The Legitimation Crises of Expert Agencies and Commissions

Expert agencies and commissions are now a mainstay of governance worldwide. Policymakers see these non-majoritarian institutions (NMIs) as useful for fulfilling ‘credible commitments’ to policies that need long term solutions to complex problems, being staffed with experts in the policy field not beholden to electoral pressures. Their ‘credibility’ is also a key element of how NMIs are justified as legitimate institutions within political theory. And yet, this is not usually the reality NMIs find themselves. Rather, their scientific expertise is often challenged, their democratic credentials brought into question, and their competence held under scrutiny by politicians and the media. This makes them vulnerable to constant reform and abolition (‘quango-cide’). In Jürgen Habermas’ words, they face legitimation crises. This paper examines how NMIs combat these crises and gain/maintain their status as political authorities. Using three case studies of NMIs in Germany, the United Kingdom and Australia, it shows how the legitimation crises of NMIs differ between institutional contexts, and how they respond to particular forms of crisis in particular ways. Three forms of crisis are identified – mapping onto Habermas’ pragmatic, ethical-political and moral types of discourses. It is argued that in order to properly achieve ‘credibility’ NMIs need to fight on all three discursive fronts, but some more than others depending on their institutional form, policy area and national culture. Theories of NMI legitimacy, we argue, ought to account for the dynamism of ‘credible commitment’ rather than simply assume it exists ipso facto.