Citizens' assemblies: Is there more to it?

Citizens' assemblies are criticised by some for the lack of binding nature of their results. Could there be more? Claudine Nierth and Dr Ademir Karamehmedovic discussed this.

Claudine Nierth is the spokesperson for the federal board of the German NGO Mehr Demokratie. Together with partners, she organised the Citizens' Assembly “Nutrition in Transition” for the Bundestag. The lawyer Dr Ademir Karamehmedovic wrote his doctoral thesis on the constitutionality of citizens' assemblies.

The interview was first published on Demokrative.de.

Question: Citizens' assemblies have been trialled in Germany for several years now. One point that is often criticised is the lack of binding nature of their results. Would it be conceivable to make citizens' assemblies more legally binding - and if so, under what circumstances?

Karamehmedovic: It is definitely possible to make the results more binding. We don't need to talk about whether a citizens' assembly can pass laws. That would not be possible without a constitutional amendment due to the parliamentary reservation. However, other competences are also covered by the current constitutional situation.

For example, it would be possible for a citizens' assembly to be given the power to request the federal government to draw up a draft law. A citizens' assembly could also be given the right to draft legislation itself, which the federal government and parliament would then have to consider. It could issue statements in ongoing legislative procedures. I have also come to the conclusion that a citizens' assembly's right to speak in the plenary of the Bundestag would also be covered by the Grundgesetz (Basic Law). Our constitution does not set high hurdles here.

"Greater binding force must be democratically legitimised"

However, the greater binding force of a citizens' assembly must be democratically legitimised. A citizens' assembly develops such legitimacy of its own accord because its decisions can be traced back to the people (in a smaller version) and because deliberation takes place here, which the constitution often presupposes before decisions are made. In addition, citizens' assemblies are legitimised in terms of their content by the parliamentary resolution establishing them.

Nierth: I don't think we should overemphasise the Citizens' Assembly. But not underestimate it either! A citizens' assembly is not a “parallel parliament”. It is merely an advisory body, such as a commission of experts, which provides support to assist MPs in difficult decisions by making recommendations from a cross-section of society.

The principle of efficiency and economy

Of course, a citizens' assembly can also draw up key points or a draft law, but the authority to decide on the adoption of the bill always lies with parliament. However, it is important that when a parliament commissions a citizens' assembly, it should also specify as precisely as possible what happens to its findings: Will they be discussed by all parliamentary groups? Is there a plenary debate? To which committees are they referred? At the moment, there are no formal regulations on when, how and on which topics a citizens' assembly can take place.

Karamehmedovic: I agree that the decision remains with parliament. In constitutional law, however, there is the principle of efficiency and economy. Citizens' assemblies are quite complex and expensive. If you want to do something like this, you have to try to cast it in a formalised and binding form. However, if you want it to be more binding, it is necessary for more democratic legitimacy if the citizens' assemblies are organised by government agencies - not by external service providers.

Question: Where exactly could it be regulated how the results of a citizens' assembly are to be dealt with? In the appointment resolution? In the rules of procedure of the Bundestag, or even in a participation law?

Nierth: We are currently seeing the low-threshold variant: the Bundestag decides to set up a citizens' assembly if it deems it important. In this resolution, it also stipulates how the results are to be dealt with. If you go one step higher and want to institutionalise the use of citizens‘ assemblies, parliament could also include a rule in the Bundestag's rules of procedure on when and who can initiate a citizens’ assembly in parliament, for example. The next level up would be the adoption of a participation law. It would also be worth considering whether a citizens' assembly could be initiated from the centre of society.

"Participation law is recommended"

Karamehmedovic: Ultimately, the organisation must be constitutional. If you also want citizens to be able to convene a citizens' assembly, then a participation law is recommended that does not only bind the Bundestag.

Question: We would like to talk about the representative function of citizens' assemblies. What kind of representation can citizens' assemblies provide? Citizens' assemblies do not represent Germany legitimately, i.e. through elections, but rather socio-demographically. What does this mean for legitimisation through citizens' assemblies?

Karamehmedovic: We shouldn't lump representation and legitimisation together. Our constitution makes a distinction in this respect. The concept of representation in the constitution is quite simple and says: representation takes place through elections: As an elected person, I am a representative of the entire people - not of those who are like me. Our constitiution does not provide for descriptive representation on the basis of characteristics.

"Communication relationship is currently dysfunctional"

However, the classic concept of representation is not limited to the legitimisation through an election, but also presupposes a lasting reciprocal communication relationship between the represented and the representative. This communication relationship is currently quite dysfunctional. A citizens' assembly can help to improve this relationship again and thus support legitimisation through traditional representation.

Nierth: Scientists also tell us: ‘Don't talk about a representative citizens’ assembly’. It is only an approximation of representativeness. The aim is to have as many layers of society as possible represented in the Citizens' Assembly. Either you just use sortition. Or you put together a mirror of society from the randomly selected people, for example according to age, gender and educational level.

Depending on the topic of the citizens‘ assembly, it can also be important to take into account the migration background - or, as in the case of the citizens’ assembly on nutrition, for example, the eating habits of society. After all, it would have been pointless if only 160 vegans or vegetarians had spoken to each other when 88 per cent of society eats meat.

"Intervention in sortition process must be justified"

Karamehmedovic: One comment on this: any intervention in the sortition process must be justified and reduces the democratic legitimacy of the process. So if a citizens' assembly is to be highly binding and therefore also have a high level of legitimacy, then it can be problematic if - as with the stratified sampling - a second selection takes place based on criteria after the first selection of participants.

Question: In citizens' assemblies, people are randomly selected for participation according to different procedures. Sometimes they are citizens - i.e. only people with German citizenship and the right to vote - and in other cases residents are randomly selected. In this case, people who live in Germany but are not entitled to vote can also take part. Which population makes sense and when? What are the advantages and disadvantages in each case?

Nierth: In our Citizens' Assembly on Democracy, which focussed on whether our representative democracy should be supplemented by other democratic formats, we took this as our starting point: This affects the constitution of our state to such an extent that we preferred to involve only citizens of this country.

"I would advise inviting all residents"

Meanwhile, I have moved away from this and would advise inviting all residents because they are part of society and also contribute relevant points of view. At municipal level anyway, but I would do the same at federal level. At the Citizens' Assembly on Nutrition, all residents aged 16 and over were in the lottery pot.

Karamehmedovic: It is currently a relatively widespread opinion among lawyers that ‘the people’ as a subject that provides legitimacy is the sum of all citizens. At present, citizens' assemblies should therefore be limited to citizens. I don't want to rule out the possibility that the constitution will be amended or that the concept of the people will change in the future as a result of case law, but for the moment this is the only way to legitimise a citizens' assembly.

Nierth: This legitimisation by citizens alone would only be necessary if a citizens' assembly were to be given more authority than a commission of experts. We should not exaggerate this instrument, nor should we ascribe it constitutional status, but rather give it the place it deserves.

"Citizens' assemblies should only be advisory body"

Citizens' assemblies are and should only be an advisory body. Nothing more. That was also our discussion with the Letzte Generation (Last Generation): they are calling for citizens' assemblies primarily because they hope that the recommendations will meet their political demands and ideally be mandatory.

However, there are instruments of direct democracy such as referendums and plebiscites for this mandatory commitment! (Editor's note: These do not yet exist at federal level in Germany).

"Conservatives are seeing red"

I believe that it is precisely this debate about the binding nature and the mixing of the functional logic of referendums and citizens' assemblies that has done us extreme harm with conservative parties. Since the ‘society assemblies’ of the Letzte Generation, they have also been seeing red when it comes to citizens' assemblies. We now have to get out of this imbalance.

Question: A query on this: If a citizens' assembly is only to be used as an advisory body, is it justifiable to also include residents?

Karamehmedovic: That is precisely the crux of the matter: if we say that it is purely an advisory body without legally binding results, then we come into conflict with the budgetary principles. It is simply too expensive a procedure for that.

"Citizens' assembly must be democratically legitimised itself"

If a citizens' assembly wants to say something binding to the constitutional bodies with the highest democratic legitimacy at federal level, it must also be democratically legitimised itself. To do this, however, it must invoke the people from Article 20 of the constitution.

Question: What functions does a good citizens' assembly process fulfil - for politicians, for the public and possibly also for other important groups?

Nierth: Firstly, politicians benefit because they find out what the cross-section of society recommends after having considered the issue in depth. Especially when it comes to highly controversial issues. In Ireland - from which we copied the citizens' assemblies - this was the case with the introduction of same-sex marriage and the legalisation of abortion rights.

Politicians need to recognise added value of citizens' assemblies

In Germany, parliament has not yet used such controversial situations. Perhaps this could have been done for compulsory vaccination, for the design of the heating law or for the consultation on the introduction of a compulsory social year.

From our experience with Mehr Demokratie, we have come to the conclusion that the bigger a reform is, the more important it is to involve the people at an early stage in order to identify the problem areas in the project and make improvements. And to really involve the people. However, our politicians in Germany still need to recognise the added value that citizens' assemblies can have for political decisions.

Secondly, the quality of the results benefits: Unlike in surveys, participants in citizens' assemblies scrutinise their positions in discussions and sometimes even reiterate them several times or deepen them. This creates flexibility within the opinion-forming process in order to ultimately arrive at recommendations that are orientated towards the common good.

"Citizens' assemblies have high level of public acceptance"

Thirdly, citizens' assemblies and their results have a high level of public acceptance. Fourthly, I could imagine citizens' assemblies enriching our talk programmes on radio and TV. Because differences of opinion no longer lead to fierce trench warfare, but to joint solutions through cooperation.

Karamehmedovic: I think the democratic constitutional structure itself would benefit from citizens' assemblies. So the discourse, members of parliament, all of us. We have empirical studies that show that the recognition of our form of government is declining, meaning that there is a loss of legitimacy. Well-organised citizens' assemblies could help here by improving the communication relationship.

Question: To conclude: We imagine that we design a qualified citizens' assembly process that fulfils all the relevant criteria for legitimate use at federal level. On what issue would you like to convene this citizens' assembly?

Karamehmedovic : I think it's important that the topic is highly relevant to society. Only then does it make sense to implement this complex procedure. Take assisted dying, for example: Parliament has not been able to regulate this for years in such a way that the Constitutional Court considers it compatible with human dignity. Compulsory vaccination. Or ethical issues involving physical integrity, for example.

"Ethical issues are particularly suitable"

In recent years, the issue of compulsory vaccination has kept us very busy. I would also like to see a broad-based and publicly visible citizens' assembly on the topic of migration. In other words, if Susanne Daubner publicly randomly selects participants three minutes before the start of the news programme, if the process is widely covered by the press and also discussed in the institutions. And if this citizens' assembly then had a certain binding nature.

Nierth: Exactly, ethical issues are particularly suitable. They affect everyone and are always difficult for politicians to decide. I could imagine citizens' assemblies being very helpful on the subject of migration, the reintroduction of compulsory military service or dealing with the COVID-19 experience. Such a citizens' assembly could also complement a committee of enquiry or a commission of experts or enquiry in parliament. The important thing is that it must be a manageable issue and one that is socially relevant and in which Parliament has an interest.

Question: Has it possibly been a core problem of all previous citizens' assemblies in Germany that they have been set up in the past on topics that were less hotly debated or controversial? What leverage do you think there is to change this - to finally talk about the really exciting issues?

Nierth: That is precisely the difference between Ireland and Germany. In Germany, most parliamentarians still see too little or no need for citizens' assemblies. This is very regrettable, especially in view of the fact that the late Bundestag President Wolfgang Schäuble saw citizens' assemblies as a helpful link between parliament and the population and therefore helped to get them off the ground through his efforts.

Karamehmedovic: I think it needs a lot of publicity and a highly polarised topic. When I see, for example, that the centre of society is completely blank on the migration issue and adopts discourses from the far right, then we are actually where Ireland was with same-sex marriage and abortion.

"Citizens' assembly could objectify the debate"

Politicians are just no longer allowed to say that they can manage all this without a citizens' assembly. This issue is huge in people's minds, even if I don't think it's half as big in reality as far-right parties like to make it out to be. A citizens' assembly could objectify the debate.

Nierth: That's true. This is a top issue where we have reached the point where hardly any party dares to really tackle it any more. It's a very complex issue that needs to be addressed. And it would be important if the different parts of society could enter into dialogue on this issue. I would be right behind the topic of migration. I believe that everyone can only gain from this.

Background: Federal Citizens' Assemblies in Germany