The Accountability of Expertise

Making the Un-Elected Safe for Democracy

Erik O. Eriksen

• Publisher: Taylor & Francis
• Year: 2021
• Print ISBN: 9781032007625
• eBook ISBN: 9781000409543
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Democracy
• Index: Politics & International Relations

Based on in-depth studies of the relationship between expertise and democracy in Europe, this book presents a new approach to how the un-elected can be made safe for democracy. It addresses the challenge of reconciling modern governments' need for knowledge with the demand for democratic legitimacy.

Knowledge-based decision-making is indispensable to modern democracies. This book establishes a public reason model of legitimacy and clarifies the conditions under which unelected bodies can be deemed legitimate as they are called upon to handle pandemics, financial crises, climate change and migration flows. Expert bodies are seeking neither re-election nor popularity, they can speak truth to power as well as to the citizenry at large. They are unelected, yet they wield power. How could they possibly be legitimate?

This book is of key interest to scholars and students of democracy, governance, and more broadly to political and administrative science as well as the Science Technology Studies (STS).

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INTRODUCTION
Making the unelected safe for democracy

Erik O. Eriksen

Introduction

The rise of unelected bodies is a conspicuous feature of modern governing and a recurrent theme in political research. Institutionalising unelected expert bodies in democratic societies testifies to a new grammar of politics in which the organisation of specialised forms of expertise is becoming decisive for legitimate policymaking. The new organisational complex is made up of agencies, central banks, economic regulators, risk managers and auditors, appointed with specific responsibilities and operating at arm’s length from ministries and parliaments. Such bodies and networks of experts are needed for identifying viable policy options, for clarifying multifaceted problems, for resolving disputes and conflicts, and for carrying out administrative tasks, sometimes in collaboration with civil society. They are called on because the traditional institutions of representative democracy are not equipped to handle some of the major challenges facing modern societies: such challenges ‘are much more amenable to action by unelected bodies’ (Vibert 2007: 103). Often parliaments are not able to weigh and balance policy options when the stakes are high (Nordhaus 2008). The role and status of unelected bodies are of principal interest. They wield power but are neither elected nor directly controlled. How can they then be made safe for democracy?

Problem-solving and conflict resolution in pluralistic and functionally differentiated societies depend on knowledge-producing institutions. Modern societies are characterised both by pluralism and of social complexity. With regard to complexity, technological change and specialisation, asymmetries in competence and information require expertise to sort out what is the case on an objective basis and what the alternatives for action are. Belief in objective knowledge is what makes agreement possible; it is what unites heterogeneous publics. In the face of value pluralism and the rising degrees of conflict, non-partisan decision-making is required. Facts are not a partisan position. The unelected bodies such as agencies and central banks present themselves as apt remedies for meeting such requirements. They are even claimed to constitute a fourth branch of government, which due to their knowledge base and procedures can be seen as power in its own right. The reasoning of expert bodies is expected to be impartial and based on sound knowledge, respecting the virtues of professionalism, integrity, and fairness. They are expected to operate on an independent basis, taking instructions from no one. ‘No one controls the agency, and yet the agency is under control’ (Moe 1990: 243). Democratic control is seen as a question of institutional and procedural design. Not only are procedural rules providing cost-effective solutions to problems of noncompliance, assuring fairness and legitimacy in agency decision-making, but they also fulfil important control functions (McCubbins et al. 1987). Hence the putative normativity of the new grammar of politics.

Solving intertemporal trade-offs by being outside the electoral circle unelected bodies are pivotal democratic devices for handling collective action problems domestically. Unelected bodies are instruments to avoid bias, shirking, bigotry and blame games in policymaking and to safeguard long-term interests, such as pensions, price stability, security and the environment. They are assumed to ensure more consistent, far-sighted decision-making as well as more justifiable results (Majone 2005; Pettit 2004; Sunstein 2018).

However, unelected bodies are also vital for finding the right solutions to problems, which increasingly cross borders. The political order in Europe is rapidly developing in its administrative dimension due to the surge of regulatory powers. Complex interdependence, asymmetries and economic integration in Europe have led to a transnational build-up of administrative capabilities. The new regulatory powers deal with European standards for competition, consumer rights, privacy, health, environment protection, safety and security, and standards for income, working conditions and so on.

Many of the tasks assigned to unelected bodies are not merely technical, but of a political nature. They involve values and they affect interests and identities, rights and duties. There are collective action problems with distributive consequences to be solved, and there are regulatory decisions with consequences for rights and duties to be made. There is, however, no scientific metric according to which trade-offs between regulatory policies can be decided and according to which collective action problems can be solved. These tasks, as well as risk questions, are of a normative nature; hence, they require competence that stems from political authority. In constitutional democracies politicians are supposed to attend to ends and values – that is, ‘ought-questions’ – and experts to facts – that is, ‘is-questions’. Experts should be ‘on tap, not on top’. Nevertheless, unelected bodies are also ‘on top’ dealing with values and ends. Some of them are not set up to make value judgements, but more often than not these are inescapable. Inevitably, an agency discretionary decision-making involves values, judgements and perceptions, hence the danger of arbitrary rule and the quest for accountability. Arbitrary rule refers, according to James Q. Wilson (1989: 326), ‘to officials acting without legal authority or with that authority in a way that offends our sense of justice’.

Inevitably, unelected bodies deal with values and policy ends, not only means when they handle controversial issues. How can agency discretionary decision-making then be justified? Standard theories of agency decision-making in jurisprudence and political science offer no justification for giving agencies a role in policy-setting. They see them as more or less neutral instruments in the realisation of political goals. The assignment of broad policymaking discretion to administrative agencies is seen as an anomaly.

Thus, while necessary and indispensable, the power of such bodies raises challenges of a normative nature. If nobody controls the agency and yet it is controlled, how is it controlled? Moreover, ‘who will know the knowers? No knower is knowable enough to be accepted by all reasonable citizens’ (Estlund 1993: 71). This book probes the conditions under which unelected bodies can be deemed legitimate. We do so by utilising the resources of the reason-giving perspective to administrative decision-making, which subjects their discretionary power to the test of public reason. Accountability involves the obligation to provide reasons, to ensure that discretionary power is used in a reasoned and justifiable manner. It designates a relationship wherein obligatory questions are posed and qualified answers required. Accountability speaks to a justificatory process that rests on a reason-giving practice, in which the decision-makers can be held responsible to the citizenry, and by which, in the last resort, it is possible to dismiss the incompetent ones (Eriksen 2009: 36). Can accountability and hence the conditions of legitimacy be established on an independent basis? In this book we concentrate on European examples of depoliticised decision-making.

Background

The point of departure in the discussion of unelected expert bodies is how to reconcile modern governments’ demand for knowledge with the demand for democratic legitimacy. Democratic forms of rule are expected to be better than known alternatives, and knowledge-based policies are required to fulfil this expectation. No government can make viable decisions without knowledge of facts, causal connections and interconnections as well as of risk estimates of possible negative effects of various measures. How can we reconcile this need for expertise, which places some in a privileged situation with regard to ‘Truth’, with democracy’s requirement of popular authorisation and control of decision-makers? According to the democratic credo, only those laws that can meet with the assent of the citizens are legitimate.

More specifically, this book deals with the institutionalisation of independent expert bodies and their political role. Prototypically these bodies are ‘non-majoritarian institutions’ (NOMIS) with specialised authority, neither directly elected nor directly managed by elected officials (Thatcher and Stone Sweet 2002). The rise of depoliticized decision-making has, in part, been justified as a response to the time inconsistency problem of politics where short-term benefits trump long-term benefits due to electoral cycles. This problem arises when a policy-maker decides one policy at one point in time, but implements a different one at a later time due to an upcoming election. NOMIS may be needed for solving problems and resolving conflicts in a rational manner. Increasingly, they are called upon to handle cross-border problems like pandemics, financial crises, climate change, migration flows and security and risk issues. Their knowledge is also needed to explain and justify policies to the general public. However, depoliticized decision-making raises the spectre of technocratic dominance.

In Europe, decisions affecting people’s lives are made by experts in central banks and agencies as well as the European Union (EU) institutions themselves. While this is an extreme form of sectioning off certain questions from political control, it reflects a wider political dynamic privileging expert knowledge. With growing complexity comes the need for more specialised knowledge. Depoliticised decision-making is intrinsic to the rise of the administrative state. The seclusion of regulatory power became a distinctive ingredient of modern government that emerged during the twentieth century, first in the United States and later in Europe (Lindseth 2010). A burdensome regulatory regime, that is, statutory regulation by independent agencies, was established (Majone 1996).

Decentralised agencies have become an integral part of the way the EU operates. The first EU agencies were established in 1975. The number exploded after 2000, amounting to 44 currently. They perform regulatory, monitoring and co-ordination tasks within different policy fields. Agencies support the decision-making process by pooling the technical or specialist expertise available at both the European and national level and thereby help cooperation between member states and the EU in important policy areas. Even though agencies are “partners” to directorate generals of the Commission, the independence of staff and experts is a recurrent theme in the research on agencies. A related recurrent theme is accountability. NOMIS deal not only with information but with policy itself, and several competing accountability systems are in force. According to conventional wisdom this raises the danger of arbitrary rule. In Europe this danger has been amplified by the fact that discretionary policy-making power has been delegated to EU agencies (Scholten 2014: 299). As the US case raises similar disquiets as the European one, with regard to lenient delegation standards, the US model does not provide a viable solution to the European accountability problem.

However, is agency delegation a question of delegation at all, or is it rather a question of an act of conferral, that is, the act of conferring competences fundamental to European Union Law?¹ It is a question whether a new doctrine is in place since the EU has, in fact, conferred tasks that it did not have itself. This is, in particular, the case with the EU financial agencies in the wake of the Eurozone crisis.

Mileposts in the history of the European integration process are the establishment of the single market and the euro area. This includes the introduction of the new common currency and its progressive adoption by 19 countries, and the establishme...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of tables
• List of contributors
• Preface
• 1 Introduction: making the unelected safe for democracy
• 2 Strategies for repairing legitimacy deficits
• 3 Reasoned administration: the European Union, the United States, and the project of democratic governance
• 4 Power, money, knowledge and the European Central Bank
• 5 Reputational threats and democratic responsiveness of regulatory agencies
• 6 Accountability and inter-institutional respect: the case of independent regulatory agencies
• 7 Accountability beyond control: how can parliamentary hearings connect the elected and the unelected?
• 8 Expertise and the general will in democratic republicanism
• 9 Values in expert reasoning: a pragmatic approach
• 10 Experts: from technocrats to representatives
• Index