said to affect the whole society in the medium or long run, although some groups of society may be more immediately and directly affected, such as farmers, the tourism industry or municipalities that manage key public infrastructure. Many of the more immediately affected perspectives were given a voice in the advisory process, although many not all in the powerful role of committee member, but through other channels. The rationale for composing the committee was to pick (at least) one member for every sector of society (Interviews T, V, W). The majority of the committee (10 out of 17 members) were civil servants, mainly from agencies at arm’s length from government. The chair was also a civil servant from the county (‘Fylke’) administration. The secretariat consisted of seven civil servants from agencies, government departments and county administration. Amongst the committee members, representatives of societal interests were in the minority. Only four clearly stood for certain interests (Sami population, insurance and technology companies and environmental protection), and only the representative of an environmental group was a formally accountable representative of public interests. Given the topic, one could have expected, for instance, farmers’, refugees’ or leisure associations as committee members. Some societal associations commented on this composition. For instance, in its hearing report, a large trade union describes it as remarkable that the NOU did not ‘at any point’ involve employee representatives although climate change adaptation affects the whole society, including work life (Fagborbundet 2011, p. 1; see also interview V). Through the less influential external input channels (regional conferences, specialised meetings and the hearing process between the delivery of the proposals and the issuing of the government’s white paper on the topic), a broad range of further societal input was given voice, however. These voices stood for a multitude of affected interests. Amongst them were many authorised and accountable representatives and even many democratic membership organisations, where responsiveness is

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least ambiguous. Through these additional input channels, all affected interests had a chance to be heard. There were no ‘members of the general public’ involved in the process however, neither as committee members nor as participants in public input fora. They had not been explicitly targeted by the organisers of the committee (interviews X, Y), and access to the external input channels was generally by invitation. There were no tools and arenas that lowered the threshold for lay citizen involvement (such as conferences with evening sessions or online debate fora), and no public campaign drew attention to the process and invited input. The committee did, however, draw in the possibly more marginalised perspectives of ‘local communities’ by inviting local state authorities and local branches of interest associations to regional conferences. The committee’s website (www.nou-klimatilpassing.no) provided public access to some of the studies commissioned by the committee, some interim results, dates for regional conferences, summarising minutes and presentations from conferences and a blog with entries from committee members and other climate change experts from agencies. There were no authentic, unprocessed audio or video recordings of plenary sessions or conferences that would have allowed direct insight into negotiations. There were further no minutes of the plenary sessions publicly available, and the minutes of the specialist and regional conferences were summaries, not verbatim records. Neither were overviews produced that would have given insight into the external input’s influence and would have made the proposal development process traceable and comprehensible. After the work of the committee was finished, the above-mentioned website was closed and now only the report itself and the hearing reports are available online. Other documents were archived by the environmental department and are hardly accessible now.19 (b) The process of decision-making in the committee has been described as fair, polite, respectful and civilised by participants, and as far as this can be assessed on the grounds of interviews and document analysis, none of the members felt openly undermined, personally attacked 19

It took several months and about 20 emails and phone calls as well as several official requests to get access to the archive.

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or silenced. However, certain topics were explicitly excluded by the chair. It happened repeatedly that members brought up issues, which the chair considered too controversial to touch, e.g. concerning the merging of municipalities (interviews W, Y). In the committee, every member had a say and it was legitimate to raise questions and suggest issues. Yet, open contestation, competitive voting and the raising of conflictual issues were not legitimate (interviews W, Y). Also, de facto, the group did not deliberate in the sense of reason-based collective decision-making. There was no negotiation or substantive debate about the content of the report in the group and thus no need to argue for positions. This had to do with the way the writing process was organised and with the division of labour between the members: The members wrote their respective section of the report themselves, with strong support by the head of secretariat. Because everyone was responsible for and very specialised in their very own field of expertise, interest in other fields and sections of the report was limited. The most conflictual issue that could not be kept out of the committee, because it was one of the main tasks of the committee, was the question of where to locate the authority for the coordination of climate change adaptation in the public administration. This issue was not solved by the committee, but postponed. The report states that this issue is an important one to tackle, but no solution is decided upon.20 Consensus was reached by the committee in the sense of a joint report that was not opposed by any of the members, but officially backed by all. ‘Consensus’ had also been explicitly announced as the goal at the beginning of the process by the committee chair in his opening statement. It seems likely, given the above-described style of conflict management that this goal did not amount to more than a relatively thin version of consensus. A more substantial consensus would have necessitated the reaching of agreement through mutual learning, open contestation and 20

It was later settled for a short period by the government’s white paper following the report, which suggested to locate coordination responsibility at the environmental agency Klif (‘Klima og Forurensingsdirektoratet’ [Norwegian climate and pollution agency], now ‘Miljødirektoratet’ [Norwegian environment agency]), and thus move it from its temporary earlier placement at DSB (‘Direktoratet for samfunnssikkerhet og beredskap’ [Norwegian directorate for civil protection]). Although this original solution was then revoked temporarily, shortly after the launch of the white paper, it was finally implemented as suggested.

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debate, real conflict resolution and a convergence of positions. At conferences and specialist meetings, there was slightly more debate than in the committee plenary, but no attempt at aggregating and integrating voices to reach a joint decision. External agents were invited to comment and present their views. Some of these views were listed in minutes and some found their way into the report. The process of selecting these viewpoints was not disclosed and it seems to have been largely unsystematic, i.e. not following a predetermined set of external criteria. According to one interviewee, it was solely up to sectoral experts to decide what they wanted to include in their chapters (interview W). When the work of the committee was challenged at regional meetings, it mainly concerned the narrow framing of the issue. Commentators were concerned about certain problems being left out of the analysis, such as climate refugees, the reduction of greenhouse gas emissions and Norway’s responsibility towards more affected regions of the world. It was also repeatedly criticised that a focus on climate change adaptation downplayed the gravity of the climate change situation and the urgency of taking actions to mitigate the greenhouse effect. Such critical comments were typically pacified by NOU committee members and the chair, who participated in these meetings, stating that the committee will deal with these issues in the future, that it is currently in the ‘listening’ or ‘information gathering phase’, not yet the ‘conclusion’ or ‘decision phase’ and that certain issues were not part of its mandate (see, e.g., the minutes of the regional conference in Drammen, 28 October 2009 [internal document ]). (c) The advice had a clear chance to resonate politically. There had been a range of transmission and feedback loops during the advisory process between the committee and the public administration. As described above, both the committee itself and the secretariat were dominated by civil servants from government ministries and agencies. A key position was held by the head of the secretariat who was from the environmental agency Klif at the time. She is said to have shaped the outcome more than any other individual, since she wrote the sections in close bilateral exchange with the individual committee members. She has been described as a ‘doer’, a ‘rockstar’ and an expert on the topic of climate change adaptation (interview Y, AC), who had an overview over

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the issues discussed, while the committee was fragmented and the individual members did not have much insight into other’s fields. There was regular exchange with the minister of the environment and other departments were briefed about the proceedings in the committee in a range of meetings. Yet, the government did not interfere with the advisory process or supervise the committee closely. According to one interviewee, the chair in particular would have preferred more feedback from the government on the kind of advice it needed, but the environmental department made a choice to keep a certain distance (interview W). The committee gave some account of its mandate and its actions at regional and specialist conferences, at the launch seminar and in lectures attended by committee members. It also published information about these conferences on its website and referred to them in the report, but there was relatively little feedback on how the public, external input received at conferences was processed by the committee, i.e. whether and how such input made it into the committee’s suggestions. As mentioned above, no overviews were produced that could help trace the proposal development process.21 The report provides 1 1/2 pages where the main input is summarised in ca. 10 points. References to the sources of that input (‘interested parties’, ‘many’ or ‘some’) are so general that it is impossible to identify specific actors, however. Yet, judging from the subsequent hearing process, it seems that a considerable amount of external input was incorporated in some form by the committee because several organisations in their hearing statements refer to their original input and find it represented in the report. The committee report did then in fact spill over into the policy process and develop quite a degree of policy impact. As mentioned above, it was transformed into a white paper that reflected many of the suggestions of the report (see also interviews V, W). Although the Norwegian government is not officially obliged to respond to NOU reports, this is common practice, generally expected and usually performed. The white paper went beyond the suggestions of the committee and in particular (temporarily) solved the most controversial issue that the committee 21

The tables that were produced by the secretariat justified in detail every part of the report in relationship to the mandate (i.e. in how far the mandate was fulfilled by the committee), but not in terms of the debate process, the solved conflicts, degree of agreement, etc.

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could not agree on: The question of where to locate the coordination responsibility for climate change adaptation within national public administration. Not all of the issues in the report and the white paper were immediately implemented. Most effects were mid-term, and some issues are still in the process of implementation (interview V). The work of the committee and its report also had a chance to resonate in the public sphere, despite some limitations, concerning data disclosure, as described above. Yet, overall, it seems as if there were more opportunities for scrutinising and influencing the debate than were actually used by interest groups. Although the hearing process was used by more than 100 organisations to comment on the results, the concerned public interest groups in particular did not participate. This is most striking in the case of the environmental groups. These actors would have been obvious opponents of a report on climate change adaptation that was widely considered relatively technical and not particularly farreaching, and they had been explicitly invited by the government to get involved. Yet, interviewees point out that the large environmental groups in Norway were neither able to send an expert to the committee, nor participate extensively at its conferences and hearings because they did not focus on the issue at the time. They furthermore prioritised greenhouse gas emission mitigation and climate protection, and these issues are perceived by many to conflict with measures of climate change adaptation to some extent (interviews Y, Z, AA). Surrounding the committee work, there was some debate in the press, for instance in the form of op-ed contributions by committee members, involved ministers or researchers who commented on the committee’s commitment to highlighting benefits as well as challenges of climate change for Norway and on the amount and pace of implementation of the suggestions.22 But civil society at large did not attend to the issue of climate change adaptation nearly as controversially and engaged as to the issue of carbon emission mitigation, for instance.

22

See, for instance, the contribution in the newspaper ‘Bergens Tidende’ by the chair of the committee criticizing the, in his eyes, slow pace of implementation four years after the launch of the report (Flæte 2015). This was followed by a response by two ministers of the government, rejecting the allegation that little had been implemented.

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3.3.2 Reliability and Problem Adequacy of the Climate Adaptation Committee’s Expertise (a) Overall, the advisory round had access to credible and sound expertise on a large range of relevant issues. Some studies were specifically conducted for the purpose of feeding into the committee. The expertise that the report builds on encompassed different kinds and sources of knowledge, ranging from academic to stakeholder, expert civil servant and ‘local’ knowledge. There was an overweight of public administration and natural science backgrounds, particularly in the most influential roles of committee members and secretariat leadership. Social scientists were missing from the process, and local and interest group expertise was less central than scientific and administrative knowledge (see Severinsen 2016; hearing report Forskerforbundet 2011). There were four main input channels for external expertise, namely the studies that the committee commissioned, the ‘status reports’ that the committee asked individual companies or institutions to deliver, the regional and specialised conferences, and finally the Email channel that provided access to the committee’s secretariat. The quality of the commissioned studies was described as very mixed by interviewees. While some were called ‘lousy’,23 two enjoyed a very high status (interviews T, V, W). This pertains to the report ‘Klima i Norge’ (climate in Norway) 2100’ (Meterologisk Institut et al. 2009) and the study ‘Konsekvenser av klimaendringer, tilpasning og sårbarhet i Norge’ (consequences of climate changes) (Cicero et al. 2009). These two reports were presented at all of the committee’s conferences and they were, and still are, very often referred to in political discourse (in the case of the ‘Klima i Norge’-report, an updated version came out 2015). The ‘status reports’ that several organisations and companies were asked to deliver allowed hands-on insight into different professional

23 This judgement pertained to two studies that were conducted by consultancies. One of the studies was considered such bad quality by the committee that it was sent back to the authors, asking for more substantiation and for deleting the reference to the committee from the foreword, so that the committee would not be identified with it [internal documents].

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fields and the biggest risks of climate change that these organisations envisage in their fields (e.g. Avfall Norge [Waste Norway] or the engineers association). They should therefore not be measured against academic or independence criteria of good knowledge, but they can certainly count as useful specialised perspectives on the matter of climate change adaptation of public infrastructure and planning. Judging from conference minutes, from the topics discussed and the participants’ lists, the difference between regional conferences and specialists meetings (‘fagmøter’) in terms of sound (scientific) assessments seems to have been marginal. The latter took place in the capital city Oslo, while the first were scattered around the country and thus linked up to local perspectives or institutions located in the region, but there is no reason to assume that these actors were less knowledgeable on the issues discussed. Both events involved a large range of highly specialised participants, stakeholders, NGOs, public authorities, companies and researchers. Several people also sent in their perspectives through the Email channel. Some refer back to a committee member encouraging them to deliver this input (amongst others, these were local farmers, refugee organisations, lecturers). Competence amongst the members and amongst those participating through external channels was overall relatively high. Even if the issue of climate change may involve many uncertainties, those involved were specialised in the field or sector they were asked to represent. Most of these experts were not academics in the traditional, academia-internal sense that emphasises a research publication track record and affiliation with an independent research institution, but were studies-conducting or research-using expert civil servants. There were also two researchers amongst the committee members from independent, public research institutions with an academic track record of publishing on the issue, but it does not seem as though they had a more authoritative status when it came to knowledge claims, nor was their competence and experience on the issues necessarily higher. In fact, several interviewees emphasise that all committee members had an academic ‘mindset’ or background in terms of a PhD and/or university research experience (interviews T, Y) and one interviewee even called all of them ‘academics’ (interview).

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The climate research institute ‘Cicero’ played a distinct role in the process. Not only was one committee member from Cicero, the institute also acted as an external advisor on scientific issues, took usually part at the regional and specialists conferences, where it presented its ‘consequences of climate changes’-study (Cicero et al. 2009). Cicero was furthermore responsible for the committee’s dissemination and communication strategy and thus helped to frame climate change adaptation issues for the media and public debate. As mentioned above, the committee also relied strongly on the high-quality input from renown research institutions specialised in climate change issues (Cicero, Vestlandsforskning, Havforskningsinstitut, e.g.), and it further received academic input at the regional meetings where regionally-based research institutions were invited to present and comment (interviews T, V, W, AC). Overall, the degree of independence of committee members was medium high. Apart from three private companies, the large majority of members came from not-for-profit institutions and did not openly advocate a certain interest. This does not mean, however, that these members did not have any conflicts of interests. Since large parts of the committee mandate were about state responsibilities in adapting to climate change, and the most controversial issue was the location of the coordination task within the public administration, some of the involved civil servants may have been at least indirectly affected by this decision. The issues discussed by the committee also touched the financial interests of the involved researchers focusing on climate change issues, because the committee suggested a rise of funding for research on these questions. Amongst the external experts, the degree of independence varied. Amongst those externals that were asked to deliver studies were several consultancies, but there were also several renown not-for-profit research institutions (Vestlandforskning, Cicero, Havforskningsinstituttet, Nansensenteret [NERSC]), which delivered high-value studies. (b) The perspective of the committee on the issue of climate change adaptation focused on public authorities’ responsibilities and the planning system. On this clearly defined issue, the analysis was thorough, although the committee repeatedly deplores the lack of (long-term) data

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and reliable prognosis on the development of climate change (both in its report and in its conferences). In the committee, expert standpoints were seriously dealt with by the individual experts responsible for ‘their’ sector, but not by the group as a whole. As mentioned above, there was no deliberation in the committee, in the sense of reason-based joint decision-making, and therefore, one cannot speak of a commitment to rational justification of standpoints or to mutual learning. None of the members looked into the others’ sectoral fields of expertise or seriously tried to influence the others’ sections of the report. As described above, open dispute and confrontation was not encouraged, but rather avoided by the chair who kept controversial questions out of the committee. The expert-oriented composition and the distribution of labour between members were conducive to the low level of conflict, the active exclusion of potentially conflictual topics and the absence of real negotiation and deliberation. Another explanation likely lies in the non-conflictual framing of the key issue and the subsequently minimal public and political debate on it. (c) The above-described relative distance between sponsor and committee, along with other factors, such as the lack of conflict resolution by the committee, may have reduced the responsiveness of the report to political and societal needs. Yet, overall, the policy relevance and usability of the suggestions were fairly high. This is reflected by the government backing the report and committing to many of its proposals in the subsequent white paper. It is also reflected by the frequent references to the report made by different parties and governments across the political spectrum since its publication. The report was met with little public criticism and this likely made it easy for the government to embrace and implement it. During the hearing process, some organised groups uttered mild criticism concerning the narrowness of the report, unresolved questions and neglect of their particular special interests (see, e.g., hearing statements by Forskerforbundet and Fagforbundet). By scientific experts on the issue of climate change adaptation, the scholarliness of the report, i.e. its methods, data and thoroughness of analysis, was not generally questioned, although some institutions criticised a certain lack of consistency in the report. The main points of criticism for research institutes were the scope and content of mandate

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and report: They criticised that the report was not concrete enough and not solving the most important organisational problem of where to place administrative responsibility for climate change adaptation (see hearing statements by Bioforsk 2011, Cicero 2011 and Vestlandsforskning 2011), that it was not dealing with the global ramifications of climate change adaptation (hearing statement by Forskerforbundet), not solving the issue of distribution of costs, although the high costs of climate change adaptation measures are mentioned several times in the report (hearing statement by Vestlandsforskning 2011), that it lacked the perspectives of social scientists and humanities (hearing statements by Forskerforbundet 2011 and Cicero 2011; Severinsen 2016) and that it dealt too superficially with questions of risk and uncertainty (see hearing statements by Cicero 2011 and Vestlandsforskning 2011).

3.4

A Case-Comparative Perspective: Storylines and Explanations

The following section provides an overview of the three cases’ normative scores and develops a narrative or storyline for each case that traces ‘how things hung together’ in the individual cases. On this basis, conclusions can be drawn as to the decisive practices and mechanisms, which highly ambitious, multi-level advisory and consultation arenas can make use of to strike a balance between the multitude of normative demands. This section will point at the most striking mechanisms, some of which will be given closer attention in the second part of the book.

3.4.1 The Cases’ Scores From a comparative perspective at the three cases’ normative achievements, one can say that the final storage committee reached the double goal of integrating affected viewpoints and generating reliable expertise to a very large extent. The climate protection dialogue was very inclusive, but had several deficits concerning the feedback, resonance and problemsolving dimensions as well as the epistemic and democratic qualities of

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deliberation. The climate adaptation committee reached medium scores on almost all dimensions, but was deficient in terms of problem-solving, conflict resolution and deliberation. On the whole, it scored slightly better than the climate protection dialogue in terms of both democratic legitimacy and epistemic authority, yet not as good as the final storage committee. Table 3.2 gives an overview of the cases’ scores on all the defined criteria. The benchmark for the individual scores is not an imagined average case but an imagined ideal case that fulfils all the criteria fully. Thus, medium high levels of transparency, for instance, can still be remarkable within the universe of advisory structures that exist in the respective political system.

3.4.2 The Cases’ Storylines Final Storage Committee An interplay of favourable factors allowed the final storage committee to accommodate the multiple epistemic and democratic demands. It brought together a variety of contributors in divergent, but complementary roles on several levels of participation with different kinds and degrees of authority, and this contributed to a beneficial division of labour within the same organisational space: The public provided nonbinding input within an open, upstream, auxiliary structure and the committee dealt with it seriously and transparently. A mixture of politically experienced, but still overall issue-competent committee members was accompanied by very scholarly external advisors without decision rights. Voting rights were differentiated according to member type, and this de-politicised and defused conflicts to some extent and minimised the final decision-making round. The ‘political members’ were symbolically relegated to second place by being stripped off voting rights, while they in fact participated to the same extent in compromise-building and ensured broad parliamentary backing. The federal government did not interfere directly in the advisory process, but acted as permanent observer and information provider (when asked). It served as transmission belt between committee and political realm and prepared the realisation of

Broad inclusion in four parallel strands Access to processed, edited, summarising documentation

Confrontational and undermining deliberation in some forums, including the delegate committee

+

+

Climate protection dialogue Moderate inclusion through annexed input channels Access to processed edited, summarising documentation Fair, polite and respectful No real deliberation, contestation and conflict resolution

~+

~−

Climate adaptation committee

+/-

+/-

24

(+) indicates that the standard has been met by the arena, (~ +) that it has largely been met, (−) that it has not been met, (~ −) that is has largely not been met and (+ / -) stands for a medium score.

Democratic legitimacy dimension (a) Formal inclusion of Broad inclusion in two those permanently successive layers and seriously Extensive access to affected unprocessed, original material and documentation, videos and verbatim records of sessions (b) Fair, inclusive and Deliberative, fair and integrative equal deliberations

Final storage committee

Table 3.2 The three cases’ scores on democratic legitimacy and epistemic authority24

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Thorough government feedback Transmission channels with government and parliament Feedback on external expert/public input’s influence on report Pronounced policy influence

(b) Rational debate of all relevant expert standpoints

Thorough debate and analysis of problem and solutions

Epistemic authority-dimension (a) Plurality of Medium level of experienced, competence and competent, independence independent amongst participants advisors High-level, external input from a plurality of independent researchers

(c) Resonance of advice in political and public sphere

Final storage committee

+

~+

+

Lack of thorough analysis and development of consistent solutions

Low level of competence and independence amongst participants External scientific support

Lack of government feedback Lack of transmission channels with government Feedback on external expert/public input’s influence on report Some policy influence

Climate protection dialogue

−

+/-

~−

+/-

~+

~+

(continued)

High level of competence in committee, with some limitations to diversity and independence Access to further sound scientific analysis Thorough analysis Lack of debate and limits to the involved perspectives

Government feedback Transmission channels with government No feedback on external expert/public input’s influence on report Considerable policy influence

Climate adaptation committee

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(c) Problem-solving capacity of the advice

Table 3.2 (continued)

Politically relevant suggestions Implementable, feasible, consolidated, funding solved Generally reflecting scientific state of the art

Final storage committee +

Politically relevant suggestions Not implementable, not consolidated, incalculable costs In parts inconsistent, but no ‘scientific nonsense’ entailed

Climate protection dialogue +/-

Politically relevant, implementable, consistent and consolidated suggestions Funding issues and key question unsolved Generally reflecting scientific state of the art

Climate adaptation committee +/-

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the proposals. Thus, the endeavour was thoroughly coupled with the policy process, which is crucial for policy impact, but not to an extent, it seems, that undermined the independence and trustworthiness of the expertise. The variegated roles and authorities of different actor groups were accompanied by collective decision rules that further facilitated the pooling of many voices to a relatively unified choir so that the result could be described as ‘consensus’ or ‘sweeping agreement’. The final storage committee furthermore invested a lot of time and other resources to engage in serious and fair deliberations and integrated divergent viewpoints as much as possible. It extended its schedule to accommodate the need for more thorough analysis, with the result that during the last year of the deliberations, being a committee member became a full-time job for most. The skilful mediation of the negotiation by the two chair persons certainly helped pertaining a cooperative atmosphere, dealing openly with conflicts and reaching relatively broad agreement, which was then fully implemented into law. It also helped that the committee was able to outsource a particularly contested issue to a specialised commission, which solved the issue of funding during the ‘running time’ of the final storage committee. The degree of consensus the committee reached is remarkable given the extensive degree of transparency of the committee’s work, which could easily have frustrated thorough debate and serious concessions, but in fact was one of the cornerstones of its authority. That the committee’s small, efficient working groups were less subject to public gaze than the plenary level seems to have been conducive to pre-negotiating the more contested issues in a calmer atmosphere. It is furthermore remarkable that the committee reached the high normative scores although the issue of nuclear waste storage is in fact one of the most divisive issues in German post-war politics, with a decadelong history, fierce conflicts and a thorough erosion of trust between two polarised camps. Yet, exactly this history of contestation (and the corresponding attention to and analysis of the problem) may have prepared this first substantive step towards conflict resolution that the final storage committee achieved. It is no coincidence that the committee’s results and those of its predecessor (AK End) resemble each other closely. The main difference was that the final storage committee was set up in a broad,

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inclusive way, worked as a negotiating platform, and therefore brought the conflict resolution process a decisive step forward. It is also conceivable that the history of conflict brought about a more attentive attitude and careful design of the final storage committee and its participatory fora. It should further not be underestimated that the policy problem the committee dealt with was framed as a relatively narrow task. The committee was to prepare the site selection process by agreeing on a procedure and on selection criteria, not the site itself, and this task proved manageable, despite the deep divides. As described, the committee did not leave it at that, but extended its mandate proactively. Most importantly, it reappraised the German history of nuclear energy use and developed a shared, and possibly pacifying, perspective on it. Climate Protection Dialogue In the case of the climate protection dialogue, broad structural inclusion clashed with some of the more pragmatic goals of a policy developing endeavour and was eventually eroded to a considerable extent by factors like the highly conflictual deliberations and the de facto exit of key players. When looking at the climate protection dialogue, some key differences to the final storage committee become apparent. As in the final storage case, participants were divided into two camps, but in the case of the climate protection dialogue, the divide was not bridged. Deliberation remained confrontational especially in the more mixed arenas, and the considerable public attention during the dialogue is likely to have added to a hardening of stakeholders’ positions. The representatives of industry stood out as particularly powerful players who did not commit to finding a joint solution but de facto exited the negotiations prematurely to influence government directly. The lack of expertise amongst participants frustrated many members and likely reinforced a general lack of respect amongst members. The scientific service providers had difficulties adding serious calculations of greenhouse gas savings and costs to the suggestions developed by the dialogue participants. One reason was the vagueness and inconsistency of the suggestions. Another was the time pressure created by the looming climate summit in Marrakesh in November 2016, at which the government’s climate protection plan was to be presented. Apart

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from the lobbying efforts that the business representatives made, there was little exchange with representative institutions during the deliberation. The dialogue was poorly embedded into the policy process and this proved problematic. It neither included coalition parties (within its ranks or informally), nor did it involve and conciliate the affected government departments, which reduced its influence: Although a range of the dialogue’s suggestions made their way into a policy proposal drafted by the environmental department, they were later watered down due to inter-governmental conflicts. Due to government-internal conflicts, the promised response to the advice was not delivered. The broad mandate of the dialogue could have been an asset in the conflict resolution process because it allows for substitution, concessions and package deals. When the mandate is wide and flexible, contested issues can be dropped or postponed to the advantage of issues on which compromises are possible. Besides, the issue of climate change is still relatively new so that agendas and political divides are less rigid. Yet, its relative novelty also means that societal conflict resolution has just started on the issue, and it seems as if the dialogue has emphasised the clash of divergent interests instead of mediating it. Besides, the dialogue’s task to suggest low-carbon measures concerns many vested interests, some of which are quite powerful. Climate protection measures also require quite fundamental societal changes and are tantamount to cutbacks (in consumption, in emission, etc.). There is nothing to gain from them directly for any of the involved parties, and the crucial conflict came down to the trying task of burden distribution. Climate Adaptation Committee In the climate adaptation committee, some trade-offs were at play between normative standards: Joint, consensual agreement to the report was reached at the expense of real deliberation, conflict resolution and problem-solving, and more extensive inclusion and transparency were traded off for low conflict levels, a scholarly report and considerable policy impact. The process started off from a quite low level of (initial) contestation and public scrutiny, since the climate adaptation issue was at the time not (yet) on the agenda of political parties and public pressure groups. No distinct interests and no clear dividing lines had emerged.

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Although the topic surely affects every member of society and touches upon questions of redistribution, the technical and regulatory way in which it was framed did not stimulate further contestation and likely facilitated general agreement in the committee. During the advisory process, contention was further held in check by conflict-minimising strategies and the organisational structure: During the process, conflicts were explicitly kept out of the committee by the chair who discouraged dispute and ensured that the ‘hot topics’ were not touched. Reaching consensus was very important and this goal was accomplished, yet at relatively high costs: A low degree of conflict resolution. The atomised structure of the committee added to this: Most committee members were responsible for preparing a separate section of the report that they were considered experts on, in voluntary consultation with the respective societal sector and substantial support by the specialised civil servants in the secretariat, but without any serious debate with the other committee members. That there was no deliberation, in the sense of reason-based arguing and decision-making, meant that no potential problems or conflicting goals were stirred up and discussed. This, ironically, likely elucidates the lack of disagreement with the report, but it also weakens the report’s epistemic and democratic quality. An aggregated result that no one opposed to was further facilitated by the different levels of authority hat different kinds of actors held as well as the moderate levels of inclusion and transparency: In the powerful position of committee member, expert civil servants dominated and made for an efficient, consensual process as well as for a scholarly report, while the few stakeholders were outnumbered and neither assertive, nor particular involved in the report writing. Their influence was generally kept in check by admitting them mainly to the annexed consultation channels (hearings, regional conferences, etc.) and by appeasing their occasional criticism. These annexed, outer layers of the advisory structure had a relatively weak status. There was no attempt at conflating the discussions there, which would have lent weight to the perspectives of stakeholders, but instead committee members were free to decide what to pick up from these debates. No mechanisms were in place that ensured representativeness, and feedback about the use of this input by the committee was very limited and vague.

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There were furthermore no low-threshold public access channels. Public scrutiny was additionally limited by the lack of authentic, 1:1 documentation of the process, the received external input and the development of results. Yet, it also needs to be noted that those scrutiny channels that did exist were not used to the extent possible by stakeholders, and especially public interests did not make their voices heard (despite invitation to the hearings). All of this gave experts a lot of room and made it easier to reach a consolidated, consensual, scholarly solution. Together with the lack of scrutiny and contestation as well as a thorough link-up between committee members, the secretariat and the government, this made for considerable policy impact. Both impact and problem-solving potential could have been more pronounced, of course, had the suggestions been more concrete and given answers to funding issues and the key question of where to locate the administrative responsibility for climate change adaptation policies.

3.4.3 Conditions for Reconciling Ambitious Epistemic and Democratic Standards When taking a comparative perspective at the cases’ dynamics, the following mechanisms seem particularly striking and point to (un)favourable conditions for reconciling ambitious epistemic and democratic standards in the phase of policy development (Table 3.3). Both the final storage committee and the climate adaptation committee managed to reconcile the involvement of a (fairly) broad round of affected interests with the achievement of rather aggregated, Table 3.3 Key dynamics in the cases Minimised decision round + conflict-reducing strategies + manageable mandate ⇒ aggregated, consensual results + close embedding into system of government ⇒ policy relevance and impact Sufficient time + group commitment ⇒ serious, meaningful deliberation ⇒ genuine conflict resolution and problem-solving

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consensual results, and similar factors were responsible for this effect.25 The organisational structures in both cases established a constructive division of labour within the same closely integrated space. The advisory bodies consisted of a range of outer layers of participation with different kinds of authority, and divergent, but complementary roles for different actor groups. They gravitated towards a central decision-making arena, where different kinds of input converged and decisions were taken amongst a smaller number of people. On top of a manageable, relatively narrow mandate that was framed in a procedural, preparatory way and left follow-up questions to later stages or other political arenas, both cases furthermore built on pre-negotiating key issues in efficient working groups and informal networks. These factors together minimized the sizeof the decision round and facilitated the relatively efficient agreement on joint proposals. During the decision-making process, several conflictreducing strategies increased this effect. This applies, for instance, to the marginalisation of particularly contested issues, the comparatively strong commitment to speak with one voice and reach consensus, as well as some generosity in what participants let pass as consensus. The wellaggregated and scholarly consensual agreements that the two committees reached, together with their thorough embedding into the system of government and well-functioning transmission channels between advisory arena and policy-makers, provided the basis for the development of considerable policy impact and relevance. Yet, impact on policy-making is not tantamount to genuine conflict resolution and problem resolution. On the contrary, it takes serious and meaningful deliberations to achieve this, as all three cases show. How flawed deliberation that does not provide for reason-based, open debate can have a negative effect on the level of problem-solving can be studied in the cases of the climate adaptation committee and the climate protection dialogue. The final storage committee, by contrast, underlines this relationship in a positive way: The committee invested

25

Of course, there were also non-trivial differences between the two cases, despite some similar dynamics: For instance, the rather atomized structure of the climate adaptation committee and the very loose link-up between outer layers and core committee lessened the degree of inclusion, conflict resolution and accountability.

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an exceptional amount of time and energy into the successful settlement of conflicts.26 The chair persons stood out as very skilful mediators in this process who encouraged real debates, teased out disagreement while cultivating a friendly atmosphere at the same time so that conflicts could be resolved and decisions achieved that the group could live with. The above-mentioned practices of marginalising particularly contentious topics were sustainable in the final storage case and did not prevent solutions to the problems, because one key conflict was outsourced to another, smaller and more specialised committee and another was only temporarily ignored, but taken up again and solved at a later point.

References Bioforsk. 2011. “Høringsuttalelse om NOU 2010: 10 Tilpassing til eit klima i endring.” Accessed 16 December 2020. https://www.regjeringen.no/conten tassets/83adf487100e4415ac9ff73127be565a/bioforsk.pdf?uid=Bioforsk. Bundesministerium für Umwelt, Naturschutz, Bau und Reaktorsicherheit (BMU). 2015. “Klimaschutzplan 2050. Impulspapier des BMUB für den Auftakt des Beteiligungs- und Dialogprozesses.” 10 June. Bundesministerium für Umwelt, Naturschutz, Bau und Reaktorsicherheit (BMU). 2016. “Bürgerreport. Bürgerdialog zum Klimaschutzplan 2050.” https://www.bmu.de/fileadmin/Daten_BMU/Download_PDF/ Klimaschutz/buergerreport_klimaschutzplan_bf.pdf. Cicero. 2011. “Høringsuttalelse fra CICERO Senter for klimaforskning NOU 2010:10 Tilpassing til eit klima i endring.” Accessed 16 December 2020. https://www.regjeringen.no/contentassets/83adf487100e4415ac9ff73127b e565a/cicero.pdf?uid=CICERO_Senter_for_klimaforskning. Cicero (Senter for klimaforskning [Centre for International Climate and Environmental research]) et al. 2009. “Konsekvenser av klimaendringer, tilpasning og sårbarhet i Norge. Rapport til Klimatilpasningsutvalget” [Consequences of Climate Changes, Adaptation and Vulnerability in Norway, Report to the Climate Adaptation Committee]. Cicero Report 26 This is a key difference to the climate protection dialogue where time pressure was a key obstacle on the path towards consensus aggregation, conflict resolution, policy impact and problem resolutions.

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2009:04. Accessed 16 December 2020. https://www.klimatilpasning.dk/ media/6223/nou_klimatilpassing_konsekvenser_av_klimaendringer_rap port_ii_2y63v.pdf. Demos and Prognos. 2015. “Beteiligungskonzept. Konzept für die Beteiligung der Öffentlichkeit am Bericht der Kommission.” Lagerung hoch radioaktiver Abfallstoffe, 14 July. Kommissionsdrucksache (Committee printed papers) No. 108 neu, Accessed 15 December 2020. https://www.bundestag. de/endlager-archiv/blob/377708/c2402502dc0c79f656c67df6b795fd3e/ drs_108-data.pdf. Dialogik and EIPP. 2016. “Evaluationsbericht zum Beteiligungsverfahren der Kommission Lagerung hoch radioaktiver Abfallstoffe.” 22 February. Kommissionsdrucksache No. 230. Accessed 15 December 2020. https:// www.bundestag.de/blob/423458/6003ee0ca05983f27d89d6b0e6e267c9/ drs_230-data.pdf. Fagborbundet. 2011. “Fagforbundets kommentarer til NOU 2010:10 Tilpassing til eit klima i endring.” Accessed 16 December 2020. https:// www.regjeringen.no/contentassets/83adf487100e4415ac9ff73127be565a/ fagforbundet.pdf?uid=Fagforbundet. Final Storage Committee. 2016. “Verantwortung für die Zukunft. Ein faires und transparentes Verfahren für die Auswahl eines nationalen Endlagerstandorts.” Kommissionsdrucksache No. 268. https://www.bundestag.de/blob/ 434430/35fc29d72bc9a98ee71162337b94c909/drs_268-data.pdf. Flæte, Oddvar. 2015. “Klimarapport rett i arkivet.” Bergens tidende, 07 January. Accessed 16 December 2020. https://arkiv.bt.no/. Forskerforbundet. 2011. “Høringsuttalelse NOU 2010:10 Tilpassing til eit klima i endring.” Accessed 16 December 2020. https://www.regjeringen. no/contentassets/83adf487100e4415ac9ff73127be565a/forskerforbundet. pdf?uid=Forskerforbundet. Meterologisk Institut, met.no, Bjerknessenteret, Nansensenteret, Havforskningsinstituttet, and NVE. 2009. “Klima i Norge 2100. Bakgrunnsmaterialet til NOU Klimatilpasning” [Climate in Norway 2100. Background Material for the NOU Climate Adaptation]. Accessed 16 December 2020. https:// www.regjeringen.no/globalassets/upload/md/vedlegg/klima/klimatilpasning/ underlagsrapporter/underlagsrapport_1_klimainorge_2010.pdf. Prognos. 2017. “Evaluierung der Stakeholderbeteiligung an der Erstellung des Klimaschutzplans 2050.” Abschlussbericht. http://www.bmub.bund. de/fileadmin/Daten_BMU/Download_PDF/Klimaschutz/ksp2050_evaluie rung_stakeholderbeteiligung_bf.pdf.

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Rucht, Dieter. 2016. “Der Beteiligungsprozess am Klimaschutzplan 2050. Analyse und Bewertung.” Greenpeace e.V. Hamburg. Severinsen, Mari. 2016. “Tilpasning til klimaendringer. Organiseringen av det nasjonale koordineringsansvaret. Uni research Rokkansenteret Notat 6-2016.” Accessed 16 December 2020. https://bora.uib.no/bora-xmlui/ bitstream/handle/1956/17209/Notat%206-2016%20Severinsen.pdf?seq uence=1&isAllowed=y. Vestlandsforskning. 2011. “Høringsuttale til NOU 2010:10 ‚Tilpassing tile it klima I endring’.” Accessed 16 December 2020. https://www.regjeringen. no/contentassets/83adf487100e4415ac9ff73127be565a/vestlandsforskning. pdf?uid=Vestlandsforskning. Wirtschaftsrat. 2016. “Der Klimaschutzplan 2050 ist ein Horrorkatalog für die Wirtschaft.” https://www.wirtschaftsrat.de/wirtschaftsrat.nsf/id/wirtschaf tsrat-der-klimaschutzplan-2050-ist-ein-horrorkatalog-fuer-die-wirtschaft-de. Wuppertal Institut et al. (WI). 2016. “Massnahmenkatalog. Ergebnis des Dialogprozesses zum Klimaschutzplan 2050 der Bundesregierung.” https:// epub.wupperinst.org/files/6748/6748_Massnahmenkatalog.pdf.

Part II Institutional Design Lessons

4 Participant Selection Modes for Policy-Developing Collectives

The key institutional design question that this chapter deals with is how policy-developing collectives should be composed when epistemic and democratic standards are given equal value. The focus lies on the selection modes that are applied to set up advisory rounds and the participation patterns that such selection modes produce. Based on theories of democracy and collective choice, Chapter 4.1 compares four selection modes in terms of their epistemic and democratic merits: Open access, random selection, voting and targeted recruitment. Chapter 4.2 discusses how to organise access and divide labour in such a way that both the relevant expertise and the affected citizens’ perspectives are fairly represented. A case is made for multi-level structures of policy development that gravitate around a ‘core committee’. This core committee builds strongly on hand-picked stakeholders in the double role of expert and representative and it gets additional input from annexed public and expert fora. Chapter 4.3 summarises the arguments for viable participation patterns and selection strategies and emphasises

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the key role of intermediary organisations in reconciling epistemic and democratic pressures.1

4.1

Selection Mechanisms for Advisory and Consultation Bodies

4.1.1 Open Access At the core of the deliberative idea lies the notion of open and equal access to public deliberations. ‘The deliberation should, ideally, be open to all those affected by the decision’ (Mansbridge et al. 2010, p. 65; see also Knight and Johnson 1994; Steiner 2012, p. 32). Following from the democratic norm of self-determination, the open access logic runs through both classic and modern approaches of deliberative democracy and is the typical selection method for public participation formats, as Fung states (2003, p. 342; 2006, p. 67). The lack of an entry threshold is one of its most appealing features that appears to allow equality of access and indicates an openness to different levels of individual commitment. At first sight, the principle of open access does not look like a selection mechanism at all, because entry is not actively restricted and there is no act of purposeful participant selection by the responsible authority. Yet, in effect, leaving access to political forums open leads to self-selection and this usually produces results in empirical reality that systematically disadvantage the less well-to-do citizens: ‘The upshot is that if participants are allowed to self-select, those who participate are very likely to be white, college-educated, and middle-class’ (Ryfe 2005, 52; see also Fischer 2009, 58; Fung 2006, p. 67; Irvin and Stansbury 2004, p. 59; Lijphart 1997, pp. 1–2; Papadopulos and Warin 2007, p. 455; Steiner 2012, p. 49; Urbinati and Warren 2008, p. 405; Young 2000, p. 34). While participation in political parties and general elections has traditionally been more balanced, ‘there is no equivalent equality of influence

1

This chapter draws on and develops some of the issues that the author raised in a contribution to European Politics and Society (see Krick 2019).

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or voice in the non-electoral domain, where the advantages of education, income, and other unequally distributed resources are more likely to translate into patterns of over- and underrepresentation’ (Urbinati and Warren 2008, p. 405; see also Ryfe 2005, p. 52). The ‘democratic dilemma of unequal participation’ (Lijphart 1997, p. 2) lends additional weight to already privileged voices and it ‘will leave most decisions to an activist few who will, ironically, make decisions based on the authority they derive from a participatory process’ (Hauptman 2001, p. 401). Such social distortion (or ‘social privilege bias’) is of course highly problematic from a democratic standpoint. A combination of this selection method with quotas, affirmative action (e.g. the explicit promotion of participatory events in less well-to-do neighbourhoods), and monetary or rights-related incentives can encourage disenfranchised individuals to participate (see, e.g., Cohen and Rogers 1992; Young 2000, p. 149). Yet, these methods can be costly and of course they are not always effective (Ryfe 2005). This does not mean that open access needs to be abandoned altogether in participatory governance and policy advice contexts. The low entry threshold of open access fora such as town hall meetings or online consultation and debate tools can make it easier to attract so far undiscovered or untapped perspectives and resources. Yet, we should be aware of the serious drawbacks of this quite common ‘selection method’ and be careful to assume representativeness of the public at large when access has been unrestricted. From a strictly epistemic perspective, it could seem convenient, at first glance, if the logic of open access had the effect of (self )-excluding the less interested and the less informed (see Kriesi 2008 for this effect). Yet, the homogeneity that often follows from self-selection also has serious epistemic drawbacks. It is diverse ideas and the inclusion of a large variety of standpoints, backgrounds and experiences that expand the knowledge base beneficially and make for the learning effects of deliberative processes (Beck 2011, p. 305; Brown 2014, p. 57; Mansbridge et al. 2012, p. 17; Young 2000, pp. 116ff.). Involving a plurality of viewpoints in collective debate allows open and comprehensive discussions about means, ends and key conflicts. With a very high likelihood, it adds to the problem adequacy of policy solutions and to commitment, ownership and compliance in the implementation process (Beck 2012, p. 5;

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Christiano 2012; Goldmann 2001, p. 105; Holst and Molander 2017; Jasanoff 2003, p. 161; 2005b, p. 220; Mansbridge et al. 2012, p. 17; Ryfe 2005, p. 52).

4.1.2 Random Selection One of the most discussed alternatives to self-selection and open access is random selection (or ‘sortition’). The logic of this selection method is to choose individuals by lot from a larger body. This mechanism was used for selecting political personnel in Athenian democracy and in Renaissance Florence (see Manin 1997), and it is still applied for constituting juries in Anglo-American judicial systems or picking participants of minipublics, such as deliberative polling and citizen juries.2 Random selection has been described in research as the ‘best way to achieve descriptive or mirror representation’ (Fung 2006, p. 68; see also Stone 2009, p. 390) or ‘good representativeness’ (Rowe and Frewer 2000, p. 13; see also Steiner 2012, p. 54; Urbinati and Warren 2008, p. 407), and it can be a particularly fair mechanism for the allocation of scarce resources (Goodwin 1992). When a sufficiently large sample can be drawn and only a handful of characteristics are supposed to be fairly represented, deviations from the population at large are minor. A strong point of the method is that it, in principle, takes the whole population as its base and thus attributes an equal chance to be chosen to everyone.3 In theory, choosing randomly amongst the whole population, and not privileging those already engaged or interested in the issue, also has the potential to activate rarely heard voices and possibly empower ‘ordinary’ citizens that do not usually get involved politically. It is important, however, that the chosen individuals are not expected to stand or speak for some undefined larger, ‘general’ public or to hold particularly pure, authentic or impartial views. Such a ‘romanticisation’ 2 As mentioned in Chapter 2.1, this book understands random selection as a defining feature of ‘minipublics’ (see also Brown 2009, p. 251; Steiner 2012, p. 33). 3 This only applies in principal because in reality, the selection will not be based on the whole populace, but on somehow limited data bases such as telephone directories or registries of residents, and it will usually be limited to adults.

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of ‘the public’ and of ‘ordinary citizens’ is not uncommon in participatory governance practice and rhetoric (Brown 2009, p. 231; Fischer 2009, p. 55), and it should not cloud our judgement when composing democratically and epistemically valuable advisory rounds. Random selection is not ideal when the selected group needs to be relatively small (Ryfe 2005, p. 52) and this is a frequent requirement when advisory arenas are composed, because the quality of deliberation benefits from close relations, face-to-face interaction, trust and reciprocity (Bächtiger et al. 2005, p. 236; Coleman 1990, p. 381; Krick 2015, p. 496; 2019, p. 105; Papadopulos and Warin 2007, p. 451). The problem of size affects especially the aim of statistical representativeness, while a demographic cross section of the population that involves at least one representative of each affected group can be smaller (Brown 2009, pp. 252f.). In general, the random selection principle is based on an ‘identity’ or ‘resemblance’ notion of representation, i.e. the idea of a likeness or similarity between constituents and those representing them (Brown 2009, p. 227). This idea can obscure differences within groups as well as the fact that individuals hold multiple identities (Young 2000, pp. 125, 142). These multiple identities of an individual are likely to be in flux, not fixed, they may not be so easily discernible from the outside and it should be up to the respective individual to rank them (Brown 2009, p. 228). What is more, the aim of creating a sample that resembles the constituency, in practice reduces people to very few, usually demographic characteristics, such as age, gender and education (Young 2000, pp. 125, 142). Yet, individuals are of course much more complex and do not resemble one another in all important respects, simply because they may belong to the same demographic cohort. ‘Moreover, many people are quite capable of representing interests beyond those of their presumed social group’ (Brown 2009, p. 229), and indeed, many voters support policy ideas that are against their ‘best (economic) interests’ (e.g. high-income academics who vote for left-wing parties). A random choice of participants can furthermore be difficult to enforce, since it is widely considered illegitimate in liberal democracies to force people to participate in politics (Ryfe 2005, p. 53; Steiner 2012, p. 37) although institutions such as compulsory suffrage or the

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American jury system could serve as examples for questioning this wideheld belief. Nonetheless, as long as randomly selected participants of policy advice arenas are allowed to refuse, the self-selection effect likely distorts the representativeness of the picture and infringes on the democratic quality of the method. This can be compensated again by quota sampling, by sorting only amongst those who volunteer (as in the Athenian lottery for the post of magistrate, see Manin 1997, p. 13), or by using incentives (e.g. payments, attendance certificates or vouchers for public institutions). Yet, this would presuppose a relatively large group of potential candidates, financial (and non-financial) resources and also a quite exacting selection process. As random choice theorists concede, the selection mode also ‘risks elevating unqualified citizens to public office’ (Manin 1997, p. 10; see also Stone 2009, p. 388) as it does not take into account the importance of competences and experiences. When you choose randomly, you will certainly not have chosen those with the relevant expertise and experience or those with the best analytical and debating skills (Manin 1997, pp. 10–14). Yet, for participating meaningfully in a deliberative forum and for making epistemically valuable, potentially problem-solving collective decisions, participants need to possess the information and competence to make good judgments (Fung 2006, p. 67)—and there are obvious limits to ‘educating’ participants during a one-off deliberative endeavour. It is important not to overrate random choice as a selection method in contexts of policy advice, consultation and participation for another reason, namely because the use of the method can sidestep existing equilibria in policy networks and thus undermine established NGOs in a certain sector, for instance (Mansbridge et al. 2012, p. 17). This can be problematic from an epistemic point of view, because you lose the often valuable insight and expertise that NGOs and interest groups acquire within a policy field.

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4.1.3 Voting Voting is usually not used or considered as a selection mode for composing advisory rounds, but shall be discussed now from that viewpoint.4 Voting qualifies for very straightforward, closed, binary questions to which there is a clear answer (yes/no to a candidate, for instance). Some voting rules like simple majority voting are easy to understand and often applied almost by default when collective decisions need to be made (Novak 2014, p. 682; Risse 2009, p. 794). As a mode of collective decision-making, voting has several democratic merits, and the following stand out: It allows to include large constituencies and—when simple majority voting is applied—to aggregate their voices relatively efficiently (Risse 2009, p. 799, Offe 1983). Voting can empower ordinary people because the selection is not performed by representative elites (as in the case of targeted selection, in particular), but handed over to the constituency. Empowering a large range of people in such a way of course presupposes that these people are able to make reasonable, conscious choices; that is, they are informed sufficiently in the sense of understanding the process and knowing the candidates. While knowing all the candidates can be demanding on a large scale, in established voting regimes (such as general elections), there are usually a range of mechanisms in place that moderate these demands. Examples are electoral districts that allow smaller groups of people to only elect ‘their own’ candidates, not the whole assembly, or the organisation of candidates in groups of shared interest (e.g. political parties, candidate lists, party alliances) that make their goals transparent and relieve voters from checking every single candidate for his or her trustworthiness and beliefs. Although (majority) voting is not the perfect mode whenever the right or true answer to a question needs to be established (Offe 1983), it does have epistemic assets as well. In contrast to random selection, it is sensitive to competence and experience of the selected, because candidates 4 Voting refers to the formal, explicit and systematic expression of preference, made by an individual or a group. Voting in the sense of choosing political personnel is usually also called ‘election’, while voting for individual policy options is usually called ‘referendum’ when it involves the whole constituency. When talking about voting on political personnel, the terms ‘elections’ or ‘voting rules/mechanisms’ will be used synonymously.

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will campaign for being elected and deploy their skills and experiences in their own favour. As a general rule, the mode tends to privilege the more practised and professional, those with expert knowledge, political experience and rhetorical skills (Manin 1997). Using this selection method on a large scale for composing advisory and consultation arenas is highly impractical, however. There are, first, simply too many advisory rounds set up and needed at different points of time in any given political system, and putting them together them by way of voting would mean permanent elections on that matter. Second, in many cases, millions of people would have to be involved because the constituency of those affected by a problem (such as nuclear waste management or climate protection measures) may be as large as the nation, or even extend beyond the borders. Establishing such an election system would not only produce very high costs and likely be considered uncalled for, it would also require thorough structural as well as cultural changes to ensure willingness, motivation, knowledgeability, responsibility, etc., of those entitled to vote.5 What is more, the focus is here on state-sponsored advisory rounds, i.e. arenas that are usually initiated by executive actors. These are tools that policy-makers use for a range of purposes. These purposes range from enlightment and information to coordinating interests and empowering citizens, over to substantiating already made choices and sending the message of being rational, knowledge-based, responsive and open to public input (Boswell 2009; Krick 2015). If the whole selection process of such arenas is turned on its head and taken out of the hands of policy-makers by establishing general voting procedures to compose them, policy-makers would likely use alternative channels to get the needed input and turn to consultancies or opinion polls, for instance. Besides, consultative and advisory arenas do not take authoritative decisions. There is never a guarantee for advice to be taken to heart, and even less so if the recipient does not have an influence on the choice of advisors and might not trust or need the particular advice. It is probably no coincidence that public participation fora, which are usually randomly or self-selected, routinely lack impact 5 See for inspiring theoretical approaches that are fundamentally transformative and envisage large-scale systems changes, models of participatory democracy (Pateman 1970) and associative democracy (Hirst 1994).

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and are prone to manipulation (Steiner 2012, p. 33; Irvin and Stansbury 2004, p. 59; Setälä 2017, p. 855), while expert commissions, which are usually composed by governments in a targeted way, are more frequently under the suspicion of being quite powerful technocratic bodies and a threat to democracy, rather than a resource (Brown 2009, p. 240).

4.1.4 Targeted Recruitment Targeted recruitment is the process by which individuals are appointed consciously and purposefully as members of a collective, according to specific characteristics, such as organisational affiliation, skills, local knowledge, a winning character or political experience. It is the usual method for recruiting members of advisory committees and it is usually performed by the sponsoring authority of an advisory and consultation arena or by the service provider who manages the process. For the development of policy proposals within relatively small advisory collectives, the targeted selection of participants has several advantages. Targeted selection is based on a reason-based, purposeful decision (in contrast to random selection), and the participation or selection decision is taken by an appointing authority, not the constituency (as under open access and voting procedures). Its logic is conducive to rational, merit-based selection and it is not difficult to organise. Yet, it is also a selection method that is vulnerable to biased choices. The appointing authority will have blind spots as to the population it chooses from and it is not unlikely that it assembles a group that leans to one side and reflects the appointing authority’s preferences. It also tends to be a conservative selection mechanism that privileges established interest groups over the inclusion of evolving advocacy groups and social movements, and experts from one’s own network over unfamiliar voices. Turning the logic of random selection on its head, it needs to be ensured that a targeted decision is made on the grounds of ‘good reasons’ (Stone 2009). What a good, reasoned choice is, depends very much on the context, of course. This question will be dealt with in more detail in the following section. While the focus lies on the requirements of targeted recruitment, other selection modes will also be discussed.

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Multi-level Structures of Policy Advice and Consultation

All the discussed selection modes have strengths and weaknesses and there is not one superior solution independent of context and case. The multi-level structures that this book focuses on furthermore consist of a plurality of different arenas that can be composed in different ways. All in all, this complexity is an asset. A multi-layered structure has a higher likelihood than a small committee or a detached minipublic to satisfy the whole spectrum of epistemic and democratic claims, because it can involve different actor groups in different ways through different channels. If the channels are interlinked and communicate well with each other, a joint decision-making process can be established that delivers both reliable expertise and includes all the affected views. Yet, in a complex, multi-level system that is meant to jointly produce decisions and suggest political action on a specific issue, there needs to be one site where the different threads, debates and ideas that have been pondered and produced in the different arenas converge. This book suggests to construct multi-level advisory arenas around a core committee that receives input from outer layers and is responsible for writing the final report. The core committee shall be ‘durable and institutionalised’ (Sartori 1987, p. 228), constitute itself through meetings and deliberate with the aim of generating consensual, joint decisions in the form of reports and other public statements. The individuals making up this core committee have decision rights and membership status (i.e. are appointed, not invited), and thus cannot be easily dismissed. It is a relatively small structure, consisting of ca. 30 participants and thus allowing for close, face-to-face interaction that may be subdivided into smaller working groups on specific issues. The core group gets input from various outer, annexed fora, such as external experts that are invited to hearings or randomly selected groups of citizens. In addition, civil servants without decision rights may be sent by the government to observe the process and provide legal advice when asked. The final storage committee is in principle a good example of such a structure (see Chapter 3.1).

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Establishing a core group has a range of advantages: As argued above, a relatively small group is an important precondition of meaningful, deliberation-based decision-making. The quality of deliberation, its inclusiveness, its degree of conflict resolution and its potential to reach consensus are likely to rise with direct communication, mutual recognition and understanding, with responding and listening to other group members, careful arguing and reasoning as well as persuading and convincing others. Such decision-making processes work better in relatively small collectives where direct reciprocal relationships develop and intensive, face-to-face communication is the rule (Bächtiger et al. 2005 p. 236; Goodin 2004; Krick 2015, p. 496; 2019, p. 105; Papadopulos and Warin 2007, p. 451; Ryfe 2005, p. 51). Due to its small size, its consensus-oriented, deliberative decision-making mode and its authority, the core committee is theoretically capable of generating a highly aggregated, joint decision that sends a clear message to policymakers. Developing aggregated, unequivocal and consensual decisions and expressing them in the form of a jointly backed report notably raises the impact and significance of advisory rounds, a mechanism underlined by this book’s case studies (see Chapter 3). Because of its central position and all the input it receives from outer layers, the core group can furthermore pool and integrate all kinds of different viewpoints and suggest particularly problem-adequate, widely acceptable solutions. The following section asks who should sit on the core committee, before a set of principles for the composition of the core committee is established (Chapter 4.2.2), and access channels and recruitment strategies for the outer layers are discussed (Chapter 4.2.3).

4.2.1 A Leading Role for Intermediary Organisations This section argues that intermediary organisations should play a pronounced role in the core committee, especially those that act as stakeholders or representatives of certain fractions of society.6 Stakeholders 6

The concepts of ‘intermediary organization’, ‘stakeholder’ and ‘representative’ overlap to a large extent. Yet, intermediary organisation emphasises the task of brokering (here: between politics and the people) and it can also include the media or consultancies, while stakeholder emphasises

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also usually possess extensive sectoral knowledge in their policy field (Brown 2008, p. 555) and can therefore fulfil the double role of expert and societal representative (Ansell and Gash 2007, p. 555; Krick 2015, p. 489; 2019, p. 103). In a venue that has a limited number of seats, but needs to respond to high and multiple normative standards, this is a clear advantage. Intermediary organisations can bring political experience to the process, and they can provide information on their members’ preferences and on the impact and implementation problems that the proposed policies might face. They can level material disadvantages in society by pooling individual resources through organisation (Cohen and Rogers 1992, p. 424). They explicitly and professionally represent the interests and viewpoints of groups in certain policy fields, are often organised as membership organisations and are in principle open to every interested or affected individual. They can be targeted and issue-specific, flexible and responsive to emerging problems; they can even respond to nonterritorial constituencies and thus function across borders and address transnational problems (Urbinati and Warren 2008, p. 403). Intermediary organisations or stakeholders comprise ‘NGOs’, ‘advocacy groups’, ‘charities’, ‘civil society organisations’, ‘pressure groups’ and ‘interest associations’ of both special and public interests.7 Representatives of political parties as another type of intermediary organisation also stand for segments of society and can act as bridges that feed valuable policyrelated expertise into the advisory process, while also transmitting the policy advice into the legislative process. By basing the core group of a multi-level advisory structure on the ‘careful selection of a representative group of stakeholders’ (Irvin and Stansbury 2004, p. 60), one has already gone a long way towards the advocacy aspect more and is slightly more narrow. It denotes organisations (and sometimes individuals affiliated with an organisation) that advocate the interests and viewpoints of a social group (e.g. environmental NGOs, professional associations, charities or political parties). Representative is used for somebody who claims or is expected to speak on behalf of a larger collective. This can be organised stakeholders, but it can also be a civil servant who acts in the interest of the state or a randomly selected person who is expected to represent the general public. 7 The line between these types of organisations and these types of interests is in fact difficult to draw and the terminology used very often reflects political or moral considerations of the speaker. Yet, from a pluralist democratic standpoint, the pursuit of all interests is legitimate, within constitutional limits.

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approximating good, delegated participation as well as knowledgeable, well-informed policy advice (see also Ansell and Gash 2007, p. 556; Warren 2002, p. 689). To be sure, leaning heavily on societal stakeholders as policy advisors presupposes democratic systems with developed civil societies, in which virtually all societal interests are organised. While economic interests are usually well-funded, well-organised and thus more powerful, even many of the ‘weaker’, diffuse, non-economic and public interests (such as environmental concerns or immigrants’ perspectives) have their advocates in most established democracies. By inviting these advocacy organisations to the core decision-making circle of policy advisory arrangements, their status is recognised and strengthened. Yet, not only do diffuse and public interests have a harder time mobilising supporters and overcoming collective action problems than the wealthy (or ‘strong’) special interests of business and industry (Mahoney and Beckstrand 2011, p. 1341). It has also been shown (for instance for the European Union’s ‘expert groups’) that public interest groups very often simply do not have the resources to accept invitations to policy advisory committees (Corporate Europe Observatory [CEO] 2014; see also Young 2000). Counterweights to these power imbalances in the world of organised interests can lie in the numerical limitation of stronger stakeholders or the restriction of their decision-making powers (non-permanent seats, limited voting rights, etc., see CEO 2014). Another option are empowerment measures for weaker interests, such as financial incentives and organisational help by public authorities. Such a ‘positive discrimination’ (or ‘affirmative action’) approach is advocated within associative democratic theories (Cohen and Rogers 1992; Hirst 1994; Schmitter 1992) and has been pursued by the European Commission, for instance, which promotes the formal and informal participation of civil society organisations and directly funds them (Mahoney and Beckstrand 2011). Societal interests or perspectives gain power in the political struggle when they are integrated and organised, and therefore, the principle of mandatory membership in professional chambers can be read as another possible means of empowerment. It strengthens the bargaining power of these interests and, together with the fact that these organisations’ leadership is usually elected by their members, it establishes close

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accountability relations. The principle of compulsory membership in professional chambers is institutionalised in many European countries for certain professions (e.g. lawyers, medical practitioners, journalists, craftsmen and even students) and in rarer cases also for employees of a certain constituency (e.g. the chambers of labour in Austria and some German constituent states). The allocation of public funding for empowerment means does not have to be left to bureaucratic logics and government preferences. A reasonably inclusive, flexible and manageable allocation system could follow a crowd-funding logic, be based on public trust and feed on tax money. NGOs could apply for public funding by publishing letters of application online that state their aims and qualifications, disclose finances and demonstrate democratic self-organisation. Every citizen could get involved in the distribution system by electing a handful of NGOs that he or she considers worthy of public funding and of a more influential political role (cf. the voucher system proposed by Schmitter 1992).8 This could be aligned with general elections or organised within a system of online preference voting that allows for voice delegation to others who are considered more interested, capable or informed on specific issues. Of course, even if weaker interests get balanced access to policy development arenas, they can get marginalised again during the processes of deliberation due to their relatively lower bargaining assets or a lack of experience in policy-making, in comparison with highly professional and strategic representatives of economic interests. Yet, access to resources might allow them to professionalise in the medium run and participate on a par. If intermediary organisations receive public funding, it is particularly important that they legitimately advocate the interests of the larger collective they stand for. Such representativeness is most obviously ensured if an organisations’ leadership is officially authorised by its members (who elect their leaders, lend their names to the organisation and do not exit it) and held accountable through formal, electoral channels (Urbinati

8 For more on the role of interest associations in policy development and in socio-economic reforms, and more detailed institutional solutions, see associative democracy theory (Cohen and Rogers 1992; Hirst 1994; Schmitter 1992).

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and Warren 2008, p. 404). Through such formal accountability relationships, intermediary organisations can legitimately exercise voice on behalf of a societal group (see also Fung 2003, p. 346; Parkinson 2006). Many intermediary organisations do not build on membership structures, however, and in these cases, we need to look beyond formal and direct channels of accountability. Agents such as political entrepreneurs, charities, foundations or donation-based organisations (e.g. Greenpeace), but also non-organised agents may base their claims to representation on other sources than formal, direct authorisation (through elections). These sources can be specialised experience with a problem or a track record of engagement and advocacy on an issue. Representation claims can be based on ‘knowing the community’ (Martin 2008, p. 47; see also Brown 2009, p. 232; Saward 2010, 97), on expressing ‘unheard perspectives’ (Saward 2010, p. 99), on ‘typicality’ and on speaking for the ‘hard-toreach communities’ (Martin 2008, p. 41). They can be based on the popular support that a cheered speaker at a rally or the initiator of a large successful petition receives (Saward 2010, p. 99). Within a range of accountability forums, such informally- or self-authorised representatives can give an account or ‘be held to account indirectly through ‘horizontal’ policing by other groups, by boards, or by the media, often through comparisons between the group’s representative claims (e.g. in its mission statement) and its actions’ (Urbinati and Warren 2008, p. 405), as well as through devices such as performance indicators, audits and surveys (see also Saward 2010, pp. 95ff.).

4.2.2 Principles for Hand-Picking Stakeholders While annexed fora of experts or citizens may adhere to other selection rules (see below), access to the core group should mainly follow targeted recruitment logics, because its members need to be chosen as much for their expertise as for substantively representing affected interests. The procedure of selecting societal stakeholders for policy advisory bodies is challenging and there will always be pragmatic trade-offs. One of the guiding principles should be to build a ‘microcosm of the potentially interested segment of society’ (Jasanoff 2005b, p. 220) or ‘a broad

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enough spectrum to mirror the problem’ (Ansell and Gash 2007, p. 556). Yet, there are no general or universal criteria that can be applied when hand-picking stakeholders. It requires intimate knowledge of the policy field to judge who is affected by the problem and who legitimately claims to represent a certain fraction of interests in a specific case of policy development. Establishing the status of affectedness is of course quite difficult (see Fung 2013, p. 247; Goodin 2007, pp. 52, 68). It depends on the substance of the deliberation (Fung 2013, p. 247), which can change somewhat during the process (Goodin 2007, p. 52), and it has to be determined afresh for every decision-making situation. That means that every advisory and consultative round needs to be assembled anew in accordance with the respective policy issue it deals with and it needs to be open to re-arrangements during the process. This corresponds to a ‘dynamic understanding of the principle of affected interests, in which the definition of those who ought to be included in influencing any particular organization’s decisions changes over time as the consequences of that organization’s actions fall on different individuals’ (Fung 2013, pp. 250f.). The number of participants can be kept in check if the round of those included is limited to advocates of those who are ‘regularly and deeply’ affected by a matter (Fung 2013, pp. 247ff.; see also Young 2000, pp. 5–6). When considering group size and composition, it seems at first reasonable to assemble the same number of representatives for every affected interest and thus attain a fair balance. Such a balance can, however, be distorted by the unequal distribution of individual rhetorical skills, authority and other resources during deliberation.9 When the set-up of policy advisory rounds is at the discretion of a government department, the targeted selection of participants is usually exercised by civil servants. If these are ‘expert’ or ‘career’ civil servants, they are likely to have the necessary knowledge of the policy field and the network to make an informed choice. To avoid politicised choices as far as possible, these civil servants need to be transparent about their decisions. Participant lists, informative CVs of every single participant and the selection criteria should be disclosed (and made easily publicly 9

The focus here is on participation patterns only, not the process of deliberation, but see Chapters 5 and 2.2 for some of the arising questions.

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accessible) in order to allow public scrutiny of these choices. When open calls that candidates respond to are published beforehand, this does not only have the advantage of specifying selection criteria publicly and very early in the process. Civil society organisations then also have a chance to suggest themselves as members and this can counteract a certain conservatism in the selection of participants, i.e. a dynamic that favours existing relationships between established interest groups and government departments. When involving representatives of political parties, it can be an idea to base the selection on outcomes of general elections, and thus make use of some of the democratic and epistemic strengths of majoritarian voting mechanisms. If a selection of members of parliament (MPs) is included, they can together mirror the composition of parliament in the respective political system, as realised in the final storage committee (see Chapter 3.1).

4.2.3 Access for Academic Experts, Civil Servants and Lay Citizens To ensure that the developed policy advice fulfils epistemic quality criteria and builds on the scientific state of the art, academic experts in the respective field should complement stakeholders. Academics can bring in particularly independent and specialised research-based knowledge and the selection should cover the whole range of academic viewpoints on the matter. The limited size of the core committee requires to restrict the number of academics who are full members to not much more than a handful, but in addition to membership in the core committee, academic assessments can be tapped into through hearings and reports. To be sure, choosing the right, qualified experts and providing for a variety of viewpoints amongst them, is notoriously difficult for non-experts. Christiano (2012, p. 41) proposes to let stakeholders choose ‘their own’ experts to ensure a balance of academic views and mutual control. While this may be part of the solution, it still seems important to ensure academic credentials and maximum political and

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financial independence, two criteria that senior academics from not-forprofit, non-advocacy research bodies and a track record of recent research on the topic are most likely to fulfil. Stakeholders and academics should be supplemented by civil servants who contribute the perspective of the state and government and some of the indispensable legal and practical expertise necessary for policy development (Krick 2015, p. 489). Their involvement embeds the advisory body into the policy process and this can ensure better responsiveness and smoother implementation of the policy advice. If such state agents are mainly involved in the role of observers, instead of members (i.e. do not have voting or speaking rights), this can protect the deliberating round to some extent from government interference and render the developed advice more independent. The involvement of lay, non-organised individuals can further broaden the horizon of the deliberating group and bring in voices that are usually not heard. ‘Ordinary citizens’ have repeatedly shown the ability to engage meaningfully in policy debates without necessarily being driven by emotional assessments and crises of the day, even if deliberations deal with complex and technical details (Brown 2009; Fischer 2009; Jasanoff 2005a). Yet, there are good arguments against involving ‘ordinary’ lay citizens into the core committee that have partly been discussed above. The most conclusive ones are the limited size of well-functioning deliberative units and the lack of representativeness of a few individuals that do not stand in accountability relationships with a constituency. One can also expect an information asymmetry between ‘ordinary’, lay citizens and professional advisors that can frustrate meaningful interaction and, to be remedied, would require costly ‘education’ of lay individuals on the subject matter. Within the core committee, societal viewpoints therefore need to be pooled and advocated mainly by organised civil society. Organised groups exist for the purpose of mobilising and advocating interests and their representatives are usually professional and experienced in getting their message across and bargaining with policymakers. They can gather lay people’s perspectives amongst their clientele, integrate them and feed them into the deliberation process. Besides, as Fischer (2009, p. 70) points out, in the light of the ‘social privilege bias’ of participation, especially marginalised and excluded groups depend on

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the efforts of pressure groups to serve their needs and advocate their viewpoints. In addition, individual citizens’ voices can be gathered through opinion polls, Q-methodology and discourse analysis. They can also be conveyed through citizen (or public) fora. Despite the epistemic and democratic weaknesses connected to open access, this (non)-selection mode can be justifiable for certain kinds of citizen fora that do not deliberate to develop joint policy suggestions, but simply provide lowthreshold and low-cost channels of personal expression and exchange, such as online consultations, for instance. Because of the checks on representativeness, they should not be attributed authority or authoritativeness, however. Citizen viewpoints can also be channelled into the advisory process through minipublics that rely on random selection and aim at descriptive representation. As elaborated above, random selection has the potential of involving ‘ordinary people’ into policy-making and tapping marginalised perspectives, but it cannot score in epistemic terms and it is demanding in democratic terms. Randomly selected minipublics need to be very carefully established (considering size, resources, participant selection, coupling with the core committee, etc.) and they should not be overrated or romanticised. Yet, they do have the potential to channel a diversity of valuable perspectives into the core committee without binding the core group’s judgments, if some conditions are met: For one thing, minipublics need to be large to be able to approximate the affected population and they need to provide for enough resources (in the form of incentives, e.g.) to enforce the selection and make for good, descriptive representation. Of course, as argued above, the size of the group conflicts with the quality of deliberation and this tension needs to be dealt with in randomly selected citizen fora, too. This can be done, for instance, by minimising the group temporarily or for certain subissues and by using sophisticated consensus-building tools that are suited for large groups (see Chapter 5). For another thing, randomly selected public fora need to be coupled in such a way with the core committee that functioning, two-sided transmission channels exist and feedback is provided on how the input was dealt with (see Chapter 6). While it can be tempting to open up a multiplicity of parallel strands of citizen input in order to involve as many as possible in the most diverse ways, there

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are risks associated with such a strategy. As the final storage committee case shows, a lot of resources are needed, e.g., to pool non-aggregated input and integrate it into consistent and, ideally, consensual messages (see Chapter 3.1). If aggregation fails or is neglected, the input is likely to remain ineffective and this can re-assert public disenchantment with political participation. It can have a similar effect to invite people’s voices and then not respond to them adequately. This can waste the trust and energy of those citizens that are prepared to get involved in participatory endeavours, but then experience them as window-dressing exercises or ‘token participation’ (see, e.g., Fischer 2009, p. 74).

4.3

Conclusion: Viable Participation Patterns and Selection Strategies

This chapter dealt with the question of how to select participants of policy advisory arenas in such a way that they represent both the affected citizens’ viewpoints and the necessary expertise—without the structure becoming unmanageable. At the centre of the developed, multi-level solution stands a relatively small core committee that produces the final report, is composed in a targeted way and builds strongly on intermediary organisations as committee members, alongside a handful of academic experts and civil servants. The partial perspective that each involved societal stakeholder is likely to hold is not an argument against such a composition, as long as some preconditions are met. It is crucial that the committee is pluralistic and represents a cross section of those affected in a balanced way. Deliberative, consensus-oriented procedures need to be applied that encourage open dispute, mutual learning and joint preference development of those involved. This ensures that a fair, representative composition translates into equal chances of influence. The core committee furthermore interconnects, processes, weighs and pools input from a range of auxiliary, annexed fora of varying composition, and gives an account of that process. There are good reasons for basing annexed fora that target the ‘general public’ on the logic of random selection. Yet, this method is much more demanding than usually assumed, and minipublics therefore

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need to be constructed and used thoughtfully and in a non-idealising way. Expertise in a multi-level advisory arena can partly be provided by professional stakeholders and civil servants, and to some extent by ordinary citizens. Yet, a key role should be played by academic experts that can access the process of policy development through a range of channels and can be considered particularly independent, specialised and trustworthy. The general argument of this chapter links up in some ways to associative democracy in that intermediary organisations take centre stage in the proposed ‘participatory expert bodies’. This runs somewhat counter to contemporary governance trends. In the ‘age of expertise’ (Fischer 2009, p. 1) and of ‘participatory enthusiasm’ (Polletta 2016, p. 234), organised interest representation has been discredited to some extent and representative democracy’s flagship institutions (general elections, political parties and organised interest groups) have been on the retreat, as reflected by voter apathy and the decline of party membership and societal organisation. Yet, many problems are linked to the extension of meaningful and inclusive public participation beyond the electoral channel, and the above-described social distortion is just one of them. We need to be careful that the contemporary preference for the individual, ‘ordinary’ citizen that often pervades deliberative and participatory thinking does not lead us to overlook the important role of organised groups for ‘progressive civic change’ (Sintomer 2010, p. 481), for advocating less well-to-do, marginalised voices (Fischer 2009, p. 70), and for harnessing the social as well as epistemic diversity of perspectives. The current authority of the ‘evidence-based policy-making’ theme and the longing for reliable knowledge should not lead us to summon an unrealistic fact-value-distinction and dismiss stakeholders’ expertise as impartial and defective per se. After all, claims to knowledge are typically contested in the political realm, and this not only pertains to the knowledge claims of stakeholders. Besides, the ‘socially embedded’ knowledge that different societal agents co-produce is often particularly usable in the policy context, and it can even be considered ‘objective’ or impartial when it builds on a balance of divergent viewpoints.

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References Ansell, Chris, and Alison Gash. 2007. “Collaborative Governance in Theory and Practice.” Journal of Public Administration Research and Theory 18 (4): 543–571. Bächtiger, André, Markus Spörndli, Marco R. Steenbergen, and Jürg Steiner. 2005. “The Deliberative Dimensions of Legislatures.” Acta Politica 40 (2): 225–239. Beck, Silke. 2011. “Moving Beyond the Linear Model of Expertise? IPCC and the Test of Adaptation.” Regional Environmental Change 11 (2): 297–306. Beck, Silke. 2012. “The Challenges of Building Cosmopolitan Climate Expertise: The Case of Germany.” WIREs Climate Change 3: 1–17. Boswell, Christina. 2009. The Political Uses of Expert Knowledge: Immigration Policy and Social Research. Cambridge: Cambridge University Press. Brown, Mark B. 2008. “Fairly Balanced. The Politics of Reprsentation on Government Advisory Committees.” Political Research Quarterly 61 (4): 547–560. Brown, Mark B. 2009. Science in Democracy: Expertise, Institutions, and Representation. Cambridge, MA: MIT Press. Brown, Mark B. 2014. “Expertise and Deliberative Democracy.” In Deliberative Democracy. Issues and Cases, edited by Stephen Elstub and Peter McLaverty, 50–68. Edinburgh: Edinburgh University Press. Christiano, Thomas. 2012. “Rational Deliberation Among Experts and Citizens.” In Deliberative Systems: Deliberative Democracy at the Large Scale, edited by John Parkinson and Jane Mansbridge, 27–51. Cambridge: Cambridge University Press. Cohen, Joshua, and Joel Rogers. 1992. “Secondary Associations and Democratic Governance.” Politics & Society 20 (4): 393–472. Coleman, James S. 1990. Foundations of Social Theory. Cambridge, MA: Belknap Press. Corporate Europe Observatory. 2014. “Response to the Public Consultation by the European Ombudsman Concerning the Composition of European Commission Expert Groups.” Accessed 10 June 2018. https://www.ombuds man.europa.eu/showResource?resourceId=1429863654988_MAIN%20-% 20COVER%20LETTER%20CEO%20Ombudsman%20consultation% 20on%20expert%20groups_FINAL_Redacted.pdf&type=pdf&download= true&lang=en.

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Fischer, Frank. 2009. Democracy and Expertise. Oxford: Oxford University Press. Fung, Archon. 2003. “Survey Article: Recipes for Public Spheres: Eight Institutional Design Choices and Their Consequences.” The Journal of Political Philosophy 11 (3): 338–367. Fung, Archon. 2006. “Varieties of Participation in Complex Governance.” Public Administration Review 66 (1): 66–74. Fung, Archon. 2013. “The Principle of Affected Interests and Inclusion in Democratic Governance.” In Representation: Elections and beyond , edited by J. Nagel and R. Smith, 236–268. Philadelphia: University of Pennsylvania Press. Goldmann, Alvin I. 2001. “Experts: Which ones Should we Trust?” Philosophy and Phenomenological Research 63 (1): 85–110. Goodin, Robert. 2004. Reflective Democracy. New York: Oxford University Press. Goodin, Robert. 2007. “Enfranchising All Affected Interests, and Its Alternatives.” Philosophy and Public Affairs 35 (1): 40–68. Goodwin, B. 1992. Justice by Lottery. Chicago: University of Chicago Press. Hauptman, Emily. 2001. “Can Less Be More? Leftist Deliberative Critique of Participatory Democracy.” Polity 33 (3): 397–421. Hirst, Paul. 1994. Associative Democracy. New Forms of Economic and Social Governance. Cambridge: Polity Press. Holst, Cathrine, and Anders Molander. 2017. Public Deliberation and the Fact of Expertise: Making Experts Accountable. Social Epistemology 31 (3): 235– 250. Irvin, Renée A., and John Stansbury. 2004. “Citizen Participation in Decision Making: Is It Worth the Effort?” Public Administration Review 64 (1): 55– 65. Jasanoff, Sheila. 2003. “(No?) Accounting for Expertise.” Science and Public Policy 30 (3): 157–162. Jasanoff, Sheila. 2005a. Designs on Nature. Science and Democracy in Europe and the United States. Princeton. Princeton University Press. Jasanoff, Sheila. 2005b. “Judgment Under Siege: The Three-Body Problem of Expert Legitimacy.” In Democratization of Expertise? Exploring Novel Forms of Scientific Advice in Political Decision-Making, edited by Sabine Maasen and Peter Weingart, 209–224. Dordrecht: Springer. Knight, Jack, and James Johnson. 1994. “Aggregation and Deliberation. On the Possibility of Democratic Legitimacy.” Political Theory 22 (2): 277–296.

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Krick, Eva. 2015. “Negotiated Expertise in Policy-Making. How Governments Use Hybrid Advisory Committees.” Science and Public Policy 42 (4): 487– 500. Krick, Eva. 2019. “Creating Participatory Expert Bodies. How the Targeted Selection of Policy Advisers Can Bridge the Epistemic-Democratic Divide.” European Politics and Society 20 (1): 101–116. Kriesi, Hans-Peter. 2008. Direct Democratic Choice. The Swiss Experience. Lanham, MD: Lexington Books. Lijphart, Arend. 1997. “Unequal Participation. Democracy’s Unresolved Dilemma.” American Political Science Review 91 (1): 1–14. Mahoney, Christine, and Michael J. Beckstrand. 2011. “Following the Money: EU Funding of Civil Society Groups.” Journal of Common Market Studies 49 (6): 1339–1361. Manin, Bernard. 1997. The Principles of Representative Democracy. Cambridge University Press. Mansbridge, Jane, James Bohman, Simone Chambers, David Estlund, Andreas Føllesdal, Archon Fung, Christina Lafont, Bernard Manin, and José L. Martí. 2010. “The Place of Self-Interest and the Role of Power in Deliberative Democracy.” The Journal of Political Philosophy 18 (1): 64–100. Mansbridge, Jane, James Bohman, Simone Chambers, Thomas Christiano, Archon Fung, John Parkinson, Dennis F. Thompson, and Mark E. Warren. 2012. “A Systematic Approach to Deliberative Democracy.” In Deliberative Systems: Deliberative Democracy at the Large Scale, edited by John Parkinson and Jane Mansbridge, 1–26. Cambridge: Cambridge University Press. Martin Graham P. 2008. “‘Ordinary People Only’: Knowledge, Representativeness, and the Publics of Public Participation in Healthcare.” Sociology of Health and Illness 30 (1): 35–54. Novak, Stéphanie. 2014. “Majority Rule.” Philosophy Compass 9 (10): 681– 688. Offe, Claus. 1983. “Political Legitimation Through Majority Rule?” Social Research 5 (4): 709–756. Papadopulos, Yannis, and Philippe Warin. 2007. “Are Innovative, Participatory and Deliberative Procedures in Policy Making Democratic and Effective?” European Journal of Political Research 46 (4): 445–472. Parkinson, John. 2006. Deliberating in the Real World: Problems of Legitimacy in Deliberative Democracy. Oxford: Oxford University Press. Pateman, Carole. 1970. Participation and Democratic Theory. Cambridge: Cambridge University Press.

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Polletta, Francesca. 2016. “Participatory Enthusiasms: A Recent History of Citizen Engagement Initiatives.” Journal of Civil Society 12 (3): 231–246. Risse, Mathias. 2009. “On the Philosophy of Group Decision Methods I: The Nonobviousness of Majority Rule.” Philosophy Compass 4 (5): 793–802. Rowe, Gene, and Lynne J. Frewer. 2000. “Public Participation Methods: A Framework for Evaluation.” Science, Technology and Human Values 25 (3): 3–29. Ryfe, David M. 2005. “Does Deliberative Democracy Work?” Annual Review of Political Science 8 (1): 49–71. Sartori, Giovanni. 1987. The Theory of Democracy Revisited. Part I. The Contemporary Debate. Chatham, NJ: Chatham House. Saward, Michael. 2010. The Representative Claim. Oxford: Oxford University Press. Schmitter, Philippe C. 1992. “The Irony of the Modern Democracy and Efforts to Improve Its Practice.” Politics & Society 20 (4): 507–512. Setälä, Maija. 2017. “Connecting Deliberative Mini-publics to Representative Decision Making.” European Journal of Political Research 56 (4): 846–863. Sintomer, Yves. 2010. “Random Selection, Republican Self-Government, and Deliberative Democracy.” Constellations 17 (3): 472–487. Steiner, Jürg. 2012. The Foundations of Deliberative Democracy. Empirical Research and Normative Implications. Cambridge: Cambridge University Press. Stone, Peter. 2009. “The Logic of Random Selection.” Political Theory 37 (3): 375–397. Urbinati, Nadia, and Marc E. Warren 2008. “The Concept of Representation in Contemporary Democratic Theory.” Annual Review of Political Sciences 11 (1): 387–412. Warren, Mark E. 2002. “What Can Democratic Participation Mean Today?” Political Theory 30 (5): 677–701. Young, Iris M. 2000. Inclusion and Democracy. Oxford: Oxford University Press.

5 Stopping Rules in Political Settings

The institutional design question guiding this chapter is: Which mechanisms and rules of decision-making are conducive to striking a balance between epistemic, democratic and pragmatic demands? The centre of attention is on rules that govern how valid decisions are made, and even more precisely, ‘how individual contributions are shaped and integrated into the collective decision’ (Urfalino 2010, p. 6).1 In this book, these rules are called stopping rules, defined by Estlund and Landemore (2018) as ‘the rule by which deliberation is brought to an end and a group decision considered taken’ (p. 12). Alternatively, they are also termed rules of voice (or preference) integration (or concentration).2

1

The general arguments of this chapter apply to all kinds of groups decision-making setting, not just participatory and policy advisory arenas. In the conclusion, the special case of advisory rounds and the policy development phase is considered in more detail. 2 A term that is frequently used for stopping rules in research on collective decisions, but avoided here, is aggregation rule . It is deeply rooted in formal decision theory and reflects that research field’s focus on voting rules, and on majoritarian decision-making. Since the focus here is wider, terms are preferred that are better suited for the analysis of a large range of formal and informal decision-making modes. See also Krick (2017), where these considerations have been given more room. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 E. Krick, Expertise and Participation, Palgrave Studies in European Political Sociology, https://doi.org/10.1007/978-3-030-75329-0_5

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A key example of stopping rules are voting rules, but valid group decisions are also often made without voting. Some decision rules can be found in the rules of procedure of an arena. Yet, not always are such rules codified (i.e. written down). In fact, many decision rules are informal and this also often applies to an arena’s rule of voice concentration. Non-codified, informal rules are not automatically less central or less binding. They are often enforced slightly differently from formal rules and rely more on social norms and withdrawal of recognition as sanctioning mechanisms. Whether formal or informal, a rule (synonymously used here with ‘institution’) shall relate to routines, conventions, norms, roles and standardised patterns of action and interaction of a collective that structure behaviour in such a way that a certain outcome can be expected (see Azari and Smith 2012, p. 38; March and Olsen 1989, pp. 22ff.).3 This chapter, first, distinguishes the aggregative, majoritarian logic and the integrative, consensual logic of collective decision-making and discusses majoritarian and unanimous voting rules in terms of their epistemic, democratic and pragmatic (i.e. efficiency-related) qualities (5.1). Against the example of majoritarian and unanimous voting techniques, Chapter 5.2 shows that the ‘consensus mode’, which settles for the absence of open opposition and avoids voting, strikes the best balance between the multiple normative demands. Chapter 5.3 draws conclusions about the application of stopping rules in arenas of policy advice and consultation. It shows, inter alia, that the consensus mode is not equally suited for all constellations and works particularly well in the shadow of majority voting.

3 Examples of a political group’s rules or institutions are greeting rituals, unspoken speaking restrictions for participants with lower status, voting rights of participants, disclosure provisions (e.g. concerning conflicts of interests of participants or the publicity of meetings) or indeed stopping rules that determine how different perspectives are joined (i.e. integrated or concentrated) in order to represent a collective decision.

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Collective Decision-Making Logics and Voting Rules

5.1.1 The Majoritarian, Competitive and the Consensual, Integrative Logics of Decision-Making In political and economic theory as well as comparative politics, two opposing principles or logics of collective decision-making have been distinguished. The first logic has been described as the ‘confrontation’(al) (Olsen 1972), ‘majoritarian’ (Novak 2014; Lijphart 1984; Wiredu 1998), ‘aggregative’ (March and Olsen 1989; Bächtiger et al. 2015), ‘adversarial’ (Mansbridge 1980; McRae 1997), ‘competitive’ (Lijphart 1981) or ‘Westminster’ model (Lijphart 2012; McRae 1997). The second logic has been termed ‘consensual’ (Elder et al. 1988; Lijphart 1984, 2012; McRae 1997; Krick and Holst 2020; Wiredu 1998), ‘unitarian’ (Mansbridge 1980), ‘deliberative’ (Bächtiger et al. 2015), ‘proportional’/’concordant’ (Lehmbruch 1967, 1974, 1975) ‘consociational’ (Lijphart 1969; McRae 1997) or ‘integrative’ (March and Olsen 1989) by scholars. Within the aggregative, majoritarian logic, a majority suffices for making decisions. Majoritarian decisions subordinate a minority under a majority and thus unambiguously produce winners and losers. They can often be reached without extensive communication and deliberation and typically pivot on a competition between options. A majoritarian, aggregative perspective on decision-making is usually adopted by social choice theory, i.e. formal decision theory. These approaches tend to build on rational choice assumptions that construct decision-makers as more or less self-interested, rational individuals with set preferences who make conscious choices between clearly distinguishable, fixed and often binary options. They focus on the moment of strategic decision-making, the aggregation of voices, not on the process leading to a decision. Because of these assumptions, decision processes can be constructed as formal models and analysed as games, and the focus is on voting methods, i.e. the clear cast and count of heads (or hands) that reveal an unambiguous ‘preference order’.

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The integrative, consensual principle, by contrast, is directed by a logic of unity, rather than competition and winning coalitions. The process aims at maximising agreement and therefore builds on consensusoriented, inclusive deliberation, on interaction that generates mutual understanding, discovers common ground and shared preferences and allows for compromise-building by way of mediation and coordination (March and Olsen 1989, p. 124). The mode does not produce clear winners and losers, but ideally balances interests, perspectives and needs. Voting can occur, but is not central. Central is the deliberation process at the end of which a decision is meant to crystallise that the whole group can live with. Individual preferences are not assumed as fixed and rigid, but as reflected upon, developed and integrated during the deliberation process (Chambers 2003, p. 309; Mansbridge et al. 2010, p. 65; Manin 1987, p. 350; March and Olsen 1989, p. 126). The consensual, integrative logic of policy-making is at the heart of modern political theory’s most discussed approach, the perspective of deliberative democracy (see, e.g., Bächtiger et al. 2015; Parkinson and Mansbridge 2012). It is also subject to other fields of research that study the deliberative or communicative process of decision-making, such as conversation, communication and interpretive decision analysis or studies on small groups, social movements, committees and meetings (see, e.g., Della Porta 2009; Nullmeier and Pritzlaff 2010; Krick 2013; Schwartzberg 2010). When one turns to real-life organisations and ask how the two principles translate into decision rules and practices, the picture gets more messy. In empirical reality, there are unlimited variations of decision rules (and many different stopping rules). There is, for instance, not one majority rule, but many variations that differ in terms of variables such as the quorum, the weight of votes and the majoritarian threshold. Some voice integration rules (e.g. supermajority or tacit consent) lie between the majoritarian and the consensual logic, and it is not at all unusual that the formalised rule is informally replaced by a stopping rule with a higher or lower threshold. The distinction between the integrative and the competitive principle of collective decision-making is nonetheless important for the study of political organisations and institutions, because the differences accentuated by the two logics reflect distinctive governance

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approaches, assume different conceptions of man and divergent democratic legitimacy ideas. It can be used as a yardstick to understand the logics and merits of empirical decision-making rules. Besides, despite the considerable empirical diversity, comparative politics has distinguished between whole regime types that tend towards a consensual logic and those that are primarily governed by majoritarian and competitive logics (McRae 1997; Lijphart 2012; Lehmbruch 1975)—alongside many less clear-cut examples, of course.4 Against the background of these logics, majoritarian and unanimous voting rules will now be discussed in terms of their epistemic, democratic and pragmatic qualities.

5.1.2 Majority Voting One of the most characteristic institutional expressions of the majoritarian, competitive principle of policy-making is majority voting. Defining majority voting in general terms is less straightforward as one might think, and social choice theory is undecided about how to define it as soon as more than two options are included (Risse 2009, p. 793). The simplest general definition holds that a minority is subordinated to a majority. When decisions are made by majority, ‘the number of supporters of the proposal is superior to the number of its opponents’ (Novak 2014, p. 681), and therefore should be accepted as legitimate. Of course, there are many variants of majoritarian voting. Real-life majority rules vary first and foremost in terms of the threshold, the number of persons entitled to vote, the quorum and the weights of votes (Novak 2014). Most commonly, one distinguishes in terms of the threshold between ‘simple majority’ (50%+1 vote of those present), ‘absolute 4 As already shown in Chapter 2.3, typical examples of the majoritarian regime type in the Western context are Westminster democracies (the UK and many (former) Commonwealth countries), while the consensual logic is typical of the Scandinavian countries, the Low countries and the German-speaking countries (Lijphart 2012). Despite many differences in these polities’ institutional set-up and culture, key institutions of consensual systems have power-dispersing effects (such as voting rules that rely on proportional representation or a federal state structure) and thus necessitate the coordination of policy-making across a wide spectrum of viewpoints. Westminster systems, by contrast, are characterised by power-concentrating key institutions, such as first-past-the-post election systems that allow for efficient decision-making because relative majorities suffice.

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majority’ (50%+1 of those entitled to vote) and ‘relative majority’ or ‘plurality’, which relates to the candidate or option that received more votes than the others (‘first past the post’). Important variants of majoritarian voting systems are ‘ranked’ or ‘preference’ voting, where the person or option ranked highest overall wins (e.g. ‘Borda count’ or ‘Condorcet method’); ‘weighted’ voting systems, where different voters have different weight (used, e.g., in the Council of the EU); ‘delegated’ (or ‘proxy’) voting, where votes can be delegated to others; or ‘approval voting’, where a voter can elect any number of candidates or options and the most approved one wins (both have been used by pirate party organisations in Germany, for instance). Some variants of majority rule produce very broad agreement (e.g. supermajority thresholds, Borda count), and others have such low thresholds (e.g. relative majority) that many of the commonly mentioned merits of majority rule do not apply. And while it is usually simple majority that is used in policy advice and consultation arenas—if a majoritarian voting rule is applied at all—many of the advantages discussed with respect to the majoritarian principle apply to absolute majority rules only (Novak 2014). Majority rules are in Western democracies often adopted almost by default (Risse 2009, p. 794), as the ‘rule of nature’ (Novak 2014, p. 682), not least because we are raised to expect group decisions to be made by majority in modern democracies. What is more, we also generally assume group decisions to be taken by voting (Olsen 1972), and this expectation has shaped theories of decision-making, which usually assume that a decision is taken by a show of hand, a count of head or by ballot—in any case in a way that makes preferences explicit. To be sure, there are other ways of taking group decisions, which may be just as prevalent but may be not as visible, and it seems that the Anglo-Saxon influenced, contemporary political science literature exaggerates the ubiquity and inevitability of majoritarian (voting) rules. First of all, there are many societies and communities where competitive voting is not considered legitimate and therefore not used (see also Novak 2014, p. 682; Wiredu 1998, p. 4). Second, in many settings in Western democracies (especially preparatory ones, arenas with strong divides or, alternatively, with a sense of solidarity and shared identity), the codified rule may be a variant of majority, but decisions are de facto not taken by voting, but by ‘sounding

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out’ (Olsen 1972) and ‘tacit consent’ (Krick 2017), while the aim is to maximise agreement. More attention will be given to such cases below and the ‘consensus mode’ of deciding without voting and by the absence of open opposition will be conceptualised (see Chapter 5.3). At this point, the focus is on stopping rules that do use voting techniques and strive for a variant of majority. These rules are here generically referred to as ‘majority voting’ or the ‘majority rule’. In comparison with unanimity, majority rule is often described as the ‘second best’ (Novak 2014, p. 684; see also Sadurski 2008), but much more workable solution for everyday collective decision-making. Majority voting certainly has many pragmatic advantages, but some of the often-heard arguments need to be put into perspective. Offe (1983, p. 731) states for instance that ‘whenever it is a question of the quick production of decisions, the majority principle is recommended on the technical ground that one does not have to wait until all the participants agree’. It has also repeatedly been pointed out that ‘majority rule is the only way to decide in spite of disagreement’ (Novak 2014, p. 681; see also Risse 2009, p. 793). While both arguments may be true in comparison with unanimous voting requirements—the threshold is simply lower—they only make for a relative advantage, when compared to decision by command or hierarchy. Besides, organising anything larger than relative majorities can already be quite demanding, since disagreement is a normal circumstance of political life and finding compromises between different societal interests generally takes time, even if only a majoritarian threshold needs to be jumped. Even majorities need to be secured by way of persuasion, bargaining and arguing for support and this is not done in an instant. Of course, when constructed as simple games, as they often are in research experiments, majority voting procedures can take place without time-consuming deliberation. Reallife majoritarian decision-making very often works differently, however. It is rare in political contexts that collective decisions about policies are simply taken without any debate, deliberation or negotiation. Even in the quintessential majoritarian arena, the parliament, decisions are usually prepared and negotiated at length and argued for in public forums. This underlines that majority voting and deliberation do not oppose or mutually exclude each other. The first can be understood as a (a family of )

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stopping rule(s), the latter as a process of decision-making that relies on weighing reasons. Deliberation can be combined with different stopping rules and thus also with voting mechanisms and relatively low thresholds. In democracies, deliberation precedes decision-making quite generally—although the process may of course take even longer when fuller agreement is aimed for. Simplicity of procedure is another argument invoked in favour of majority rule (Offe 1983, p. 731; Risse 2009, p. 799), and it seems convincing when speaking of majoritarian voting procedures. To be sure, when organised as elections, the majority rule can be relatively easy to realise and, in its most simple variants (i.e. without any extras such as weighted votes, quorums, rankings, etc.), also easy to understand. Majoritarian voting is therefore certainly a particularly workable decision-making option when large groups need to decide on closed, binary single-issue choices. Examples are candidates that run for office in (national) elections or fixed options that are put to a vote in referenda. In these cases, elections allow an efficient pooling and aggregation of a large range of voices. Apart from these important procedural qualities, majority rule has also been attributed democratic and epistemic value. From a democratic legitimacy perspective, it is said to respect individual freedoms in the light of social diversity (Beatty and Moore 2010, p. 199; Kelsen 1955, p. 25; Novak 2014, p. 684) because it ‘allows each person to remain faithful to his conviction, but still to accept that a group decision needs to be made’ (Risse 2009, p. 796). Yet, it certainly does not protect the sovereignty of individuals in the way the unanimity principle does, because individuals can always be outvoted (Novak 2014, p. 682). Majority rule also has a reputation of attributing equal weight to every participant during the process (Buchanan and Tullock 1962, p. 132; Mansbridge et al. 2010, p. 85). Yet, the famous democratic principle of ‘one-man-one-vote’ of course only applies when votes are not weighted. Besides, the equality of votes is not specific to majority rules. It also applies to unanimous voting rules, that attribute equal weight to participants. It has been argued against the majority principle that it does not consider intensities of preferences, but simply counts heads (Offe 1983,

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p. 734). Yet, especially when ranked voting systems are applied, preference strengths can be represented (see also Sadurski 2008, p. 42). Besides, what first appears as a disadvantage can also add to participants’ equality: When every voice has equal weight, but preference strengths are not reckoned in, loudmouths and sensitive persons are less likely to domineer stoics and cautious voices. Much of the democratic legitimacy of majority decisions rests on the idea of reversibility: Majority decisions should be accepted as legitimate because any voter has a chance to win next time. Yet, this is actually not an argument for majority decisions, but for periodic and fair collective decision-making, whatever the aggregation rule or outcome. Besides, this argument will not console structural minorities that have a very limited chance to ever prevail. The epistemic value of a decision process first and foremost depends on the skills, competence and expertise of those involved. Since the ability to make reasonable decisions is not distributed equally, modes that rely on the involvement of a diversity of well-chosen experts have obvious advantages from a strictly epistemic viewpoint. Yet, the focus of attention here is not on selection mechanisms and participation patterns (see, however, the preceding Chapter 4), but on the procedures of decision-making and interaction, irrespective of the level of expertise of those involved. It has been argued that democracy performs ‘better than random’ in epistemic terms (Estlund 2009, p. 20; Estlund and Landemore 2018, pp. 116f.). If one takes democracy to stand for majority decisions, as in the often-cited ‘Condorcet jury’ example, this may well be true especially for certain questions that build on the pooling of information (List 2012). Yet, random choice is actually not a very serious competitor for the contexts analysed here. Random choice, i.e. decision by lot, may be a respectable option for selecting a representative sample of decision-makers (see Chapter 4 and Manin 1997), but neither from a democratic, nor from an epistemic viewpoint, is it suited for arriving at problem-solving, joint decisions on policy options. Studies in epistemic democracy have recently also discussed the epistemic value of ‘collective wisdom’ or ‘wisdom of the crowds’ (Landemore 2012). An often-cited example is the ability of a crowd at a country fair to correctly guess the weight of a given ox. Such a joint guessing

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endeavour may qualify for quite simple assessment tasks that build on common sense, but not for the policy-making processes in focus here. Besides, it does actually not follow majoritarian voting logics, but builds on the average value of all guesses. Quite generally speaking, epistemic value lies in the cognitive diversity of larger groups, as a range of scholars have pointed out (Goldmann 2001, p. 105; Guston 2005, p. 77; Jasanoff 2003, p. 161; Mansbridge et al. 2012, p. 17; Moore 2017, p. 20; Straßheim and Kettunen 2014, p. 268; Young 2000, p. 117; see also Chapter 2.2). Of course, the diversity of a group does not follow from its stopping rule (or vice versa) and majoritarian arenas are therefore not per se more or less diverse than arenas with higher thresholds. But there are reasons to assume that consensus-oriented arenas can make better use of the epistemic value of diversity: It seems convincing that ‘the more inclusive the deliberation process is, the smarter the solutions resulting from it should be’ (Estlund and Landemore 2018, p. 10). In inclusive deliberations that aim at maximising agreement, all voices are likely to be listened to and the epistemic value of diversity can unfold. More inclusive deliberations will usually take more time and therefore have a good chance to analyse particularly thoroughly, integrate all viewpoint and develop problem-solving solutions. Since higher thresholds tend to necessitate longer, more intense and more inclusive deliberations, majority voting rules fare less well in epistemic terms compared to arenas that strive for broader agreement. For all these reasons, variants of majority voting seem to be quite generally second best: While they fare well in pragmatic terms, they are inferior to more inclusive decision rules in both epistemic and democratic terms. Yet, as will become clearer in Chapter 5.2 and 5.3, majority voting represents a good complementary rule: In many arenas of policy advice and consultation, simple majority rule replaces more inclusive modes when disagreement cannot be solved and opposition prevails despite intense deliberation. It furthermore often comes into play in otherwise consensus-oriented, arguing-based arenas ‘exactly at the point in the decision-making process when scientific truth no longer works as a criterion of justice – for example, in personnel decisions’ (Offe 1983, pp. 713f.).

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5.1.3 Unanimous Voting Advocates of majority rule often defend it against minority rules, which are easily dismissed as democratically illegitimate. It is also often compared with unanimity, which has been described as normatively superior but impossible in larger groups (Romme 2004, p. 705). There is a long tradition of regarding unanimity as ethically superior and on principle the only legitimate basis for collective rule and political power under conditions of individual liberty and equality (Beatty and Moore 2010, p. 198; Manin 1987, pp. 304ff.; Novak 2014; Rae 1975, p. 1270; Romme 2004, p. 707). It has been described as ‘the ultimate authorization’ (Beatty and Moore 2010, p. 198), ‘the true source of legitimacy’ (Manin 1987, p. 342) and ‘the gold standard of political justification’ (Dryzek and Niemeyer 2006, p. 634). The superior legitimacy of unanimity relies on the idea that there has to be full group agreement or there will be no valid decision. Under this assumption, every member of the group then has an effective and equal right to consent and to veto and this grants Pareto optimality (Dougherty et al. 2014, p. 360; Novak 2014, p. 682; Rae 1975, pp. 1277f.; Sadurski 2008, p. 48). These assumptions apply only fully when unanimity is realised as a voting rule. Unanimous voting then means that an explicit, affirmative vote of all is required for a valid decision. If unanimity manifests itself as a voting rule, it means that nobody can be outvoted or lose face, everyone is protected from the coercion of others and the sovereignty of participants is safeguarded to the full. As a voting mechanism, unanimity is very rarely applied, however, because the downside of its theoretically highly inclusive nature are its pragmatic disadvantages. Voting means to express agreement or disagreement explicitly. A person’s support for a solution needs to be relatively strong to express positive agreement unequivocally, because it commits, binds and exposes that individual fairly strongly. To ensure this for a whole collective, e.g. an advisory committee, is more exacting than, for instance, allowing tacit, ‘joint acceptance’ (Gilbert 1987, p. 194) to ‘let something stand as the decision of the group’ (Moore and O’Doherty 2014, p. 304). The requirement of unanimous explicit support makes for very slow processes and it can be utterly infeasible in larger groups.

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The process is fraught with high transaction costs and a bias towards the status quo because the requirement of full agreement under the rule of unanimity also means that ‘even a single person can block change altogether’ (Romme 2004, p. 706; see also Beatty and Moore 2010, p. 200). Everyone involved is given an effective veto right. Besides, the inclusiveness of the rule can have a streamlining or totalitarian effect (Mouffe 1999; Young 2000). If unanimity is compulsory, this can lead to a ‘tyranny of the minority’ (Beatty and Moore 2010, pp. 200, 204; Kelsen 1955, p. 25; Romme 2004, pp. 705f.) or, more precisely, a tyranny of relatively extreme voices. The bottom line is that, if we understand unanimity as a voting rule, it is highly inefficient and unfeasible and its normative potential thus does not realise itself. In the following, it will be shown that the real contester to majority voting is not unanimous voting, but decision rules that aim at the broadest possible agreement by way of fair division, mutual understanding, coordination and cooperation, and that tend not to count heads.

5.2

The Consensus Mode

In many political and social arenas, including arenas of policy advice and consultation, softer stopping rules are used that aim at maximising agreement, but do not require the full explicit support of every individual. Instead, a decision is usually considered taken when nobody opposes openly. In these settings, voting is generally avoided and decisions are not made by active consent, but passively. ‘Tacit consent’ (Krick 2017), ‘non-opposition’ (Urfallino 2014) or ‘joint acceptance’ to not argue further but ‘let something stand as the position of the group’ suffice (Moore and O’Doherty 2014, p. 302). Since there is no systematic expression of preferences, the ‘preference order’ remains ambiguous, and there is always some uncertainty as to the degree of consent behind such a decision (Steiner and Dorff 1980, p. 7; Urfalino 2012, p. 186). Outcomes can cover various degrees of actual agreement, and an individual’s (tacit) ‘support for the chosen alternative may (…) vary from enthusiasm to abstaining from obstruction’ (Olsen 1972, p. 273). The

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reason for remaining silent can range from genuine belief in the chosen option and identification with the group, over to ‘keeping face’ and joining the winning team (Novak 2013, p. 1100), inferiority and lack of interest in the particular decision. Such softer modes of maximising agreement have been described as rules of ‘consensus’ (Coleman 1990; Della Porta 2009; El-Hakim 1978; Lewis 2010; Thiele 2008; Vignes 1975; Wiredu 1998), as decisionmaking by ‘sounding out’ (Olsen 1972), by ‘non-opposition’ or ‘apparent consensus’ (Urfallino 2014), by ‘interpretation’ (Steiner and Dorff 1980; Dorff and Steiner 1981), ‘near-unanimity’ (Scharpf 1997, p. 145; cf. also Beatty and Moore 2010), ‘informal unanimity’ (El-Hakim 1978) or ‘tacit consent’ (Krick 2015, 2017). While there is, of course, variation between these descriptions and the numerous empirical forms, these modes share the central stopping mechanism, i.e. decision-making by the absence of open opposition. They also all strive for maximising agreement and tend to avoid voting. For describing this mode in a general way, I here primarily use the most prevalent term ‘consensus rule’ (or mode) as well as the more precise expression ‘decision-making by tacit consent’. Deciding by the absence of open opposition is widespread in empirical reality, but often overlooked. It has been described for arenas as different as organs of International Organisations, government cabinets, advisory committees and even certain parliamentary arenas (such as councils of elders) over to assemblies of social movements, local communities and clans (see for a detailed overview Krick 2015, p. 3). Application of the consensus rule has been observed, inter alia, in the EU Commission (Thiele 2008, p. 286), the British Cabinet (Steiner 2001), the Italian Constitutional Court (Pasquino 2007) and the Council of the EU (Lewis 2010). It is also a well-established practice for deciding certain (often ‘technical’ or fundamental issues like rules of procedure) within arenas that usually vote to generate collective decisions (Urfalino 2014, pp. 327f.) The stopping rule of consensus is most commonly applied informally, but it is also sometimes formalised (i.e. written down and thus codified), for instance in the IMF’s International Monetary and Financial Committee and WTO organs (IMF 2019; WTO n.a.). Its informality is probably one of the main reasons why the rule ‘has not attracted the

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attention its significance as a way of making collective decisions deserves’ (Olsen 1972, p. 273). Another important reason may be its inconspicuousness. It is precisely the absence of an observable act that constitutes its mechanism of voice integration. For these reasons, the existence and internal logic of this rule are not particularly well known. Its outcomes are often interpreted as unanimous decisions, assuming that they were reached by voting and full active consent. Before the stopping rule is analysed in normative terms, the next section describes how it works, and more specifically, how authoritativeness (or bindingness) is generated without voting. It discusses the different social practices, techniques, norms and institutional aids that (follow from and) sustain the central stopping mechanism, i.e. the absence of open opposition.

5.2.1 How Does the Consensus Mode Work in Practice? When no voting techniques are used to make a decision, mutual bindingness, group coherence and ‘collective belief formation’ (Kuran and Sunstein 1999, p. 683) are generated via ‘acceptance acts’ (Nullmeier and Pritzlaff 2010, pp. 366ff.), such as nodding or the verbal expression of appreciation. These acceptance acts are interlinked through the technique of ‘proposal re-narration’, for instance, whereby participants ‘integrate the proposal into their own, differing background assumptions and evaluative standards, into their individual “web of meaning”’ (Nullmeier and Pritzlaff 2010, p. 368). Acceptance acts are often rounded up by a ‘confirmation act’ (ibid.) in the name of the collective as a whole, typically performed by the head of the group, who states ‘I take it, we have reached consensus then’ or ‘If there is no further objection, I consider the decision to be taken’. A decision is understood to have been taken when there is no obvious act of disapproval that repeals the final ‘confirmation act’.5 Such a confirmation act can also not be performed, and the moment of decision-making then remains indistinct. 5

The respective threshold of such disapproval or open opposition is of course open to interpretation and depends on the specific situation. While some groups may not accept mumbling and

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For a consensual decision to be able to form and prevail, intense deliberation in small groups is key (Coleman 1990, p. 381). In small groups that are usually closely-knit, participants typically engage in ‘face-to-face interaction’, that (in contrast to mediated communication) allows to ‘mutually rely on multi-layered expressive acts through which they can evaluate the decision options at hand’ (Nullmeier and Pritzlaff 2010, p. 363). In such settings, participants can develop ‘dense relationships’ (Coleman 1990, p. 857) that rely on trust and ‘diffuse reciprocity’ (Farrell and Héritier 2004, p. 10). They commit themselves to a common cause, acquire ownership of the jointly taken decision and are likely to identify with it. For managing a deliberative process effectively, for moderating it and for maximising agreement, the chair or facilitator is extraordinarily important. A facilitator is key to negotiations in general, but it is of exceptional importance in processes that avoid voting, aim at broad agreement and therefore rely heavily on fair, inclusive and open deliberation and conflict management (Krick 2013, pp. 234ff.). Such processes are decisively shaped and brought to a successful close by an experienced and skilled facilitator who moderates the debate, takes stock and draws up an interim balance, aligns the group to a common goal, renews the joint consensus orientation, accounts for including everyone, finds the right point in time to merge standpoints and settle a collective decision, frames the result in a mutually acceptable way, appeals to outsiders, careful steers and at times brings about conciliation. The role of the chairs in both the final storage committee and the climate adaptation committee are interesting cases in point (see Chapters 3.1 and 3.3). For a robust decision taken by tacit consent, the process of deliberation needs to be cooperative, fair and inclusive, minimise power games, search for common ground and deal with all possible reservations. At the same time, it is important that everyone can raise their concerns and that critics are generally taken seriously. Yet, participants of consensus-oriented procedures are expected to voice their vital interests and concerns during the process so that objections can be allayed. frowning as below the threshold of open opposition, for others only well-argued contestation will count as dissent.

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If after long debate, well-founded concerns prevail, the group will often jointly decide to postpone a decision. If one person disrupts the process suddenly, at the end, after intensive debate, and despite a joint decision crystallising, this would likely be considered a severe and sanctionable breach of social norms in consensus-oriented arenas (Coleman 1990; Scharpf 1997; Heritier and Farrell 2004). Such a disruption will therefore usually not occur and only in exceptional cases be dared by extraordinarily powerful, audacious or very isolated representatives. There are also cases, where severe disruption of the process leads to the application of a variant of majority voting. Such a majoritarian fall -back option works as ‘a threat, an inducement to achieve a consensus’ (Vignes 1975, p. 120) in arenas that strive for broad agreement. The ‘shadow of the vote’ (Lewis 2010, p. 181) disciplines the group to show cooperative behaviour, search for common ground, make concessions and refrain from disrupting negotiations unduly. With the majoritarian fall-back option in place, attempts at vetoing a maturing joint decision will be particularly disadvantageous for the outsider, because the person will not effectively block the decision, but be outvoted (Krick 2017, p. 120; see also Karpowitz and Mansbridge 2005). The combination of the two rules can also take the form of the majority rule prevailing, while an underlying consensual logic disciplines the group to maximise agreement: In the case of the final storage committee, analysed in Chapter 3.1, majoritarian voting was the second best, but most widely used option, while the aim of maximising agreement continued shaping the deliberation process. Sometimes, voting techniques are also used during the process of deliberation for the purpose of approximating agreement and superseding the need for voting on the end result: For instance, a collective can use indicative voting during the process to get an idea about the different options’ chances of winning or the remaining degree of discontent, without producing a clear preference order: Such a vote is not the final decision, those indicating their preference do not commit themselves and positions are bound to shift still. There may also be individual votes during the process on details or particularly contentious issues. Calling for a competitive vote on issues of importance, however, is often considered inappropriate when there is obviously still need to talk in

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arenas that strive for maximum agreement (Krick 2017, p. 115). If face-to-face interaction is not possible because of time constraints, for instance, the ‘written consent procedure’ (also the ‘circular procedure of decision-making’) is sometimes applied, whereby proposals are passed by way of circulation in written documents and decisions are made when nobody objects. This variant of the consensus mode is, often informally, applied in many organisations and codified for instance in the rules of procedure of the German Standing Conference of Ministers of the Environment (2017, p. 3). It is not only used for secondary, technical questions that do not justify a costly face-to-face meeting, but also for urgent matters and for minimising the agenda in general. There are furthermore a range of techniques at the final stage of the decision process, which soften the unity requirement and facilitate (tacit) group consent despite possibly prevailing, subtle dissent (see the cases of the final storage committee and the climate adaptation committee, Chapters 3.1 and 3.3). One of these tactics is to interpret the notions of ‘consensus’ or ‘agreement’ in a very wide sense, i.e. as incorporating decisions that only few participants disagree with, such as overwhelming agreement or supermajorities. It is relatively common to use a rule of ‘consensus-minus-one’ (or even ‘minus-two’), which allows consensual decisions to be taken with the exception of one (or two) votes. Consensus-minus-one and consensus-minus-two rules are used in the Organisation for Security and Co-operation in Europe (OSCE), for instance, to take action against a state in cases of severe humanrights abuse and for peaceful settlements of disputes. Similar rules are applied in some Standing Conferences of the Ministers of the Germany’s constituent states, where the rules of procedure allow formal unanimous decisions to be taken without the federal representative, for example. It is also common practice in consensus-oriented settings to allow dissenting voices or votes on parts of the collective decision (or its entirety), and still call the result ‘consensus’. This is often substantiated by a practice sometimes called ‘nostrification’ (Lentsch and Weingart 2011b, p. 367): The collective adopts the final report as a whole as the position of the group by an act of public recognition. Such a nostrification procedure rounds up the decision process and underlines that the group speaks with one voice, yet it leaves room for individual (relatively

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tacit) disagreement. It emphasises that everyone agrees to let the decision stand as the group’s position, despite varying degrees of satisfaction amongst participants with parts of the result. Instead of agreeing on one option, it can be easier for a group to come up with a more differentiated, multi-optional result that the group jointly accepts. Some arenas use preference voting or ranking systems to produce several acceptable options and to identify the option with maximum agreement or the least opposition. An example are tools like ‘systemic consensing’ or ‘acceptify’, whereby participants express their degree of consent ranging from very strong disagreement to very strong agreement (e.g. on a scale of 1–10) on a range of options. Ranking systems can work without disclosing individual positions (and this has some advantages, as the following subchapter will show). Participants can use aliases in online ranking systems or distribute sticky points to different options covered behind a board. It can also be the chair or facilitator who takes up the most important points during the debate and sums them up (more or less explicitly) as the result. In participatory fora, a list or table is sometimes produced by those managing the process, detailing the different options that have been discussed and indicating the respective levels of support (see the public input channels to the final storage committee, e.g. Chapter 3.1). On such a list of options, it is often much easier to ascertain group consensus, than on one, unequivocal option. Of course, the final, important step of a decision-making process is omitted, i.e. rounding up and agreeing on a joint way forward.

5.2.2 The Normative Value of the Consensus Mode From a pragmatic viewpoint, the consensus mode is characterised by relatively high overall efficiency. The rule is less burdened with ‘transaction costs’6 than unanimous voting, because the above-described social norms and the often institutionalised majoritarian fall-back option discourage the disruption of the deliberative process and make it hard to block a decision. The consensus mode is also less biased towards change than 6 ‘Transaction’ or ‘decision costs’ are costs that the individual participant of a collective has to incur, in the form of time or other resources (Buchanan and Tullock 1962, p. 68).

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unanimity voting, which tends towards extreme conservatism (Romme 2004, p. 706) and ‘seems to be based on the unstated presumption that the costs of inaction are nil’ (Sadurski 2008, p. 49). Yet, in comparison with majority voting, consensus rules surely ‘unfairly privilege(…) the status quo’ (Beatty and Moore 2010, p. 200) and generate higher time-related costs (Thiele 2008, p. 299). They therefore do not qualify as the most appropriate stopping rules when time is a scarce resource or when a decision is not considered important enough for such a costly process (Olsen 1972, p. 274). When decision-making is oriented towards consensus, the ‘external costs’, i.e. the ‘costs that the individual expects to endure as a result of the actions of others over which he has no direct control’ (Buchanan and Tullock 1962, p. 45), are, however, relatively low when compared to majority voting, because the deliberation process is necessarily fairly inclusive and intense and needs to take the preferences and red lines of all of its participants into account. Thus, the rule of consensus strikes a fair balance between the two types of costs of collective decision-making: The group concedes a certain degree of deviance (external costs) for the sake of collective problem-solving within reasonable time (transaction costs). From a perspective of democratic legitimacy, softer modes of acquiring consensus fare less well than unanimous voting in several respects. For one, imbalances of power can take hold more easily: Powerful agents, i.e. those with access to informational, constitutional or monetary resources, can influence the decision more than others (Coleman 1990, pp. 381, 858; Ehlermann and Ehring 2005, p. 67), while ‘the weak are lulled into passivity’ (March and Olsen 1989, p. 127). In contrast to voting rules that rely on the principle of ‘one-man-one-vote’, the consensus mode is sensitive to the different intensities of preferences (Lijphart 1981, p. 358). This has obvious advantages when members of a group that do not feel strongly or are not affected by a decision let those with the stronger preferences shape the outcome, but it can also shift further the de facto weights of participants and thus increase inequalities (Coleman 1990, p. 858).7 7

The democratic relevance of a decision rule’s sensitivity towards strengths of preferences is contested and convincingly discussed by Sadurski (2008, p. 42), who points out that, first, the

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Since individual veto options are essentially invalidated, the consensus mode does not protect individuals from the coercion of others as much as unanimous voting, where no one has to comply with unwanted directives (Manin 1987, p. 338; Sadurski 2008, p. 48). Yet, in its own way, it can protect minorities or, more precisely, those that have not shaped the joint decision decisively (Ehlermann and Erhing 2005, p. 66): The soft mode of voice accumulation and integration and the invisibility of disagreement that may lie behind a consensus decision avoid inflicting an explicit loss on those that do not particularly agree with the joint decision (Ehlermann and Erhing 2005, p. 66; Urfalino 2014, p. 333). No clear winners and loser are produced because the preference order under consensus rule remains ambiguous. When the consensus goal is overemphasised and ‘full explicit agreement’ becomes compulsory, this can have an authoritarian effect, run counter to pluralist norms, undermine weaker voices and lead to conformism (Estlund and Landemore 2018, p. 12; Mouffe 1999, p. 756, Young 2000, pp. 125f.). These dangers are not triggered by a general orientation towards consensus, however. On the contrary, a commitment to consensus and a cooperative attitude are important preconditions of good deliberation, and the democratic legitimacy of a group decision to a significant extent depends on the quality of the deliberation process (Manin 1987). Deliberation has inherent egalitarian potential: If the process is inclusive, open and fair, if conformism and ‘group think’ are kept in check, if open dispute and free confrontation between various perspectives is encouraged and all affected points of view are taken into consideration, then the result of such a process can be considered highly legitimate. From an epistemic perspective, the deliberative decision-making that characterises consensus-oriented procedures certainly also has potential, as indicated in the preceding section. Deliberation has been described as an ‘epistemic engine’ by epistemic democrats (Estlund and Landemore

majority rule is actually not as fully indifferent towards the strengths of preferences as usually assumed (Buchanan and Tullock 1962, p. 132), and that, second, such sensitivity might not be as normatively desirable as often expected, but can distort equality, because it can give too much weight to oversensitive and more forward characters.

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2018, p. 2) and as the best mode for finding the right or correct decision to collective problems (Cohen 2007, pp. 219–223), since it relies on the weighing of reasons, the justification of viewpoints and ‘mutual criticism’ (Manin 2005, p. 18). When the process embraces different styles of reasoning, versions of rationality and sources of knowledge, it can indeed generate particularly adequate policy solutions (Fischer 2009, pp. 198ff.; Goldmann 2001, p. 93; Jasanoff 2005, pp. 219ff.; Lentsch and Weingart 2011a, p. 15; 2011b, p. 368; Mansbridge et al. 2012, pp. 13ff.). In such decision-making processes, problems are likely to be looked at from different angles and integrate diverse social perspectives (Young 2000, pp. 6, 29, 76). Besides, on top of ‘external’, i.e. collective exchanges of reasons and perspectives in a group, the ‘double dimension’ of deliberation promotes processes of ‘internal’, i.e. individual deliberation and learning within a person’s mind (Manin 1987, pp. 350–352). Provided that debate was encouraged during the process and agreement was not forced on anyone, ‘consensual closure’ at the end of deliberation stands for the (provisional) ‘end of inquiry’ (Gelfert 2011, p. 309) and can be seen as a ‘marker of truth, signalling that no one knows or can construct a better idea’ (Estlund and Landemore 2018, p. 13). Yet, as already indicated above, group decision processes underlie certain social dynamics that can undermine this epistemic potential. In closely-knit arenas of face-to-face interaction that typically use the consensus mode, it becomes increasingly difficult to utter rejection as group coherence about a proposal grows. During deliberation, particularly in homogeneous groups and once the social dynamic of ‘acceptance loops’ (Nullmeier and Pritzlaff 2010, p. 368) has started, voicing counter-arguments quickly becomes virtually impossible. The epistemically perilous ‘group think’ and ‘spirals of silence’ (Romme 2004, p. 706; Moore and O’Doherty 2014, p. 306) constitute ‘self-reinforcing process[es] of collective belief-formation’ (Kuran and Sunstein 1999, p. 683) that can be de facto impossible to breach. These social mechanisms and the relatively high transaction costs of deliberated decisionmaking can lead to a neglect of crucial information concerning risks of certain policies and thwart an exhaustive pondering of reasons and solutions (Nullmeier and Pritzlaff 2010, p. 396; T’Hart et al. 1997, pp. 10– 11). An overemphasis of consensus or even ‘compulsory consensus’ can

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aggravate this effect, because it streamlines the debate and can render critical comments illegitimate. These aspects surely apply to some extent to all deliberating arenas and are thus not unique to, but probably typical for decision-making by tacit consent.

5.3

Conclusion: Approximating Agreement in the Phase of Policy Development

This chapter focused on rules that govern how individual preferences are integrated so that a joint decision is generated and mutually recognised. Emphasis was placed on stopping rules that regulate how collective decision-making is brought to a close. In comparing voting rules of majority and unanimity with the consensus mode, epistemic, democratic and pragmatic standards have been weighed against each other. In this comparison, consensual decision-making by the absence of open opposition proves best as striking a balance between all three normative demands. Majority voting is inferior in all respects but its practicality, and therefore ranks second best, while unanimous voting is normatively superior, but impossible. Overall, the rule of consensus is reasonably inclusive and promotes deliberation with all its epistemic and democratic merits, without granting an effective, and potentially paralysing, individual veto right to its participants. If it functions well, it generates a fair degree of agreement, commitment and authoritativeness, but can still be relatively efficient. It also seems to work particularly well when applied in ‘the shadow of majority voting’. Yet, the consensus rule also has a flipside, since it depends, inter alia, on ample time resources and collective commitment to a range of, often informal, norms of behaviour. The mode is therefore not equally suited for every context and constellation of participants. On a general level, one can say that its potential weaknesses are best kept in check when the group is small and relatively closelyknit, a condition that applies to committees, for instance. Research has shown that it is particularly common in International Organisations, cause groups, expert committees and clans, for slightly different reasons

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in each case (see Krick 2015 for an overview of the application of the consensus rule).8 What does this mean for policy advisory arenas? Under which conditions can the consensus rule be applied in the phase of policy development? And which stopping rule combinations recommend themselves? In pure expert panels, deciding consensually is unproblematic. Arenas that consider power imbalances as justified when they derive from superior knowledge or experience (e.g. expert commissions or councils of elders) often decide without voting and by absence of open opposition (see, e.g., Krick 2013; Urfalino 2012). In expert collectives, rationality imperatives tend to prevail and majority decisions lack legitimacy. This may partly have to do with the lack of accountability of experts in the domain of policy-making, but probably also with the idea that, especially amongst academics, a collective decision needs to crystallise on the grounds of arguing and convincing, and therefore, competitive voting appears inappropriate. An example of the use of the consensus mode in an expert panel is the very scholarly and relatively small climate adaptation committee analysed in Chapter 3.3, which avoided voting and decided without open opposition. In the committee, experts interacted in a fairly atomised division of labour-constellation and they did not see reason to object to each others’ proposals. It probably helped that they did not have noteworthy stakes in the issue and that they assumed each others’ expertise as sufficient to let others draft their sections independently, without interference or critical scrutiny. In hybrid, mixed or stakeholder assemblies, by contrast, stakes are usually relatively high and many of those involved are professionals at policy-making and bargaining. Especially under public gaze and time pressure and when conflicts of interests are severe, stakeholders need to signal to their constituency that they act in their interest 8 Consensus rules tend to be applied in International Organisations, because in these settings, members usually fiercely safeguard their sovereignty and are at the same time very dependent on cooperation (Buzan 1981; Novak 2013; Thiele 2008). Cause groups, by contrast, such as NGOs of the global justice movement, or social projects such as housing co-ops, strive for maximum agreement and decide without competitive voting on the grounds of a shared collective identity and sense of solidarity (Della Porta 2009; Nail 2013).

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and will therefore be less likely to subject to a consensual decision that calls for concessions. As the climate protection dialogue underlined, powerful stakeholders in particular can successfully try to sideline cooperative decision-making and instead lobby the government directly (see Chapter 3.2). Despite—and because of—the often conflictual, basic constellation in mixed committees, maximising agreement is of high salience, and this applies to consensus-democratic contexts in particular. In consensus-oriented political systems, mixed committees are important governance devices and the agreement they reach is often the basis for moving forward (Krick and Holst 2020). In policy advisory contexts, it is also the basis for being heard by representative institutions and for suggestions developing political impact. The consensus mode is overall suitable for approximating consensus in the face of power imbalances and conflicts of interest, but there are good reasons to combine it with majority voting. As a fall-back option, majority rule can partly motivate members to cooperate, partly avoid the covering up of conflicts and partly relax the unity requirement, so that the emerging decision is as amicable as possible. If the deliberative process has been good, fair, inclusive and characterised by a joint commitment towards consensus, then (super)majority is not the end of the world and can indeed be considered a legitimate decision. In more politicised settings, it can also be an option to vote on some issues (the technical or the most important ones, for instance) without giving up the general intention to maximise agreement. The final storage committee, analysed in Chapter 3.2, is an interesting example of the complementary use of consensus and majority voting in a mixed committee. The case underlines that consensual decision-making is appealing but also exacting in comparison with majority voting and not suited for every context. The final storage committee committed to striving for amicable agreement ‘on all questions’ in § 3 of its rules of procedures and thus went beyond its statutory provisions, which recommend ‘consensus or at least 2/3 approval’ (Standortauswahlgesetz (StandAG) [site selection law] §3, p. 5). Yet, on many decisions leading to the final report, it could not maintain this goal, but had to resort to majority voting. The high degree of contestation, the deep and, at times, seemingly unreconcilable divides, the close public scrutiny and the participation of many

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stakeholders with a long history of involvement in the conflict, led to a tenacious, if respectful struggle on the exact wording and votes on almost every paragraph of the main part of the report. It is noteworthy, however, that these decisions were taken by supermajority (with a 2/3 quorum) and that several techniques were applied that are known from consensus procedures and help to soften the unity requirement on the final report (dissenting votes, a consensus-minus-one rule and a nostrification procedure). The conditions for integrating preferences and reaching consensus are different in arenas of policy advice and consultation that mainly target the ‘ordinary’, non-organised citizen. In such public input fora, the debate is often not rounded up by acts of aggregation or integration of voices at all. In several of the public participation fora analysed in this book’s case studies, no stopping rule was applied at all, because the public fora had not been designed as decision-making rounds in the first place. Instead, input was often gathered by a facilitator on the basis of the discussion and channelled into the inner layers of the multi-level advisory structure. This is often the case in less engaging participatory formats, like town hall meetings or regional conferences, which primarily inform and consult the public, but do not aim at co-decisions on public policies at eye level. Of course, there is a downside to not integrating voices in participatory processes. When several ideas clutter, the message conveyed to policy-makers is simply not clear and its punch diminished. For public input to reach its target and develop an impact, efforts need to be made to integrate viewpoints, pool statements, filter those with the most support and transmit them to the higher decision-making level. The wider the round of those involved, the more challenging this usually gets: Since public input fora do usually not build on substantive representation, but on descriptive representation (see Chapter 4), they necessitate relatively large numbers of participants. Yet, when the input of a large number of people is not collected through elections or surveys, but through more demanding, deliberative channels, ‘problems of size’ (e.g. inefficiency or exclusion), are likely prompted. Part of the solution can be ranked decision-making systems that allow participants to express their degree of consent on several options, so that

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a hierarchy of possibilities emerges and the option with maximum agreement can be selected. These can be online tools such as ‘acceptify’, but a similar effect is also achieved when those managing a participatory process produce transparent overviews that detail the different discussed options and indicate the respective levels of support (see the final storage committee Chapter 3.1). While this task might seem administrative at first, it is actually as influential as minute writing (and as such prone to manipulation). There are also a range of more complex decision-making systems that recommend themselves for the inclusion of the wider public and combine debate fora with delegated and preference voting, such as ‘adhocracy’ or ‘liquid feedback’. These software tools use voting mechanisms to integrate larger and more diffuse groups to the best possible extent and they interlink direct democratic ideas with representative ideas of participation and decision-making.

References Azari, Julia R., and Jennifer K. Smith. 2012. “Unwritten Rules: Informal Institutions in Established Democracies.” Perspectives on Politics 10 (1): 37–55. Bächtiger, André, Susumu Shikano, and Eric Linhart (eds.). 2015. Jahrbuch für Handlungs- und Entscheidungstheorie, Vol. 9: Deliberation und Aggregation. Wiesbaden: Springer VS. Beatty, John, and Alfred O’Moore. 2010. “Should We Aim for Consensus?” Episteme 7 (3): 198–214. Buchanan, James M., and Gordon Tullock. 1962. The Calculus of Consent: Logical Foundations of Constitutional Democracy. Ann Arbor: University of Michigan Press. Buzan, Barry. 1981. “Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea.” The American Journal of International Law 75 (2): 324–348. Chambers, Simone. 2003. Deliberative Democratic Theory. Annual Review of Political Science 6: 307–326.

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Cohen, Joshua. 2007. “Deliberative Democracy.” In Deliberation, Participation and Democracy. Can the People Govern?, edited by Shawn E. Rosenberg, 219– 228. Houndmills: Palgrave. Coleman, James S. 1990. Foundations of Social Theory. Cambridge, MA: Belknap Press. Della Porta, Donatella. 2009. “Consensus in Movements.” In Democracy in Social Movements, edited by Donnatella della Porta, 73–99. Houndmills: Palgrave Macmillan. Dorff, Robert, and Jürg Steiner. 1981. “Political Decision-Making in Face-toFace Groups: Theory, Methods, and an Empirical Application in Switzerland.” The American Political Science Review 75 (2): 368–380. Dougherty, Keith, Brian Pitts, Justin Moeller, and Robi Ragan. 2014. “An Experimental Study of the Efficiency of Unanimity Rule and Majority Rule.” Public Choice 158 (3): 359–382. Dryzek, John S., and Simon Niemeyer. 2006. “Reconciling Pluralism and Consensus as Political Ideals.” American Journal of Political Science 50 (3): 634–649. Ehlermann, Claus-Dieter, and Lothar Ehring. 2005. “Decision-Making in the World Trade Organization. Is the Consensus Practice of the World Trade Organization Adequate for Making, Revising and Implementing Rules on International Trade?” Journal of International Economic Law 8 (1): 51–75. Elder, Neil C. M., Alastair H. Thomas, and David Arter 1988. The Consensual Democracies? The Government and Politics of the Scandinavian States. Oxford: Blackwell. El-Hakim, Sherif. 1978. “The Structure and Dynamics of Consensus DecisionMaking.” Man: New Series 13 (1): 55–71. Estlund, David. 2009. “Epistemic Proceduralism and Democratic Authority.” In Does Truth Matter?, edited by Geenens Ralf and Tinnevelt Ronald, 15– 27. Dordrecht: Springer. Estlund, David, and Helène Landemore. 2018. “Epistemic Value of Democratic Deliberation.” In Oxford Handbook of Deliberative Democracy, edited by André Bächtiger, John S. Dryzek, Jane Mansbridge, and Mark E. Warren, 113–131. Oxford: Oxford University Press. Farrell, Henry, and Adrienne Héritier. 2004. “Inter-Organizational Negotiation and Intra-Organizational Power in Shared Decision-Making: Early Agreements under Codecision and their Impact on the European Parliament and the Council of Ministers.” IHS Political Science Series 95. Vienna: Institute for Advanced Studies.

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Fischer, Frank. 2009. Democracy and Expertise. Reorienting Policy Inquiry. Oxford: Oxford University Press. Gelfert, Axel. 2011. “Expertise, Argumentation and the End of Inquiry.” Argumentation 25 (3): 297–312. Gilbert, Margaret. 1987. “Modelling Collective Belief.” Synthese 73 (1): 185– 204. Goldmann, Alvin I. 2001. “Experts: Which ones Should we Trust?” Philosophy and Phenomenological Research 63 (1): 85–110. Guston, David H. 2005. “Institutional Design For Socially Robust Knowledge: The National Toxicology Program’s Report on Racinogens”. In Democratization of Expertise? Exploring Novel Forms of Scientific Advice in Political Decision-Making, edited by Sabine Maasen and Peter Weingart, 63–79. Dordrecht: Springer. International Monetary Fund (IMF). 2019. How the IMF Makes Decisions. https://www.imf.org/en/About/Factsheets/Sheets/2016/07/27/15/24/ How-the-IMF-Makes-Decisions. Jasanoff, Sheila. 2003. “(No?) Accounting for Expertise.” Science and Public Policy 30 (3): 157–162. Jasanoff, Sheila. 2005. “Judgment Under Siege: The Three-Body Problem of Expert Legitimacy.” In Democratization of Expertise? Exploring Novel Forms of Scientific Advice in Political Decision-Making, edited by Sabine Maasen and Peter Weingart, 209–224. Dordrecht: Springer. Karpowitz, Christopher F., and Jane Mansbridge. 2005. “Disagreement and Consensus. The Need for Dynamic Updating in Public Deliberation.” Journal of Public Deliberation 1 (1): 347–364. Kelsen, Hans. 1955. “Foundations of Democracy.” Ethics 66 (1): 1–101. Krick, Eva. 2013. Verhandlungen im Konsensverfahren. Varianten kollektiver Entscheidung in Expertengremien. Wiesbaden: VS. Krick, Eva. 2015. “Consensual Decision-Making Without Voting. The Constitutive Mechanism, (Informal) Institutionalisation and Democratic Quality of the Collective Decision Rule of ‘Tacit Consent’.” Arena Working Paper 3/15. Krick, Eva. 2017. “The Myth of Effective Veto Power Under the Rule of Consensus. Dynamics and Democratic Legitimacy of Collective Decisionmaking by ‘Tacit Consent’”. Revue Négociations 27 (1): 109–128. Krick, Eva, and Cathrine Holst. 2020. “Governance by Hybrid Advisory Committees: a Hallmark of Social Democracy?” In Social democracy in the 21st century. Comparative Social Research, edited by Øivind Bratberg, Nik Brandal, and Dag Einar Thorsen, 115–132. Bingley: Emerald Publishing.

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Kuran, Timur, and Cass Sunstein. 1999. “Availability Cascades and Risk Regulation.” Stanford Law Review 51 (4): 683–768. Landemore, Hélène. 2012. “Democratic Reason. The Mechanisms of Collective Intelligence in Politics.” In Collective Wisdom. Principles and Mechanisms, edited by Hélène Landemore and Jon Elster, 251–289. Cambridge, New York: Cambridge University Press. Lehmbruch, Gerhard. 1967. Proporzdemokratie: Politisches System und politische Kultur in der Schweiz und in Osterreich. Tübingen: J.C.B. Mohr. Lehmbruch, Gerhard. 1974. :A Non-Competitive Pattern of Conflict Management in Liberal Democracies: The Case of Switzerland, Austria and Lebanon.” In Consociational Democracy, edited by Kenneth McRae, 90–97. Toronto: McClelland and Stewart. Lehmbruch, Gerhard. 1975. “Consociational Democracy in the International System.” European Journal of Political Research 3 (4): 377–391. Lentsch, Justus, and Peter Weingart. 2011a. “Introduction: The Quest for Quality as a Challenge to Scientific Policy Advice: An Overdue Debate?” In The Politics of Scientific Advice: Institutional Design for Quality Assurance, edited by Justus Lentsch and Peter Weingart, 3–18. Cambridge: Cambridge University Press. Lentsch, Justus, and Peter Weingart. 2011b. “Quality Control in the Advisory Process: Towards an Institutional Design for Robust Science Advice.” In The Politics of Scientific Advice: Institutional Design for Quality Assurance, edited by Justus Lentsch and Peter Weingart, 353–374. Cambridge: Cambridge University Press. Lewis, Jeffrey. 2010. “How Institutional Environments Facilitate Co-operative Negotiation Styles in EU Decision-Making.” Journal of European Public Policy 17 (5): 648–664. Lijphart, Arend. 1969. “Consociational Democracy.” World Politics 21 (2): 207–225. Lijphart, Arend. 1981. “Consociational Theory: Problems and Prospects: A Reply.” Comparative Politics 13 (3): 355–360. Lijphart, Arend. 1984. Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries. New Haven and London: Yale University Press. Lijphart, Arend. 2012. Patterns of Democracy: Government Forms and Performance in 36 Countries. New Haven, CT: Yale University Press. List, Christian. 2012. “Collective Wisdom. Lessons from the Theory of Judgment Aggregation.” In Collective Wisdom. Principles and Mechanisms, edited

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6 Mechanisms of Institutional Coupling

The key design question that this chapter deals with is how to couple (i.e. interconnect) arenas of policy advice, consultation and participation (for short here: advisory bodies) with representative political institutions (often the government) in such a way that epistemic and democratic demands are balanced to the best possible extent. The focus lies on the relationship with the sponsor, i.e. the actor that sets up the subordinate, advisory body and is addressed by its policy suggestions.1 The focus is here on those connecting elements and transmission channels that can potentially be shaped by purposeful intervention when constructing or reforming advisory bodies. Examples are appointment rights and management responsibilities of the sponsor, reporting requirements of the advisory body or a duty on the side of the government to respond to the received advice.

1 From the perspective this book is taking, the sponsor is a state entity, but arenas of policy advice and consultation can also be set up by civil society organisations, for instance.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 E. Krick, Expertise and Participation, Palgrave Studies in European Political Sociology, https://doi.org/10.1007/978-3-030-75329-0_6

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This chapter begins by describing the standard or basic conditions of the relationship between advisory body and sponsor, thereby distinguishing advisory bodies from independent state agencies (also ‘regulatory agencies’) (Chapter 6.1). In Chapter 6.2, the key epistemic and democratic norms that are affected by this relationship are extracted from research in the fields of public administration and delegation studies, deliberative democracy and science and expertise studies. The relationship and tensions between these epistemic and democratic norms are then analysed on an abstract level (Chapter 6.3), and mechanisms that strengthen each of these norms individually are described (Chapter 6.4). The concluding Chapter 6.5 discusses practical ways of striking a balance between the normative demands by way of institutional intervention and by moderating demands and adapting them to context. It shows that independence is the hardest norm to reconcile with all the others and that the key for balancing the potentially conflicting norms are loose forms of coupling such as constant feedback loops that avoid ‘procedural control’ and restrict the leeway of government delegates.

6.1

Basic Conditions of the Relationship Between Parent and Advisory Body

What do the organisational links between advisory bodies and sponsor usually look like? What can be described as the basic or standard conditions and which elements of the relationship are flexible? The ‘sponsor’ (also: ‘appointing authority’ or ‘parent body’) is the (political) body that sets up an advisory arena, and this act essentially involves selecting personnel (or deciding on a selection mode), and setting the course of the advisory process, for instance by writing a mandate or describing in some other form of public outlet the purpose

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of the endeavour.2 Responsibility for managing and governing advisory arenas resides chiefly with the sponsor, but may be shared with other institutions. For instance, interest groups sometimes have the right to send delegates into advisory rounds, and secretarial, facilitation and management tasks can be outsourced and delegated to private service providers. When the sponsor is a state actor, as in the cases in focus here, this role is usually performed by the government, its departments or subordinate agencies, but it can also be another political institution, e.g. parliament or an intergovernmental conference. The sponsor is also the key recipient of the advice (sometimes alongside the public), and as key recipient, is chiefly expected to respond to the advice in one way or the other. Customs here can differ substantially between political systems and different advisory institutions (see Chapter 6.4.3). Speaking in the language of delegation and Principal-Agent (PA) theory, the sponsor has some of the tasks of a principal.3 Yet, the advisory body is not its agent in the same way as ‘independent regulatory agencies’ are agents to the government. Regulatory agencies are staffed with civil servants and operate at arms’ length of governments. They are part of the permanent bureaucracy and the respective minister is ultimately responsible for their actions. Yet, they are detached from direct governmental control to such a degree that they are considered independent from political interference in their day-to-day business. The advisory bodies in focus here (be they classic expert committees, pure (randomly selected) minipublics or complex, mixed forms) are not exclusively staffed with civil servants and, partly for that reason, do not stand in any direct delegation and accountability relationship with the government. They are usually ad hoc structures and whether they are external or internal to the

2 As Chapter 4 underlined, there are various ways of selecting participants of advisory arenas. The most common participant selection modes for public input fora are random choice and open access, while classic expert committees are usually composed by use of targeted selection strategies. Since the compound arenas under scrutiny in Part I of this book consist of multiple layers, different selection modes were combined in these empirical cases. 3 While the sponsor is the main and most important principal, some of the principal’s tasks can be assumed by other actors. This creates a multiple principal situation, for instance when the public is partly addressed by the advice generated and responsible for scrutiny.

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government apparatus is a matter of perspective and can be a matter of political strategy and communication.4 (In)dependence (in terms of organisational autonomy) from the sponsor is of a different nature than in a delegation relationship and it can vary considerably. For instance, while a government cannot instruct advisory body members to act a certain way or else sanction them with disciplinary consequences, arenas of policy advice and consultation are usually not established by law, but by a lower ranking ministerial act, and they can therefore be dissolved quite easily if need be (if, or instance, the advisory body acts unseemly or the advice developed diverges too much from the government’s preferences).5 Besides, when key management positions of the advisory body, such as the chair position or (leadership of ) the secretariat, are staffed with civil servants, these actors can influence the outcome of the advisory process considerably. Advisory and consultation arenas differ in another important way from regulatory agencies. By definition of an advisory body, they have not been delegated formal authority, i.e. they do not perform acts of decision-making that have a formally binding effect on a collective.6 This does not mean, however, that they have no authority at all, but that it lies in the degree of de facto authoritativeness of an advisory arena’s policy suggestions (Brown 2008, p. 544; Brown et al. 2005, p. 85; Maasen and Weingart 2005, p. 15). This can of course vary considerably between individual cases. Policy advice is de facto authoritative if the recipient is decisively influenced or even bound by it in its actions and when deviation is potentially costly (Kropp 2003; Lavertu and Weimer 2011, p. 232; Papadopoulos and Warin 2007, p. 460). Policy advice is the more authoritative, the more a sponsor commits to receiving and responding 4 One of the most common kinds of advisory bodies of the UK system these days, for instance, is called ‘(advisory) non-departmental public bodies’, while in Austria, formally quite similar advisory institutions are often officially called governmental commissions (‘Regierungskommission’). 5 Some advisory bodies (such as the permanent departmental scientific councils in Germany or the Dutch advisory councils, see Lentsch and Weingart 2011, p. 357) are however set up by law (see, e.g., Gesetz über die Bildung eines Sachverständigenrates zur Begutachtung der gesamtwirtschaftlichen Entwicklung SachvRatG) [Act on the Appointment of a Council of Experts on Economic Development] [from 14.08.1963]). 6 There are borderline cases of agencies, however, that only perform advisory tasks and have not been mandated with the task of norm-setting or implementation.

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to it (Lentsch and Weingart 2011, p. 371). If a duty or custom has been established of reacting to the advice, justifying the response and possibly acting upon it, policy advice cannot easily be completely ignored. The authoritativeness also hinges on an advisory arena’s status and the amount of public attention. The sources of status surely differ between different kinds of advisory bodies. For instance, status in the case of a minipublic usually builds primarily on the participatory credentials of the advisory body (Irvin and Stansbury 2004). When an advisory arena leans more towards an expert committee, by contrast, the specialised knowledge of the involved participants as well as their impartiality and professionalism are likely to be the primary sources of authority (see Brown 2006; Döhler 2012; Grossekettler 2005). In both cases, it increases rank when the advisory body is able to speak in a unified voice. Besides, recommendations that are received favourably in the public sphere are likely to develop more authority than proposals that are publicly contested or ignored (Lavertu and Weimer 2011, p. 232; Weingart and Lentsch 2008, 109, p. 112). Of course, even the ‘basic’, standard characteristics of advisory and consultation arenas and their coupling with the parent body, vary to some extent with the political and administrative culture the advisory arena is embedded in, and institutional design choices have to take the context into account since there is no one-size-fits-all approach to coupling. As will become clearer in the remainder of the chapter, the appropriate relationship between sponsor and advisory institution hinges on some of the flexible key characteristics of the latter, such as its participation patterns and the authority it enjoys. These variables have a filtering effect and affect both the normative requirements and the way that (subsequent) questions of institutional design pose themselves.

6.2

Democratic and Epistemic Dimensions of Coupling

In the following, the main democratic and epistemic norms affected by the coupling of government and advisory body will be explored on the basis of different literatures that deal with issues of policy advice

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and consultation. These are, most importantly, studies on participatory governance (and minipublics in particular), on PA-relations and the knowledge-policy-nexus from the disciplines of democratic theory, public administration and science studies.

6.2.1 Democratic Legitimacy Concerns in the Relationship of Sponsor and Advisory Arena When we look at the democratic dimension, how is the idea of selfgovernment affected by the relationship between sponsor and advisory body? Key issues in the literature are the quality of control, scrutiny and monitoring of the advisory body, on the one hand, and the impact, influence or resonance of the developed advice, on the other. (a) From a PA-perspective (Busuioc 2009; Curtin 2007) as well as from a policy advisory systems perspective (Craft and Howlett 2013; Halligan 1995), control and accountability seem to be the most important issues of democratic legitimacy when it comes to the relationship between advisory bodies and sponsor. As far as these studies focus on intra-bureaucratic advisory relationships, their perspectives need to be adjusted to the cases in focus here, which are exercises in ad hoc external advice production. In these cases, there is no direct, unbroken chain of command between sponsor and advisory body, for instance, and this means that the government does not have the direct grasp of disciplinary measures to control an advisory body. Neither does it have to fully identify with the body and take the entire responsibility for its actions. Accountability is also invoked as an important democratic norm in sociological studies of the status and power of individual experts in policy-making (Holst and Molander 2017; Jasanoff 2003; Brown 2006, 2009) discusses the question of accountability with relation to minipublics from a democratic theory perspective. He states that participants of minipublics are usually not held accountable by anyone, but that they usually give an account by arguing reason-based inside the panel, and should ideally also account for their decisions externally, by making

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them visible and explaining them (Brown 2006, p. 211).7 These two aspects of accountability can be considered for any kind of advisory body, not just minipublics: one relates to the sponsor’s control and monitoring responsibility vis-à-vis the advisory arena, the other to channels of justification and explanation, through which the advisory body can account for its actions (and for which transparency and openness are important preconditions). (b) Generally speaking, issues of accountability and control of advisory bodies are not of primary concern in democratic theory-inspired research on participatory governance, citizen involvement and minipublics. Since disappointment with the lack of impact is one of the main reasons for participatory endeavours backfiring and increasing public dissatisfaction instead of mitigating it (Irvin and Stansbury 2004, p. 59), questions of influence, authority or impact are of higher salience in the field (Goodin and Dryzek 2006; Griessler et al. 2012; Loeber et al. 2011; Moore 2017; Smith and Setälä 2018). As mentioned before, it is not uncommon for empirically oriented participatory governance research to assume that ‘the output of the procedure should have a genuine impact on policy’ (Rowe and Frewer 2000, p. 14). Yet, as discussed in Chapter 2.2, critical voices have pointed to the preconditions of empowering minipublics (see also Fung 2003, 2006; Irvin and Stansbury 2004; Krick 2018; Lafont 2015).8 While direct impact and full implementation of policy advice can neither be expected nor desired under all circumstances, there is general agreement that the advice should have a chance to resonate in the political sphere (Hansen and Allansdottir 2011, p. 611; Steiner 2012, p. 43; Warren 2002, p. 693; see also Boswell 2009, p. 165ff.; Lentsch and Weingart 2011, p. 371). 7

The accountability relationship is approached by some authors from the other end, too, with the advisory body holding the sponsor to account (a) for responding to the received advice (Brown 2006) and (b) for the state of affairs in the policy field that the advisory body deals with (Fung 2003). For reasons of conceptual clarity, these issues will be taken up below under different headings, not the ‘accountability’ heading. 8 A concern for the impact of policy advice, for “getting the message across” to policy-makers (Lentsch and Weingart 2011, p. 371) also, explicitly or implicitly, characterizes research on scientific expertise and knowledge utilisation (Boswell 2009, p. 165f.; Lindblom and Cohen 1979, p. 1; see also Braun 2008; Haas 2004; Hoppe 2005), but it tends to be addressed less as a matter of democratic legitimacy and more as a requirement of effective governance and problem-solving.

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6.2.2 Epistemic Authority Concerns in the Relationship of Sponsor and Advisory Arena When one looks at the epistemic dimension, how can the validity, reasonableness and reliability of the advice be affected by the relationship between sponsor and advisory body? Two criteria are key here: the independence and impartiality of the advisory body on the one hand and the usability and relevance of the advice on the other. (c) Independence is a central epistemic issue from a PA-, trustee- and delegation-perspective (Busuioc 2009; Carpenter 2010; Curtin 2007; Ennser-Jedenastik 2015; Hood and Lodge 2006; Majone 2001). From these public administration viewpoints, the independence of an expert body essentially lies in its organisational autonomy from the ‘parent body’.9 It is a source of discretion as it frees an advisory body from the constraints of external interference (Verhoest et al. 2004). It is generally seen as a resource of an organisation’s reputation and credibility that enhances its performance (Busuioc 2009; Carpenter 2010; Curtin 2007; Ennser-Jedenastik 2015; Thatcher and Stone Sweet 2002) and it promises to make advice more reliable, accurate and trustworthy (Haas 2004, p. 576). Distance between the advisor and the advised avoids particularism and strengthens independent, systematic (scientific) judgment (Lentsch and Weinhart 2011, p. 15). When an advisory endeavour is largely independent from the sponsor, it cannot exclusively be used for legitimising or manipulation purposes so easily (Rowe and Frewer 2000, p. 14; Steiner 2012, p. 52).10

9 Organisational or bureaucratic autonomy can relate to autonomous competences and discretion of the advisory body (legal autonomy), the absence of supervision and interference by the parent body (political/managerial autonomy) or the lack of monetary strings and dependencies (financial autonomy) (Haas 2004, p. 576; Lentsch and Weingart 2011, p. 15; see also Rowe and Frewer 2000; Verhoest et al. 2004). 10 Independence or impartiality can also relate to a balance of viewpoints within an advisory body. An impartial advisory body does not lean to one side, is unbiased, not captured by one specific viewpoint or ideology (Haas 2004, p. 576; Krick and Holst 2019, p. 126f.; Lentsch and Weingart 2011, p. 15). This aspect of independence is not directly connected to the relationship with the sponsor, but primarily affects the participation patterns. It is therefore discussed in Chapter 4 and will not be dealt with here in more detail.

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(d) A range of scholars that work on the policy-science nexus and on the role of knowledge in processes of governance have further pointed to the importance of policy-relevance or usability of expertise as an important epistemic virtue that enhances the likeliness of policy advice being implemented (Beck et al. 2014; Dimitrov 2003; Haas 2004; Holst and Tørnblad 2015; Jasanoff 1990; Lentsch and Weingart 2011; Lindblom and David 1979; Nowotny et al. 2001; Radaelli 1995; see also Chapter 2.2). Policy-relevant, usable expertise combines both political and scientific standards and logics (Jasanoff 1990, p. 20) and needs to be both ‘accurate’ and responsive to societal and political needs (Haas 2004, p. 574; Lentsch and Weingart 2011, p. 365). This means that the process of advice development needs to be informed by different kinds of knowledge, factor in political logics and power relations, reconcile conflicts and, at best, achieve consensual closure (Haas 2004; Guston 2005; Moore 2017). It also means that a process of consultation and advice production ‘at its best operates in synergy with representation and administration to yield more desirable practices and outcomes of collective decision-making and action’ (Fung 2006, p. 66).

6.3

Tensions Between Democratic and Epistemic Demands to Coupling

In the following, the relationship of these four norms will be described in more detail, with an emphasis on possible tensions between them and a focus on, first, the inter-dimensional relationships (i.e. within the democratic and epistemic dimensions, respectively), and second, the cross-dimensional relationships. The main issues from a perspective of democratic legitimacy on the relationship between sponsor and advisory body are the quality of control and accountability of the advisory body and the political impact of the developed advice. The relationship between these norms is not one of conflict but rather one of amplification or reinforcement. The more ‘empowered’ an advisory body and the more its expertise develops impact, the more questions of transparency, scrutiny and accountability pose themselves (see Papadopulos and Warin 2007, p. 460). Turned

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around, if an advisory activity is ignored or discredited, then no accountability claims need to be directed at it (though possibly at the parent body for (mis)managing the process). Which norm trumps the other also depends on the further characteristics of the advisory body and chiefly its participation patterns and the quality of its deliberation. As a general rule, the higher it scores in both epistemic and democratic terms, the more a parent body can be expected to respond to or act on the advice, and it would likely have to justify itself for ignoring it completely. Dubious advisory institutions and those that lean very much towards detached expert bodies, by contrast, need a firmer hand from a democratic legitimacy perspective. Direct implementation of their suggestions would be rather problematic, while more comprehensive, tighter and potentially more disruptive control mechanisms may be more legitimate. Zooming in on the epistemic quality dimension, there is a negative relationship between the independence and the relevance or usefulness of policy advice. When an advisory and consultation endeavour is particularly autonomous, interaction with the government is limited. It will then be less likely to respond to the sponsor’s advisory needs and the situation in the policy field, have access to the expert knowledge of civil servants and be able to deliver the needed, policy-relevant expertise (Haas 2004, p. 574ff.; Krick and Holst 2019, p. 125; Weingart and Lentsch 2008, pp. 63, 115). Across the two normative dimensions, there is also a negative relationship between the independence of the advisory body and the degree of control and accountability of the body: Particularly autonomous advisory bodies are by definition detached from external control. A government will not check on their performance, have access to the venue or be able to use sanctioning mechanisms, or else it would undermine the advisory body’s independence. From the perspective of delegation and agency theory, such detached (advisory) institutions suffer from accountability deficits (Busuioc 2009; Curtin 2017). Yet, a distance between adviser and the advised is important to avoid political ‘orchestration’ of the advisory process (Boswell 2008, p. 475; Krick 2015, p. 492; Lentsch and Weingart 2011, p. 15). By contrast, the relationship of relevance and usability on the one hand and influence of the developed expertise on the other is less fraught.

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Indeed, it seems that policy-relevant advice is more likely to develop an impact and resonate in the political sphere. The other way around, advice that resounds in the political sphere, is unlikely to be completely irrelevant and useless for policy-making. Yet, relevance and impact are not the same thing. Some policy suggestions might be discussed thoroughly in the public sphere and thus develop strong resonance, but are impossible to implement, because they do not match political majorities or are too costly. Between the potential influence and the autonomy of a (scientific) advisory body, Haas (2004) sees a positive relationship: ‘The more autonomous and independent science is from policy the greater its potential influence’ (Haas 2004, p. 576). He goes on to argue that ‘science remains influential if its expertise and claims are developed behind a politically insulated wall’ (Haas 2004, p. 587). Yet, other authors have pointed out that access points for state representatives help to communicate the government’s advisory needs to the advisory body and thus facilitate implementation and impact of advice (Weingart and Lentsch 2008, pp. 63, 115; Döhler 2012, p. 187) and this direction of the relationship also shows in the three case studies of the book (see Chapter 3). Finally, the relationship between the accountability and control of an advisory body and the usefulness or relevance of the advice seems to be a rather positive one as well. When the sponsor has a large degree of control over the advisory body, it can steer or nudge it into dealing with issues of relevance to policy-making. The other way around, the relationship seems virtually non-existent, since relevance, usefulness and ‘implementability’ have no obvious direct effect on control and monitoring.

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Institutional Mechanisms that Strengthen the Individual Normative Demands

In this section, institutional mechanisms that promise to strengthen the four criteria of epistemic and democratic worth in the relationship between sponsor and advisory body will be described independently of each other. It will not be discussed at this point, which mechanisms disrupt others and how a balance can be struck between competing demands (but see the concluding Chapter 6.5).

6.4.1 Mechanisms of Autonomy It potentially strengthens the autonomy or independence of an advisory body when it has a separate legal personality (Verhoest et al. 2004) or is at least set up by law, when it has its own rules of procedure and some budgetary discretion (e.g. concerning the commissioning of external studies) (Lentsch and Weingart 2011). It also increases the advisory body’s autonomy when channels of access, supervision and interference by the sponsor are limited. This can mean, for instance, that no reporting requirements are institutionalised and that advisory body members are not bound by a sponsor’s instructions regarding their behaviour during deliberation or towards the public. It can further mean that the sponsor is not in a position to assess, sensor or summarise the (interim) results of the advisory process. This presupposes that the sponsor or its delegates are not given management positions, such as the role of chair, facilitator and mediator or secretariat posts (Rowe and Frewer 2000, p. 14). The autonomy of an advisory body is strengthened when management positions are given to researchers (who tend to be seen as non-partisan individuals) or to external service providers (that are specialised in mediating and facilitating group processes in an effective and impartial way). Organisational autonomy is further enhanced when the advisory body is not composed by the hands of the sponsor alone. The respective regulations can attribute nomination rights to civil society organisations, make

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use of co-optation procedures,11 random selection or open access rules. Balanced composition requirements that are laid down in the advisory body’s statutory basis, rules of procedure or general, ‘horizontal’ regulations on the use of external policy advice can also contribute to avoid a politicised composition and add to the impartiality and independence of the body (cf. Brown 2009, p. 93ff.). It further enhances the independence of the advisory body from the sponsor when its participants are not only invited to each meeting by the sponsor, but have membership status that cannot be revoked easily. Advisory bodies that are considered particularly independent also sometimes elect their chairperson from within their own ranks, and this chairperson, as primus inter pares, will take a range of organisational decisions together with the parent body, such as the frequency of meetings, the agenda and the invitation of guests. It also adds to the autonomy of an advisory body when publication of the report is mandatory and done in the name of the advisory body, not the sponsor. It can help to keep the mandate vague and broad. The advisory body is then free to choose its topics of investigation and to interpret the problem definition that is usually laid out in a mandate. There are even some advisory bodies, which, for the sake of independence and avoidance of politicisation, are not allowed to give recommendations but meant to stick to ‘analysis’, although the distinction is of course difficult to draw (Weingart and Lentsch 2008, p. 115).12 A related way of evading ‘the muddy waters of politics’ is for individual members to avoid interacting with the media directly.

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By ‘co-optation’, (further) members are added to an appointed group at the discretion of already appointed members of the body. 12 Such a ‘recommendation ban’ that governs the Council of economic advisors in Germany, for instance, is meant to safeguard the independence and neutrality of the reports, and ensure rational, non-politicised analyses, prevent any direct influence on political decisions and avoid the establishment of technocratic side-governments. However, the mid- and long-term perspectives that the German Council of economic advisors provides can hardly be separated from their prescriptive conclusions and the committees’ expertise is not devoid of political implementations (Weingart and Lentsch 2008, p. 115). The limits of the recommendation ban are particularly evident in the committees’ practice of discussing several options and then rating one much more positively than the others.

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6.4.2 Mechanisms of Usability and Policy-Relevance As argued above, it likely adds to the usability and practical relevance of policy advice when it responds to government needs. Basic provisions such as mandate descriptions can set the path for this. For instance, the mandate can be described in such as way that the advisory body is bound to answer to pressing problems. To answer such questions in a convincing, usable way, the advice needs to be informed by reliable input of various origin that is relevant for the problem at hand. First of all, the advisory body needs to be ‘legally literate’, i.e. have thorough knowledge of the regulatory situation in the policy field. It needs to know about and adapt its recommendations to existing laws, regulatory gaps, customs, norms and standard procedures, and for that purpose, input from expert civil servants is important. A secretariat staffed with civil servants or a civil servant in the chair position can provide such a link between the department and the advisory body and so do reporting requirements of the advisory body. Feedback loops with the public administration can also be more informal and consist of unofficial channels of reciprocal exchange that keep political observers informed about the developments in the advisory process and convey input from politicoadministrative agents into the advisory process (see the case of the final storage committee, Chapter 3.1). On top of the state of the art in the relevant research fields, an advisory process should also be informed by different bodies of hands-on, practical, experience-based knowledge, such as local, sectoral and experiential expertise. These kinds of information can be channelled into the process by members of the advisory body, but also through other, less permanent interconnections and input channels, such as hearings, lectures and reports by knowledgeable individuals, studies, polls or study trips and location visits for learning purposes (see the cases of the final storage committee and the climate adaptation committee, described in Chapters 3.1 and 3.3). When the advice produced represents consensual closure and reconciliation, this likely adds decisively to its usability. If real conflict resolution is achieved and the advice is the result of open debate between all affected viewpoints and all rivalling expert standpoints, it will be

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easier to implement because potential veto-players have been involved and compensated for their approval (and might even contribute with their own resources to implementation as a result). For achieving such successful and lasting conflict resolutions, the advice production process must take power constellations, political developments, preferences and majorities into account, and this presupposes again a relationship of synergy and exchange with administrative and representative institutions. Organisational conditions that facilitate consensus-building and conflict resolution are numerous and have been discussed within negotiation and collective decision-making theories (see, e.g., Buchanan and Tullock 1962; Krick 2013; Olsen 1972; Scharpf 1976; Urfallino 2014; see also Chapters 4 and 5). Conducive is surely a moderate, neither polarised nor imbalanced composition of the advisory arena that gives preference to professional, cooperative personalities and an experienced facilitator (Färber 2005; Krick 2013). It also helps to adopt decision rules that facilitate maximising agreement, such as the avoidance of voting or consensus-minus-one rules (see Chapter 5 for more details on such rules). It also helps to allow plenty of time to promote intensive debate, to find common ground and negotiate compromises, a logic that the final storage committee case underlines (see Chapter 3.1). Conflicts can furthermore be reduced by (temporarily) marginalising certain contested issues or specific individuals from decision-making (Krick 2013; Scharpf 1976; see also Chapter 3.1). Of course, if these issues (or individuals) are not taken up (or involved) again, the developed policy solutions are less likely to endure and be useful for policy-makers.

6.4.3 Mechanisms of Impact and Resonance As argued in Chapter 2.2, the impact of policy advice should not be reduced to direct diffusion and policy change. Such a narrow understanding is too restrictive when it assumes that every participatory endeavour should be influential, irrespective of its democratic credentials. It also overlooks all the other important forms of possible impact, which may be below the threshold of direct full implementation of advice, but are more realistic, more common and may be just as valuable (Griessler

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et al. 2012; Hansen and Allansdottir 2011; Loeber et al. 2011). Therefore, as the main standard for impact or effectiveness of policy advice, the chance to resonate or to spill over into the political debate has been applied in the case studies, and the next sections propose institutional conditions that prevent policy advice from being ignored and being silently brushed under the carpet. An ‘impact guarantee’ given at the early stages of the process, however, does and should not exist in any case of policy advice and consultation. For policy advice to resonate politically, a two-sided relationship between the sponsor and advisory body is beneficial that allows the flow of information into both directions, the coordination of the policy advice with policy-makers’ needs and alignment of the content of the advice to political majorities and constellations (Fung 2006; Rowe and Frewer 2000). The impact of advice is likely to grow when civil servants are present during the advisory process, help in word and deed and possibly co-organise or participate as members of the advisory body (Griessler et al. 2012, p. 125). It further adds to the vigour of policy advice, when a longer-term relationship with policy-makers is cultivated, because trust, mutual commitment and an understanding of each other’s constraints and needs are more likely to develop. This presupposes more permanent advisory structures or stable personal relationships between individual policy-makers and advisers. Resonance can also be enhanced when interim results and policy briefs are produced that directly address policy-makers, give hands-on advice, speak the language of the public administration and take political concerns into account. It also contributes to impact when the results are presented to parliament, ministries and the general public at press conferences (Griessler et al. 2012, p. 125). A key condition of resonance is a mandatory response by policymakers to the advice they receive (Lentsch and Weingart 2011, p. 371) state that, of all the ways that ‘help get the message reach its target’, ‘the most effective one is to require a formal government response or formal statement of reaction’. Response can be provided in written government statements, subsequent white papers or parliamentary debates on the policy issue. A response that assesses the suggestions, not least in terms of their chances of implementation, can be more or less public

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and more or less formally institutionalised, but the more institutionalised it is, the more likely it will be delivered. When it is established as a rule or duty, divergence from the rule will be the special case in need of an explanation. Because informal institutions are governed by ‘rules of appropriateness’ (March and Olsen 1989, p. 25), the (noncodified) standard procedure and the expectations associated with it can have a similarly binding effects as formal, written-down requirements. For instance, in the Norwegian NOU system, it is common practice to produce a white paper subsequent to the delivery of a NOU report, which processes and refers back to the suggestions made by the advisory committee and sketches the government’s planned policies on the issue (Krick et al. 2019; see also the case of the climate adaptation committee, Chapter 3.3). For another example, the German government has established an informal rule to publish a statement in response to reports by many of its permanent, scientific advisory councils (Weingart and Lentch 2008, p. 107) and in the case of the Council of economic advisors is even obliged to it by law (SachvRatG, § 6.1). As Brown points out (2006, p. 213), even ‘some citizen panels have […] managed to establish symbolic “contracts” with lawmakers, obligating them to either adopt the panel’s recommendations or publicly explain their reasons for rejecting them’. Feedback by the sponsor underlines that the participatory or advisory endeavour is appreciated. It can work against the risk of being ignored and of being used for window-dressing or for substantiating predetermined decisions (Irvin and Stansbury 2004, p. 59). Resonance can also be enhanced through monitoring activities on the side of external actors. The advisory bodies themselves or certain members can choose to monitor the implementation of their advice, countercheck in detail which parts of it are taken on board, and publicly comment on that (Lentsch and Weingart 2011, p. 371; Setälä 2017, p. 856). Such a monitoring role is usually assumed by NGOs or interest group agents that have been part of the advisory process in some form. Evaluations of the advisory process or public accountability fora can scrutinise the process and hold the sponsor to account for how it dealt with advice. In the case of the climate protection dialogue (Chapter 3.2), a conference was organised about a year after submission of the expertise, during which the advisory process was evaluated by participants of

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the advisory body. At the event, representatives of the department had to justify themselves for the way the process was managed, the lack of feedback provided and the (limited) impact of the suggestions.

6.4.4 Mechanisms of Accountability and Control As briefly discussed before, whether and to what extent advisory bodies need to be held to account depends on their degree of authority. As shown above, authority does not only consist in formal decisionmaking powers but also covers ‘de facto authoritativeness’ that can be rather substantial when an advisory body is conceived as particularly competent, impartial, authentic or democratic. At the point of setup, the sponsor can choose participants, select the chair or facilitator and delegate secretarial tasks to civil servants. It can further direct the process by narrowing the mandate of the advisory arena and, in more formalised cases, by providing tight rules of procedure (Curtin 2007; Keleman 2002). If the sponsor has access to the advisory body because of staff overlaps, delegates of the sponsor can attend meetings, co-shape the debate, possibly steer the advisory and consultation endeavour into a certain direction, exclude certain topics and even contribute to silencing individual members. During the process of deliberation, the sponsor can interfere by dissolving the body or replacing individual participants. Some of these ‘ongoing controls’ (Busuioc 2009, p. 606) are quite intrusive and may weaken or eliminate the advisory arena’s discretion too much. Less intrusive options would be reporting requirements, i.e. one-way transmission channels that obligate the advisory arena to keep the sponsor informed without the sponsor being able to interfere in response, or transparency measures that open up the advisory process to public scrutiny (Rowe and Frewer 2000, p. 15). On a basic level, this can entail the publication of lists of participants, of regulations governing and directing the advisory body’s work (e.g. mandate, rules of procedure, if existent), of interim and final results as well as all the core material used (e.g. commissioned studies, polls, statistics). On a more demanding level, it can relate to a substantial disclosure

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of the internal deliberation and decision-making procedure, most obviously realised by streaming deliberations in real-time, publishing video recordings and/or verbatim records of sessions online or by granting direct, physical access to external observers, as in the case of the final storage committee, where public observers were allowed to listen and sit in on the committee plenary sessions. The quality and amount of disclosed data makes a huge difference here for the degree of transparency and the control options related to it. From an accountability perspective, authentic documentation and full access to raw, unprocessed data are key. Videos and verbatim records of whole sessions document the process in a particularly authentic and encompassing way, while transparency is somewhat curtailed when instead documents are produced that summarise the debate or the result, as in the case of the climate change dialogue (see Chapter 3.2).13 Of course, the person processing the data and editing overviews of the process gains a certain influence on the content of the policy suggestions. It also makes a difference, at which point in time monitoring takes place (see also Steiner 2012, p. 126). Less disruptive are ex post and ex ante monitoring devices. Examples are justification fora where individual participants of the advisory and consultation process, or the chair as the public spokesperson, proactively justify the advisory body’s work, explain its reasoning and the choices it made (to the sponsor in a closed setting or to an interested public). Publicly accessible evaluations that are conducted after decision-making has come to a close can also add to transparency and insight into the processes, without interfering with it (Curtin 2007, p. 534). Advisory bodies also often receive input themselves that they have to process and deal with, and this has also been the case in the complex advisory structures analysed in this book. The final storage committee is a very good example for dealing with extra public input in a transparent way and thus contributing to accountability requirements. In its report, it summarises the participatory input it got and explains in detail how

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Yet, although full access to all possibly relevant data in unprocessed forms may, in theory, be conducive to transparency and scrutiny, an ‘information overload’ can have an obscuring and disorienting effect and public gaze on political negotiations can undermine levels of civility during deliberations (see Chapter 7).

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it gathered and assessed it, how its position towards individual suggestions developed and it discusses the problem of having to implement a multiplicity of non-aggregated voices channelled to it through the participatory forums (Final Storage Committee 2016, pp. 425–442). It also produced an extra document, which was available on its website and, in the form of a neat table, gives a detailed overview over all the suggestions made in the public forums, the amount of citizen support behind each suggestion and where and how the input found its way into the final report.

6.5

Conclusion: Coupling Devices that Reconcile Epistemic and Democratic Demands

How should arenas of policy advice and consultation be coupled with the sponsor in such a way that normative tensions are moderated? Which institutional devices help to strike a balance between the different normative demands in this relationship? As indicated before, there is not one solution of coupling for all purposes and contexts. Yet, there are some guidelines to consider and questions to ask when searching for the right path and there are certainly better and worse institutional solutions. First, in order to balance epistemic and democratic demands appropriately, it is worth asking in individual cases, which of the here discussed norm(s) should be given preference, considering the structural characteristics of the advisory body, the issue debated and the wider cultural and politico-administrative context that the advisory body is set up in: For example, an advisory body with pronounced participatory and deliberative credentials should have a fair chance to resonate in political and public debate, while a ‘dubious’ advisory body (i.e. suspected to be partial, for instance) may need to be scrutinised more closely and its influence kept in check; when ethical issues or matters of social welfare and redistribution are deliberated, standards of participation and inclusion may outweigh independence criteria, while forums that deal with

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complex but not particularly contested issues may legitimately lean more towards ‘technical expertise’; when deep divides exist between opposing blocs on an issue an advisory round without political or financial strings might contribute to a fresh start in a certain policy field and to successful problem-solving. The role and characteristics of individual arenas also need to be seen in relation to other forums that deal with the same policy issue. It may be, for instance, that a technical committee is complemented by a very inclusive citizen panel on the same issue. In a deliberative system, different arenas can share responsibilities and divide labour to some extent (Mansbridge et al. 2012). Important are continuous, meaningful and sufficiently close exchange mechanisms and mutual learning opportunities between the arenas. The relative relevance attributedto the individual standards also varies with political system and culture on a larger scale. For instance, in a healthy democratic system, interaction of an advisory body with its sponsor is likely to add to the relevance and resonance of the advice generated, while control mechanisms and organisational autonomy may be less important. When democracy is in crisis, by contrast, and representative institutions are not to trust, the independence of advisory bodies may be of high salience (see also Kuyper and Wolkenstein 2019). It is also important to note that of the four normative criteria discussed here, the independence standard is the trickiest one, because it potentially conflicts with all the other standards. Forms of coupling therefore need to be checked particularly carefully with regard to independence. The good news is that the other standards do not strongly conflict with each other. They can obstruct one another, but they can also be reconciled relatively easily by careful and clever institutional design, and some of the standards even tend to strengthen each other (impact and accountability, for instance). Yet, one can generally say that the overemphasis of one criterion is critical, since this usually goes at the expense of others. For example, when control mechanisms are so tight that they paralyse the advisory body, resonance of the expertise becomes less likely. Regarding independence and the relatively higher hurdles of reconciling this standard with the other ones, it is important to realise that there are different understandings of independence or autonomy of an

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advisory body. There are narrower and broader ideas, with the stricter or narrower ones creating more tensions and the slightly more relaxed conceptions opening up room for reconciliation. Independence is not best when realised fully, i.e. when there are no strings at all (of a monetary, administrative, political or social kind) attached to an institution that develops and suggests public policies. Such complete independence is first of all an illusion that cannot be realised in the relationship between (state-)sponsor and advisory bodies, and neither is it desirable. As a society, we cannot wish for input by fully detached informants in a policy advisory and public participation situation, because (on top of the obvious accountability deficits) such informants would lack insights into social and political conditions of life and would be unlikely to provide us with reliable, problem-solving expertise. The coupling of two entities is best understood as a continuum that comes in tighter and looser forms, as discussed in organisation theory (Beekun and Glick 2001; Orton and Weick 1990), and lately also in deliberative democratic theory with an emphasis on minipublics (Hendricks 2016; Kuyper and Wolkenstein 2019; Mansbridge et al. 2012; Setälä 2017). Tight coupling means that connections and interrelations between entities are very close, that interdependences and the need for mutual adjustments are pronounced, that control and scrutiny tend to be more comprehensive, tight and rigorous. Tight coupling can therefore lead to a weaker entity being captured by the interests of a stronger one. A decoupled relationship, by contrast, means that entities are independent and can easily ignore each other. Yet, there needs to be some form of coupling from a democratic legitimacy perspective on policy advice and consultation. It is essential for being heard, for developing any kind of impact, for generating relevant, usable advice and for being held accountable by the sponsor. When constructing advisory bodies, the key is to provide for loose forms of coupling between parent and advisory body that bind the institutions together through constant feedback loops and transmission mechanisms, but do not interfere directly with the other entity’s day-to-day business. Crucial questions concern the (a) appropriate role for delegates of the sponsor and (b) the right point in time for monitoring:

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(a) An example of a sensible, non-interfering transmission mechanism are participation structures that involve delegates of the sponsor, but not in numerical majorities or in managing roles. If civil servants are appointed as members of an advisory body, they should be in the clear minority. Managing roles, such as the chair position or the leadership of the secretariat, should not be given to civil servants, but to personalities that are considered particularly impartial (e.g. former judges, academics, professional facilitators). In cases of strong polarisation on an issue, one can also consider a dual leadership that represents two opposing blocs and potentially ‘neutralizes’ itself, as in the case of the final storage committee (see Chapter 3.1). For secretarial tasks, it can be advisable to involve a mixed group of actors (e.g. civil servants, researchers and service providers) to provide for a good balance between independence and responsiveness to political needs, or to entirely outsource these tasks to research institutes or external service providers, such as professional mediators or consultancies. In general, civil servants are well-suited to act as observers and informants during deliberation, without any direct influence on the advisory process and outcome. Such a role can ensure that the advisory body has access to all essential information, that the input provided by civil servants responds to the knowledge gaps and needs of the advisory body and is only given upon request by the advisory body (preferably through one-sided channels such as hearings, lectures, commissioned reports, etc.). (b) As a general rule, ex post and ex ante forms of transmission and interlinkage are preferable to procedural (or ongoing) controls because the latter provide the sponsor with opportunities to steer or even orchestrate the day-to-day business of an arena of policy advice and consultation. While full transparency during deliberations can harden positions, ex post data access and monitoring procedures are relatively unproblematic because they do not influence the deliberations and potentially complicate consensus-building. A promising ex post transmission mechanism are institutionalised responses by governments to the received advice. They can be delivered in spoken or written form, internally or publicly, and through uni-directional or two-sided transmission channels. When using uni-directional channels, such as written statements, a government has some leeway in the way it frames its response and can effectively

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circumvent its obligation by vagueness or empty rhetoric. The advantage of two-sided and public forms is that a range of societal agents can get actively involved and hold the government to account. Particularly auspicious transmission channels are public accountability forums where the advisory body can explain its work and where delegates of the government can appear to publicly justify its reaction to the advice, outline next steps and respond to questions. External evaluations that cover the entire implementation process, not just the production of expertise, can also be part of an extended feedback system. A case can be made for firmly institutionalising these structures and building them into the schedule of an advisory arena from the very beginning, so that the process does not end with the delivery of the policy advice, but with the final accountability channels.

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Part III Conclusion

7 Lessons for Democratic Governance

This book has dealt with the question of how to organise arenas of policy advice and consultation in such a way that they deliver substantially on both epistemic and democratic dimensions. In other words: How can participatory expert bodies be created? The case studies in part I have provided systematic assessments of democratic legitimacy and epistemic authority in real-world cases of policy development. They have developed an in-depth understanding of case-internal dynamics and revealed patterns across cases that help explain the different outcomes. The theoretical discussions in part II have dug deeper into specific institutional aspects. They theorised on the right participant selection mode and the ideal participation structure, the best stopping rule for the decision-making process and model transmission mechanisms between representative political institutions and subordinate, advisory and participatory bodies. Both parts of the book together point out a range of favourable institutional conditions for reconciling multiple normative standards in the policy development phase. This concluding chapter does not provide a summary of the book’s main results. The findings of the book are similarly complex as the problems they respond to. The book does not suggest simple formulas, © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 E. Krick, Expertise and Participation, Palgrave Studies in European Political Sociology, https://doi.org/10.1007/978-3-030-75329-0_7

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but carefully considered design corridors that can be adjusted to individual cases and contexts. For overviews of the findings, the reader is referred in particular to the preceding chapters’ abstracts, as well as the concluding sections of the main analytical Chapters 3–6). In this chapter’s concluding remarks, a range of unexpected and theory-refining observations are picked out and scrutinised that point beyond individual cases and bear relevance not only for advisory bodies and the policy development phase. In focus are the complex and contested nature of ‘transparency’ (7.1) and ‘consensus’ (7.2) in democratic governance, the significance of government responsiveness and feedback in relationship with citizens and experts (7.3) and the key role that stakeholders play in reconciling the demands for expertise and participation in policy-making (7.4).

7.1

The Obscuring Effect of Transparency

The doctrine of transparency has arguably attained ‘quasi-religious significance’ (Hood 2006, p. 3) in contemporary debates about legitimacy and good governance. Yet, it potentially clashes with other important standards of democratic legitimacy and epistemic authority, most importantly the quality of deliberation and the degree of conflict resolution. Besides, to make the most of the ideas of transparency, disclosure and publicity, an active and attentive citizenry is needed that is constantly in the role of principal and thus responsible for controlling policy-makers. Such ‘responsibilisation’ can overstrain the capacities of average citizens and lead to self-selection effects that distort the round of those involved further to the advantage of the better-to-do social strata and established organised interests. Transparency is certainly not a good in itself. It is a demanding doctrine and can yield many problematic effects. For that reason, scholars have pondered about the right balance between transparency and competing norms (such as conflict resolution and equal involvement), distinguished between different forms of transparency and suggested ways of closing the door to some extent or during key phases of the decision process (Goodin 2005; Landwehr 2010).

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The conducted case studies now underline that even very high disclosure standards do not have to create the problems that are often associated with transparency and they point to a range of favourable (and principally reproducible) conditions. The final storage committee is particularly remarkable, because the whole deliberation process was extensively disclosed, and not just ex post, but in parallel to the deliberative process. Its sessions were filmed and streamed live on television and the TV channel’s website, direct participant observation was possible, and videos and verbatim transcripts were available online almost immediately after the individual sessions. But the committee still achieved a considerable degree of inclusion, closure and conflict resolution, and this seems to contradict the standard argument that consensus-oriented negotiations are better held behind closed doors to give stakeholders leeway, open up room for concessions and allow for reasoned judgements (see, e.g., Chambers 2005, p. 256; Steiner 2012, pp. 125ff.). Public attention may have had a civilising effect, but other factors also likely played a role: Many issues were resolved by and large on the working level, which was similarly open to public scrutiny, but in effect less closely watched. One can also argue that stakeholders had relatively little to conceal from public view, because the deliberation process was extensive, inclusive and conflict-solving and participants were allowed to openly register their dissent. Besides, there was so much ‘raw material’ accessible online, that some conflicts may have been shielded by the sheer amount of information. It seems as if, slightly paradoxically, an ‘information overload’ obscured, rather than unveiled the collective decision-making process. This obscuring effect of transparency was also observable in the citizen participation fora of both German cases, where attempts by the service providers at disclosing the decision process and providing extensive background material led to complaints by participants about the confusing mass of available information. This shows that the effect of extensive transparency can be a detrimental loss of orientation rather than a boost of democratic self-determination (see also Etzioni 2010; O’Neill 2006).

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The Virtues of Consensus in Collective Decision-Making

Voices that emphasise the drawbacks of the consensus norm in political decision-making have recently been notably louder than those defending it. As a response to these debates, deliberative democrats have refined some original assumptions of the theory and conceded the problematic sides of consensus. This book has emphasised the virtues and potentials of consensus, but distinguished between different manifestations and conceptualisations of the norm. There is a confusing wealth of understandings of the notion of consensus in political theory and practice. ‘Consensus’ sometimes quite pragmatically relates to a political arena’s stopping rule, sometimes to the goal of a decision-making process and sometimes to its outcome (see Estlund and Landemore 2019, p. 12). There is also variation as to the scope of agreement that the notion signifies. Consensus sometimes stands for common ground, shared values, supermajorities or tacit consent, but it can also denote unanimous approval, complete agreement or ‘rational consensus’ and come close to the idea of truth. Since many normative concerns associated with consensus relate to more ideal or stricter notions, analytical distinctions are important. A key distinction needs to be made between a ‘consensus orientation’, ‘compulsory consensus’ and ‘consensual closure’. While an orientation towards maximising agreement has pacifying and civilising potential, an overemphasised or even compulsory consensus norm and forced harmony can have authoritarian and streamlining effects. Reaching broad agreement (consensual closure) under the condition of fair and open deliberations, in turn, can be considered a marker of both truth and equality. The consensus mode, in turn, is a common expression for a stopping rule that builds on the absence of open dissent and avoids voting. The case of the final storage committee illustrates several institutional devices that facilitated consensual closure without forcing unity, under conditions of extreme complexity. Examples are the combination of the consensus mode with a majoritarian fall-back option, the variegated degrees of authority for different types of actor groups, acts of temporary venue-shifting, the nostrification procedure and a consensusminus-one logic. Of course, such institutions do not necessarily bring

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about complete agreement, positive sums or decisions to the delight of all. What can be achieved are pacifying compromises that the individual participant is able to let stand as the position of the collective. Most of the book’s consensus-related insights are not confined to advisory bodies at all, but are relevant for other political institutions as well, especially committees. This pertains to the ambiguity of the consensus norm, the qualities of its different manifestations as well as to the democratic, epistemic and pragmatic potentials of the stopping rule of consensus. But is is in the policy development phase that consensus plays a particularly important role. Unlike parliaments, which take binding decisions with usually relatively small majorities, the status and impact of policy advisory arenas that operate in the policy development phase rise with their ability to integrate and aggregate different viewpoints. Broad agreement is the basis of speaking with one voice, getting the message across and thus influencing public policies. It also helps to ensure shared ownership of the developed solution and, subsequently, compliance and commitment during the implementation process. This is particularly essential when the advisory endeavour involves intermediary organisations that are needed to put policies into practice and convey the agreement to their clientele. The significance of consensus surely also varies with the political system, and it plays a crucial role in the consensus-oriented democracies in focus here.

7.3

The Significance of Government Feedback and Responsiveness

Of vital significance for an advisory arena is its political embedding and, mores specifically, its relationship with the sponsor, which is usually the government. A key factor in this relationship that affects the authoritativeness and accountability of a policy advice and consultation endeavour is the way the government responds to the received input. By giving feedback, a government underlines that it appreciates the effort and responsibly deals with the time and energy that participants have devoted to the advisory process. A response can reconfirm a government’s interest in the external input and make it easier for the public to trace the effect of

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the given advice. It can also have an educational effect, when it provides insight into the complexity and constraints of political competition and negotiation or when it entails explanations of why the advice did not match the government’s needs and was not taken up. Certainly, a duty to respond is not to be mistaken for an obligation to implement. Researchers and participation practitioners widely agree on the significance of a response by the sponsor, and they do not tire of pointing it out. Nonetheless, governments often fail to deliver it. This divergence between theory and practice is intriguing. It is also remarkable that institutionalised government feedback is much more common in formalised academic advisory procedures than in participatory formats. This may have to do with the different status of these two poles of the advisory and consultation spectrum. Yet, whether you see participatory formats more as schools of democracy and means of empowerment and self-efficacy, or as a source of valuable input for making problem-adequate public policies, both sets of functions hinge on citizens’ voices being heard and taken seriously, and governmental feedback is an important indicator of that. When a government ignores the public input it receives entirely and fails to respond in any way, a considerable degree of disappointment on the side of participants is the likely consequence. As underlined by the climate protection dialogue, this can have the dramatic effect of increasing public disenchantment with political participation opportunities rather than remedying it, and this can turn the original purpose of an involvement process on its head. Feedback may not be expected when the advice was unsolicited (in a lobbying relationship, for instance), or when the advisor has been commissioned and paid to provide a study. But the standards are different when advisors are asked for input, work on a voluntary basis and are ‘ordinary citizens’. Unlike professional experts, citizens do not contribute as part of their jobs, but invest their free time and are unlikely to gain professional reputation from their involvement. Recognition is then the prime currency, and it is therefore utterly reasonable to expect a response as an expression of acknowledgement. What is more, citizens primarily participate in the role of democratic subjects. From this role, a right can be deduced to learn about how their representatives understand and plan to act on the preferences they were asked to express.

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To ensure government responsiveness, feedback loops after the delivery of policy suggestions need to be much more firmly institutionalised and built into an advisory arena’s schedule from the very beginning. They should emphasise public and two-sided feedback channels, through which societal monitoring agents can get involved and challenge the government’s rhetoric. External evaluations can be part of such a feedback system. Yet, in contrast to common practice, it is imperative that they cover the entire implementation process, not just the production of expertise.

7.4

The Key Role of Stakeholders in Reconciling Expertise and Participation

In the course of the preceding chapters’ discussions, many common assumptions about the conflicts between expert knowledge and political participation have crumbled. Indeed, it seems that the assumed conflicts are often based on misunderstandings or narrow conceptualisations, which are neither normatively very convincing nor particularly realistic representations of the empirical situation. On the strength of the book’s integrated look at different advisory and consultation arrangements, its equal attention to epistemic and democratic regards and its focus on reconciling conflicting demands, the—theoretically quite detached—domains of expert knowledge and democratic participation have moved more closely together. It has become clear that there is in fact no clear-cut line between the phenomena of expert knowledge and policy advice on the one hand and participation and citizen input on the other. The terminology used for different forms of external input into the policy process is in many respects a question of perspective: One and the same kind of input can be called an act of participation and an expression of preference when it is based on the democratic right to be heard, or it can be called expertise when it is considered a useful, instructive contribution to problem-solving provided by someone holding specialised, non-ubiquitous knowledge (Meriluoto 2018, p. 117). In the same vein

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can ‘expert’ and ‘citizen’, as well as ‘stakeholder’ or ‘representative’, be understood as social roles that are not inherent in an individual, but attributes that express how a person is seen, thought capable of and expected to behave. Such roles can overlap, change and become contested. To be sure, the standard image of an expert may be that of an academic or scientist. Yet, policy-relevant, reliable expertise can certainly include stakeholders’ sectoral knowledge or citizens’ ‘local expertise’. And while scientists may be quintessential holders of the expert role, they can also take on the role of ‘citizen’ or ‘stakeholder’. Indeed, the roles of an expert and of a societal representative or citizen converge when they are held by the same individual that thereby bridges seemingly incongruous roles. There can nonetheless be good reasons to distinguish clearly between experts and citizens when setting up advisory fora. Brown points out that minipublics usually divide into expert and citizen panels in order to keep elites and professionals from dominating non-elites and lay people. He also shows, however, that such a separation can inhibit interaction and mutual learning, imply that citizens need to be protected from professional experts and foster romantic conceptions of a more authentic and legitimate perspective of the ‘lay citizen’ (Brown 2009, p. 253). What is more, advisory institutions in the policy development phase are in reality rarely either purely academic expert bodies or citizen participation fora, but mostly hybrids. The multi-layered and complex spaces of policy development between citizens, stakeholders, policy-makers and experts that are at the heart of this book underline this once more. It is likely that the notion of ‘participation’ initially invokes the idea of an ‘ordinary citizen’ participating directly in political decision-making. Yet, democratic participation is of course not equivalent to the direct inclusion of everyone into every single political decision, but can often best be realised through ‘delegated’ or ‘stakeholder participation’. Such a wide, representative understanding of participation blurs the hard line between ‘participation’ and ‘representation’ and it calls for a reconsideration of the common preference for ‘ordinary citizens’ over interest groups that characterises contemporary debates of democratic governance. Especially in the policy development phase, intermediary organisations are usually much better equipped to successfully state the case of citizens

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by pooling, integrating and brokering societal viewpoints. Individual, detached persons, by contrast, do usually not get engaged in policymaking, and neither are they typically given access and listened to. Despite the widespread contemporary enthusiasm for involving ‘ordinary’, ‘lay’ citizens into governance, a detached individual is normally not authorised to speak for larger collectives, and should not per se be considered more impartial or authentic than organised groups, which usually stand in more or less direct accountability relationships with a constituency. To be sure, when involving stakeholders into policy-making in prominent roles, the widespread power imbalances in the world of organised interests need to be evened out. All case studies in this book show that despite extra efforts to attract public interest organisations and less established NGOs, established special interest groups with a wealth of resources dominated. This imbalance especially affects political consultation processes that refrain from regulating access. To make up for these imbalances, the reduction of seats for business agents and reserved places for public interest groups on advisory bodies have been suggested by lobbyism-critical groups (e.g. Corporate Europe Observatory 2014). Yet, the conducted case analyses also showed that invitations to hearings and conferences are often not accepted and offered committee seats not taken up by public interest groups. This failure of using participation and scrutiny opportunities may sometimes be explained by a group’s opposition to the framing and set-up of the advisory and consultation process. This can be remedied by involving less established affected groups early on into problem and mandate framing. Yet, another crucial obstacle to participation are the limited resources of many public interest organisations. They often simply do not have the staff to take the reserved seats and play an active part in every policy development processes of concern. They often have to prioritise their engagement to those topics most dear to them. An answer to this can be measures of empowerment and ’positive discrimination’ that compensate for the different endowment structures of public interest groups and corporate interests. An example of such measures is the targeted and democratically distributed public funding of ‘weaker’ interest groups, discussed in more detail in

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Chapter 4. It can also help to open up more low-threshold input channels such as online tools. Another option is the general restriction and concentration of access paths for stakeholders. This can mean to limit the absolute number of consultation rounds, so that the capacities of public interest groups are not overstrained, to focus on less, but potentially more meaningful, balanced and well-prepared structures and to rely more on targeted recruitment than on open access. The study of the climate protection dialogue furthermore underlines how important it is to shut down alternative, informal access ways to the policy process and close ranks within the government to keep powerful interests from sideling the official advisory arenas.

References Brown, Mark B. 2009. Science in Democracy: Expertise, Institutions, and Representation. Cambridge, MA: MIT Press. Chambers, Simone. 2005. “Measuring Publicity’s Effect: Reconciling Empirical Research and Normative Theory.” Acta Politica 40: 255–266. Corporate Europe Observatory. 2014. “Response to the Public Consultation by the European Ombudsman Concerning the Composition of European Commission Expert Groups. Accessed 10 June 2018. https://www.ombuds man.europa.eu/showResource?resourceId=1429863654988_MAIN%20-% 20COVER%20LETTER%20CEO%20Ombudsman%20consultation% 20on%20expert%20groups_FINAL_Redacted.pdf&type=pdf&download= true&lang=en. Estlund, David, and Helène Landemore. 2019. “Epistemic Value of Democratic Deliberation.” In Oxford Handbook of Deliberative Democracy, edited by André Bächtiger, John S. Dryzek, Jane Mansbridge, and Mark E. Warren, 113–131. Oxford: Oxford University Press. Etzioni, Amitai. 2010. “Is Transparency the Best Disinfectant?” The Journal of Political Philosophy 18 (4): 389–404. Goodin, Robert. 2005. “Sequencing Deliberative Moments.” Acta Politica 40: 182–196. Hood, Christopher. 2006. “What Happens When Transparency Meets Blame Avoidance?” Public Management Review 9 (2): 191–210.

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Landwehr, Claudia. 2010. “Discourse and Coordination: Modes of Interaction and Their Roles in Political Decision-making.” Journal of Political Philosophy 18 (1): 101–122. Meriluoto, Taina. 2018. “Neutral Experts or Passionate Participants? Renegotiating Expertise and the Right to Act in Finnish Participatory Social Policy” European Journal of Cultural and Political Sociology 5 (1–2): 116–139. O’Neill, Onora. 2006. “Transparency and the Ethics of Communication.” In Transparency. The Key to better Governance?, edited by Christopher Hood and David Heald, 75–90. Oxford: Oxford University Press. Steiner, Jürg. 2012. The Foundations of Deliberative Democracy. Empirical Research and Normative Implications. Cambridge University Press.

Index

A

absolute majority 168 academics 8, 26, 27, 47, 51, 54, 93, 153, 156, 206, 217, 232, 234 acceptance acts 176 accountability 7, 38, 38n5, 41, 45, 101, 110, 150, 151, 154, 155, 185, 197, 200, 201, 203–205, 212, 213, 216, 231, 235 accountability fora 211, 213, 218 advisory committees 26, 64, 66, 175 advocacy groups. See intermediary organisations; organised interests; stakeholders affected interests. See affectedness affectedness 36, 40, 40n6, 92, 110, 138, 152 affirmative action 139, 149 agencification 66

aggregation 93, 94, 103, 113, 128, 147, 156, 170, 180, 187, 214, 231 aggregation rule 163 AK End 97, 99 alternative facts 62 annexed outer layers 146 anti-nuclear movement 92, 94 appointing authority 12, 51, 196 approval voting 168 authorisation 41, 150, 151, 235 authoritativeness 231 authority 1, 5, 36, 41, 44, 121, 125, 128, 130, 198, 199, 212, 230 autonomy 197, 205, 206

B

bargaining 185 best practice 29, 29n3

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 E. Krick, Expertise and Participation, Palgrave Studies in European Political Sociology, https://doi.org/10.1007/978-3-030-75329-0

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Index

Borda count 168

C

case study 2, 11, 25, 28, 31, 87 chair 177, 180, 198, 206, 208, 212, 217 charities 148 citizen 5, 40 citizen experts 3 citizen involvement. See citizen participation citizen science 5 civil servants 26, 64, 152, 154, 156, 197, 208, 212, 217 class bias. See social privilege bias climate adaptation committee 12, 28, 29, 108, 121, 127, 130 climate change 106, 109, 126 climate change adaptation 28, 110, 113, 118 climate protection 28, 29, 100, 105, 106, 115, 127 climate protection dialogue 12, 28, 29, 99, 120, 126, 130 closed doors 44, 228 co-creation. See co-production of knowledge codified rules 164, 175, 179 collective commitment 53, 177, 182, 184–186, 231 collective wisdom 171 common ground 166, 177, 178, 230 comparative politics 68, 69, 167, 215 competition 69, 165 complete agreement 43, 230, 231 compliance 69, 139, 231

composition of advisory bodies. See participant selection; selection mechanism compromise 68, 96, 121, 127, 166, 169, 178, 231 compulsory consensus 183, 230 concessions 102, 104, 127, 178, 186, 229 Condorcet jury theorem 171 Condorcet method 168 conflict 34, 43, 67, 112, 119, 126, 127, 131, 185, 187 conflict resolution 44, 69, 108, 119, 126, 127, 130, 147, 177, 208, 228 consensual closure 48, 54, 70, 93, 105, 147, 177, 183, 203, 208, 229, 230 consensus 2, 26, 43, 64, 112, 125, 127, 130, 230 consensus conferences 1, 5, 26 consensus-minus-one rules 179, 187, 230 consensus mode 169, 174, 175, 230 consensus orientation 42, 43, 93, 94, 102, 128, 146, 166, 175, 177, 182, 186, 229, 230 consensus systems 28, 53, 55, 68, 167, 186 consultancies 66, 94, 99 control 200, 201, 203–205, 212, 215 cooperation 174, 177, 178, 182, 186 coordination 69–71, 96, 112, 115, 166, 174 co-production of knowledge 4, 62 core committee 146, 151, 153, 155, 156 corporatism 56

Index

councils of elders 175, 185 coupling 2, 12, 28, 36, 45, 125, 155, 195, 216

D

decision rules 2, 11, 12, 36, 163, 164, 166, 172, 174, 181 decision theory 13, 15 de facto authoritativeness 27, 176, 184, 198, 199, 212 delegated voting 188 delegation theory 15, 196, 204 deliberation 6, 8, 26, 39, 42–45, 52, 93, 102, 112, 127, 130, 141, 147, 166, 169, 170, 172, 177, 181, 182, 204, 228 deliberative democracy 230 democracy 3, 40 associative democracy 149, 150, 157 deliberative democracy 8, 13, 27, 166, 196 democratic innovations 10 democratic legitimacy 13, 35, 40, 46, 173, 182 democratisation 4, 5 democratisation of expertise 3, 10, 47 direct democracy 5, 58, 188 epistemic democracy 3, 171, 182 local democracy 60 mass democracy 40 pluralist democracy 43 representative democracy 5, 55, 58, 188 democratic theory 2, 8, 13, 14, 38, 149, 166, 200 democratisation 4

241

descriptive representation 41, 91, 101, 111, 141, 155, 187 disagreement 43, 93, 131, 169, 172 dissenting votes 179, 187 diversity of viewpoints 51–53, 90, 96, 101, 106, 110, 116, 120, 139, 153, 155, 171, 183 division of labour 8, 119, 121, 130, 185, 215

E

effectiveness. See policy impact; policy resonance efficient decision-making 169, 170, 173, 174, 180, 184, 187 empowerment 38, 40, 58, 140, 143, 149, 201, 203, 232, 235 enquete commissions 26 environmental groups 30, 61, 101, 102, 115 epistemic authority 35 epistemic-democratic tension 3 epistemic practice 4, 50, 52, 53, 107 equal involvement. See inclusion equality 38, 39, 43, 46, 138, 182, 228 Europe/EU 5, 30, 55, 57, 61, 63, 66, 68, 70, 71, 149, 150 evaluations 88, 100, 211, 213, 218, 233 evidence-based 4, 66, 72, 157 expectation management 105 expert appraisal 98, 108, 119 expert commissions 26, 46, 46n7, 65, 145, 185, 232 expert competence 96, 105, 106, 117, 142, 143, 153, 171 expert hearings 97, 146, 153

242

Index

expertisation 66 expertise 4, 6, 46, 48 ceremonial value of expertise 4 experiential expertise 9, 47, 208 expertisation 3, 4, 7 negotiated expertise 69 reliable expertise 3, 6, 36, 46, 48, 50, 96, 105, 116, 157 expert knowledge. See expertise expert-layperson dilemma 49, 54 experts 6, 46, 153 external decision costs 181

F

face-to-face communication 44, 91, 141, 146, 147, 177, 179, 183 facilitator 177, 180, 187, 206, 212 fact-value-distinction 157 fake news 62 feedback channels 104, 105, 113, 114, 127, 155, 196, 208, 211, 212, 216, 231, 232 final storage committee 12, 28, 29, 87, 121, 121, 130 formal decision theory 165 freedom of information 57

G

general elections 37, 38, 44, 56, 138, 143, 150, 153, 157, 170 Germany 2, 28, 30, 55, 57, 58, 60, 63, 64, 66, 68–70, 72, 88, 93, 99 Gorleben 89, 94, 96, 97 government 231, 232 government responsiveness 195, 198 greenhouse gas 28, 61, 113, 115

group think 182, 183

H

hybrid advisory bodies 2, 26, 27, 69, 185 hybrid bodies 234

I

identity notion of representation 41, 141 impartiality 199, 202, 207, 212, 217 implementation 95, 108, 115, 125, 139, 148, 154, 201, 204, 205, 211, 218, 231–233 incentives to participate 142, 149 inclusion 3, 6, 10, 38, 40, 89, 126, 128, 147, 155, 172, 174, 177, 228 independence of advisory bodies 3, 4, 10, 14, 51, 65, 66, 96, 106, 107, 118, 125, 154, 157, 196, 197, 202, 204, 206, 207, 215, 216 independent agencies. See regulatory agencies indicative voting 178 individual sovereignty 170, 173, 182, 185 informal rules 27, 46, 65, 164, 166, 175, 179 information overload 229 institution 10 institutional design 9, 11, 14 integration of voices 93, 103, 113, 128, 147, 154, 172, 180, 187, 231, 235

Index

interest groups. See organised interests intermediary organisations 56, 147, 147n6, 148–150, 154, 156, 157, 231, 234 issue ownership 139, 177, 231 J

justification of viewpoints 52, 53, 97, 119, 183 K

knowledge 1–3, 6, 47, 48 knowledge hierarchy 7, 9, 10, 42, 54, 107, 154 knowledge production 4 knowledge regime 65 knowledge society 3, 66 knowledge utilisation 66, 144 local knowledge 9, 47, 116, 208, 234 non-ubiquitous knowledge 47, 233 sectoral knowledge 64, 148, 234 knowledge asymmetries. See knowledge, knowledge hierarchy knowledge theory 13

243

logic of unity 166, 186 loose coupling 216 low-carbon measures 127

M

majoritarian fall-back option 178, 180, 186, 230 majority voting 167–169 mandate 88, 99, 109, 130, 196, 207, 208, 212 mandatory membership 149 manipulation 45, 145, 188, 211 maximising agreement 166, 174, 175, 177, 184 mediation 94, 99, 125, 166, 177 membership organisations 148, 150 minipublics 1, 14, 26, 26n2, 27, 45, 140, 144, 146, 155, 156, 200, 201, 234 minority rules 173 mode-2 knowledge production 4 monitoring 200, 205, 211, 213, 216, 233 multi-optional results 180, 187 mutual criticism 183 mutual learning 9, 102, 112, 119, 215, 234 mutual recognition 44 mutual respect 42, 52 mutual understanding 166, 174, 177

L

lay citizens. See lay people lay people 6–9, 27, 47, 56, 101, 102, 154, 155, 234 legitimacy 1, 4, 5, 11, 13, 27, 37, 41, 43, 55, 150, 152, 167, 173, 182. See also democratic legitimacy

N

NGOs 26, 27, 142, 148, 150, 211, 235 Nordic countries 30, 68 Norges offentlige utredninger (NOU) 64, 109, 114

244

Index

Norway 2, 28, 30, 54, 55, 57, 60, 63, 66, 68–70, 72 nostrification 93, 179, 187, 230 novice-two expert problem 54 nuclear waste storage 28, 29, 88, 89

O

obscuring effect of transparency 229 one-man-one-vote 170, 181 online consultations 5, 26, 27, 41, 139, 155, 180, 188, 236 open access 100, 138, 139, 155 open confrontation 52, 97, 107, 112, 119, 128, 177, 182 open science 5 opinion polls 63, 155, 187 ordinary citizens 5, 26, 56, 141, 154, 155, 157, 187, 232, 234 organisation 10 organisational autonomy 202n9, 204, 206 organisation theory 13, 15 organised groups. See organised interests organised interests 56, 92, 93, 101, 106, 110, 115, 119, 126, 147–152, 154, 157, 197, 211, 234, 235

P

parent body 26, 196 pareto optimality 173 participant selection 2, 91, 100, 111 participation 1, 6, 37, 45 citizen participation 2, 5–7, 26, 27, 30, 60, 61, 91, 107, 157, 232

delegated participation 41, 149, 234 democratic participation 6, 35, 38n5, 40, 89, 100, 110 direct participation 41, 58, 59, 107 incentives to participate 139 participant selection 151, 152 participation patterns 11, 12, 36, 39n5, 40, 137, 199, 202, 204 participation rights 8, 93, 121, 146, 230 public participation. See citizen participation stakeholder participation 41 token participation 38, 45, 145, 156, 211 participatory enthusiasm 157 participatory expert bodies 2, 12, 227 participatory governance 45, 200, 201 participatory turn 5, 27, 30, 56, 72 patterns of democracy 68 policy advice 26, 45, 48, 49, 54, 64, 70 policy advice market 4 policy development phase 1, 2, 26, 69 policy fields climate policy 28, 29, 70, 109 environmental policy 28–30, 55, 61, 70 health policy 61 nuclear waste policy 29, 70 planning policy 60 science and technology policy 60

Index

policy impact 37–39, 44, 95, 105, 114, 129, 130, 144, 148, 186, 200, 201, 203, 231 policy-makers 2, 5, 9, 28, 45, 53, 56, 67, 144, 187 policy relevance 1, 53, 98, 108, 119, 202–205, 208 policy resonance 45, 95, 104, 113, 114, 200, 205 policy solutions 53, 183 political embedding 2, 9, 11, 36, 45, 127, 154, 231 political entrepreneurs 151 political interference 202, 206, 212, 213 political parties 26, 27, 55, 62–64, 69, 88, 96, 101, 104, 108, 127, 153, 157 political science 3 political sociology 3 populism 62 post-normal science 4 power imbalances 149, 181, 185, 186, 235 practitioners 2, 26, 27, 59, 64 preference intensity 170, 181 preference order 165, 168, 174, 178, 180, 182 preference voting 150, 180, 188 principal agent theory 15, 197 problem solving 13, 50, 54, 98, 108, 119, 120, 127, 130, 139, 142, 147, 216 procedural control 196, 217 process tracing 31 pseudo-participation. See token participation the public 4, 5, 7, 10, 11, 26, 42, 44, 45, 56, 111, 141, 156

245

public administration 2, 14, 26, 196, 200 public disenchantment 105, 156, 201, 232 public gaze 44, 45, 125, 185, 228, 229 public hearings 109 public input fora 27, 41, 45, 90, 94, 98, 100, 111, 114, 129, 144, 155, 187, 213, 229, 232 public inquiry committees 26 public interests 127, 148, 149, 235 public involvement. See citizen participation; participation publicity. See public gaze public scrutiny 42, 44, 51, 60, 95, 113, 119, 126, 127, 129, 153, 186, 199, 200, 203, 212, 229, 231, 233

R

random selection 59, 100, 140, 141, 146, 155, 156, 171 ranked voting 171, 180 rational consensus 230 rationality 4, 43, 53, 66, 97, 107, 119, 185 reasoned consensus 43 reason-giving 42, 44, 53, 93, 97, 107, 119, 128, 147, 170, 183 regime types 68, 69, 167, 198, 215 regulatory agencies 65, 113, 196–198 relative majority 168, 169 reporting requirements 206, 212 representation 2, 36, 38, 38n5, 40, 41, 90–92, 101, 110, 139, 140, 148, 235

246

Index

representative. See intermediary organisations; stakeholders representative institutions 2, 27, 186, 195, 215 representativeness 36, 41, 42, 128, 139, 140, 142, 150, 154, 155, 235 researchers. See academics responsibilisation 228 responsiveness 5, 104, 105, 114, 127, 154, 155, 211, 212, 217, 231–233 rule 164

S

schools of democracy 232 science 3, 4, 7, 46–48, 203 science (and technology) studies 2, 4, 13, 14, 26, 47, 196, 200 science speaking truth to power 47 scientists. See academics secretariat 198, 206, 208, 217 selection by lot. See random selection selection mechanisms 12, 137 open access 207 random selection 207 targeted recruitment 110 self-authorised representative 151 self-determination 40, 143, 170, 173, 182, 200, 229, 232 self-efficacy 40, 232 self-selection 138, 142, 228 shadow of the vote 178 shared identity 45, 185 simple majority 167, 172 small collectives 44, 125, 130, 141, 145, 146, 148, 154, 156, 166, 177, 183

social social social social social

choice theory 165 epistemology 14 movements 145, 166, 175 norms 164, 178, 180 privilege bias 6, 10, 43, 138, 154, 228 social roles 234 sociology of knowledge (and science) 14 special interests 148, 149 spirals of silence 183 sponsor 12, 25, 195n1, 196, 199, 204–206, 212, 214, 231 stakeholders 2, 8, 9, 51, 56, 64, 69, 147, 147n6, 148–152, 154, 157, 186, 187, 229, 231, 234 state agencies. See regulatory agencies stopping rules 12, 163, 230 storylines 31, 120 substantive representation 41, 92, 101, 110, 187 supermajority 166, 168, 186, 187, 230 surveys. See opinion polls systems perspectives 8

T

tacit consent 166, 169, 174, 179, 184, 230 targeted recruitment 91, 145, 151, 152 technocracy 5, 145 theoretical saturation 34 thick description 31 tight coupling 216 time resources 41, 94, 97, 107, 108, 125, 185 town hall meetings 5, 187

Index

transaction costs 174, 180 transmission mechanisms 94, 103, 114, 121, 130, 155, 195, 215–217, 233 transparency 29, 30, 44, 56, 71, 92, 101, 103, 111, 113, 125, 127, 128, 152, 201, 203, 213, 217, 228 trust in experts 51, 63, 67, 125, 157, 202 tyranny of the minority 174

247

V

venue-shifting 131, 230 veto options 173, 174, 178, 180, 182, 184 vetoplayers 69, 209 voting 143, 143n4, 145, 165, 166. See also selection mechanism; stopping rule voting rights. See participation rights

U

W

unanimity 173, 230 unanimous voting 173, 174 unity requirement 179 user involvement 62

weighted voting 166, 168, 170 Westminster systems 68, 167 wisdom of the crowds 171 written consent procedure 179