—Tania Groppi, Università degli Studi di Siena
[Editor’s Note: This is one of our ICONnect columns. For more on our 2024 columnists, see here.]
Local government is usually absent from the theoretical debates on the pillars of constitutional law, such as human rights, separation of powers, rule of law.
“Which branch of government should we trust to protect the rights in a democracy?”. Scholars have been debating this question (which marks the opening of the fascinating book by Aileen Kavanagh on the “collaborative constitution”) for decades. While some take a court-centric approach, stressing the importance of the counter-majoritarian principle, others point out that the democratic principle requires giving the people (or to their representatives) the last say.
Both perspectives follow a ‘traditional’ concept of the separation of powers, which implies a rigid division of the three spheres of government. In addition, both neglect the ‘vertical’ separation of powers, i.e. the various forms of multilevel territorial decision-making. Local government has never been referred to as a possible guarantor of rights.
The same could be said for international governmental or non-governmental organizations assessing the state of democracy or rule of law. Almost all of them completely overlook local government.
An example of this attitude is illustrated by the Venice Commission Rule of law Checklist, which merely mentions the principle of separation of powers, and which refers to local government only in relation to the issue of corruption (para 114). Local self-government, and more broadly the vertical separation of powers, is also absent from the EU mechanism on the rule of law and from the UN rule of law indicators.
As for non-governmental organizations, some popular indicators aimed at assessing the level of democracy, such as those of Freedom House or Economist Intelligence Unit, only refer to local authorities when assessing the fairness of local elections.
However, something has started to change in the last few years. The most recent democracy indicator, the V-Democracy Index, includes the Local government index and Regional government index within its dataset. The question examined is: “Are there elected local (or regional) governments, and — if so — to what extent can they operate without interference from unelected bodies at the local level?”.
In addition, “Nations in Transit”, by Freedom House, which since 2016 has been evaluating the state of democracy in the region stretching from Central Europe to Central Asia, pays special attention to local self-government, including “Local Democratic Governance,” among the seven indicators examined.
The World Justice Project, the main project aimed at assessing the rule of law, which ignored local government, is about to start a new and multi-year project, “to produce indicators to assess justice, governance and the rule of law in the European Union at subnational level”.
More interesting still, the Congress of local and regional Authorities of the Council of Europe in its session of March 2024 adopted a report with the noteworthy title of “Local and Regional Authorities as Actors and Guarantors of the Rule of Law”, which, relying largely on the documents of the Venice Commission, and first and foremost on the “Rule of Law Checklist”, expands their scope, underlining the role of local authorities in the defence of democracy and the rule of law. (I contributed to the report, as constitutional advisor to the Congress.)
In fact, in the last few years several monitoring reports of the Congress of Local and Regional Authorities on the application of the European Charter of Local Self-government (among them those on Poland and Hungary) touched on this aspect. These reports pointed out that very often the processes of democratic ‘regression’ through an accumulation of piecemeal changes, resulting in the degradation of the structures and substance of constitutional democracy, go hand in hand with processes of recentralization, eroding the level of autonomy of local authorities.
In the resolution annexed to the Rule of law report, the Congress invites its Monitoring Committee to “work together with the other institutions of the Council of Europe, notably the Venice Commission and the European Court of Human Rights, to include local self-government within the rule of law monitoring activities”. The annexed recommendation invites the Committee of Ministers to: “use the Congress monitoring reports as an early warning mechanism to prevent or address worrying developments with regard to compliance with democratic standards and practices in member States”.
At the same time, the report of the Committee of Ministers on the “Supervision of The Execution of Judgments and Decisions of The European Court of Human Rights 2023” refers to the fact that “the Congress of Local and Regional Authorities has underlined its will to strengthen its contribution to the execution of judgments concerning the activities of local and regional authorities. To this end, the DEJ and the Secretariat of the Congress are in close contact and are exploring the areas in which actions from local authorities are required for the execution process”.
These changes happen to be the consequence of the Reykjavik Summit of the Council of Europe of 16 and 17 May 2023: the fourth meeting in the long history of the organization. The Reykjavik Principles for Democracy (Appendix III), aimed at preventing and resisting democratic backsliding, not only refer to the necessity to actively enable and encourage democratic participation at national, regional and local levels through free and fair elections, but also refer to the separation of powers. The Heads of State and Government commit to “uphold the separation of powers with appropriate checks and balances between different State institutions, at all levels, to prevent any excessive concentration of power” (the emphasis is mine).
These developments at the Council of Europe level urge constitutional law scholars to start addressing more attention to local government. The time has come for those who treasure liberal democracy to take seriously multilevel governance and local self-government, while looking for solutions to tackle rule of law backsliding and strengthening democratic participation.
Suggested citation: Tania Groppi, Local Authorities as Guarantors of the Rule of Law: Recent Developments in the Council of Europe, Int’l J. Const. L. Blog, May 17, 2024, at: http://www.iconnectblog.com/local-authorities-as-guarantors-of-the-rule-of-law-recent-developments-in-the-council-of-europe/
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